An agency nurse working in intellectual disability residential services who reported a staff colleague for pouring water over a patient has had two complaints alleging penalisation in the aftermath of the incident rejected by the Labour Court.
Gerard Foy appealed decisions by an adjudication officer at the Workplace Relations Commission where it was found, while he had made a valid protected disclosure in respect of the incident, he had failed to establish this had directly led to him failing to secure staff jobs he applied for or to the reduction of his hours as an agency nurse.
At the Labour Court hearing, the HSE acknowledged the incident Mr Foy witnessed in April 2020, which was the pouring of a cup of water over a patient by a female colleague who was directly employed at the facility, amounted to an assault.
It said he followed all the correct procedures in the way he reported the incident to management, but breached GDPR guidelines by also reporting it to two other colleagues coming on duty at the end of his shift.
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Mr Foy said he was told by his line manager if it had been a staff member who had witnessed the incident it would not have been reported. Despite this, he said he believed the incident had not initially caused him any problems in his work and the person who he had reported apologised to him for putting him a difficult position.
This changed over time, he suggested, and he began to feel colleagues turned against him.
In January and February 2022 he applied for staff nurse roles he felt he was more than qualified for but failed to secure the positions. He said they went to far less experienced candidates.
He appealed the outcome but an initial investigation upheld the decision of the interview panel and he did not take the matter further.
He began to get fewer hours, however, and fewer premium shifts. He said he was told this was in part because the colleague he reported, who had been moved to a different area of the facility but was employed there, said she did not want him rostered to work with her and this was facilitated by senior management.
The HSE said because other staff positions were filled, there was less need for agency staff.
Mr Foy wrote to the regional director of nursing for the area, Eva Hayes, to say he felt unsupported by management in the wake of the incident.
Mr Foy said he met Ms Hayes to discuss the situation in October 2022 when he was surprised by the weight attached to the GDPR issue.
He was, he told the court, pressured to apologise for the privacy breach to the staff member he had reported and, fearing he would lose more work, had to agree to undertake GDPR training. The apology he subsequently made to the colleague was in writing because she would not deal directly with him.
He said he felt “isolated, bullied, victimised and punished” because he had acted properly.
The HSE said the incident had been fully dealt with in a confidential process and he had been treated fairly at all times.
The court found he had made a protected disclosure but agreed with the WRC that he had failed to establish a direct link between his report of wrongdoing and his subsequent failure in the recruitment process or what he regarded as other examples of penalisation.
It also said he had failed to prove penalisation during the six-month period it had jurisdiction to consider and the WRC’s decision that his two complaints were not well founded was upheld.
