Complainant

Respondent

Parties

Carmen  Merina

Laurelwood Montessori Limited trading as Rathfarnham Daycare

Complainant

Respondent

Anonymised Parties

Representatives

Orla Murphy BL                                            Jane O`Sullivan and Mary Heavy Community Law and Mediation

Barry O’Mahony BL                                Ryan McAllister                                       ARAG Legal Protection Ltd

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00043773-001

27/04/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00044048-002

13/05/2021

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00045149-001

12/07/2021

This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing.

I have additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and where there is a serious and direct conflict in evidence between the parties to a complaint, that an oath or an affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Oath/Affirmation as appropriate. It is noted that the giving of false statements or evidence is an offence.

On the second day of hearing one witness for the Respondent joined the hearing remotely pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote/hybrid hearings pursuant to Section 31 of the Principal Act. The said hybrid hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this part of the hearing conducted remotely.  I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way.

The Complainant was fully represented. At the outset, the Complainant was happy to swear an Oath/make an Affirmation to tell the truth. I was provided with d with a comprehensive submission dated the 22nd day of June 2022. The Complainant additionally relied on the submissions outlined in the three Workplace Relations Complaint Forms issued herein.  I was provided with a booklet of relevant documentary evidence and in support of the Complainant’s case. The Evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative.

The Complainant alleges that she was both penalised and dismissed for making a protected disclosure. The Complainant also says she was discriminated against.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. 

It is noted that the Complainant was asked to withdraw one of the parallel complaints and that the Complainant representative confirmed that the Complainant would be proceeding with the Unfair Dismissal (and not the Discriminatory Dismissal) complaint by email dated the 26th of June 2021.

The Respondent had representation at this hearing. A number of Managers as well as the two Company Directors gave evidence on behalf of the Respondent. The Respondent provided me with a written submission dated 28th of June 2022.  All evidence was heard following an Affirmation/Oath. The Respondent witnesses were cross examined by the Complainant representatives.

The Respondent rejects that the proposed termination in employment resulted wholly or mainly from the making of a Protected Disclosure. In circumstances where the proposed termination was withdrawn, the Respondent says that the Dismissal was in fact a Constructive Dismissal where the Complainant did not have twelve months of service.  The Respondent further denies penalisation and discrimination.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

I have carefully considered the evidence adduced over the course of two days of hearing.

The Complainant is qualified in early childcare and interviewed for a role with the Respondent facility in 2020. She commenced her employment in August 2020. It is noted that this was at a time when the Covid pandemic was severely impacting the economy and also the way in which workplaces could and did function. The Complainant was engaged to work a 42-hour week and was on a salary of about €516.00 per week.

As was recalled during the course of evidence, in January of 2021 the numbers of positive Covid cases were rising at an extraordinary level. It was clear that the loosening of rules over the Christmas period had allowed for increased viral transmission. This was the backdrop against which the within events arose and I have to have consideration for the ever shifting landscape.

The Respondent company owns and operates a number of Crèche and Childcare facilities. The two Company Directors TS and CD gave evidence on behalf of their Company. The evidence from them was that the facilities were all due to re-open in early January but by Government direction the date for re-opening was pushed back to the 11th of January 2021 and places were to be made available only to the children of Employees deemed to be essential workers. Crucially, it was also confirmed that the parents of children who were not permitted to return to the Creche and playgroups would not be expected to discharge the fees associated with day care. The Respondent witnesses stated that these two Government directives threw their business model into a state of uncertainty. On a monthly basis there are two sources of income. The greater amount comes from the fees paid by the parents. In addition, there is the Early Childhood Care funding which comes through Pobal and which is paid on the basis of the numbers attending.

The Respondent opened its doors on the 11th of January 2021 but the numbers of children attending were only about 15 children across two rooms. This evidence was provided by RB the Manager in the Day-care group, who was the Complainant’s line Manager. There was a lot of concern that with numbers so low, the Pobal funding was not going to come through. The Government hadn’t specified either way what was going to happen. I understand that there was Pobal funding available up to the 29th of January but beyond that there was no visibility.

The Complainant gave evidence that she began to feel sick on or about the 13th of January and that she phoned in sick saying she was heading off to get a PCR test in the Aviva. This test came back positive, and I understand that the Complainant had this information on or about the 15th of January.

The Complainant says that she was contacted, as is normal, by a HSE tracer to find the contact details of any close contacts she may have had and who should present for a test. The Complainant says that in the course of this conversation she stated that she believed she had contracted Covid in the workplace and that there were up to five people out with Covid at that time.

The Complainant asserts that this conversation amounted to a Protected Disclosure. She says that during that conversation she passed on information that in her reasonable belief tended to show relevant wrongdoing on the part of the Employer in its compliance with Covid procedures and which was endangering the health and safety of the Complainant and her Co-Employees. The information she says was given to the Contact Tracer (who remains anonymous and unknowable) who worked on behalf of the HSE as the party directly responsible for safety and health during the Covid pandemic.

The Complainant says that on or about the 16th of January 2021 she was contacted by her line Manager RB who (she says) took a hostile and unpleasant tone with her. She says that RB demanded to know “word for word” what information she had given to the HSE Tracer. RB denied that this was the case and asserted that she was ringing up primarily to see how the Complainant was, and to determine what dates needed to be covered now that the Complainant was isolating and recovering. RB said that she was aware of ongoing conversations at a management level between the workplace and the HSE about Covid as there had been a number of instances of Covid in the workplace and the HSE had been on to them telling the workplace to get everyone tested.  In this regard I note that there were at least four members of childcare staff off at this time, and that the Respondent had been contacted directly by the HSE concerning appropriate steps that needed to be taken to ensure that the virus was contained.

RB gave evidence that the Complainant had accused her Employer of allowing her to get Covid and that the Complainant was concerned her husband – an asthmatic – would contract the virus. RB had pushed back on this, saying the workplace had done everything in accordance with HSE direction. Children, she said, can often be asymptomatic so no one can know where it is coming from.

I cannot reconcile the two different accounts of the conversation, though I note that the Complainant hung up the phone on RB and in her evidence the Complainant stated that she felt she could be fired after this conversation. She says she became particularly upset when she was asked if she had symptoms though I am not sure why this would be. On balance I am satisfied that the Complainant appeared to be getting criticised for whatever she had said to the contact tracer.

The Complainant remained at home and was delighted to receive a care hamper from the workplace together with a get-well card.

I understand that on or about the 19th of January 2021, the two Company Directors had a Zoom meeting with one another to discuss the steps that needed to be taken to ensure the medium-term and long-term viability of the business. They gave evidence that they had been in fire-fighting mode since March of 2020, and I don’t find this to be a hard fact to accept. Certain ongoing overheads such as rents, rates and utilities had been a drain on resources during those periods when the Crèche had been completely closed. Any income stream which was being generated from the periods of partial re-opening was not enough to sustain the overheads associated with being open. They believed they needed to cut at least 25k from their monthly budget. As staff salaries are by far the biggest expenditure, they looked to their workforce. As part of the Respondent evidence I was shown the notification received on or about the 11th of January 2021 which confirmed that “current levels of funding…. {would only} …. continue until 29th of January 2021”. This is clear evidence that there was some cause for concern at a director level.

In the course of their evidence, the Directors presented their handwritten notes that each had taken in the course of their conversation. I note that the notes do appear to follow a conversation concerning options open to them. They looked at the Managers Salaries. They looked at approaching the Landlord and cutting back on other outgoings – materials and foods etc. The last thing discussed was the option of making members of staff Redundant and it was in this context that the Complainant’s name came into focus alongside the names of four or five others. The Respondent indicated they would operate a last in first out policy which unfortunately put the Complainant into pole position for selection.

The Directors gave evidence that at the time that they were making this decision they had no knowledge of any conversation had between RB and the Complainant concerning the Complainant’s conversation with a HSE Contact Tracer three days earlier.

It was agreed between the Directors that their HR Officer AK should start to implement the programme of Redundancies. I understand that CD was the Director who asked HR Officer AK to follow through on this direction.

It should also be noted that in and round this time one of the Company Directors (TS) was liaising over the phone with HSE Doctors including a virologist about how to stay open. She says that her contacts in the HSE were specifically trained up in the area of childcare and were looking for detailed information relating to rosters, breaks, pods and facilities etc. TS says that this two-way conversation would have started the instant two of her staff members went down sick, and in fact over January she had up to ten staff members out with Covid. At one point in that month, and at the direction of the HSE, the Respondent had to oblige all members of staff to attend for a PCR test on two consecutive Saturdays.

The two Directors gave evidence that neither of them was aware of any issue concerning any conversation the Complainant specifically might or might not have had with a HSE Contract Tracer. I accept that they recognised that contact tracing forms a part of the support provided by the HSE and that the Complainant like any member of staff was bound to provide the information sought as a matter of civic duty.

On the 26th of January the HR Director AK (at the direction of the Directors aforesaid) contacted the Complainant at home to say that the Respondent had decided to terminate her employment. This she said was done at the direction of the Directors and that neither she nor they had any  knowledge of the content of any conversation between the Complainant and RB. AK indicated that the Complainant was one of a few people identified to be made Redundant. I fully accept that the Complainant was not expecting this phone call and was shocked and upset.

The Complainant links this decision made by the Employer to the fact that she had made a protected disclosure (to the HSE tracer) and believes that the treatment amounts to a penalisation. In addition she is making the claim that she was being dismissed by reason (wholly or mainly) of the fact of having made a protected disclosure. AK says that she advised that the reason for the Redundancy was linked to a lack of funding though the Complainant says that this reason was not given at the time, though the Complainant does accept that she was told that there was a need to reduce staff numbers. In my experience I would have to say that the cutting of staff numbers almost invariably arises as a result of the need to cut finances and reduce overhead. I would accept that the Complainant may not have that same understanding. It is not clear that the Complainant was told that one of the main reasons for making her Redundant was a working assumption that there would be no more Pobal funding from the end of January and the subsequent correspondence sent to the Complainant did not reference this as a factor.

The Complainant says that she was aware of new recruits in the workplace who had arrived more recently than her. By way of a defence the Respondent has given evidence through the HR Manager SF that these persons were required to be retained on the team as they had TUSLA approved qualifications.

I accept that the Complainant had every right to feel aggrieved. At this point in time, the Complainant was out on sick leave. To her mind, the Complainant was the only member of staff to be terminated. The Complainant was still on probation. The Complainant had had no forewarning and the decision had very little transparency. The Complainant believed that the real reason for her Dismissal was the fact that she had disclosed wrongdoing on the part of her Employer to the HSE contact tracer ten days previously. After all, she had had no communication in the interim. The Complainant wrote an email to AK on the 28th of January 2021 saying she wanted to Appeal the decision to terminate her employment. She challenges the termination on two grounds. Firstly, she draws a link between her conversation with the HSE contact tracer and secondly, she notes that new employees have been taken on in January which appears contrary to their assertion that they need to reduce staff.

The next afternoon – January 29th 2021 – AK wrote to the Complainant saying that there had been an “internal misunderstanding” and that her position was still there for her. Initially the Complainant seemed happy to accept this turn of events and agreed (in her email conversation) she would return the following Tuesday the 2nd of February. However, over the course of the weekend the Complainant appears to have come to the conclusion that she had been treated badly by her Employer and she did not have sufficient trust and faith in them to allow her return to the workplace. On the 1st of February she expresses her intention (by email) not to return to the workplace. This amounts to a Constructive Dismissal.

The Complainant now knows, though was not told at the time, that the Pobal funding unexpectedly came through on the 28th of January and the Employer says that this was the reason that it was in a position to retain the Complainant. The Employer denies that the rationale had anything to do with the Complainant lodging an Appeal. The Employer categorically denies that a conversation had with the HSE had any bearing on the decision to dismiss and the subsequent decision to re-instate. I have seen and accept the Pobal announcement document sent to Service Providers confirming payments which would be received on a rolling basis.

In an email dated the 3rd of February the Complainant does set out her reasons for taking the decision not to return to the workplace. She cites the unpleasant phone call she had with her Manager RB directly after she had highlighted the safety issues with the HSE tracer which she believes resulted in her dismissal. She noted the apparent contradiction of taking on new hires whilst also letting her go. She says the workplace is not Covid safe for employees. Lastly, she does not accept the Bona Fides of being asked to return to the workplace as the offer was only made when she indicated a wish to appeal the decision.

On balance, I am inclined to accept that the Complainant felt obliged to open up to the HSE contact tracer about what she felt were unsafe practices in the workplace. I make absolutely no Judgement on the correctness of this allegation and note the time and effort the Directors say was being put into the facility (which was, after all, providing an essential service). This included liaising with the HSE and adopting the necessary measures. However, strictly speaking, this disclosure does amount to a protected disclosure. I am satisfied that, in a phone conversation, RB (the Complainant’s line Manager) upbraided the Complainant for criticising the workplace practices and that she was hostile in her reprimand of the Complainant and therefore there was a penalisation.

I am however not satisfied that the making of a Protected Disclosure was a consideration in the workplace when it came to terminating the Complainant’s employment. I accept that the Directors had no idea that the conversation had taken place between RB and the Complainant some three days earlier. The primary concern for them was dwindling resources, and a stripping away of funding. Their notes (drafted independently of one another) show a cogent line of thought to do with the tackling of overheads. There is no suggestion of mala fides or targeting of the Complainant. They were in fire-fighting mode and had to make some very difficult decisions. I find therefore that the decision to dismiss has not resulted wholly or mainly from the fact that the Complainant made a protected disclosure.

This is further evidenced by the fact that when the funding unexpectedly came through, they re-instated the Complainant at which point she opted not to return.

Whilst I might be critical of the procedures adopted to terminate this employment initially (and in particular terminating the employment of someone out on sick leave) the Employer reversed that decision and the Complainant herself opted (after a cooling off period) not to return to the workplace. I am therefore finding that there was no Unfair Dismissal. It is noted, in any event, that the Complainant does not have twelve months of service for a Constructive Dismissal that is wholly unrelated to the fact of there having been a protected Disclosure.

Regarding the complaint of discrimination on the grounds of disability, I am not persuaded that a Prima Facie case has been made out. In fact, not much evidence was lead on this complaint. The Complainant has not demonstrated that she had a disability which was a consideration in her being treated less favourably than another might be in a comparable situation. No real evidence was lead in this regard.

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00043773-001 – The Complainant was not Unfairly Dismissed, and this complaint fails

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00044048-002 – The Complainant was not discriminated against, and this complaint fails.

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00045149-001  -  The Complaint herein is well founded as the Complainant was penalised for making a Protected Disclosure and I award €3,000.00.