ADJ- 00012333

Complainant

Respondent

Anonymised Parties

A care worker

A state agency

Representatives

James Doran BL instructed by Butler Monk Solicitors

Respondent Management.

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00016386-001

19/12/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 4 of the Protection of Persons Reporting Child Abuse Act, 1998

CA-00016386-002

19/12/2017

The Complainant was originally employed in a clerical capacity by the Respondent in 2001. In April 2002 she was appointed a Trainee Childcare Worker and assigned to a position with the Respondent in the Dublin area.

In January 2004 the Complainant was appointed as a Child Care Worker to a Special Care Unit in Dublin on a temporary capacity and was eventually awarded a Contract of Indefinite Duration in May 2004.

At the time events which led to the Complainant being place on Administrative Leave began to unfold in 2009/2010, she remained employed as a Child Care Worker and was a Shift Coordinator.

In January 2014, the Complainant’s employment transferred to another Government Agency upon that agencies establishment. She is currently employed as a Social Care Worker with this agency and is currently assigned to an establishment in Co. Kildare.

This assignment commenced when the Complainant returned from her Administrative Leave in July 2017.

The Complaint was received by the Workplace Relations Commission on 19th December 2017.

BACKGROUND

1.       Both the Complainant and her husband were employed by the Respondent at a Special Care Unit. In the early part of 2009 concerns were brought to the attention of the management of the centre regarding the interactions between certain members of staff and young persons who were clients/residents of the centre.   Specifically concerns regarding what is referred to as “the XX incident” was brought to the attention of management.

2.       Both the Complainant and her husband were the subject of a campaign of bullying and harassment by certain members of staff and they were subject to being isolated and ignored by them. Sometime in November / December 2009 the Complainant received a complaint from a young boy at the centre that he had been physically abused. She reported the matter to management. Two staff members were suspended pending an investigation of the allegations.

3.       In November 2009, a public blog was set up on the internet relating to the “XX incident”. Numerous references were made by the anonymous blogger(s) who claimed to be staff members. There were derogatory references to the Complainant on the blog site and comments which were both abusive and intimidating. This continued through the month of December 2009.

4.       In addition to the above, text messages were sent to a number of staff outside of work on their personal mobiles. The text messages related to the Complainant and were sent from an unidentified mobile phone number. The number did not match any of the staff telephone numbers on the official list. Some of the staff members who received the text messages advised the Complainant.   The Complainant’s husband with the assistance of colleagues took steps to establish the identity of the person sending the offending texts.

5.       On 23rd February 2010, both the Complainant’s and her husband’s tax documents went missing from the pile of documents sent down from the administration building. A search is carried out by management and staff members for the missing documents to no avail. Eventually the missing documents were found in a locked confidential shredding bin. Out of the entire staff team (50) these were the only two documents tampered with.

6.       Subsequently, a meeting was held in the Director’s office to address ongoing intimidation and bullying issues. Present at the meeting were the Complainant’s husband, the Acting Director and the Acting Head of Care. During that meeting the issues were discussed frankly and assurances were given to the Complainant’s husband that they would both be supported through their rosters being amended to keep the alleged perpetrator away from them.

7.       On 24th February 2010 an anonymous note was left in the public staff communication book (which all staff members read daily). The note was a half-page long and ridiculed the Complainant and her husband. The staff phoned the Acting Head of Care to inform him of the incident and he immediately came to the staff office and removed the note from the book to stop any further humiliation.

8.       The Complainant’s husband sent a detailed letter to the Acting Head of Care in relation to events and requesting an action plan to deal with ongoing issues.

9.       Following a meeting held with management relating to the above issues the Complainant’s husband received a letter from the Acting Head of Care. The letter stated that as a management response to the ongoing issues mentioned above that “we have amended the staff roster allowing no cross over with individuals mentioned in this meeting as best we can”. In practice this meant that the Complainant and her husband would be based at another Centre and on an outreach project to keep them safe from further malicious acts.

10.   On 11th June 2012, both the Complainant and her husband received letters from the Employee Relations Manager stating that the Respondent have agreed to reassign both of them to XXXXXXXXX.   All members of staff at the Centre received these letters with each being redeployed to different areas.   The redeployment never happened.

11.   On 27th September 2010 the Complainant had been working at another Centre for a period of five months as a supportive measure. On this day she received a phone call from a staff member in the original Centre stating that she must report for work at the original Centre. This call gave notice of 1.5 hours’ notice. On turning up at the original Centre, she noticed that two of the individuals who had subjected her to bullying and intimidation were on the Units. As these are the two alleged perpetrators of the bullying, she asked to speak with the Acting Director. She asked for an explanation as to why she had been asked to come to the original Centre as the ongoing issues were still unresolved. The Acting Director informed her that she should just ignore these people and instructed her to go down to the Units. She became very upset and left the Centre ill and distressed and went to her GP.

12.   On 29th September 2010 she sent the Acting Director a detailed letter re what happened on the 27th September 2010 and reminded him of all the ongoing issues that he had failed to address.

13.   She subsequently received a letter from the Acting Director inviting her to a pre-disciplinary meeting to be held at the original Centre. The union representative informed the Acting Director that she would attend however it would be a meeting to progress her ongoing complaint and not a pre-disciplinary meeting. She attended the meeting on that basis. No progress was made at the meeting as the Acting Director told her that she needed to “ignore these people” and “get on with it”. She remained on sick leave as she found out she was pregnant.

14.   Various meetings were held with management during October 2010 in an effort to resolve issues. Alternative proposals were put forward to no avail.

15.   On or about 18th October 2010 there was public commentary over a social networking site relating to the Complainant. This was done through the Facebook site and clearly mentioned the original Centre and employer and gave specifically the names of two members directly relating to a complaint that she took from a young person at the centre.

16.   By letter sent from the Complainant’s GP to the Respondent, it explained that she was very distressed with being bullied at work and that she was now pregnant. The letter recommended that she should not go back to the stressful environment of the original centre. Subsequently, she remained out of work using her full entitlement of sick leave which was then extended further as negotiations continued between the union representative and the Respondent.

17.   Both the Complainant and her husband raised the issue of the comments on Facebook and requested that management take action including a request for a formal investigation.

18.   On 9th March 2011 a letter was received by the Complainant from the Employee Relations Manager stating that it was not his role to extend her sick leave and that this should be done through the Acting Director and Assistant National Director of Human Resources. The letter also stated that the appointment of an investigator must be done by the relevant Service Manager and that he also had no remit over this. NB: both the Complainant and her husband had attended meetings with the union representation and investigator had been discussed. Following the meetings union representative informed the Complainant that she needed to formally write to the Employee Relations Manager in relation to these issues and this was her response to that contact.   This left both the Complainant and her husband confused and was an indication that they were not taking this issue seriously.

19.   At a meeting with the Respondent, Union representative, the Complainant and her husband and the Employee Relations Manager, the Employee Relations Manager advised that the Complainant’s husband could take up the position offered to him in the Social Work Department but that he could not have an answer on his incremental scale increase until the next meeting. The Complainant was told that all her sick leave would be reinstated and that the option for her was to go to another Centre. Management was provided with a letter outlining the reasons why this was not suitable.

20.   Following a meeting with the Employee Relations Manager and at his request the Complainant on 23rd October 2010 met with A N Other of Residential Service. A N Other explained to the Complainant that she had no other services in her remit other than open residential. The Complainant explained that she was led to believe otherwise and apologised for wasting A N Other’s time.

21.   On 24th January 2012 the Complainant phoned the Assistant Director and explained what happened at the meeting.   She also made it known that she was given false information relating A N Other’s role and what she could offer.   He informed her that she would have to wait until the next meeting to air her views.

22.   At a meeting with the Complainant on 8th February 2012, her Union representative told the Complainant that the offer to her at the next meeting which was scheduled for 13th February 2012 would be that she must either go to the original Centre or one of the outreach Centres and that she would have a week to decide. The Complainant explained that she did engage with A N Other but that she had been misled.

23.   Further important points to note

·         Due to large volume of information and length of this process (over 6 years) the above list is not to be taken as exhaustive.   Throughout the entire time there have been many other incidents however the main are listed above.

·         The Complainant has needed medical intervention due to the overwhelming stress, anxiety and uncertainty. She has admitted to Hospital and later diagnosed with psychosomatic stress for which she was medicated. She has attended a therapist for stress and anxiety.

·         There has been loss of earnings, medical, transport and now legal costs all of which she is seeking along with compensation for how she has been treated and let down by the Respondent.

·         From the beginning of the process she has on numerous occasions requested copies of supervision records which support and highlight that these issues were ongoing and being brought to the attention of the management. The supervision records were never released to her each time she was assured that they would but ultimately never came through.

·         Management has never once responded in writing to any formal complaints made and mentioned above.

·         On three separate occasions the union representative appointed an Investigator following agreement from the Respondent who then failed to appoint their own.

·         All the incidents mentioned above have been briefly described. The incidents were described in greater detail through correspondence with the Respondent.

·         There were other meetings held that the Complainant was not present but represented by her union representative.

SUBSEQUENT DEVELOPMENTS

24.   Due to her inability to progress matters the Complainant engaged legal assistance and sought the outstanding issues addressed to no avail.

25.   Effectively due to the failure on the part of management she was on a period of administrative leave for more than 6 years.   Despite repeated requests at meetings with management to set out a position / set of proposals in writing this was not done.

26.   Finally, by letter dated 2nd December 2016 the Complainant was advised that she was being unilaterally transferred to another Centre.

27.   As can be seen this transfer involved a worsening in her working conditions and a deduction in her wages.

28.   Her solicitors replied by letter dated 9th January 2017 and a meeting was confirmed with an Agency for 30th January.

29.   There followed various exchanges and correspondence. They clearly show that the Complainant has been the subject of penalisation specifically but not exclusively by way of an unlawful deduction in wages following the making of a protected disclosure.

SUBMISSIONS

30.   It is the Complainant’s submission that she has been the subject of an illegal deduction from her wages contrary to law and statute, in breach of her contract of employment and without her consent in advance and contrary to the Payment of Wages Act 1991.

31.   It is the Complainant’s submission that she has been the subject of penalisation / victimisation as a result of making a protected disclosure under the Protected Disclosures Act 2014 and/or Protection of Persons Reporting Child Abuse Act, 1998.

32.   It is further submitted that the Respondent failed to ensure that the Complainant’s dignity at work was protected and that she was guaranteed a safe system of work and that her career and progress within her chosen profession has and is being the subject of ongoing damage.

33.   The Complainant reserves the right to make further submissions and to adduce further evidence.

BACKGROUND

1.       In January 2004, the Complainant was appointed as a Child Care Worker in a Special Care Unit in a temporary capacity and eventually was awarded a Contract of Indefinite Duration with effect from May 2004.

2.       At the time the events which led to the Complainant being placed on administrative leave began to unfold in 2009 / 2010, she remained employed as a Child Care Worker in the original Centre and was a Shift Coordinator.

3.       In January 2014, the Complainant’s employment transferred to another Government Agency upon its establishment. She is employed as a Social Care Worker with this Agency and is currently assigned to an establishment in Co Kildare.   This assignment commenced when the Complainant returned to work from her Administrative leave in July 2017.

LEAD UP TO ADMINISTRATIVE LEAVE

1.       At the time these events came to the attention of the then Agency management the Complainant was working at a Special Care Unit in Dublin.

2.       In October 2010 residential management received correspondence from the Complainant stating that she wished to invoke the Grievance Procedure. Sometime later, an undated letter was received referring to alleged references to work related issues on social media.

3.       Throughout the period 27th September 2010 to 31st May 2011 the Complainant was certified unfit for work on medical grounds.

4.       Following the formal raising of the issue above, draft terms of reference were developed in early 2011. A protracted search began to identify investigators to investigate these matters.

5.       Prior to any investigation being launched, the Complainant on 22nd February 2011 emailed management requesting that the complaint be amended from a grievance to a dignity at work complaint.

6.       As stated above, the Complainant was on certified sick leave during this period and in March 2011 she requested an extension to the normal allocation of sick leave and this was granted. This request was also processed through the SIPTU representative at that time.

7.       Throughout this period, the search continued to identify investigators who might take on the issues at hand. However, by July 2011, the Complainant’s GP had advised that she was suffering from work related stress and was also pregnant.   Given these circumstances it was felt prudent not to proceed further until the Complainant returned from maternity leave.

8.       On 8th December 2011 a meeting was held between the Employee Relations Manager and a SIPTU representative to discuss these matters as the Complainant was due back from maternity leave. Following this meeting, it was decided to allow the Complainant to remain absent from work on full salary and payment of all allowances and premia. This was de facto, the commencement of her Administrative leave.

9.       On 1st February 2012, an Occupational Health Physician wrote to the Agency requesting that the Complainant be considered for an alternative role. However, on 13th February 2012 SIPTU formally notified HR that they were no longer representing the Complainant in these matters. On foot of this development, the Complainant was advised that she should now make arrangements for her return to her employment in the original Unit.

10.   On 13th April 2012 a Company of Consultants wrote to the Respondent advising that they were now representing the Complainant in these matters. This letter was also acknowledged by the Respondent on 20th April 2012 and advised he was making arrangements to convene a meeting to progress matters. A meeting was offered for 11th May 2012 however the Consultants were not available. The meeting eventually took place on 8th June 2012. The Consultants had by this time also made a Freedom of Information request to have their client’s personnel files released. The meeting was adjourned to allow the Respondent and residential management side agree a set of criteria for a return to work for the Complainant which would form the basis of further discussion with the Consultants representing the Complainant.

11.   At the latter end of 2012 it would appear that a search was underway to source an alternative work location for the Complainant. It does not appear that sufficient progress was made in these discussions and in early 2013, the Respondent arranged to meet with the Complainant’s representatives.

12.   In April 2013, the Complainant commenced a further period of maternity leave. When the Complainant’s maternity leave ceased in mid-October 2013, she reverted to Administrative leave.

13.   On 16th December 2013 the Complainant’s employment was transferred to another Government Agency upon that Agency’s establishment.

14.   In July 2014, the Complainant commenced a further period of maternity leave. This leave ceased on 20th January 2015.

15.   By mid-2015, further attempts were being made to convene a meeting of all parties. Further discussions took place at management level to identify possible alternative placements for the Complainant which may facilitate a successful return to work outside the original Centre. No final decisions were made or agreement reached and in mid-2016 a meeting took place where the Respondent outlined proposals for the Complainant’s return to work. A delay ensued due to personnel changes in key decision-making roles but a formal written proposal was issued late in 2016 and commenced the process outlined below.

RETURN TO WORK FOLLOWING ADMINISTRATIVE LEAVE

1.       On 2nd December 2016, a letter issued to the Complainant from the Respondent outlined specific proposals aimed at facilitating a reassignment and return to work in a Centre in Co Kildare.   The letter followed a meeting facilitated by the Respondent’s Employee Relations which had taken place sometime earlier and which was attended by the Complainant and her representative.   The letter contained specific proposals around salary and allowances and envisaged a return to work date of 9th January 2017. The essence of the proposal was to provide the Complainant with a fresh start in a centre far removed both geographically and in governance terms from her previous posting at the original Centre and had been specifically identified by residential management as providing a highly likelihood of facilitating a successful return to work by the Complainant.

2.       In a response dated 23rd December 2016 the Complainant responded outlining her opinion that the offer was “not a reasonable accommodation” and indicating that as her representative was in the US she would not be in a position to make any decision on the proposals prior to mid-January 2017. She also requested that alternative locations to the Centre in Co Kildare might be considered by the management side.

3.       In a letter dated 9th January 2017 correspondence was received by the Respondent Employee Relations from BM Solicitors confirming that they represented the Complainant. In this letter the Complainant representatives rejected the offer as outlined in the December 2016 as being “impractical, unworkable and unreasonable but indicated that they were available to meet to resolve matters.

4.       In January 2017, Mr X became the lead representative of the Respondent in the discussions in his role as HR Manager.

5.       On 18th January 2017 the Employee Relations Manager wrote to the Complainant’s representatives inviting them to attend further discussions on 30th January 2017. This invitation was accepted.

6.       On 30th January 2017, a meeting took place. The Complainant and her representatives attended. It was outlined to the meeting that given its rejection by both the Complainant and her representatives the offer outlined in the letter of 2nd December 2016 was withdrawn, but replaced by a more comprehensive range of return to work options. Specifically, three return to work options were outlined to the meeting:

A)      The complainant was free to return to her previous assignment in the original Centre on exactly the same terms, conditions, salary and allowances she previously enjoyed. It was indicated that over time most, if not all, of the colleagues the Complainant had previous interpersonal difficulties with had by this time moved to other me

employments or locations.

B)      A permanent reassignment to another unit in Dublin following its reopening after refurbishment in April / May 2017.   In this option the Complainant would retain her previous terms, conditions, salary and allowances. In the intervening period prior to the re-opening of this Unit the Complainant would be temporarily assigned to another Centre in Co Kildare and transition back to work on a phased basis encompassing work and annual leave. Despite the Centre in Co Kildare not attracting any of the salary or allowances that either a return to the other two Centres would attract, the Complainant would be allowed keep same during her temporary assignment there.

C)      A permanent reassignment to a Centre in Co Kildare. The Complainant would retain the higher salary element payment in Special Care Units following this reassignment but both the allowances only applicable to Special Care would be withdrawn from her. The withdrawal of these allowances would be compensated for at 1.5 times the total annual loss in line with the various Public Service Agreements.

7.       The detailed proposals outlined in A) to C) above were put in writing by the Respondent to the Complainant and copied to her representatives in a letter dated 31st January 2017.

8.       On 13th February 2017, the Complainant’s representatives responded in writing to the letter of 31st January 2017. The Complainant’s representatives sought clarity on the following items:

·         Salary scale and allowance

·         Rosters

·         Loss of allowance if Option C is chosen

·         Annual Leave

·         Transfer policy

·         Public Service Agreements

·         Sick leave

·         Contact / liaison person for any reoccurrence of previous issues

·         Compensation / damages

·         Medical and other expenses

·         Legal expenses

9.       On 28th March 2017, the Respondent wrote to the Complainant’s representative and addressed each of the above in a detailed and comprehensive manner.

10.   Further correspondence was received from the Complainant’s representative on 11th April 2017. It was indicated that the Complainant would choose the option of a reassignment to the Centre in Co Kildare but only subject to her retaining both her Secure Unit allowance and her Shift Co-ordinators allowance, her full allocation of annual leave for the 2016 / 2017 leave year as well as the assignment to the Centre in Co Kildare being the subject of a review after 6 months.

11.   A response issued to the Complainant’s representatives on 26th April 2017. Queries relating to annual leave and in particular the carryover of annual leave accrued during 2 periods of historical maternity leave were clarified which saw the Complainant carrying forward 54 days of annual leave into the new 2017/2018 annual leave year. Regarding the issue of allowances, the condition that the Complainant retain these upon transfer to the Centre in Co Kildare was again rejected with reference made to the 2 other options available to her if she wished to retain all her allowances.

12.   Further correspondence issued from the Complainant’s representatives on 5th May 2017. The letter reiterated previous position in relation to the removal of allowances i.e. the Complainant expected them to be retained and legal proceedings would ensue if they were withdrawn. A previous suggestion that she would attend Occupational Health Consultants with a view to determining her fitness to return to a role in residential care was accepted and it had been previously agreed that Administrative Leave would continue pending a report issuing from the Occupational Health Consultants. A potential error in the calculation of accrued annual leave due to maternity leave was also brought to their attention.

13.   A response to the 5th May correspondence from the Complainant’s representatives issued from the Respondent on 17th May 2017. The Respondent accepted that in fact if the Complainant should accrue annual leave for 3 periods of maternity leave then the carryover of leave upon her return to work would rise from 54 to 67.5 days. The position of the Agency with respect to the removal of allowances was reiterated again as was the Agency’s position on compensation / damages / legal fees as well as a request for the Centre in Co Kildare reassignment to be reviewed after a period of 6 months. Finally, the position regarding the definitive ending of Administrative Leave following review of the Occupational Health Consultants as initially outlined in the Respondent’s letter of 26th April 2017 was reiterated.

14.   A response issued from the Complainant’s representatives on 23rd May 2017 outlining again the Complainant’s expectations that no allowances be removed upon her return. However, the letter also indicated that the Complainant was agreeable to returning. The Agency was advised again that the removal of allowance would become the subject of legal proceedings.

15.   On 30th May 2017 the Respondent wrote to the Complainant confirming her appointment with the Occupational Health Consultants for 15th June 2017.

16.   The Complainant attended a scheduled referral to the Occupational Health Consultants on 15th June 2017.   Following her appointment, they contacted the HR Department of the Agency and indicated that in their opinion, the Complainant was fit to return to work. The written report was followed on 21st June 2017 described the Complainant “appeared well” and “is anxious to return to work and is looking forward to her new role”.

17.   The Respondent wrote to the Complainant’s representatives on 21st June 2017 stating that as she had been deemed fit to return to work by the Occupational Health Consultant they would be writing to her to request she contact her new line manager in the Centre in Co Kildare and make arrangements to return to work there on 3rd July 2017. The Respondent also reiterated again the Agency position regarding the payment of allowances, pointing out that 2 options other than a reassignment to the Centre in Co Kildare had been available to the Complainant if she wanted to retain these allowances. The Complainant has chosen not to work in a secure unit or in the role of a shift co-ordinator so it was the Agency’s position that it was unreasonable of her to expect to be paid the allowances which were specifically attached to these duties and locations.

18.   Also on 21st June 2017 the Respondent wrote to the Complainant confirming her reassignment to the Centre in Co Kildare and requesting she make contact with the Social Care Manager attached to that service. The Respondent also confirmed that the Complainant’s administrative leave would formally cease on 2nd July 2017. The letter outlined the intent of the Agency’s management that the initial period following return would encompass periods of work and annual leave. Finally, this letter reconfirmed Ms A as the liaison person who could be contacted if issues arose regarding the mechanics of the Complainant’s return or if historical issues should resurface for any reason.

19.   On 23rd June 2017 further correspondence issued from the Complainant’s representatives requesting that the Respondent confirm the exact level of annual leave to be accrued and carried over into the 2017/2018 leave year. This was confirmed to the satisfaction of the Complainant as being 67.5 days and the paperwork required to put this into effect was completed and submitted to HR administration.

20.   The Complainant commenced her new assignment on 3rd July 2017 and remains in the Centre in Co Kildare at the time of this hearing.

CONCLUSION

1.       This issue arose during a protracted period of significant interpersonal and inter-professional difficulties at the original centre. These difficulties were multi-faceted and extremely complex and in many instances defied lengthy and determined intervention.

2.       In many instances these Centre’s difficulties were aired across the mainstream print and broadcast media and in many others the difficulties were aired on social media.

3.       The delay in bringing the Complainant’s administrative leave to a conclusion and effecting her return to work was facilitated by several factors:

·         The multi-layered nature of the interpersonal issues involved.

·         The withdrawal of the original complaint from a grievance at work complaint and its change to a dignity at work complaint.

·         The unavailability of investigators to allow the original investigation envisaged to commence.

·         The change in personnel and line management structure over the years and on several occasions on both the Respondent and Agency side.

·         The agreement between the Respondent and SIPTU de facto shelve the complaint and allow the administrative leave to continue while the original Centre closed and the staff team redeployed.

·         The changing of representation on 3 different occasions by the Complainant.

·         The Complainant’s unavailability to progress matters during three separate periods of maternity leave.

4.       In December 2016 an extensive engagement commenced which saw the Complainant return to work by early July 2017. A speedier return would have been achieved but for the introduction of new elements.

5.       During the discussions in early 2017, 3 options were put to the Complainant in detail and the ramifications for salary and allowances of each option outlined on many occasions. The Complainant made an informed choice and chose the option which saw her Secure Unit and Co-Ordinators allowances withdrawn.

6.       At no stage in the discussions between the parties and at no stage during the discussions between the Agency and the Respondent was so called “whistleblowing” discussed or taken into account when putting proposals to the Complainant.

7.       At no stage in the decision-making process was an attempt to victimise the Complainant a factor in the design or delivery of the ultimately successful return to work proposal. In fact, the Respondent’s bona fides in his handling of the issue since becoming involved in late 2016 were acknowledged in writing on several occasions by the Complainant’s representatives.

8.       In short, the Complainant chose the only one of the 3 options before her which would result in the withdrawal of the allowances in question and in the full knowledge of this outcome. She chose neither of the 2 options which would have seen her maintain the allowances.

Extensive written submissions were presented by both parties.

I will address each complaint separately.

CA – 00016386 – 001 – Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991.

In relation to a return to work the Complainant was presented with a number of options that were acceptable to the Respondent and were outlined in a meeting that was held on 30th January 2017, the following is taken from the Respondent’s submission:

On 30th January 2017, a meeting took place.   The Complainant and her representatives attended. It was outlined to the meeting that given its rejection by both the Complainant and her representatives the offer outlined in the letter of 2nd December 2016 was withdrawn, but replaced by a more comprehensive range of return to work options. Specifically, three return to work options were outlined to the meeting:

A)      The complainant was free to return to her previous assignment in the original Centre on the same terms, conditions, salary and allowances she previously enjoyed. It was indicated that over time most, if not all, of the colleagues the Complainant had previous interpersonal difficulties with had by this time moved to other me

employments or locations.

B)      A permanent reassignment to another unit in Dublin following its reopening after refurbishment in April / May 2017.   In this option the Complainant would retain her previous terms, conditions, salary and allowances. In the intervening period prior to the re-opening of this Unit the Complainant would be temporarily assigned to another Centre in Co Kildare and transition back to work on a phased basis encompassing work and annual leave. Despite the Centre in Co Kildare not attracting any of the salary or allowances that either a return to the other two Centres would attract, the Complainant would be allowed keep same during her temporary assignment there.

C)      A permanent reassignment to a Centre in Co Kildare. The Complainant would retain the higher salary element payment in Special Care Units following this reassignment but both the allowances only applicable to Special Care would be withdrawn from her. The withdrawal of these allowances would be compensated for at 1.5 times the total annual loss in line with the various Public Service Agreements.

The choice of options was put to the Complainant who had the benefit of legal representation with her at the meeting. The options were put in writing and sent to the Complainant and copied to her representatives on 31st January 2017. She was given time to consider and discuss the options. Points requiring clarification were clarified. On 11th April the Complainant’s representative wrote to the Respondent indicating that the Complainant would choose the option of reassignment to Kildare but only subject to her retaining both her allowances, her full allocation of annual leave as well as the assignment to Kildare being the subject of a review after six months.

On 26th April a response to the Complainant was issued. Regarding the issue of allowances, the condition that the Complainant retain these in transfer to Kildare was again rejected with reference made to the other two options available to her if she wished to retain all her allowances. After some further correspondence the Complainant accepted the transfer to Kildare and commenced her new assignment on 3rd July 2017.

In coming to any decision on this complaint I cannot overlook the point that three options were put to the Complainant who chose the only one of the three options before her which would result in the withdrawal of the allowances in question and in the full knowledge of this outcome. She chose neither of the options which would have seen her maintain the allowances.

Moving forward the Complainant should accept the compensation for the loss of the two Special Care allowances and that is based on the norm in various Public Service Agreements i.e. 1.5 times the annual loss.

For these reasons outlined I find that the complaint under the Payment of Wages Act,1991 is not well found and therefore fails. 

CA -00016386 – 002 – Complaint seeking adjudication by the Workplace Relations Commission under section 4 of the Protection of Persons Reporting Child Abuse Act, 1998.

Section 4 (1) of the act reads:

‘An employer shall not penalise an employee for having formed an opinion of the kind referred to in section 3 of this Act and communicated it, whether in writing or otherwise, to an appropriate person if the employee has acted reasonably and in good faith in forming that opinion and communicating it to the appropriate person’.

Acts of penalisation include:

·         Suspension, layoff or dismissal …. Or the threat of suspension, layoff or dismissal.

·         Demotion or loss of opportunity for promotion.

·         Transfer of duties, change of location of place of work, reduction in wages or change in working hours;

·         Imposition of any discipline, reprimand or any other penalty (including financial penalty); and

·         Coercion or intimidation

(source: Safety, Health and Welfare at Work Act 2005)

In placing the Complainant on Administrative Leave for a period totalling 5.5 years (less two periods of maternity leave) the Respondent has placed the Complainant in isolation, they have changed her work location to her own home, they have taken her duties from her completely, they have taken her working hours away from her and denied her any prospect of promotion. All she was guilty of was doing her job in a professional manner.

Under section 5 (c) of the Protections for Persons Reporting Child Abuse Act, 1998 I can:

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 104 weeks remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act, 1977…….

I now declare that the complaint under Section 4 of the Protections for Persons Reporting Child Abuse Act, 1998 is well found.

I order the Respondent to pay the Complainant compensation of €12,500 for the penalisation suffered by her pursuant to the Protections for Persons Reporting Child Abuse Act, 1998.

As outlined above.

Payment of Wages, Protections for People Reporting Child Abuse Act, 1998. Penalisation.