Complainant

Respondent

Parties

Arlene McGovern

Ohana Day Care Limited

Representatives

Cathy McGrady, BL

Lisa Conroy, Peninsula

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00046186-001

13/09/2021

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

CA-00046186-002

13/09/2021

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

CA-00046186-003

Withdrawn

13/09/2021

The respondent is a crèche and Montessori school and the complainant commenced working there in May 2016.  The respondents bought the business in 2017 and the complainant continued in employment with the new owners.  In 2018, she was promoted to a role as a Montessori room supervisor, earning €540 per week for a 40-hour week. 

For convenience, in the remainder of this document, I will refer to the crèche and Montessori as simply, “the crèche.”

The complainant alleges that she was penalised within the meaning of and contrary to the Safety, Health and Welfare at Work Act 2005, for making a complaint about the ratio of staff to children in the crèche.  And, or in the alternative, contrary to the Protected Disclosures Act 2014, she claims that she was penalised for making a protected disclosure about the same issue.  In this regard, Ms McGrady referred to the Labour Court decisions in the matter of Hyde and Seek (Glasnevin) v Jade Byrne-Hoey under the Protected Disclosures Act, and the separate complaint about the same matter under the Safety, Health and Welfare Act 2005.[1]  Ms McGrady submitted that the complainant is entitled to make complaints under both Acts, but she accepted that compensation may be awarded only under one Act.

The respondent’s position is that, while the complainant asserted that the ratio in the rooms need to be in accordance with regulations, she did not make a protected disclosure in relation to a relevant wrongdoing.

In a written submission in advance of the hearing, the complainant agreed with the respondent’s position that she was a valued member of staff.  In May 2021, the respondent asked the complainant if she would consider undertaking a master’s degree which they proposed that they would sponsor.  In June 2021, at a meeting of staff with the owners, Ms Hartford and Mr Sweeney, the complainant raised issues she was concerned about.  She claims that the attitude of her employers changed after the meeting and that she was penalised in the manner in which a complaint against her was investigated.  Arising from this investigation, the complainant claims that she had to resign, which she did on August 4th 2021.At the staff meeting scheduled for June 10th 2021, the staff wrote some agenda items on a white board.  These included the child/staff ratio and lunch cover.  The complainant and her colleagues made a note of what occurred at the meeting, which is slightly at odds with the notes taken by the supervisor, Ms Clarke.

The respondent’s note of the meeting shows that, in addition to the two owners, 13 staff members attended the meeting.  It is the complainant’s case that, at the meeting, she agreed with a colleague, who said that she wasn’t prepared to work in excess of the child/staff ratio and that Ms Hartford became angry and defensive.  The complainant said that she felt that there was a divide in work between the rooms where staff ask for cover and try to follow the rules and the rooms where staff break regulations “to suit the management.”  The complainant referred to her room and said that she felt she was regarded as an inconvenience because as room leader, she asked for staff to cover the lunch breaks so that the ratio could be maintained.  She claimed that she was ignored or made to feel guilty.  The complainant also raised a concern about the location of lunches and about staff eating lunch in the rooms.

The day after the meeting, the complainant noticed tension and a change in attitude towards her.  She claims that she was subject to negative, dismissive and humiliating comments from the management.  Rather than speak to her directly, messages were passed to her from the management through other staff.  She experienced an awkward silence with Ms Hartford.

A few days afterwards, the complainant was informed that the supervisor, Ms Clarke complained about her in relation to events that happened in 2017.  Two colleagues who agreed with her position on the ratio became the subject of adverse treatment.  One of these employees was presented with a prepared letter of resignation and the other was given a written warning about her behaviour at the meeting.

Graphite HRM was appointed to investigate Ms Clarke’s complaint.  On July 19th, the complainant raised concerns about the investigation, questioning whether it was a coincidence that her colleagues who spoke up at the meeting on June 10th resigned or were disciplined.

On August 4th 2021, the complainant met the investigator from Graphite.  She was extremely distressed after the meeting and, later that day, she resigned.  In her letter of resignation, she claimed that the complaint against her had been manufactured and fabricated because she raised concerns about health and safety at the meeting on June 10th.  Due to stress and anxiety, the complainant did not work her notice.  She was diagnosed with depression.  She remained unemployed until she started a new job three weeks later, on August 24th.

In September 2021, the respondent advised the complainant that Graphite HRM had been engaged to investigate the issues she raised, including whether she was penalised because of what she said at the meeting of June 10th.  Two of the complainant’s colleagues, Ms Elaine Dempsey Gregan and Ms Florence Lonergan, confirmed the extent of the complainant’s contribution at the meeting.  Ms Dempsey Gregan said that two weeks later, she was presented with a letter of resignation by the respondent.  Ms Lonergan said that an investigation was initiated by the respondent into what they considered to be inappropriate behaviour at the meeting.  She is no longer employed in the crèche.  The complainant was astonished to find that the investigator did not uphold her complaints.

Complaint under the Protected Disclosures Act 2014

It is the complainant’s position that she made a significant contribution at the meeting in the crèche on June 10th 2021.  She raised concerns about the child/staff ratio, about arrangements for lunch cover and the location of lunches.  She objected to the management not taking these matters seriously.  Her concerns were about the respondent’s failure to comply with a legal obligation or that the health and safety of an individual has been or might be endangered.  It is the complainant’s case that there is no doubt that she made a protected disclosure within the meaning of section 5(3)(b) or (d) of the Protected Disclosures Act 2014 (“the 2014 Act”).

Insofar as the respondent seeks to rely on section 5(5) of the 2014 Act, Ms McGrady argued that this is of no assistance because the fact that staff were operating an unlawful ratio was something that consisted of or involved an act or omission on the part of the employer.  If they assert that they were aware of the unlawful ratio, the complainant bringing these matters to their attention constituted a disclosure in accordance with section 3 of the 2014 Act.  In this regard, Ms McGrady referred to the decision of the Labour Court in the Hyde and Seek case, where, under the 2014 Act, the Court held that,

“Given the alleged behaviour of M., as described by the Complainant, in a childcare facility and in a situation where the Complainant was holding a child, the Court is satisfied that the Complainant drew attention to a potential safety hazard and that, in so doing, she carried out a protected act within the meaning of section 15(3)(d).”

Ms McGrady referred to the definition of penalisation at section 3 of the 2014 Act:

“penalisation” means any act or omission that affects a worker to the worker’s detriment, and in particular includes -

(a) suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) the imposition or administering of any discipline, reprimand or other penalty (including a financial penalty),

(e) unfair treatment,

(f) coercion, intimidation or harassment,

(g) discrimination, disadvantage or unfair treatment,

(h) injury, damage or loss, and

(i) threat of reprisal[.]

Ms McGrady submitted that the treatment endured by the complainant during and following the meeting of June 10th 2021 constituted penalisation within the meaning of sub-sections (d), (e) and/or (g) of the definition at section 3 of the 2014 Act, contrary to section 12, which provides that,

(1) An employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee, for having made a protected disclosure.

The complainant claims that the reaction of Mr Sweeney and Ms Hartford to the issues raised at the meeting, the proximity of further adverse treatment, including hostility and the contrived complaint against her, and the similar treatment meted out to her colleagues who made similar representations, establish a causal connection between the protected disclosure and the penalisation suffered.

As a result of feeling uncomfortable in her work environment, the complainant resigned and suffered financial loss.  She lost the benefit of her employer’s sponsorship of her master’s degree at a cost of €3,375.  She seeks compensation in accordance with schedule 2 of the 2014 Act.

Complaint under the Safety, Health and Welfare at Work Act 2005

Ms McGrady referred to the definition of penalisation at section 27 of the Safety, Health and Welfare at Work Act 2005 (“the 2005 Act”), which includes,

“…any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.”

Ms McGrady referred again to the determination of the Labour Court under the 2005 Act in the Hyde and Seek case, where the Court stated,

“Given the alleged behaviour of M., as described by the Complainant, in a childcare facility and in a situation where the Complainant was holding a child, the Court is satisfied that the Complainant drew attention to a potential safety hazard and that, in so doing, she carried out a protected act within the meaning of section 27(3)(c).”

Ms McGrady referred to the “but – for” principle set out in the decision of the Labour Court in Toni & Guy Blackrock Limited v Paul O’Neill[2] and asserted that the Court has determined that the burden of proof in a protected disclosures complaint is a shifting burden, similar to that under the Employment Equality Acts.

In a decision of an adjudicator in Dean Kerley and Centum Engineering Services Limited[3], the adjudicator upheld Mr Kerley’s complaint and stated as follows:

“Section 27 of the Safety Health and Welfare at Work Act 2005 includes protection for employees from being penalised for having acted in compliance with the SHW Act and in particular for having made a complaint (or other representation) under the SHW Act (to a safety rep, an employer or the Health and Safety Authority).  I am satisfied that when the Complainant went to make his complaint on-site he was citing an incident of rough, rowdy and potentially dangerous behaviour which fell into the type of activity envisaged by this Act as being appropriate for disclosure.  Whether or not this claim was substantiated in the two rushed investigations performed within the next 24 hours is irrelevant.  This was a protected disclosure.  On the face of it, the Complainant was entitled to not be penalised.” 

It is submitted that the complainant raised concerns about the child/staff ratio in the crèche where she worked and that this was a protected act for which she was penalised within the meaning of the 2005 Act.  It is further submitted that, the reaction of the owners, the proximity of the further adverse treatment, and the adverse treatment of two other employees who made similar representations at the meeting on June 10th 2021, establish a “prima facie” case, that, but for the making of the representations at the meeting, she would not have been penalised, the respondent’s attitude to her would not have changed, she would not have been subjected to a manufactured investigation and she would not have had to leave her employment.  Following the determination of the Labour Court in the Toni & Guy case, the burden of proving otherwise shifts to the respondent.

In the alternative to her claim under the Protected Disclosures Act, the complainant seeks compensation in accordance with section 28 of the 2005 Act.

Closing Statement on Behalf of the Complainant

Asserting that the complainant made a protected disclosure, Ms McGrady said that it doesn’t matter whether a formal, written complaint was made, a protected disclosure was made.  Ms McGrady referred to section 4 of the 2014 Act and the provision that it is irrelevant that the information is already known to management.  She said that it doesn’t matter that the ratios were exceeded temporarily, because health and safety is an issue for the children and the staff.

The complainant made a disclosure that all the rooms were outside the child/staff ratio and that they needed to be within the ratio.  She said that this couldn’t continue.

Ms McGrady submitted that the evidence for the complainant’s case is credible.  Three witnesses talked about the bad atmosphere following the meeting on June 10th.  In late June, the complainant was faced with an undated complaint from Ms Clarke, referring to incidents which occurred between three and four years previously.  Ms Clarke’s complaint referred to matters that were resolved and did not include any reference to the “dirty look” which, she claims, made her submit her complaint in writing.

It is the complainant’s position that Ms Clarke’s complaint was contrived.  She believes that Mr Sweeney engaged Graphite because of the heated discussion that took place on June 10th.  Ms McGrady submitted that, but for, the meeting on June 10th, Ms Clarke’s complaint would have been handled differently.  Ms McGrady said that it is disproportionate and contrary to normal conduct to subject a complainant to an investigation by an independent external consultant.

Ms McGrady referred to the fact that, on June 14th, Ms Lonergan received a letter from Graphite HR.  On June 28th 2021, the complainant was advised of Ms Clarke’s complaint, and, on the same day, Ms Dempsey Gregan was offered a pre-prepared resignation letter.  

Referring to the losses suffered by the complainant because of this matter, Ms McGrady said that she is concerned not simply with her loss of earnings.  She had wages withheld due to the requirement to pay back her training fees.  She is seeking compensation that is just and equitable.

Evidence of the Complainant, Ms Arlene McGovern

The complainant said that, over the five years that she worked for the respondent, she worked in most of the rooms in the crèche.  In 2018, she became the room supervisor in the Montessori room.  She did a FETAC level 6 course and in May 2021, she completed an honours degree in early childhood studies.  She was asked by the owners if she would consider undertaking a master’s degree.  She agreed to an arrangement whereby she would refund the cost of the fees to her employer if she left within a certain timeframe.

In June 2021, the complainant said that there hadn’t been a meeting of staff for a long time and the staff asked for an agenda.  They wanted to discuss unforms, communications, the child/staff ratio and lunch cover.  Most of the staff attended the meeting, apart from the manager, who was on maternity leave.  The owners, Mr Sweeney and Ms Hartford attended.  Ms Hartford raised the issue of the child/staff ratio.  One member of staff said that they were working over the ratio of one staff member to eight children in the Montessori room and she asked if they could stop.  The ratio at the time was 1:10 or 1:11.  The complainant said that she wasn’t prepared to breach the ratio and Ms Hartford referred to one employee and remarked that she had agreed to be over the ratio.  This employee said that she didn’t want to be over the ratio any longer.

Another employee, Ms Lonergan, raised the issue of staff eating their lunch in the room where they work.  She was concerned about children with allergies.  The complainant said that the views at the meeting were divided and some were laughing at the concerns being expressed.  The complainant said that she called for the meeting to get back to the point of the discussion and Mr Sweeney said, “relax Arlene, we know it’s a serious issue.”  The complainant said that she turned the topic back to the ratio.  She expressed her view that those who sought to maintain the correct ratio were seen as an inconvenience.  Staff who broke the regulations were praised.  The complainant said that she wasn’t prepared to breach the ratio any longer. 

The complainant said that the next day, everyone knew that the owners were not happy with her and her colleagues who raised concerns.  She said that she felt that Ms Hartford ignored her and everyone was on edge.  There was no “good morning” and Ms Hartford directed her enquiries about the children in Montessori room to another staff member.  The complainant said that she felt that she was being ignored, and this was still the situation a few days later.  She then got a phone call to say that an investigation had commenced into a complaint by the supervisor, Ms Clarke and that the investigation would be carried out by someone from Graphite HRM.

In her evidence, the complainant said that Ms Clarke was “a very incompetent worker” and that it was her job (the complainant’s job) to maintain standards.  Towards the end of 2019, she had a difficulty with Ms Clarke and, to “get back on the same page” an informal chat was arranged.  On June 20th 2021, Ms Clarke wrote to the managers complaining about how she was treated by the complainant.  In her evidence, the complainant said that, after the onset of Covid-19 in March 2020, the staff worked in separate “pods” to manage the risks of Covid-19 and she didn’t have much involvement with Ms Clarke.  On June 15th 2021, Ms Clarke complained that the complainant gave her “a dirty look.”

Paul O’Connor from Graphite HRM was contracted to investigate Ms Clarke’s complaint.  In a letter to Mr O’Connor on July 19th 2021, the complainant said that it was her view that the investigation was “contrived and manufactured by my employer.” 

In her evidence, the complainant said that she didn’t think that Mr O’Connor was impartial, because he was hired by her employer.  Asked by Ms McGrady why, when she met Mr O’Connor on August 4th 2020, she told him that she intended to resign, the complainant said that since June 10th, negative behaviour had increased and that there was an “atmosphere” in the workplace.  She said that there was an increase in the smart remarks, she was being ignored and she felt isolated.  Others were being punished for making the same disclosures that she made.  She said that she tried to put on a brave face, but she couldn’t keep going to work.

The complainant’s letter of resignation dated August 4th 2021 was included in her book of papers at the hearing.  She said in her letter that she was unable to work her notice because of the stress and anxiety she felt over what was happening.  The following day, she went to her doctor and was diagnosed with depression. 

Asked about how she was penalised, the complainant said that she hasn’t got dates and times.  She said that being ignored is penalisation, being made to feel uncomfortable at work is penalisation.  She said that one day, she gave Ms Hartford the numbers of children in her room, and Ms Hartford had to remain in the room herself to ensure that the ratio of staff to children was maintained.  The complainant said that Ms Hartford sent her a text message in error, in which she was critical of the complainant wanting to ensure that the ratio was correct.

The complainant said that she approached Mr Sweeney about the tissue dispenser being broken in her room.  She said that in response, he “talked down to me” and that this was different to how she had been spoken to previously.  

Ms McGrady asked the complainant about a document included in the respondent’s papers in which there is an analysis of the occasions when the rooms in the crèche exceeded the child/staff ratio.  The report, prepared by Mr Sweeney, states that, following the meeting of staff on June 10th 2021, and, up to July 26th 2021, the complainant’s room was the only room where the ratio was exceeded, and that this occurred on two occasions.  In response, the complainant said that she noted around seven or eight occasions when the ratio was exceeded during the same timeframe.  She disagreed with a reference in the report to her asking to go on lunch with a colleague, with the result that the staff to child ratio was not met.  On one occasion, she said that Ms Hartford had to leave because her child was sick.  On another occasion, Ms Hartford was on the phone when she instructed the complainant to go on her lunch break.  If she had taken her lunch at that time, one staff member would have been left caring for 17 children.

Cross-examining of the Complainant

The complainant agreed that she received copies of the respondent’s policies on protected disclosures, health and safety and various other policies.  Ms Conroy referred to the section in the Protected Disclosures Policy where it states that an employee must report any concerns in writing to a member of management.  She agreed that she never put her concerns in writing because, she said, everything was dealt with informally in the past.  She said that she made a protected disclosure on June 10th 2021.  Another employee, Eimer McCann brought up the issue first and she then said that she didn’t want to continue breaching the ratio.  

The complainant said that the note of the meeting written by Ms Clarke was not accurate and that, in July or August 2021, she compiled her own note.  She said that she spoke up a lot at the meeting.  She said that Mr Sweeney said that two new people would be recruited.

Ms Conroy said that Mr Sweeney will say that he was communicating with the complainant normally after the meeting, and that they exchanged text messages.  Mr Sweeney recalled a chat he had with the complainant about the garden.

On June 28th, the complainant was informed that Ms Clarke’s grievance would be investigated by a third party.

Ms Conroy referred to previous allegations about the complainant’s conduct in 2019.  The complainant said that this was not a formal complaint and it was about issues in her room.  It was resolved informally.  She said that the cause of the issue was Ms Clarke’s incompetence.  She said that she wouldn’t have been doing her job if she had not raised her concerns.

The complainant said that she believes that Ms Clarke was encouraged to make a complaint in June 2021.  Ms Conroy suggested that Mr O’Connor’s meeting with the complainant on August 4th was long.  The complainant said that he listened but that he wasn’t taking on board what she was saying.  She said that she wanted him to know that he was investigating something that was fabricated.

Ms Conroy referred to the outcome of the investigation which was that Ms Clarke’s grievance was not upheld.  The complainant agreed that she resigned on August 4th 2021, before the investigation concluded.  She said that she couldn’t stay around and that she was aware that other colleagues were being “targeted.”  She said that she didn’t make a complaint herself, because she was under investigation. 

Ms Conroy said that the owners were not aware of the complaint of penalisation until August 4th.  They engaged Graphite HRM again to conduct an investigation.  The investigator this time was Ms Marian Whelan and the outcome was that the complainant’s claim of penalisation was not substantiated.

Ms Conroy put it to the complainant that she knew from June 10th that new staff were being recruited.  She replied that she was aware that one employee had to be replaced.  She said that, from June 10th, the way she was communicated with changed.

Evidence of Ms Elaine Dempsey Gregan

Ms Dempsey Gregan said that, in September 2017, she returned to work as an afterschool teacher in the previous owner’s crèche.  In 2018, she replaced Ms Clarke in the Montessori room.  In May 2021, she completed a degree in childcare and Mr Sweeney asked her to consider doing a master’s.  She said that she considered it, but that she was too tired.

Ms Dempsey Gregan said that she got on very well with her employer and she enjoyed her job.  She said that she was never even late once.

The context of the meeting on June 10th 2021 was a lot of transition.  There had been no “wobblers” in the crèche for a year and the children were moving to new rooms.  The staff asked for a meeting and contributed to an agenda.  Ms Dempsey Gregan said that there was a lot of tension at the meeting and that she spoke on every point, including the child/staff ratio and the cover for lunch.  Ms Dempsey Gregan said that they were “stretched for staff” and that there was no cover if anyone went on sick leave.  When the meeting started and Ms McCann said that she didn’t want to go against the ratio, Ms Hartford said replied to her saying “you said you were okay.”  Mr Sweeney then said that Ms Hartford’s sister was coming to work in the crèche and that another person was coming back.  The complainant then interjected and said that the ratio in all the rooms had to be the same.

Ms Dempsey Gregan said that, if there are 19 children in a room, then three staff are required and three staff must be available during the lunch breaks.  She said that relief staff are always needed and that, even if everyone is at work, the relief person can do cleaning.

Ms Dempsey Gregan said that, in the ECCE sessional room, Ms Clarke was working during her lunch break, taking her lunch in the room.  She said that this is a risk for a child that may have an allergy.  Some staff members asked if they could work through their lunch and Ms Dempsey Gregan said that she made the point that staff need to leave the room and that it wasn’t healthy not to take a break.  Ms Dempsey Gregan said that Ms Clarke said that she liked eating with the children.  The complainant said that it’s okay to look for support.  The mood at the meeting got a bit “jokey” and the complainant said that it wasn’t a funny matter.  She was confronted by Mr Sweeney who asked her what she said and there was “a horrible silence.” 

Ms Dempsey Gregan said that the owners were hiring new people but that the staff didn’t know what was going on.  She said that there was a problem with communication and that “we asked about better ways of communicating.”  She said that she and Mr Sweeney came up with the idea of a WhatsApp group.

On June 28th, Ms Dempsey Gregan said that Mr Sweeney spoke to her and said that he got a feeling that she didn’t want to be there anymore.  He gave her two letters; one was a resignation letter and the other was an agreement to have her college fees written off.  Ms Dempsey Gregan told Mr Sweeney that she would speak to her husband about the proposal and Mr Sweeney took the letters back.  The next day, Ms Dempsey Gregan went to her doctor and she contacted Mr Sweeney and told him that she would sign the letters.  She said that she didn’t want to leave, but that no one would stay in a job where their employer typed up a letter of resignation.  She said that she went back to her former employer and she “put all this out of my head.”  She said that she then gave evidence to the person investigating the complainant’s grievance.  A copy of her witness statement was included in the complainant’s book of documents.

Cross-examining of Ms Dempsey Gregan

Referring to the need for relief staff, Ms Dempsey Gregan said that Ms Hartford provided relief cover, although there was always a need for relief staff and that often, there was no cover.  She said that, before the meeting on June 10th 2021, the staff were not aware that two additional employees would be available from July.

Ms Dempsey Gregan said that she got on well with Mr Sweeney and they used to chat, but that changed after the meeting.

Two days after the “resignation letter” meeting with Mr Sweeney, on June 30th, Ms Dempsey Gregan said that she went to her doctor and she submitted a medical certificate to her employer by email later that day.  On July 13th, she said that she sent Mr Sweeney an email saying that she would sign the resignation letter.  He asked her to come in for a chat.  Ms Dempsey Gregan said that they chatted for an hour or two and Mr Sweeney asked her to re-consider her decision to resign.  She said “no.”  She said that she asked if she could do a one-day course in sign language and she told Mr Sweeney that she was leaving on good terms.

Evidence of Ms Florence Lonergan

Ms Lonergan said that she worked for the respondent for 10 years and that she got on very well with the owners.  She was never sick and never late and she said that she helped out “at the drop of a hat.”

Referring to the meeting on June 10th 2021, Ms Lonergan said that she put stuff on the agenda, she was particularly concerned about the cover for lunch breaks.  She said that her colleague, Ms McCann spoke about ratios and the complainant agreed with her point that every room should operate according to the ratio.

Ms Lonergan said that Ms Hartford asked her why she put the issue of the lunch breaks on the agenda.  She said that she explained that the lunch situation had changed.  She had started working in the crèche covering lunches.  The policy on lunch breaks changed and people didn’t get paid for their breaks.  When that happened, they stopped taking lunch.  They ordered in pizzas and food from McDonalds and the food was brought into the rooms.  Ms Lonergan said that this wasn’t correct when someone was caring for 22 children.  Ms Lonergan said that she referred to the practice in the sessional room and Ms Clarke said, “I think that’s me you’re talking about.”  Ms Lonergan said that Mr Sweeney and Ms Clarke laughed at her concerns and the complainant said that it wasn’t funny.  Mr Sweeney said, “what’s that you’re saying?” and all of a sudden, there was silence.  From that point, Ms Lonergan said that she limited her contribution at the meeting and the only thing she spoke about afterwards was the garden.

The complainant commented on the lunch breaks and her experience of having to discuss cover every day with Ms Hartford.  Mr Sweeney said that new staff would be joining soon.

Only half of the children are in the crèche on Fridays and on the Monday after the meeting on Thursday, June 10th, Ms Lonergan said that there was an atmosphere.  When she was leaving, she said goodbye to Mr Sweeney and then she got an email from Graphite HRM, telling her that, due to her participation in a meeting, she was under investigation for inappropriate behaviour towards her boss and colleague, Ms Clarke.  Ms Lonergan said that she was “gob-smacked.”

At the first meeting with Mr O’Connor from Graphite, Ms Lonergan said that she asked Ms Dempsey Gregan to accompany her.  She said that she was embarrassed at the meeting, and, when she went to a second meeting, was informed that Ms Dempsey Gregan had resigned.  She decided that she wouldn’t look for anyone else to accompany her.  Ms Hartford and Mr Sweeney had complained about her and the outcome of the investigation was that she was issued with a warning.  She appealed against the warning but her appeal was unsuccessful.  She lodged a grievance, but she said that the management wouldn’t consider her grievance.  She said that her trust in her employers was gone and she handed in her resignation.

Cross-examining of Ms Lonergan

Ms Lonergan said that she had a discussion with Ms Hartford one day about food being ordered into the rooms where staff were working with children.  At the meeting on June 10th 2021, she said that people made a joke about it and the conversation became loud.  Mr Sweeney “hushed” the room, saying he couldn’t hear. 

Ms Conroy referred to the disciplinary investigation which took place into Ms Lonergan’s behaviour at the meeting, which the management claimed was aggressive and loud.  Ms Lonergan said that she accepts that she is loud, but she was not aggressive.  She said that she got a written warning because of how she spoke at the meeting.  She was refused her right to have her grievance investigated.  Consequently, she decided to resign.  She said that Mr Sweeney was happy for her not to work her notice.

Ms Conroy pointed out to Ms Lonergan that there is no written warning on her file.  Ms Lonergan said that she went out sick.  Her husband had died 12 months previously and she felt that she “couldn’t continue to work for them.”

Brief Chronology of Events

In a written submission provided in advance of the hearing, Ms Conroy said that the complainant was promoted on September 1st 2018 to the position of Montessori room supervisor. 

Staff meetings were held by the respondent every six months, giving employees an opportunity to raise matters of interest.  Between meetings, employees had an opportunity to raise issues with management.  A staff meeting was arranged for Thursday, June 10th 2021.  The agenda was as follows:

1.      Staffing ratio, lunch cover;

2.      Relief / annual leave;

3.      Breaks

4.      Room and garden equipment;

5.      Communication;

6.      Paperwork / cleaning.

The minutes of the meeting note that one of the employees, Ms McCann, raised an issue with the child/staff ratio, particularly in relation to lunch times.  Another employee expressed her concern about children waking up in a room where other children were asleep, and the difficulties associated with managing the non-sleeping children.  Ms Dempsey Gregan said that the full day room needed a relief person for three hours a day.  Ms Lonergan raised her concern about the ratio not being in line with Tusla’s regulations and the complainant said that the ratio in all the rooms should be the same and that employees needed to agree not to be over the ratio.  It is the respondent’s position that this was the extent of the complainant’s contribution at the meeting.  The next issue for discussion was staff eating hot food in the rooms and the final matters were garden equipment, communication, paperwork and cleaning.

When the meeting was taking place, the management were aware of the issues and two new full-time employees and a relief person had been hired and they would be in place in July, on time for the children moving rooms. 

On June 20th, Ms Clarke submitted a grievance about the conduct of the complainant.  Graphite HRM were engaged to conduct an investigation and, on August 4th, the complainant attended a meeting with Paul O’Connor of Graphite.  Witnesses were interviewed between August and September and documents were shared with the parties.  In November 2021, Mr O’Connor concluded that the conduct Ms Clarke complained about did not align with the standard definition of bullying and her complaint was not upheld.

The complainant resigned on August 4th, alleging that Ms Clarke’s grievance had been fabricated, manufactured and contrived because she raised concerns about health and safety at the meeting of June 10th.  In September, Ms Marian Whelan of Graphite was engaged to conduct an investigation.  In December, Ms Whelan concluded that the complainant’s allegations were not substantiated.

Claim under the Protected Disclosures Act 2014

In the Labour Court decision in the case of Fingal County Council and Tom Nolan[4], the Court referred to section 5(2) of the Protected Disclosures Act 2014, and the provision that, “relevant information” is a reasonable belief of the worker “if it tends to show one or more relevant wrongdoings.”

It is the respondent’s position that the complainant’s claims do not fall within the definition of wrongdoing for the purposes of the 2014 Act, because she did not disclose “relevant information” amounting to wrongdoing as outlined in the Act.  The respondent submits that the complainant’s statement that “All rooms need to be the same and not be over ratio” is not the disclosure of a wrongdoing but amounts to an expression of her opinion or a comment during a staff meeting.

In the UK Employment Appeal decision of Dr Easwaran v St George’s University of London[5], the decision of the Employment Tribunal was upheld, where a disclosure of information was differentiated from an “unsubstantiated expression of opinion:” 

“We considered whether the Claimant’s claim that he was at risk of contracting ‘pneumonia etc’ amounted to a disclosure of information tending to show that the health and safety of any individual was or had been at risk.  The Tribunal found that this statement also amounted to no more than a mere expression of an opinion.  In arriving at that decision, we took into consideration that the Claimant was not, at the time he made the statement, in danger of contracting pneumonia, or had reason to believe that he was likely to contract pneumonia from the temperature in the dissecting room.  On the Claimant’s own evidence, it would not have been possible for him to contract pneumonia in a properly ventilated environment.  We had regard for the Claimant’s reference to the need for protection of staff and students.  Similarly, the Tribunal concluded that the Claimant’s claims that the health and safety of staff and students were being endangered constituted an unsubstantiated expression of opinion.”

Section 5(5) of the 2014 Act provides that,

A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer.

Ms Conroy submitted that the complainant was at a staff meeting where the management stated that they were aware of Ms McCann’s concerns about rooms being over the ratio.  They were on notice of this matter prior to the meeting and had meaningfully engaged with Tusla regarding a resolution.

The complainant did not report her concerns in writing to the management, as set out in the Protected Disclosures policy.  The complainant never raised a matter which would constitute a protected disclosure.   In addition, the complainant failed to identify how she was penalised or threatened by her employer for having made a protected disclosure.   

Complaint under the Safety, Health and Welfare at Work Act 2005

This claim under the Safety, Health and Welfare at Work Act 2005 (“the 2005 Act”) is disputed by the respondent, and the same claim is raised under this Act has been submitted under the 2014 Act.

The 2005 Act protects employees against dismissal and penalisation for carrying out their duties in relation to health and safety in their workplace.  Ms Conroy submitted that the complainant has failed to identify how she was penalised.  She referred to the Labour Court decision in Able Security Limited and Hardjis Langsteins[6], where the Court stated:

“The Court has consistently held that a Complainant carries an evidential burden to put in issue the facts upon which his or her claim is grounded and must outline the claim with enough particularity to allow a Respondent to know what it is they are being accused of.”

It is the respondent’s position that the complainant has failed to particularise her claim so that her employer can defend the matter.  They submit that the complainant was not penalised and that she did not raise a concern about health and safety at work.

Closing Statement on Behalf of the Respondent

Ms Conroy argued that the complainant was not penalised and that Ms Clarke was not asked or encouraged to submit a complaint.  She said that the atmosphere in the crèche did not change after June 10th.  Ms Conroy said that the employers were within their rights to bring in a third party to investigate Ms Clarke’s complaint and that there was no detriment to the complainant arising from the investigation into the complaint.  Ms Conroy said that none of the witnesses were penalised.

Evidence of the Owner, Mr David Sweeney

Having worked in the IT sector for several years, Mr Sweeney said that he became an owner of the crèche in 2017.  He said that he introduced a structure, including payslips, a handbook and contracts of employment.  He agreed a contract with Peninsula to provide HR support.

Mr Sweeney referred to the meeting in the crèche on June 10th 2021.  He said that the discussion was more about lunch breaks than any other matter.  He said that Ms Clarke took the minutes.  Ms McCann was the first person to raise a concern about the ratio of staff to children in the rooms.  Ms Kelly said that she wanted support with children in her room who were awake when others were asleep.  The complainant said that all rooms should be within the ratio.

Mr Sweeney said that he didn’t remember “shushing” the room.  He said that three new employees were due to start on June 28th.  The next day, although the complainant said that he was hostile towards her, Mr Sweeney said that he wasn’t on the premises.

In March 2021, the crèche had an unannounced inspection by Tusla at which the inspectors identified a need to increase the number of staff available to provide support for children who were awake when other children were asleep.  The inspectors returned twice in April.  Mr Sweeney said that he was frequently on the phone to Tusla.

In response to a question from Ms Conroy, Mr Sweeney said that his relationship with the complainant didn’t change after the meeting.  He recalled a conversation with her 10 or 12 days after the meeting during which they discussed equipment that they might purchase for the garden.  He remembered that the complainant looked for a nappy bin, and they had other interactions by text message and WhatsApp.

At the meeting on June 10th, Mr Sweeney said that Ms Lonergan’s contributions became “heated to an unacceptable level.”  He said that his focus was on trying to keep the situation calm.  He said, “we got through the meeting and out the other side.”  After the meeting, he said that he spoke with Ms Lonergan about home-schooling.  He described Ms Lonergan as a “good worker” and “a lovely person” but, he said, her conduct at the meeting had to be addressed.  He said that he discussed the incident regarding Ms Lonergan’s behaviour with Graphite HRM and he was advised to launch an investigation.  The outcome was a written warning for misconduct.  Ms Lonergan then resigned and didn’t work her notice.

Referring to Ms Dempsey Gregan, Mr Sweeney said that he spoke to her many times about her education.  He said, “I’m all about developing people” and he contends that his business spends more on staff development than any crèche in the country.

Ms Conroy referred to Ms Dempsey Gregan’s evidence that Mr Sweeney presented her with a letter of resignation and a letter confirming his agreement not to be reimbursed for her course fees.  Mr Sweeney said that he knew that Ms Dempsey Gregan wanted to move on when her fees were paid.  He offered her a promotion, which she didn’t want.  He said that he could see that she had lost interest and he heard from other staff that she wanted to leave.  When she confirmed that she wanted to leave, Mr Sweeney said that he asked Ms Dempsey Gregan to re-consider.  He said that he wanted to make sure that she was certain she wanted to leave.  He had no issue with funding the sign language course.

Mr Sweeney said that he received Ms Clarke’s grievance on June 20th 2021.  Previously, in December 2019, he had an informal meeting with the complainant and Ms Clarke about their poor relationship at the time.  Ms Clarke had been working in the same room as the complainant and the outcome of the meeting was that Ms Clarke moved to a satellite room.  He said that he thought the issues were resolved.

On August 4th, when he heard that the complainant resigned, he sent her an email around midday.  At 8.00am the next day, he received a letter from her solicitor.  Mr Sweeney said that he responded to the solicitor and he asked the complainant to re-consider her resignation.

Mr Sweeney referred to his report on the child/staff ratio in the crèche which was included in the respondent’s book of papers at the hearing.  He prepared this report on July 27th 2022 and it provides details of the child/staff ratio in each room, and the response to Tusla’s inspection in March 2021.

Cross-examining of Mr Sweeney

Under cross-examination, Mr Sweeney did not accept that the complainant raised health and safety concerns at the meeting on June 10th.  He said that she expressed her opinion that each room should stay within the child/staff ratio.  In a letter to the complainant’s solicitors on August 6th 2020, Mr Sweeney said that “there was no comment made by Ms McGovern at the meeting as far as I am concerned.”  Mr Sweeney said that he remembered what the complainant said after he went over the minutes of the meeting.  He did not accept that the complainant made a greater contribution on the issue of the ratio compared to other employees.

Mr Sweeney said that his focus at the meeting was on Ms Lonergan.  He did not recall Ms Clarke making a joke about staff ordering takeaways to the room and he didn’t remember “shushing” the complainant.  He said that the complainant spoke once at the meeting, to make the comment about the ratio being the same in all the rooms.

Ms McGrady asked Mr Sweeney if this was not a health and safety issue.  He replied that Tusla had brought this to their attention in March and that, at the meeting, the complainant repeated what two other employees had already said.

Ms McGrady referred to Ms Clarke’s complaint which was set out in detail in a two-page document in the respondent’s book of papers.  Mr Sweeney said that a previous issue which arose in December 2019 had been resolved between the complainant and Ms Clarke.  He received this latest grievance on June 20th 2021.  He said that the difference between this and the previous issue was that this latest grievance was a formal complaint.  As it was in writing, he said it had to be handled differently.

Evidence of the Owner, Ms Anne Hartford

Ms Hartford said that she had worked in the childcare business for 10 years and has been an owner for the last five years. 

Referring to the meeting on June 10th 2021, Ms Hartford said that “it was supposed to be a happy meeting” and that they had ordered pizzas for the staff.  Ms Hartford referred to the child/staff ratio in each room.  She said that, during Covid-19, there wasn’t much movement between the rooms and many of the staff were out sick.  On March 12th 2021, Tusla conducted an unannounced inspection.  At the meeting on June 10th, the complainant said that all the rooms needed to be within the ratio stipulated in the regulations.  Ms Hartford said that she had no concerns about this.  Ms Hartford said that she is available to provide cover at lunchtime.  She described herself as very easy-going and she said that she would never say “no” to a request for help.  She said that she has a good relationship with staff and parents.

During the lunch breaks, Ms Hartford accepted that the rooms exceeded the child/staff ratio.  She said that, during the Covid-19 restrictions, it was difficult to recruit employees, although with some difficulty, they managed to recruit three people to provide cover at lunchtime.

Ms Hartford referred to the incident in 2019 when Ms Clarke came to speak to her.  She said that Ms Clarke was very upset, feeling excluded from coffee rounds and thinking about leaving her job.

Ms Hartford said that she thought that she got on with the complainant, having been her supervisor when she worked in the “wobbler” room.  Between June and August 2021, when the complainant resigned, she said that their relationship was “fine.”

Cross-examining of Ms Hartford

In her evidence, Ms Hartford said that she had an amazing relationship with Ms Lonergan.  Ms McGrady asked Ms Hartford why she thought that the meeting on June 10th ended up not being “a happy meeting.”  Ms Hartford said that she was hurt by how Ms Lonergan spoke to her, and she was so upset, that she didn’t notice what the complainant said.

Asked about the time between June 10th and when the complainant resigned on August 4th, Ms Hartford said that she remembered one day, when the complainant was coming from the bathroom and she gave Ms Clarke “a dirty look.”  Asked why she didn’t raise this with the complainant, Ms Hartford said, “I just didn’t.”  She said that she didn’t see Ms Clarke’s complaint before it was sent to Graphite and that Mr Sweeney deals those matters.  She said that she didn’t remember sending the complainant a text message in error with an angry emoji.

Evidence of the Supervisor, Ms Verona Clarke

Ms Clarke said that she has worked in childcare for 23 years.  She joined the respondent’s business in 2017 as a relief member of staff.  From January 2018, she worked on a constant basis with the complainant.  She said that she remembered many small incidents between them.  She said that she would ask the complainant, “Have I done something to upset you?”

Ms Clarke remembered the June 10th meeting and its context that the children were moving up to new rooms.  She said that the deputy manager was on maternity leave when the meeting was held.  Ms Clarke said that she took the minutes.  The owners, Ms Hartford and Mr Sweeney told the staff about three new employees who were ready to start.  Another employee raised the issue of uniforms.  One employee spoke about the child/staff ratios and the complainant said that all the rooms should operate within the ratios.

Ms Clarke said that the minutes of the meeting are accurate to a point, until Ms Lonergan became loud and aggressive.  She said that this was directed at Ms Hartford and her.  When it came to talking about eating lunch in the rooms and someone said that it was better for an employee’s mental health to eat somewhere other than the classrooms, Ms Clarke said that the complainant said, “What about your mental health?  What are you going to do about it?”

Ms Clarke referred to the difficult relationship she had with the complainant in late 2019.  She said that she told Ms Hartford how she was being treated and that an informal meeting was arranged with her and the deputy manager, and Ms Hartford and Mr Sweeney.  Then she had a meeting with the complainant and she had another meeting with Ms Hartford and Mr Sweeney.  The issue was that the complainant was treating her as if she was stupid.  She said that complainant told her she was stupid.  She didn’t make a complaint at first because she was new and she didn’t think she would be believed. 

On June 15th 2021, Ms Clarke said that her son was getting married and she had arranged to go shopping with her daughter in law.  As she was coming out of the bathroom at work, she said that the complainant gave her “an awful look.”  She said, “something ignited in me” and that she didn’t want anyone else to suffer.   Her previous complaint, in 2019, was informal and this time, she felt that she had to do something.

Cross-examining of Ms Clarke

Referring to the meeting on June 10th, Ms Clarke took the minutes and she said that her notes are accurate.  She left before the end, having been at the meeting for about an hour.  Ms Clarke agreed with Ms McGrady that there may have been things said at the meeting that are not in the minutes, but she would not accept that the minutes are not thorough.

At the meeting, Ms Clarke said that Ms Lonergan became very loud, but not aggressive.  She said that “she came across as annoyed and angry.”

Regarding the lunch breaks, Ms Clarke said that she had asked Ms Hartford if she could sit in the room where she worked during lunch.  While she agreed with Ms McGrady that it was reasonable for Ms Lonergan to have concerns about how the rooms were run, Ms Clarke said that different approaches were necessary in each room and depending on the needs of the children.

Ms McGrady asked Ms Clarke why, if the “dirty look” incident was the thing that prompted her to make a written complaint, it wasn’t referred to in her complaint.  Ms Clarke said that she thought she included that incident.  She said that this “ignited everything” and that it was one of many. 

Ms McGrady said that the last incident referred to in Ms Clarke’s written complaint occurred in February 2020.  She asked her why she waited until June 2021 to report it.  Ms Clarke replied, “I suffered in silence.”  By June 2021, she said that she had confidence.  While her complaint is not dated, she said that this was an oversight.  She wrote it on June 18th and she sent it to Mr Sweeney on June 20th.  Asked why she referred to issues that had been resolved, Ms Clarke said that they were resolved because she wasn’t in the same room as the complainant. 

When she finished giving evidence, I asked Ms Clarke what outcome she wanted from having submitted her complaint.  She said that he hoped that the complainant might learn from it, she thought she would get a fright if she was given out to.  She said that the complainant was nice to her one day and not so nice the next.  She said that she felt very isolated by her behaviour and that of another employee.

Following the meetings of December 2019, in January 2020, Ms Clarke said that Mr Sweeney followed up with her and asked her how things were.  In February 2020, Ms Clarke said that she was working with Ms Dempsey Gregan and they were getting on well.  She used some stickers and the complainant seemed to be annoyed at her using the stickers.  Ms Clarke said that the complainant was her supervisor and she felt that she couldn’t approach her.

The Relevant Law

Section 27(1) of the Safety, Health and Welfare at Work Act 2005 refers to “penalisation” as,

any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

Section 27(2) provides that penalisation includes, at sub-section (d), the imposition of any discipline, reprimand or other penalty and, at sub-section (e), coercion or intimidation.

Section 27(3) provides that,

An employer shall not penalise or threaten penalisation against an employee for -

(a) acting in compliance with the relevant statutory provisions,

(b) performing any duty or exercising any right under the relevant statutory provisions,

(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,

(d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,

(e) being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or

(f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.

It is the complainant’s case that, at the staff meeting on June 10th 2021, she raised a concern about the child/staff ratio in the crèche where she worked and that she was penalised for this.  On June 28th, an investigation commenced into a complaint submitted by Ms Verona Clarke, and it is the complainant’s case that the investigation was “manufactured” to punish her.  At the hearing, Ms McGrady submitted that the adverse treatment suffered by two of the complainant’s colleagues who also spoke out at the meeting on June 10th establish a “prima facie” case that, but for the representations they made at the meeting, they would not have been penalised.  In accordance with the “but-for” test established by the Labour Court in Toni and Guy (footnote 2), the burden of proving that penalisation did not occur shifts to the respondent.

Did the Complainant Carry Out a Protected Act?

There was some dispute at the hearing of this complaint regarding whether the complainant carried out a protected act.  Ms Conway, for the respondent, argued that, to be a protected act, the complainant’s concern about the child/staff ratio should have been put in writing, and that this is a requirement of the procedure on protected disclosures in the company handbook.  There is no provision at section 27(3) of the 2005 Act that requires an employee to write to their employer or to any other person to raise a concern about a health and safety issue.  It is clear to me that speaking up at a meeting with one’s employers about a concern about the child/staff ratio in a childcare setting is fully encompassed by the definition of “acting in compliance with relevant statutory provisions” at section 27(3)(a).

In her evidence, the complainant said that she felt that she and some of her colleagues were considered a nuisance, when they insisted on cover during the lunch breaks, so that the ratio was in accordance with the 2016 Regulations.  By insisting on the lunch cover, the complainant was performing her duty under section 27(3)(b).  By making a representation to her employer at the meeting on June 10th that the ration should be maintained in all the rooms, her actions are encompassed by section 27(3)(c).

Was the Complainant Penalised?

On June 20th 2021, the supervisor, Ms Clarke sent a letter to the owners of the crèche, Ms Hartford and Mr Sweeney, complaining about how she was treated by the complainant.  She referred to four specific examples:

1.           Ms Clarke said that on many occasions, the complainant referred to her as “stupid,” offered no encouragement and was “loud and rowdy” towards her in front of children.

2.           She said that the complainant did not always include her in her offer to get takeaway coffees.

3.           At a social event in 2019, Ms Clarke said that the complainant “was glaring at me and at one stage she banged into me and pulled back making a face as if I smelled bad or had something she would catch.”

4.           In February 2020, Ms Clarke said that the complainant “started shouting at me and ranting” about the fact that she had used stickers when she was making calendars with the children.

The complainant was informed that Paul O’Connor of Graphite had been contracted to carry out an investigation into Ms Clarke’s complaints and on June 28th, she received an email with a copy of Ms Clarke’s letter and the terms of reference for the investigation.  Mr O’Connor met Ms Clarke on July 2nd and he met the complainant on August 4th, the same day on which the complainant resigned.  He met Ms Clarke again on August 27th.  Mr O’Connor had a telephone meeting with Ms Hartford on September 1st and, on September 16th, he met a witness nominated by Ms Clarke.  In December 2021, Mr O’Connor concluded that,

“…the working relationship between the employees does not appear to have been by large (sic) positive, or indeed friendly.  However, there is not enough evidence to suggest it was any form of inappropriate, repeated actions that undermine one’s dignity at work.”

The complainant submitted this complaint to the WRC on September 13th 2021, three months before Mr O’Connor reached his conclusion that Ms Clarke’s complaint was not upheld.  Her position is that Ms Clarke was encouraged by the owners to make a complaint about her and that her allegations were fabricated and contrived.  I have examined the witness statements associated with Mr O’Connor’s report and, taking account of these statements and the evidence of the witnesses at the WRC hearing on September 5th 2022, I find as follows:

The four incidents Ms Clarke complained about occurred in 2018, 2019 and February 2020, all more than a year before she committed her concerns to writing in June 2021.  Three of the incidents were the subject of an informal resolution process in late 2019 when Ms Clarke spoke to Ms Hartford about the difficulties she was experiencing with the complainant.  Following two meetings, the second of which was attended by the complainant and the owners, Ms Clarke moved to a separate, adjoining room where she did not work as closely with the complainant as previously.  The latest incident she complained about was the argument over stickers, which, she said, occurred in February 2020.  Between March 2020 and June 2021, the complainant and Ms Clarke worked in separate “pods” due to Covid and there was little contact between them.  In her response to Ms McGrady’s question regarding why, in her letter of June 20th 2021, she complained about matters that were resolved in December 2019, Ms Clarke was evasive and unconvincing, making no logical connection between her early difficulties with the complainant and her complaint of June 2021.

In her written complaint, Ms Clarke made no mention of the “dirty look” incident which she said occurred on June 15th, although, in her evidence, she said that this “ignited” her complaint.  The note of her meeting with Mr O’Connor on July 2nd shows that she referred to this incident as “a typical example.”  It makes no sense to exclude from her written complaint the incident that she claims motivated her to make the complaint in the first instance and Ms Clarke’s evidence in relation to the “dirty look” incident is implausible.

Ms Hartford said that she witnessed the “dirty look,” and, if this is the case, then, as the person in charge, she should have addressed it with the complainant and asked her to explain her conduct.  If some non-verbal interaction occurred between the complainant and Ms Clarke on June 15th, it seems to me that it was simply a feature of the fractious relationship between them and one of the “typical examples” referred to by Ms Clarke in her evidence.

The only event of any significance that occurred within a reasonable timeframe of Ms Clarke’s complaint of June 20th 2021 was the meeting on June 10th, when there was a conflict between the complainant and some employees on the one hand, and Ms Clarke and the management on the other, about the need for relief cover during the lunch breaks.

In her evidence at the hearing of this complaint, Ms Clarke said that, as an outcome from her complaint, she wanted the complainant to “get a fright” from being “given out to.”  It seems that Ms Clarke had a pre-determined sense of the outcome from her complaint and that her intention was to make the complainant suffer.

Despite the fact that the complainant and Ms Clarke had not worked together since the introduction of Covid-19 restrictions in March 2020, and, although only one of the four issues she complained about occurred after the informal resolution meeting in late 2019, the respondent decided to contract out the investigation of her complaint to an external provider, Graphite.  The respondent’s grievance procedure provides that,

“From time to time it may be necessary to appoint an external person to investigate any grievance matter; such an appointment will be deemed a last resort and only used where absolutely necessary.”

In his evidence, Mr Sweeney gave no explanation regarding the absolute necessity to have Ms Clarke’s complaint investigated by an independent third party and he said that the reason was because it was in writing.  It is my view that most reasonable employers faced with two employees who didn’t like each other, would have tried to deal with the issue informally and would have attempted to resolve the conflict between them before taking on the burden of a third-party investigation.  

It is clear to me from the evidence given by the complainant that she did not like Ms Clarke and that she did not rate her as a colleague.  I found her attitude to Ms Clarke to be condescending and unkind and I can understand why Ms Clarke was upset by their interactions.  What is difficult to understand is why Ms Clarke put pen to paper in June 2021, when she had had so little contact with the complainant for the previous year.  The only conclusion I can reach is that she must have done so because of what occurred at the meeting on June 10th.  At that meeting, it is apparent that the employees in the crèche were split between those who, like Ms Clarke, wanted to collaborate with the owners and others, like the complainant, who wanted to have their lunch breaks without fear or favour and with confidence that the child/staff ratio would be maintained.

I cannot ignore the fact that two other employees who voiced their concerns about the child/staff ratio at the meeting on June 10th were adversely treated by the respondent.  Ms Dempsey Gregan was offered the opportunity to resign and to have her education fees waived, an offer she said she accepted because she didn’t want to stay where she wasn’t wanted.  On June 14th, Ms Lonergan received an email from Graphite, requesting her to attend a disciplinary investigation into inappropriate behaviour towards Ms Clarke at the meeting on June 10th.  She was informed that Mr Sweeney and Ms Hartford had complained about her conduct.  The outcome from the investigation was a written warning.  Ms Lonergan resigned when her appeal failed to have the warning overturned.

Conclusions

I have concluded that, on June 10th 2021, at a meeting with the staff and owners of the crèche, the complainant raised a concern about a potential breach of the 2016 Regulations under the Childcare Act 1991 and that, in so doing, she drew attention to a potential risk to the safety of the children in the crèche.  I am guided by the authority of the Labour Court in its decision in Hyde and Seek (footnote 1) and I am satisfied that, in raising her concern on that day, the complainant carried out a protected act.

By initiating an investigation into Ms Clarke’s complaints which were related to incidents that occurred more than a year previously, I am satisfied that the respondent sought to cause a detriment to the complainant, regardless of what the outcome of the investigation might be.  I find that the initiation of the investigation was intimidating and excessive, and I am satisfied that, if she had not spoken up at the meeting on June 10th 2021, the investigation would not have been carried out.  The only conclusion I can come to is that, but for having carried out a protected act, the complainant would not have been penalised in this way.    

I decide that this complaint is well founded.  I can understand the complainant’s position that the actions of the respondent had the effect of undermining her trust in them and that she felt she had to resign.  To her credit, she was working again three weeks later, thereby mitigating her loss of earnings.

Having decided that her complaint is well founded, section 28(b) of the 2005 Act provides that I may require the employer to take a specified course of action and section 28(c) provides that I may require the employer to pay the employee compensation that I consider just and equitable, having regard to all the circumstances.

This complaint is grounded in the complainant’s determination to highlight the importance of operating a childcare business in accordance with the statutory regulations regarding the number of adults employed to provide care for the children in each setting.  The complainant raised an important health and safety matter and she was penalised for so doing.  Taking this circumstance into account, I direct the respondent to take some action to improve communications between them and their employees concerning health and safety risks.  I also direct the respondent to pay the complainant compensation of €14,000, equivalent to six months’ gross pay.

The Relevant Law

The Protected Disclosures (Amendment) Act 2022 came into effect on January 1st 2023, and the relevant law for the purpose of this complaint is the 2014 Act.  The definition of a “protected disclosure” is set out at section 5(1):  

“For the purposes of this Act ‘protected disclosure’ means, subject to subsections (6) and (7A) and sections 17 and 18, a disclosure of relevant information … made by a worker in the manner specified in section 6, 7, 8, 9 or 10.”

Sub-sections (6) and (7A) respectively address the disclosure of trade secrets and legally privileged information and these are not relevant for this complaint.  Sections 17 and 18 refer to law enforcement and international relations and are also not relevant here.  Sections 6 to 10 set out a tiered disclosure process and provide that information related to wrongdoings may be provided to a prescribed person, an employer, a government minister, a legal advisor or to another person.

For our purpose regarding this complaint therefore, a “protected disclosure” is the disclosure by an employee to his or her employer, or another person, of relevant information.  As pointed out by Ms McGrady at the hearing of this matter, to be a protected disclosure, the information disclosed need not be something about which the receiver is unaware.  Section 3(1) of the 2014 Act defines “disclosure” as “bringing to the person’s attention” information about which they are already aware.

Section 5(2) of the Act provides that,

“information is ‘relevant information’ if -

(a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and

(b) it came to the attention of the worker in connection with the worker’s employment.”

The operative clause concerning whether information shows that a relevant wrongdoing has occurred, is occurring or will occur is “reasonable belief.”  Section 5(8) provides that in these proceedings at the WRC, “involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is.”  In the Q & A material included as an appendix to the “Statutory Review of the Protected Disclosures Act 2014,” the reviewers note that,

“…all that is required is a reasonable belief that the information disclosed shows or tends to show that the wrongdoing is occurring.  This is a deliberately low threshold designed to ensure that most reports are made to the person best placed to correct the alleged wrongdoing – the employer.”

It is apparent that the Act intends that “relevant information” concerning an alleged wrongdoing is provided to the employer so that the wrongdoing can be addressed and, that the employee does not have to be convinced that a wrongdoing is occurring but that the lower threshold of reasonable belief applies. 

Section 5(3) of the Act lists the matters considered to be relevant wrongdoings:

The following matters are relevant wrongdoings for the purposes of this Act -

(a) that an offence has been, is being or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services,

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged,

(f) that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur,

(g) that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement, or

(h) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed.

The complainant’s case is that, at the meeting on June 10th 2021, when she raised the issue of the child/staff ratios in the rooms in the crèche where she worked, she made a protected disclosure in accordance with section 5(3)(b) or (d) above.

There are three components to the making out of a claim of penalisation under the Protected Disclosures Act:

1.  An employee must have a reasonable belief that a wrongdoing is occurring, has occurred or might occur;

2.  They must communicate what they know about the alleged wrongdoing to a prescribed person, their employer, a government minister, a legal advisor or another person;

3.  They must establish “a causal connection” between some action taken to their detriment, “a penalisation,” and the fact that they communicated with someone about a wrongdoing.  (See the decision of the Labour Court in Aidan and Henrietta McGrath Partnerhsip v Anna Monaghan[7]).  

Did the Complainant Make a Protected Disclosure?

At the hearing, witnesses referred to the various rooms in the crèche, where children at different ages were cared for.  I was informed by the respondent that the ratio of children to adults in a childcare setting is governed by Regulation 11 of the Childcare Act 1991 (Early Years Services) Regulations 2016.  A copy of the Regulations was provided in the respondent’s book of papers.  I heard evidence from the respondent regarding the child/staff ratio in each room, the details of which I have included here:

1.      A full day Montessori room where 28 children were cared for.  This “room” comprised two adjoining rooms with two teachers in one room plus another worker and a third teacher in a smaller room.  The ratio is one staff member for eight children for full day care and one staff member for 11 children for sessional day care.

2.      A small Montessori room, with 20 children in the morning and 11 children in the afternoon.  The morning ratio is 11 children to one staff member and the afternoon ratio is eight children to one staff member.  From July 2020 until June 2021, two full-time and one part-time employee (8.30 – 15.00) worked in this room. 

3.      A sessional room where children on the government-sponsored Early Childhood Care and Education programme (ECCE) was delivered.  This service was provided to 22 children in the morning and another 22 in the afternoon.  Two teachers and one additional worker plus a special needs assistant worked in the sessional room.  The ratio for this group of children is one staff member to 11 children.

4.      A toddler room with 11 children and two staff members.  The ratio for toddlers is six children to one adult.

5.      A “wobbler” room, where the ratio is five children to one staff member.  From July 2020 until June 2021, there were no children in this age category in the crèche.

The complainant gave evidence about what occurred at the meeting on June 10th, when she said she made a protected disclosure.  She said that the purpose of the meeting was to talk about the transition of the children to their new rooms.  There hadn’t been a staff meeting for a long time and the complainant said that the staff asked for an agenda, to which they added the items they wanted to discuss.  They wanted to talk about the child/staff ratio and lunch cover, breaks, uniforms, communications and equipment.  It is important to clarify that the child/staff ratio and lunch cover was one agenda item.  The issue was put on the agenda by an employee because of a concern that, during lunch times, the staffing levels in some of the rooms was not adequate to meet the child/staff ratio in the 2016 Regulations.

The complainant said that the co-owner, Ms Hartford, brought up the lunch cover and the ratio as the first item for discussion.  One of the staff, Ms McCann, said that they were operating over the child/staff ratio and she asked if it could stop.  The complainant’s evidence is that Ms Hartford remarked that Ms McCann had agreed to operate a higher ratio.  The respondent’s note of the meeting states:

“Arlene stated that all rooms need to be the same and not agree to be over Ratio.”

The complainant compiled her own note of the meeting some weeks after June 10th and she recalled that she, Ms Lonergan and Ms Dempsey Gregan “spoke up in agreement” with Ms McCann.  Mr Sweeney told the staff that two new employees had been recruited who would start soon and a relief person was also available. 

There followed a discussion about the sleeping arrangements in one of the rooms and then Ms Lonergan brought up the subject of staff eating their lunches in the classrooms.  The complainant said that she brought the discussion back around to the ratio.  She said, “we were seen as an inconvenience.”  She said that she wasn’t prepared to “keep breaking the regulations.”  The complainant’s evidence is that, during the discussion about eating lunch in the rooms, the meeting became disorganised, opinions were divided and people were talking over each other.  The complainant said that there was some joking about the issue and she remarked that it wasn’t funny to joke when people had strong feelings and the matter concerned the children’s health and safety.  When Mr Sweeney asked her to repeat her remark, she replied, “nothing.”  She said that she was taken aback by his abrupt and angry demeanour.

In his evidence, the co-owner of the crèche, Mr Sweeney, referred to the unannounced inspection by Tusla on March 12th 2021.  The report noted that, in the four rooms that were in operation on that day, there was an adequate number of adults working with the children.  The inspectors noted two issues of non-compliance.  The first was that a child who was awake when other children were asleep should have been taken out of the room to be cared for during the sleep time.  The second non-compliance issue was a finding that the kitchen door was open, posing a safety risk to children.  The report noted that these two issues of non-compliance were subsequently remedied by the management. 

Having considered the evidence of the complainant and the respondent’s witnesses, it is apparent that, in the period leading to June 10th 2021, a practice had developed in the crèche where, on some occasions, to ensure that there was an adequate number of staff in each room, staff were taking their lunch in the rooms where they worked with the children.  It is apparent to me that this was causing a split among the staff and that those who insisted on cover during the lunch breaks felt that they were a nuisance.

There is no dispute about the evidence given that, at the meeting on June 10th 2021, the complainant said that all the staff need to agree not to be over the ratio of children to adults.  I am satisfied that, in making this statement, she brought the attention of her employer to a potential breach of the 2016 Regulations, which amounts to reporting a potential wrongdoing in a childcare setting.  I am satisfied that the complainant had a reasonable belief that a wrongdoing was occurring, which meets the first component of the test for a protected disclosure.  By communicating her reasonable belief about this wrongdoing to her employer at the staff meeting on June 10th 2021, I am satisfied that she meets the second component of the test. 

Was the Complainant Penalised?

The complainant argues that, because she spoke up at the staff meeting on June 10th 2021, she suffered a detriment that amounts to penalisation.  I have considered the issue of penalisation under the heading of the Safety, Health and Welfare at Work Act 2005.  As set out under that heading, I have concluded that the complainant was penalised when the respondent initiated an investigation by an external consultant into the complaint submitted by Ms Clarke on June 20th 2021.

Conclusions

Section 5(8) of the 2014 Act provides that,

In proceedings involving an issue as to whether a disclosure is a protected disclosure, it shall be presumed, until the contract is proved, that it is.

I am satisfied that, when she spoke up at the meeting of the staff and owners on June 10th 2021, asking if all the rooms could operate within the child/staff ratio in the 2016 Regulations under the Childcare Act 1991, the complainant had a reasonable belief that, during lunch times, the ratio was not always maintained.  When she spoke up in this manner, the complainant made a protected disclosure and the evidence of the respondent was insufficient to prove the contrary.

It is my view that, arising from her comments, either Ms Clarke saw an opportunity to inflict some suffering on the complainant by making a complaint about her, or she was encouraged to do so by Ms Hartford or Mr Sweeney or both.  If she had not spoken out in opposition to a breach of the child/staff ratio, I am convinced that Ms Clarke would not have made a complaint and the respondents would not have referred the matter to an external consultant for an investigation.  The rational conclusion therefore, is that the investigation was initiated in retaliation for speaking up about the ratio.  I find that the decision of the respondent to contract an external consultant to carry out an investigation into what amounted to personal and professional rivalry between two employees to be intimidating and that it was intended to cause distress to the complainant.  I find that her complaint of penalisation is well founded.

I have decided that this complaint under the Protected Disclosures Act 2014 is well founded.  As I have made an award under the Safety, Health and Welfare at Work Act 2005 regarding the complainant’s claim of penalisation, I make no award under the 2014 Act.

Health and safety, child/staff ratio, Regulations under the Childcare Act 1991, protected disclosure, penalisation