Social service provider ordered to pay €31k to unfairly dismissed whistleblower

A social service provider has been ordered pay a whistleblower €31,649 for unfairly dismissing the project worker.

In the case, the Workplace Relations Commission (WRC) has found that the project worker was unfairly dismissed for making a complaint to Tusla the Child and Family Agency (CFA) concerning the uninhabitable conditions endured by a high-risk vulnerable person in the care of Tusla.

The employer in the case was housing the vulnerable person under a contract with Tusla.

However, in April 2018, the project worker informed a senior Tusla worker of the unsafe conditions of an apartment used by her employer to accommodate the vulnerable person in the care of Tusla.

The project worker stated that the apartment had no electricity, no fire certificate, no smoke alarms and was extremely unsanitary.

She disclosed that the fridge was broken and the floors were burnt by a previous client.

As a result of her raising her concerns over the unsafe state of the apartment with a director of the social service provider and then Tusla, the apartment was refurbished.

However, the following month in May 2018, the project worker’s shifts were reduced from 12 to 14 to seven, and in July the social service provider dismissed her for gross misconduct.

The project worker was dismissed for gross misconduct as she did not remain at the empty unit on a Friday night as the vulnerable person aged over 18 she was looking after was authorised to go to a wedding and stay out overnight.

The worker maintained that allowing a service user to stay out for the night without their carer staying in the unit was accepted good practice and had previously been endorsed by a manager and the Compliance Officer.

However, on being told that she was dismissed for gross misconduct for not remaining at the unit by a director of the social service provider the following Monday, the project worker stated that she was "shocked, distressed and upset by her completely unanticipated dismissal”.

The project worker maintains that the allegations that she had perpetrated gross misconduct as completely without foundation and that she was following accepted good practice.

In her findings, WRC Adjudication Officer, Marie Flynn found that the dismissal of the complainant “was opportunistic”.

Ms Flynn said that she could only surmise that the employer “was biding their time and waiting for an opportunity to find some reason, no matter how spurious, to dismiss the complainant”.

Ms Flynn found that the very close temporal proximity between the protected act informing Tusla of the uninhabitable apartment and the dismissal “leads me to believe that the dismissal was contrived as a way of getting rid of the complainant because she had committed a protected act”.

Ms Flynn also found that the reduction in shifts for the worker in May “suggests that the Complainant was being penalised for committing a protected act”.

Ms Flynn found that based on the uncontested evidence of the complainant, she found that the manner in which the complainant’s dismissal was effected "was totally lacking in procedural fairness and contrary to the principles of natural justice".

The WRC Adjudication Officer found that “but for” the Complainant having committed the protected act she would not have been dismissed.

Ms Flynn noted the complainant’s uncontested claim that the employer never raised any issues with regard to her performance prior to her dismissal.

Ms Flynn has ordered the social service to pay the worker €30,000 for her unfair dismissal and a further €1,649 for a series of other workplace breaches.

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