The Workplace Relations Commission (WRC) has ordered that a care centre pay a ‘whistleblower’ nurse €35,000 for his unfair dismissal.
The male nurse made a complaint on September 6, 2017, over witnessing alleged physical abuse of a resident by a colleague.
In the incident, the male nurse alleged that while sitting in the residential unit's garden, he observed a health care assistant “inappropriately and aggressively push a service user in the kitchen area”.
The worker confronted his colleague by saying “ you can't do that ….what you just did”.
The nurse - on probation at the time after commencing work at the centre in February 2017 - described what he had witnessed as “an assault”.
The nurse made what he believed to be a protected disclosure to his Line Manager and Person in Charge over the incident.
In response to the nurse's unfair dismissal and penalisation claims, the employer denied all claims and told the hearing that the nurse’s complaint from September 6 was not upheld following an investigation by an investigator.
The nurse stated that he had been party to raising large-scale complaints of sexually abusive behaviour in a separate care setting previously “and this had coloured him”.
In her ruling, WRC Adjudication Officer, Patsy Doyle found that the complaint made by the nurse at the care centre falls under the definition of a Protected Act and that he “was penalised by way of his dismissal on December 6th 2017”.
Ms Doyle said that there were other factors in the employment relationship and that the employer had serious concerns over the nurse’s performance, however, Ms Doyle said that she was satisfied that the nurse was unfairly dismissed mainly for having made that complaint.
Ms Doyle found that the nurse “was very shocked by what he saw in the house on September 6th and he took some immediate steps to distance the alleged perpetrator from the service user”.
Ms Doyle said: “I was particularly struck by his reported lingering repulsion at what he had seen".
The employer, a voluntary body reliant on Government funding employs 420 staff at the large care centre.
Ms Doyle said: “I found that the complainant acted responsibly in his role in his reportage of the issue…I am satisfied that the complainant held a reasonable belief that harm had been affected on a Service User and that this amounted to an omission to care.”
Ms Doyle stated that the dismissal "as undertaken amounted to an arbitrary action in the extreme and void of fair procedures".
She added that the immediate dismissal coming "so close to Christmas displayed a scant regard for the effects a dismissal might have on an employee".
She said: “Summary Dismissal has been termed 'the nuclear option' and without question is a devastating experience. The complainant made his complaint in good faith and he had the right to be wrong.”
The nurse argued at the hearing that the reason for his dismissal was governed by whistleblowing.
Ms Doyle found that the worker’s complaint on Penalisation under Safety Health and Welfare at work and his unfair dismissal complaint were well founded.
Ordering the employer to pay €35,000 to the nurse, Ms Doyle stated that the nurse’s contribution to his dismissal and his unavailability for work from August 14, 2018, to February 2019 has been factored into her calculation.