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Protected Disclosures Act 2014 – Application for Injunctive Relief

Employment Law - For Employees

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The recent case of Dan Philpott v Marymount University Hospital and Hospice Limited 2015/364 (Circuit Court) (unreported) delivered on June 12th 2005 is the first reported case under the Protected Disclosures Act 2014.

Background

The applicant in this case commenced employment on 6th May 2014 on a five year fixed term contract. On 2nd December 2014 the applicant was told his contract would be terminated and the respondent asserted this was due to significant interpersonal difficulties between the applicant and other members of staff. The applicant had been out on sick leave from 12th December 2014 until his final date of termination on 2nd February 2015. The applicant contended that he was dismissed by virtue of making “protected disclosures” within the meaning of the Protected Disclosures Act 2014. The applicant commenced proceedings before the Employment Appeals Tribunal for unfair dismissal and sought within the context of the Circuit Court proceedings, interim relief pursuant to Schedule 1 of the 2014 Act. In essence the applicant sought the continuation of the terms of his contract of employment pending the determination of the proceedings before the EAT.

Protected Disclosures Act 2014

Section 5 of the Act provides that a “protected disclosure” means a disclosure of “relevant information” made by a worker. Section 5(2) provides that information is “relevant information” if

(a) In the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and

(b) It came to the attention of the worker in connection with the worker’s employment.

Section 5(3) goes on to provide the matters considered to be “relevant wrongdoings” and Section 5(8) provides that “In proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is”.

The respondent acknowledged that the burden of proof rested with them in respect of the above test and that if the respondent was able to prove that the disclosures were not “protected disclosures” then the applicant did not have the protection of the Unfair Dismissal Acts 1977 (as amended) and could not obtain the interim relief sought.

Disclosures and Alleged Wrongdoings

The applicant set out a number of disclosures and alleged wrongdoings in his formal protected disclosure document dated 7th January 2015 sent to the Board of the Hospital.

  1. Charity funding being used for needs other than Palliatative Care

The applicant alleged that the charity funding was being used as a working capital fund and to fund various salaries and administration expenses etc. The Circuit Court rejected this assertion by the applicant as the Charities Act 2009 does not provide that such expenditure is contrary to the Act. The Court also noted that Marymount hospice has been a registered charity for some time and no complaints have been made in regard to any authority.

The applicant also contended that the Board was aware that there was a lack of transparency in how it conducted fundraising and how it was spent. The Court noted that the evidence of Dr Marie Murphy, a consultant in palliative care, completely contradicted the evidence of the appellant as Dr Murphy had clearly set out how the hospice were involved in the proper dispersion of donations and bequests and that she was paid a basic salary and no top up payments had been made to salaries as set out on the website.

2. Significant issues with the building which posed and continued to pose critical risk to the health and safety of patients, staff and public.

The applicant referred to possible Legionnaires contamination and in particular to an incident on September 14th 2014 which resulted in critically ill patients having to be evacuated. The respondent entirely refuted this in cross examination and stated that what in fact happened was that a few patients had to be moved to another ward for a short period of time and the situation was not as serious as described by the applicant. The Circuit Court actually noted that use of the term evacuation as described by the plaintiff was alarmist. The applicant also referred to a suspended ceiling stricture at the public main entrance in August 2014 and the delay in obtaining repair measures for three days posed a risk to the public. The Court again noted that despite these allegations the building had passed two HIQUA registrations since opening in 2011.

3. Mismanagement of financial resources

The applicant also expressed concern that the original building contract document with the contractors was missing and was impeding remediation and loss recovery issues. He also stated this was indicative of lack of financial control resulting in the loss of public monies and charitable donations. The respondents stated that a firm of Loss Adjusters were in the process of recovering the losses through  consensus means outside the court system. Further evidence was given whereby the
Hospice had gained approval and funding to open a second palliative care ward. The applicant raised further concerns in relation to the inadequate number of registered nurses to staff the additional facility however this was overcome. The applicant also had a number of concerns in relation to funding and budgetary control and believed that HSE may have to intervene and take control. The applicant did not furnish financial information to support the allegations including that the hospice financial control procedures were ad hoc and had an inadequate budget planning approach.

The applicant was also concerned at funding being given for a PhD course for the head of nursing  while the applicant at the same time accepted funding for a corporate governance course.

Decision

Judge O’Donoghue noted that as this was an application for interim relief that the court only had to satisfy itself that the beliefs and disclosures were reasonable. The Court accepted the sincerity of the plaintiff but that objectively on the facts he had not satisfied the test.

The Court therefore refused the interim relief.

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