Charity for ex-offenders ordered to pay nearly €20k to outreach worker

An outreach worker who accused his employer, a charity for ex-prisoners, of leaving him suspended without pay after he made a protected disclosure, has secured an order for nearly €20,000 for employment law breaches.

The Workplace Relations Commission was told it happened after the case worker at the U-Casadh Project in Waterford, Michael McGagh, made a protected disclosure about certain matters before launching proceedings in the High Court and taking number of periods of sick leave.

Mr McGagh had statutory complaints upheld against his employer under both the Payment of Wages Act 1991 and the Terms of Employment (Information) Act 1994.

In its decision, published this morning, the WRC ordered the charity to pay him €16,305 in unpaid wages – adding a further 8%, €1,305.29, to make provision for holiday pay which would have been due to him.

The tribunal also found the charity had failed to provide the complainant with a compliant statement of his terms of employment, and ordered it to pay €2,307, three weeks’ pay.

It noted that U-Casadh had allowed Mr McGagh to come back to work in December 2019 after a number of periods of illness – only to tell him when he took annual leave that he “should not return” until his contract was renewed.

A disciplinary probe launched eight months later in August 2020 ultimately found Mr McGagh had “no case to answer” – but the process took a further nine months.

Mr McGagh’s solicitor, Mark Walsh of Kenny Stephenson Chapman, said his client had been subject to a “wholly unjustified” suspension in breach of fair procedures from 27 December 2019 to 19 July 2021.

Mr Kenny said his client had “readily engaged” with U-Casadh about a meeting originally scheduled for January 2020, but that this proposed meeting “never took place”.

In August 2020, Mr McGagh was put on notice of a formal investigation into “certain instances of alleged misconduct” – including his absence from work from 2019 into 2020, and the provision of medical certs, the tribunal heard.

The investigation lasted until May 2021 and concluded Mr McGagh had “no case to answer”, Mr Kenny said, adding that his client went back to work two months later.

The charity, which was represented by Rebecca DeGroot of the HR advisory Peninsula Group Ltd, said that it needed to “review” Mr McGagh’s role and had “issues to discuss” with him in December 2019 – adding that it wrote to arrange a meeting with him, but that none took place.

Ms DeGroot maintained Mr McGagh was “out of contract” after December 2019 and that he “had not provided the correct medical certification of fitness to return to work”.

As he was not an employee, he could not claim for wages or holiday pay, she argued, adding that the complainant was “at all times aware of his terms and conditions of employment”.

Adjudicating officer Janet Hughes wrote in her decision that any issues the charity had with the medical certification “should have been addressed” before Mr McGagh was allowed to return.

She wrote that the complainant had “no alternative but to comply” with the direction that he stay away from the workplace in December 2019, but that it was clear that the employment relationship had continued, as the charity “continued to engage… throughout 2020 as if he was an employee”.

As the charity “clarified that the complainant was not suspended”, she found the letter in December “had the effect of excluding the complainant from his workplace, resulting in an unlawful deduction of the wages properly payable to him”.

She made an order for the payment in respect for the five months prior to Mr McGagh’s complaint being lodged in May 2020.

Mr McGagh had originally sought a sum of €61,795.85 for 565 days of unpaid wages between January 2020 and July 2021, but Ms Hughes wrote that she was precluded from examining matters forward of the date in the complaint form.

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