Complainant

Respondent

Parties

Ann  Fogarty

Tusla Child & Family Agency

Representatives

Mr Terence O'Sullivan TJOS Solicitors

 Mr Barry Cunningham TUSLA

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00045119-001

09/07/2021

The Complainant works as an Educational Welfare Officer (EWO) with the Tusla Education Support Service (TESS), which is part of the Respondent umbrella organisation. Her role is to advise and assist schools, parents and children regarding school attendance, enrolment, suspensions, expulsions, and the appeals process under section 29 of the Education Act 1998.  On 6 January 2020 the Complainant submitted a Protected Disclosure to the CEO of TUSLA through her then solicitors. Both sides accept that a Protected Disclosure, as provided for under the Protected Disclosures Act 2014 (The Act), was made. The Complainant alleged in the Protected Disclosure that she was prevented from carrying out her statutory role by an Education Training Board (ETB) school. The Respondent found that the Protected Disclosure did not meet the threshold for further investigation.

The Complainant asserts that she was penalised for making the protected disclosure through suspension of duties, unfair treatment, and loss of promotion. The Respondent contends that the relevant national and local management had no knowledge of the protected disclosure. Furthermore, it contends that no penalisation as alleged by the Complainant occurred and that the issues raised by the Complainant predated the submission of the protected disclosure.   

The Complainant gave evidence under affirmation. She read her protected disclosure into the record and expressed disappointment that the Respondent did not consider it reached the threshold for investigation.

She described how she was removed from a position of engaging with an ETB school eleven weeks after making the protected disclosure and she perceived that this was a suspension as a result of making the disclosure. An investigation had cleared the Complainant of any wrongdoing resulting from the investigation but despite this, she still remained suspended from interacting with the School on account of the ETB instructing schools not to engage with her. She feels that the action of the Respondent constitutes ongoing penalisation as she remains supervised, without reason or explanation, in her work relationship with an ETB school.

The Complainant made a complaint of bullying and harassment against the relevant senior officer in the ETB, but this was never acted upon by the Complainant. She also said that she was subject to bullying and harassment by the Respondent’s senior management and was denied the support services in Occupational Health when she required them. She stated that she believed that all of this unfair treatment emanated from the fact of her making a protected disclosure.

She also believes that her promotion prospects have been dented as a result of the reputational damage that she has suffered.   

Mr. Dan O’Shea gave evidence under affirmation. He described himself as manager of TESS in the general Munster area and the direct line manager of the Complainant. He gave evidence that he had no knowledge of the protected disclosure made by the Complainant and only became aware of it after the Complainant had commenced proceedings.

 He described how the role of the service was to assist and advise schools and that ultimately, they did not have the final say if a school did not want to cooperate. He described the relationship between the Complainant and the ETB as fractious and he stated that here were two complaints from different ETB schools about the Complainant; one in 2018 that was resolved with redistribution of schools and without any fault attributed to the Complainant, and a complaint by another school  in 2019 which  was investigated by an independent person. The investigation found that no fault could be attributed to the Complainant. However, the school and the ETB did not accept the findings. The eventual outcome was that there was a resumption of service, with additional supports put in place for the for the Complainant. He stated that he would not describe this as a suspension.

In cross examination he stated that a bullying complaint by the Complainant could not be pursued because the alleged perpetrator worked with another organisation. He stated that no further TESS issues arose at the school where the Complainant was available to assist in her supported role.

Ms. Aine O’Keefe the TESS National Manager for Education gave evidence under affirmation. She stated that she had no knowledge of the Complainant’s protected disclosure to the office of the CEO. She described how she became involved in 2019 in organising an independent investigation into a complaint about the Complainant from a Kerry ETB school. She explained the difficulties in pursuing such an investigation during the Covid restrictions period when schools were closed. The outcome was favourable to the Complainant when it was found that no culpability was attributed to her. The witness said in evidence that they were fully supportive of the Complainant and did not put any other EWO in her place, despite the protestations of the school.    

Both parties in this case accepted that a protected disclosure was made by the Complainant for the purposes of the Act. It has long been established that it is not the role of the Adjudication Officer to assess the allegations regarding the seriousness or otherwise a respondent attaches to a complainant’s protected disclosure or the adequacy or otherwise of the timeframe within which a respondent investigated them. These are not matters that fall within my jurisdiction under the Act. However, I believe it is relevant to note in, this case, that that the then Complainant’s solicitors requested that the disclosure would be treated in the strictest confidence when they wrote to the Respondent CEO on behalf of the Complainant. Furthermore, I note that evidence was presented to show that the office of the CEO deemed that the disclosure did not meet the threshold for further investigation.

My role here is to determine whether the Complainant has established that any act or omission on the part of the Respondent, that affected her to her detriment occurred at all/or ensued as a consequence of the protected disclosure the Complainant made to the CEO on 6 January 2020.

The Applicable Law:

Section 12(1) of the Act provides:

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.

Penalisation is defined at section 2 of the Act as follows:

“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;

The Complainant contends that she was suspended from engaging with an ETB school, implying that it was the Respondent who suspended her from her normal duties. I find that the evidence given suggest that this position is not correct. Firstly, the uncontested evidence given was that the Complainant was never suspended from her duties in the context as to how ‘suspension’ is understood in employment law. Secondly, it was an outside body, an ETB school, who demanded that the Complainant would not engage with a named school. It was clear to me that the Respondent supported the position of the Complainant during an impasse with the ETB, and refused to replace the Complainant with another EWO, despite the demands of the ETB. I am satisfied that the situation of the Complainant, where she now finds herself under supervision from a senior EWO when engaging with a certain school , was  not the desired  intention  of the Respondent, but instead is  an unfortunate  function of a shortcoming in the governing  legislation which essentially places the school or educational body in the position of  having the final call on such matters.

The Complainant states that she was subjected to unfair treatment after making the protected disclosure. However, the unfair treatment she outlined had its genesis in relationships with the ETB and two schools, prior to the making of the protected disclosure. The Respondent gave plausible evidence of delays in investigation because of the closure of schools during the pandemic and the strong resistance by the overarching supervisory educational body to the conclusion of the investigation, where the Complainant was found not be at fault.

The Complainant asserted at the hearing that she was bullied and harassed by management within the Respondent organisation, including being denied Occupational Health supports, after making the disclosure but accepted that she did not pursue this claim through the established bullying and harassment procedures. The Complainant also contended that she was denied promotional opportunity on account of making the disclosure but acknowledged that she never sought promotion.

Fundamentally in this case, local and national management gave cogent evidence that they had no knowledge of the protected disclosure, save when the complaint was submitted to the Workplace Relations Commission. The copy of the disclosure to the CEO, which was exhibited and read into the record, clearly stated that the protected disclosure should be treated in the strictest confidence. Moreover, the CEO’s office replied that initial screening determined that the disclosure did not warrant further investigation. I find, based on the evidence presented to me, that the relevant local and national management who engaged with the Complainant from 2018 onwards, had no knowledge of the protected disclosure at the material time.  Therefore, I find that any purported detriment suffered by the Complainant as described in this complaint did not ensue  as a consequence of the protected disclosure made by the Complainant on 6 January 2020. I decide that the complaint was not well founded.

CA-00045119-001: Based on the reasons as outlined above, I find that the complaint of penalisation in respect of the Protected Disclosures Act 2014, was not well founded.

Protected Disclosures Act 2014.