Complainant

Respondent

Anonymised Parties

An Employee

A Catering Company

Representatives

Paul Ryan Citizens Advice Service

Pamela Clancy Clancy Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00018098-001

22/03/2018

The Complainant commenced employment with the Respondent (a catering company) on 6 November 2017, in the role of the catering supervisor. The Complainant’s place of employment was a second level school, where the Respondent had the catering contract.

The Complainant’s employment was terminated by the Respondent on 12 January 2018 on the grounds of failure to pass probation.

The Complainant submitted a complaint, under the Protection of Persons Reporting Child Abuse Act, 1998, to the Workplace Relations Commission, on 22 March 2018.

In her complaint form, the Complainant stated that she was penalised for reporting a breach of the Protection of Persons Report on Child Abuse Act, 1998. The Complainant stated that a complaint, which is she submitted to the Respondent by email on 8 December 2017, related to a fellow employee buying a student’s lunch so that the student would spy on the other children and tell her the gossip. According to the Complainant, the employee in question would ask students very personal questions about their boyfriends/girlfriends and their sex life.

With regard to the termination of her employment, the Complainant submitted, in evidence, that on 8 January 2018, her first day back at work after Christmas, she received a phone call from a member of the Respondent’s management (Ms B). The Complainant stated that as a result of the phone call a meeting was arranged for the following day.

According to the Complainant’s evidence, when she attended the meeting, Ms B queried her as to how she was getting on. The complaint stated that, given she had only started on 6 November 2017 she informed Ms B that she was still learning as she went. The Complainant also stated that Ms B did not raise any concerns about her work.

The Complainant stated that the employee she had raised concerns about (Ms A) also had a meeting with the Respondent on 11 January 2018.

According to the Complainant, she received a message from Ms B instructing her to leave the keys at reception, as there were builders coming in on the Friday to fix the roof. She further stated that, as soon as she got home, she received a phone call from Ms B saying that she was being fired because of problems with ordering and that the school had concerns about her. The Complainant further submitted that Ms B did not share with her the concerns raised by the school. In response, the Complainant stated that she had no prior warning, as the school had never mentioned any concerns to her. In fact, she claimed that the teachers who used the canteen always thanked her for the work she was doing.

The Complainant stated, in evidence, that she received no formal training from the Respondent. She stated that her sister was the previous supervisor and she worked two weeks with her before she left. She further submitted that if she had any problems or questions she was always able to ask her sister what to do and she would always help her, including with orders.

According to her evidence, the Complainant raised the complaint about her colleague, Ms A, for two reasons. Firstly, she had concerns about Ms A regarding child protection, which were based on Ms A asking students questions about their personal lives and also buying a student lunch in order that they would spy on other students and go back and tell her the gossip. According to the Complainant’s evidence she witnessed such incidents herself.

The Complainant submitted that her second concern in relation to Ms A related to her (Ms A) not listening to her as her supervisor. The Complainant submitted that Ms A was always rude to her and belittled her. The Complainant further submitted that she felt bullied by Ms A. In addition, the Complainant stated that Ms A also tried to serve food that was dropped on the floor and was trying to give away free food which she (the Complainant) was not allowing.

Background:

It was submitted that the Respondent provides on-site canteen and catering services to approximately 62 schools nationwide. The Respondent employs approximately 200 staff. It was further submitted that the Respondent has contractually been providing services to the school, where the Complainant was employed, since about 2015.

Engagement process:

It was submitted on behalf of the Respondent that there was no engagement by the Complainant or her representative prior to lodging her claim with the WRC. The Respondent further submitted that their legal representative wrote to the Complainant on 4 and 30 July 2018, having furnished a Notice of Particulars, but no reply was received this correspondence.

Complainant’s Employment History:

It was submitted on behalf of the Respondent that the Complainant commenced employment on 6 November 2017 as a Canteen Supervisor. It was further submitted that the Complainant was to work along with another existing employee (Ms A), who was employed on this site since 2015. According to the Respondent’s evidence, the position of Canteen Supervisor had been previously held by the Complainant’s sister.

According to the Respondent’s evidence, the Contract of Employment was a fixed term contract, to commence 6 November 2017 and to end on 1 June 2018. It was further stated that this contract of employment included a nine-month probationary period. It was further stated that the complainant was provided with written terms and conditions, a Job Description and an Employee Handbook.

It was further submitted that training and induction was provided to the Complainant, together with ongoing support from management in the Respondent’s Head Office, who liaised with the Complainant in relation to issues arising with stocking and ordering of supplies.

Substantive Issues:

It was submitted that, on 8 December 2017, the Complainant sent a complaint about Ms A to the Respondent’s HR Section. In this email the Complainant complained that Ms A was undermining her in her role as supervisor and behaving inappropriately with students. It is submitted on behalf of the Respondent that there was no specific allegation in relation to child abuse in this email.

According to the Respondent’s evidence, the business was closed between 22 December 2017 and 9 January 2018 to reflect the academic Christmas holidays. It was submitted that on 8 January 2018 a member of the Respondent’s management telephoned the Complainant to discuss her complaint and arrange a meeting.

It was further submitted that, on 11 January 2018, prior to the Respondent meeting with Ms A, the Complainant telephoned the Respondent to further complain about Ms A.

According to the evidence submitted, the Respondent met with Ms A on 11 January 2018 to further discuss the Complainant’s complaint. It was further submitted that, at this meeting, Ms A raised a number of concerns in relation to the Complainant’s work. It was stated that these complaints related to the Complainant’s unilateral changing of the menu, significant difficulties with stocking and ordering, unnecessary wastage, a noncooperative approach to dealing with students and teaching staff, her own approachability, food hygiene issues, refusing to provide salads for teachers not ordered by certain time, causing salad orders to decline and refusing to facilitate students who are short of change.

The Respondent submitted that Ms A clarified the situation with the student referred to in the Complainant’s complaint. According to the Respondent, Ms A stated that the student in question was known to her and her family and was aged 17 years of age.

According to the Respondent’s evidence, they also met with the Principal of the School on 9 January 2019. It was submitted that the Principal confirmed she was familiar with the Complainant, as she (the Principal) regularly supervised lunch breaks in the canteen. According to the Respondent’s evidence, the Principal corroborated much of what had been reported by Ms A in relation to the Complainant.

The Respondent further submitted that the Principal also complained about the Complainant, including, inter alia, that she witnessed a coin falling into curry which continue to be served by the Complainant, that the complainant was seen handling money and school without washing her hands, that the complainant was seen placing scones that have fallen on the floor back for serving, that the Complainant had advised the Principal on return to school in January that there would be a shortage of meals that day due to a problem with ordering/stock, that the Complainant had issued (without authority) an order to teaching staff in relation to the provision of salads and that the Complainant demonstrated a reluctance to facilitate students.

According to the Respondent, the Principal advised that the Student Council was not happy with the Complainant’s approach and that the School and its staff were not happy either. The Respondent also stated that the School Principal did not raise any child welfare concerns in relation to Ms A and/or any student.

The Respondent submitted that, on 12 January 2018, they telephoned the Complainant to discuss the various concerns. It was further submitted that during this call, the Respondent advised the Complainant that she had not passed a probationary period and her contract was being terminated.

In further evidence, the Respondent submitted that, later on 12 January 2018, they also received a telephone call from the School Principal who stated that the Complainant had telephoned her demanding to know what had been said about her. It was also submitted that the Respondent was contacted by the Complainant’s sister who demanded to know what was happening and stated that the issues could not be to do with ordering, as she was assisting her sister with this process.

Conclusion:

In summing up on behalf of the Respondent, the legal adviser submitted that the Complainant was relying on the provisions of Section 4 of the Protection of Persons Reporting Child Abuse Act, 1998. It was further submitted that the information provided by the Complainant in her email dated 8 December 2017, and subsequently in the meeting dated 11 January 2018 did not sufficiently indicate any child welfare concerns, in particular, relating to Section 3 of the Act.

In conclusion, it was submitted, on behalf of the Respondent, that the Complainant failed to pass the probation and that this had nothing to do with Section 4 of the Act. According to the Respondent, the Complainant was dismissed for reasons primarily concerning food safety and other work practice issues. It was further reiterated that the Respondent did not dismiss the Complainant for issues relative to the 1998 Act.

The Complainant’s claim is that she was penalised for reporting a breach of the Protection of Persons Reporting Child Abuse Act, 1998. In order to assess the Complainant’s claim in this regard, it is necessary to consider whether or not the matter at the core of the complaint against her colleague constituted a breach of the aforementioned Act and, if so, whether the reporting of same resulted in the termination of the Complainant’s contract of employment.

Section 3 of their Protection of Persons Reporting Child Abuse Act, 1998, states as follows:

3. - 1) “A person who, apart from this section, would be so liable shall not be liable in damages in respect of the communication, whether in writing or otherwise, by him or her to an appropriate person of his or her opinion that—

(a) a child has been or is being assaulted, ill-treated, neglected or sexually abused, or

(b) a child's health, development or welfare has been or is being avoidably impaired or neglected,

unless it is proved that he or she has not acted reasonably and in good faith in forming that opinion and communicating it to the appropriate person”.

In Section 4 (1), the Act sets out the protection, which the Complainant in the within case is seeking to avail of, as follows:

4.—(1) “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”.

Having carefully considered all of the evidence adduced, I am not convinced that the matters complained of, by the Complainant in relation to Ms A’s actions and/or behaviour, are consistent with those set out in Section 3 (1) of the Act. While the actions/behaviours referred to in the Complainant’s initial complaint to the Respondent and reiterated at the WRC Hearing may well have been inappropriate and unprofessional, there is no sense that they constituted the type of abuse or mistreatment as specified in the Act.

In this regard, I note the Complainant’s own evidence to the effect that Ms A was engaging in these activities in order to be in a position to “gossip” about information she might receive.   This is further confirmed in the complaint email of 8 December 2017, the Complainant refers to Ms A not knowing “what boundaries to keep with the students” and that her conversations with them our “inappropriate for an employee”. However, it is also notable that in the complaint email, that the Complainant is also raising issues in relation to her working relationship with Ms A. It is clear from this evidence that the Complainant was finding Ms A challenging colleague and, in particular, with what appears to be the latter’s failure to give due recognition to the Complainant as her supervisor.

It is also notable, in this regard, that the School Principal, who regularly patrolled the canteen during lunch hour did not raise any concerns with the Respondent in relation to Ms A’s   actions/behaviours.

Taking all of the above into consideration, I find that the evidence does not support the Complainant’s claim that her complaint to the Respondent about Ms A on 8 December 2017 constituted a reporting of child abuse consistent with that set out in Section 3 (1a) of the 1998 Act.

The Respondent contends that the Complainant’s contract of employment was terminated on the basis that she failed her probation. Based on the evidence presented, it appears that this decision was based on a number of factors including: concerns raised by the School Principal, concerns raised by Ms A and general issues relating to the ordering of stock.

I note from the Complainant’s Statement of Terms and Conditions of employment, which was presented in evidence at the hearing, that for the first nine months of employment the Complainant would be on probation. It further states that termination of employment within the probationary period shall be at the discretion of the company.

Having carefully considered all of the evidence adduced and the respective of submissions made, I am satisfied that there appears to have been significant issues with regard to the Complainant’s work performance which would have given the Respondent grounds to consider termination of the employment.

Consequently, taking all of the above into consideration, I find, based on the balance of probabilities, that the termination of the Complainant’s contract of employment was most likely based on work performance issues and not as a penalisation for reporting a breach of the 1998 Act, as contended by the Complainant.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find that the Complainant’s complaint that she was penalised, by means of having her contract of employment terminated, as a result of having reported a breach of Section 3 (1) of the Protections for Persons Reporting Child Abuse Act, 1998, is not well founded.

Protection of Persons Reporting Child Abuse Act

Whistleblowing