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Whistleblower awarded five years salary by Workplace Relations Commission

A compensation award of five years salary was made by the Workplace Relations Commission to a massage therapist who suffered penalisation following a protected disclosure which she made to her employer at the time. The protected disclosure was in relation to the requirement for the complainant to provide sexual services to clients during her employment.

 

The complaint

The complainant started her employment with the respondent in February 2020. She usually worked 40 hours per week and was paid €70 per day in cash. She was entitled to receive written terms of her employment under the Minimum Notice and Terms of Information Act 1973. This was not complied with.

Soon after her employment started, clients began to ask for additional services of a sexual nature. She gave evidence that other workers in the massage therapy business which her employer ran, provided such services. She then proceeded to raise this with her managers. She was informed by her managers that she could say no to the services but that they could assure her that she wouldn't get any more clients. She understood this to mean that the respondent would cease giving her any clients at all.

Under duress, the complainant began to provide limited sexual services whilst continuing to be pressured to give an additional range of sexual services. She informed her manager and on a number of occasions that she was not willing to do so.She expressed concerns about her own health and safety and conditions of work. Her managers ignored her complaints and continued to put her under pressure to provide these services to the clients. She stated that her male manager frequently attended the massage therapy parlor to obtain free massages and pressured her to touch him intimately or to provide sexual services.

When she refused to provide her male manager with sexual services and supported another worker she noticed a deterioration in the way she was treated by her managers. She stated that  the female manager became rude, dismissive and derogatory towards her. She began to receive less work. The employer also brought in a policy where the complainant would not be paid unless she saw at least four clients during the day. This resulted in numerous cases where she was not paid at all for her day's work.

During the covid-19 pandemic the business closed for another for a number of months. When the business reopened, the complainant took a leave of absence and returned to her native country. When she returned to work her own working conditions continued to worsen. The colleague whom she had been supporting had resigned. In the meantime ,when the complainant returned from two weeks' holiday she discovered that she was not rostered to work at all. When she raised this with her manager,, she was informed that there would not be any more work for her and that she should find another job. She was dismissed on the 17th of May 2022.

 

 Penalisation following a protected Disclosure.

The complainant’s case in respective penalisation for having made a protected Disclosure centers around the fact that she made a protected disclosure regarding the nature and safety of her work together with concerns about her own health safety and conditions of work first up she gave evidence that the protected disclosure was made directly to her managers full stop directly following this disclosure she suffered penalization in that she experienced a deterioration in her treatment at work which included derogatory behaviour and a reduction in working hours.

 

The decision

The Adjudicating Officer examined the complaint under the Protected Disclosures Act 2014 and the Protected Disclosures (Amendment) Act 2022. He referred to the case of Baranya v Rosderra Meats which stated that “ a complaint made by an employee that his or her own personal health or safety is endangered by workplace practices is clearly within the remit [...] "of the acts. The adjudicating officer held that the disclosure made by the complainant constituted a protected disclosure under the acts. The acts provide for compensation to be made where an adjudicator makes a finding of penalisation to the extent as he or she “considers just and equitable having regard to all the circumstances.”

The Adjudicating Officer found that the complainant was penalised. They stated that the penalisation took various forms including a change in attitude towards her and reduction in her remuneration arising from being assigned fewer clients. They held that there was a causal link between the protected disclosure and the penalisation, as the complainant was expressly told that she would be assigned less clients if she did not provide sexual services. The respondent failed to attend the hearing and therefore did not provide any evidence in rebuttal or Defense. Tthe adjudicating officer found that the treatment of the complainant after having made a protected disclosure constituted further penalisation in the form of coercion, intimidation, harassment and unfair treatment.

 

The award

 

The Protected Disclosure Act 2014 and the Protected Disclosures (Amendment) Act 2022 provide for a maximum award of five years gross remuneration in the event of a breach. The intention in allowing such a high award was to protect persons making a protected disclosure. The adjudicating officer  referred to case law from the ECJ which found that such redress “should not only compensate for Economic loss sustained but must provide a real deterrent against future infractions”.

 

The Adjudicating Officer took into account the following:

  • The complainant was not a native English speaker. 
  • She was an exceptionally vulnerable worker who came to Ireland to study and work to support herself. 
  • She suffered significant emotional stress and humiliation at the hands of the respondent as a result of having made a protected Disclosure. 

The adjudicating officer made an award of the maximum permissible amount of five years gross remuneration (A sum of €91,000)

 

Additional claims

 

The complainant also submitted a number of other claims including the Following

  • An unfair dismissal claim
  • A claim in respect of her employers failure to provide her with a statement of written terms of employment
  • A claim in respect of failure to provide notice or payment in lieu of notice when dismissing her
  • A claim in respect of holiday entitlements and new line a claim for unlockable deductions from her salary.

 

She was successful in all of the above claims with exception of the final claim as it was out of time as  the deductions had occurred prior to the six months period before the claim was initiated in the WRC.

In total the Adjudication Officer ordered the employer to pay the complainant a total of €102,550  for the penalisation claim together with the successful claims mentioned above.

 

What should I do next?

 

If you feel that you have been penalised as a result of making a protected disclosure under the Protected Disclosures Acts you should seek help. You must make a claim within six months of the incident .If you would like assistance with your claim,please contact us using the orange Yes! Tell Me More button below for advice on what steps to take next.

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It is important that you act as soon as possible as the time limit of six months can run out very quickly.

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