FULL RECOMMENDATION
SECTION 4 (6), PROTECTION OF PERSON REPORTING CHILD ABUSE ACT, 1998 PARTIES: SCOIL AINE NAOFA (REPRESENTED BY MS CHRISTINA O'BYRNE B.L. INSTRUCTED BY MASON, HAYES & CURRAN) - AND - MR MICHAEL HUGHES DIVISION:
SUBJECT: 1.Appeal of Adjudication Officer Decision No(s) ADJ-00025023 CA-00031775-002. DETERMINATION: Mr. Hughes, ‘the Complainant’, was employed by Scoil Aine Naofa, ‘the Respondent’, as a Special Needs Assistant, ‘SNA’, and was dismissed on 14 June 2019. The Complainant lodged a complaint with the Workplace Relations Commission, ‘WRC’ under the Protection of Persons Reporting Child Abuse Act, 1998, ‘the Act’, stating that he had been dismissed for having made a protected act, in the form of a disclosure, under the Act. This was denied by the Respondent. An Adjudication Officer, ‘AO’ decided that the Complainant did not make a disclosure, as defined in the Act and that the Act was, accordingly, inapplicable. As a result, the complaint was held to be not well founded. The Complainant appealed to this Court. The applicable law. Protection of Persons Reporting Child Abuse Act, 1998. Interpretation. 1. “appropriate person” means a designated officer or a member of the Garda Síochána; Designated officers. 2.(1) The Health Service Executive and the Child and Family Agency shall from time to time as occasion may require (including a case in which a direction is given under this section), appoint one or more employees of the Health Service Executive or of the Child and Family Agency as the case may be, to be a designated officer or officers for the purposes of this Act; in making any such appointment, the Health Service Executive and the Child and Family Agency shall comply with any direction under this section for the time being in force. Protection from civil liability of persons who have reported child abuse. 3.—(1) A person who, apart from this section, would be so liable shall not be liable in damages in respect of the communication, whether in writing or otherwise, by him or her to an appropriate person of his or her opinion that— (a) a child has been or is being assaulted, ill-treated, neglected or sexually abused, or (b) a child’s health, development or welfare has been or is being avoidably impaired or neglected, unless it is proved that he or she has not acted reasonably and in good faith in forming that opinion and communicating it to the appropriate person. Protection of employees from penalisation for having reported child abuse. 4.—(1) An employer shall not penalise an employee for having formed an opinion of the kind referred to insection 3of this Act and communicated it, whether in writing or otherwise, to an appropriate person if the employee has acted reasonably and in good faith in forming that opinion and communicating it to the appropriate person. Deliberation. The Complainant accepts that he did not make a complaint to an appropriate person, as defined above. He did make complaints to the Principal and these were raised with Tusla. However, the Act is clear in limiting protection to employees from penalisation to those who have communicated concerns to an appropriate person, which the Act defines as a designated officer appointed by Tusla or by the HSE or to a member of An Garda Siochana. Accordingly, the provisions of the Act are inapplicable to the facts of this case. It is not open to the Court to consider if there was a Protected Disclosure within the meaning of the Protected Disclosures Act 2014 as no complaint was made to the WRC under that Act and, therefore, no appeal was, or could have been, made to this Court. In any event, in the instant case, the issue of reports, and whether they formed any part in the dismissal of the Complainant, falls to be considered in a parallel case under the Unfair Dismissals Act involving the same parties. The Complainant made a point to the Court that he felt it was unfair that he was required to make a complaint to the prescribed recipients as he was not aware that this was needed and that he had raised concerns with the Principal, who had conveyed these concerns to Tusla. Arguments as to whether there is, or is not, a lacuna in the Act under which this appeal has been taken could be of greater consequence in some future case but this is not something on which it would be appropriate for the Court to comment. Determination. The Decision of the Adjudication Officer is upheld.
NOTE Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary. |