Court denies interim relief for protected disclosure claim due to failure to prove reasonable belief in wrongdoing.

[2015] IECC 1

Record No: 2015/364

THE CIRCUIT COURT

CORK CIRCUIT - COUNTY OF CORK

IN THE MATTER OF SECTION 11 OF THE PROTECTED DISCLOSURES ACT, 2014

BETWEEN

DAN PHILPOTT

APPLICANT

AND

MARYMOUNT UNIVERSITY HOSPITAL AND HOSPICE LIMITED

RESPONDENT

Judgment of O’Donohoe J given on 12th June 2015

Facts:

1. The Applicant commenced work with the Respondent on the 6th May 2014. The Applicant was employed with the Respondent on a

five year fixed-term contract only. The Respondent asserts that the Applicant was dismissed by reason of significant interpersonal

difficulties between the Applicant and other members of staff, in particular, the Executive Team. The Respondent communicated on

the 2nd December 2014 to the Applicant that his contract of employment would be terminated. The actual termination date was the

2nd February 2015. The Applicant was out of work on sick leave from the 12th December 2014 until the final date of termination of

the contract of employment on the 2nd February 2015. The Applicant had seven months service at the date of the termination of his

contract of employment. The Applicant was paid three months’ pay in lieu of notice.

2. The Applicant claims that he was dismissed by virtue of making allegedly “protected disclosures” within the meaning of the

Protected Disclosures Act, 2014. If this is correct, the Respondent does not require twelve months service to come within the

provisions of the Unfair Dismissals Acts, 1977-2007.The Applicant commenced the proceedings under the Unfair Dismissals Acts, 1977-

2007, before the Employment Appeals Tribunal seeking an Order for reinstatement and claiming that he was unfairly dismissed by

reason of allegedly making “protected disclosures”. The Applicant has sought within the context of these proceedings, Interim Relief

pursuant to Schedule 1 of the Protected Disclosures Act, 2014. The Applicant has sought a continuation of the terms of his contract

of employment pending the determination of the proceedings before the Employment Appeals Tribunal.

The Law:

1. Section 5 of the Protected Disclosures Act, 2014 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 to the worker’s employment.

2. Section 5(3) provides that the following matters are “relevant wrongdoings” for the purposes of this Act:-

(a) That an offence has been, is being or is likely to be committed,

(b) That a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under

the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any

work or services,

(c) That a miscarriage of justice has occurred, is occurring or is likely to occur,

(d) That the health and safety of any individual has been, is being or is likely to be endangered,

(e) That the environment has been, is being or is likely to be damaged,

(f) That an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has

occurred, is occurring or is likely to occur,

(g) That an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or

constitutes gross mismanagement, or

(h) That information intending to show any matter falling with any of the preceding paragraphs has been, is being or is

likely to be concealed or destroyed.

3. Section 5(8) provides:

“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 acknowledges that the burden of proof in that regard rests with the Respondent. It is asserted that if, the

Respondent proves that the said “disclosures” are not “protected disclosures”, then the Applicant does not have the protection of the

Unfair Dismissals Acts, 1977-2007, and cannot obtain the Interim Relief sought.

4. However, if the Respondent fails to prove that the disclosures were not “protected disclosures” then it is for the Applicant to prove

that “it is likely that there are substantial grounds for contending that dismissal results wholly or mainly from the employee having

made a protected disclosure”. In the event that the Court so finds and the Respondent states an unwillingness to either reinstate or

re-engage the employee, the Court shall make an Order for the continuation of the employee’s contract of employment pursuant to

Section 9(b) of the Protected Disclosures Act, 2014.

Analysis:

This court proposes to deal chronologically with each of the disclosures and details of alleged wrongdoings as set out by the applicant

in his formal protected disclosure document dated 07 January 2015, sent to the Board of Marymount Hospice.

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

It is being used as a working capital fund, to fund administration, portion of salaries, expenses of board members, executives and

employees etc. This diversion of charitable donations represents an improper use of funds given in good faith.

This court rejects this assertion out of hand on the evidence as such expenditure is not contrary to the provisions of the Charities

legislation 2009 and updated provisions which came into force in 2014. It is patently clear that the Marymount Hospice is a registered

Charity for a considerable length of time and any money spent from donors is for the good of the community and is fully compliant.

Furthermore there have been no complaints made in this regard to any authority.

The applicant further asserts that the Board is aware that there is an inherent lack of transparency in how it conducts fundraising

and how it is spent. This was not borne out by the evidence in particular by Dr Marie Murphy Consultant in Palliative care who set out

the aims and aspirations of the Marymount Foundation in the proper dispersion of donations and bequests and was indeed emphatic

that she was in receipt of a basic salary and that there were no top up payments made in the organisation as set out on the website.

This blatantly contradicts the evidence of the Applicant who could have taken down the website if he genuinely believed that top up

payments existed.

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

staff and public.

His assertions in this regard refer inter alia to possible Legionnaires contamination due to failure to monitor water temperatures and

the necessity to install contingency hot water tanks and other measures to offset a potential explosion risk adjacent to the busy

palliative care wards. He refers in particular to an incident on September 14th 2014 which resulted in critically ill patients having to be

evacuated. This was entirely refuted in cross examination as completely overstated as the occurance involved a few patients being

transferred to a nearby ward for a short time until the situation came under control and was not anything as grave as was portrayed

by the Applicant. This court was of the view that the use of the term evacuation in this context was alarmist and not reasonable

terminology to describe this water leak.

A collapse of a suspended ceiling structure at the public main entrance on August 2nd 2014 and delay in deploying repair measures for

three days posed a risk as the general public used the entrance in the meantime together with an inadequate after hours emergency

repair service. Overall preventative and overall maintenance undertaken in the new building was not fit for purpose and lack of proper

budgeting in this area would pose further risk.

Despite these allegations the building passed two HIQUA registrations since opening its doors in 2011 due in no small part to the

vigilance of the CEO management and staff. It is a state of the art facility in a wonderful peaceful setting.

3. Mismanagement of financial resources

Finally the Applicant expressed concern that the original building contract document

with the contractors BAM was missing and was impeding remediation and loss recovery issues and was indicative of a systemic lack of

financial control and resulting in the loss of public monies and charitable donations. This was countered by the Respondents in

evidence saying that a firm of Loss Adjusters were in the process of recovering the losses through a consensus means outside the

court system. Surprisingly no financial detail was tendered to support these assertions. Messrs JW O Donovan Solicitors are dealing

with the matter according to Mr Ciaran Barry, Chairman and his evidence was that the losses were recoverable and much less than

stated by the applicant.

Further examples were given where during the last year the Hospice successfully gained approval and funding to open a second

Palliative care ward increasing bed capacity from 24 to 44 securing a revenue budget from the HSE of 2.2 million Euros.

Unfortunately within months of starting the project it was discovered that it underestimated by 33 percent the budgetary cost to

safely operate the facility.

Also concerns were raised about the inadequate number of registered nurses ready to staff the additional facilities due to budgetary

constraints fortunately this was overcome.

Overrun costs in the establishment of a pain clinic because of inadequate budget strategy and underestimation were a cause of

concern to the applicant.

He warns that the funding and lack of budgetary control is so out of kilter at the Hospice that the HSE may intervene and take

financial control.

He cautions against an over reliance on charity funding as a working capital source and labels the EC as disengaged and that the

Hospice financial control procedures are ad hoc and an inadequate budget planning approach. Again there was no financial information

tendered to support these contentions. Government underfunding is the underlying issue here, this is accepted as a given fact.

The applicant was critical of funding of a PhD course for the head of nursing in advanced nursing care whilst at the same time he

accepted funding for a corporate governance course himself which clearly is at odds with his concerns as outlined.

Decision:

This is an interim application for relief akin to injunctive relief. This Court has only to satisfy itself that the beliefs and disclosures

were reasonable and although the Court accepts without reservation the sincerity of the plaintiff. Objectively on the facts in the

Court’s view he has not satisfied that test. Accordingly, the Court refuses interim relief.