Complainant

Respondent

Parties

Paula  D'Arcy

Sue Ryder Foundation Ireland, CLG

Representatives

  Self-Represented

Respondent Managers

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 62(2) of the Charities Act 2009

CA-00052657-001

29/06/2022

The issue in contention was the alleged Penalisation of the Employee by the Employer pursuant to the Employee making a Report a Protected Disclosure regarding the Employer, (under Section 61 of the Charities Act,2009,) to the Board/Chairman of the Company & the Charities Regulator.

The employment began on the 1st June 2015 and continues (although this point was disputed).

The Rate of Pay was €334.57 for 22-hour week.

The Complainant gave direct Oral Testimony supported by her detailed Complaint form. She had been on medium term sick leave and returned to work in late 2019. She was the Manager of the Dundrum, Dublin 14, Branch of the Organisation.

 On her return she discovered that a fellow employee, a Retail Assistant, had been forging her signature on Social Protection forms effectively engaging in alleged Fraud of Social Protection. In addition, this employee, Ms X, had a long history of bullying and intimidating her. Significant breaches of the Organization’s Commercial policies were also being committed by Ms X.

Unofficial and informal attempts to get this issue resolved with Mr Reid, (for convenience hereafter abbreviated to Mr R) the Area Manager, were unsuccessful.  Mr R was in underhand contact with Ms X and the Store Manager position was completely undermined.  Covid 19 shutdown intervened. On the resumption of Trading in June 2021 Ms X lodged a Grievance against the Complainant. Later the Complainant lodged a Formal Internal Grievance in June 2020 against Ms X and her alleged Social Protection frauds.

This Grievance was treated in an offhand manner. An outside Consultant, Ms Vaughan, was engaged to deal with the matter but in reality, no satisfactory response was ever received. The Investigation remained outstanding almost two years later. Ms X did not come back to work, save for one day, post the Covid Pandemic. Matters became very frustrating for the Complainant. On medical advice she requested a move to a Three-Day week, but Mr R had stalled on this. To protect her own Health, both Mental and Physical she took the initiative, herself, to go on a three-day week. She had been diagnosed with Arthritis at this stage – end 2021/start 2022.Mr R, the CEO, had effectively ignored, she alleged, this medical situation. Her frustrations continued.

Eventually, the Complainant lodged a Second Internal grievance, with the Chairman of the Organisation, Mr Quilty, (for convenience hereafter referred to as Mr Q) directly against Mr R in early 2022. It was alleged that he had obstructed the Complainant in relation to the first grievance of June 2020, had turned a blind eye to DSP fraud by Ms X, had made life as difficult as possible for her as Manager and prevented her from changing her hours to a three-day week (requested because of medical difficulties).

A second Outside Investigator/Consultant, Mr Gibney, was engaged by the Chairman Mr Q. The Report was completely unsatisfactory. She had appealed the outcome of Mr G’s Report to the Chairman, Mr Q, but to no success.

The Complaint had raised the question of a Voluntary Severance arrangement with Mr R in the start of 2020 but to no avail as no proper response was ever forthcoming. He had never really given a straight answer was her view.

The Complainant in complete frustration, made a Formal Complaint to the Charities Regulator and lodged a WRC complaint in late July 2022. She went on Sick leave in July 2022 and had not returned to work at the date of the Hearing in January 2023.

In summary she stated that she was now completely disillusioned with the Organisation and could never go back to work there particularly with Mr R as her Manager. She had made proper disclosures internally and had been grossly retaliated against.  She had followed this with a Disclosure to the Charities Regulator in June 2022 and to the WRC on the 29th of June 2022.

She had, she maintained in her Oral Testimony, been effectively Constructively Dismissed and grievously Penalised by Mr R, in particular, for her Protected Disclosures.

In her Oral Testimony and under cross examination she made it clear that she had no desire to return to the Complainant’s employment and a VS package was her wish.

The Respondent submitted a detailed written Submission which was supported by extensive oral testimony from Managers, Mr R, and especially from the Chairman, Mr Q.  Ms Vaughan, HR Consultant, was in attendance to corroborate as required.

Manager, Mr R, was the main spokesperson.

In summary the Respondent case was that the Complainant was a valued employee since 2015. She remained employed and there was absolutely no basis for her seeking a Voluntary Severance exit. She had never been Penalised, in any way. The Organisation and Mr R, the CEO, had gone to extra ordinary lengths to investigate her issues and try to accommodate her.

It was acknowledged that she had experienced difficulties with Ms X in 2020. However, Ms X had effectively left or more correctly abandoned the Organisation in 2020. This made follow up investigations of any Social Protection irregularities very difficult. Nonetheless the June 2020 Grievances of the Complainant had been the subject of a most professional Review and Detailed Report by Ms Vaughan, a very well-known and respected HR Consultant. Her report had not been completed due to the absence of Ms X and the need for very careful procedures as the possibility of serious fraud charges was possible. Ms Vaughan had been in detailed contact with Social Protection and made many fruitless efforts to get Ms X to assist.

The Second Grievance, against Mr R , the Manager, was made in March 2022  to Mr Q, the Chairman. It was also the subject of a detailed Independent Report by Mr Gibney, a well-known and respected, HR Consultant. It examined at length the complaints of the Complainant and did not find in her favour. (Report of the 25th May 2022). The full text of Mr Gibney’s Report was submitted in evidence. The Gibney report was appealed to Mr Q, as Chairman of the Board. In a very detailed Appeal report (8th September 2022) he did not find in the Complainant’s favour and supported Mr Gibney’s findings.

The issue of the Complainant’s request to change to three-day week was subject to the Commercial realities of the Organisation. Mr R had been carrying out his Senior Managerial Overseeing remit in querying and seeking clarification on the Complainant’s proposal. It was noted that the Complainant had pre-empted discussion and introduced a Three-day week on her own, unapproved, initiative. Mr R had on a very short-term basis, accepted this but had made a number of counter proposals such as moving Shops etc. The Complainant had rejected all these suggestions.

The Complainant made a Report regarding the Organisation to the Charities Regulator in June 2022 essentially regarding how the Social Protection issue had been handled in 2020. At the date of the Hearing, it had not been finally processed by the Charities Regulator. There was absolutely no substance to any charge of Retaliatory Penalisation of the Complainant following the lodging of the Report.

Despite these numerous difficulties the Respondent still had a position for the Complainant and there was no suggestion possible of any “Buy Out” package. It was a Charitable Organisation and rigorous oversight of all finances was paramount.

The Complaint remained on Long term Sick leave since July 2022.

Mr R’s Oral testimony was supported by Oral testimony from Mr Q, the Chairman and by Ms V, the HR Consultant as required.

Mr R and Mr Q were cross examined by the Complainant. Under cross examination they reiterated the points made above.

3:1        Opening Adjudicator Comments

The complaint that is before this Adjudication is CA-00051409 in Adjudication No Adj -00040120. This is a specific complaint alleging Penalisation following a Protected Disclosure under Section 62(2) of the Charities Act ,2009 with due regard to definitions set out in the Protected Disclosures Act, 2014.

It is not a complaint under the Unfair Dismissals Act,1977 or any other piece of Employment Legislation such as the Industrial Relations Act,1969.

Accordingly, the Adjudication has to focus, by Law, on the Charities Act, 2009.

3:2         Legal position.

Definition of Penalisation & Time Reference Periods.

Penalisation is defined in Section 2 -Definitions – of the Protected Disclosures Act, 2014. Quoted below.

"penalisation" means any direct or indirect act or omission which occurs in a work-related context, is prompted by the making of a report and causes or may cause unjustified detriment to a worker, and, in particular, includes—

(a) suspension, lay-off or dismissal,

(b) demotion, loss of opportunity for promotion or withholding of 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) coercion, intimidation, harassment or ostracism,

(f) discrimination, disadvantage or unfair treatment,

(g) injury, damage or loss,

(h) threat of reprisal,

(i) withholding of training,

(j) a negative performance assessment or employment reference,

(k) failure to convert a temporary employment contract into a permanent one, where the worker had a legitimate expectation that he or she would be offered permanent employment,

(l) failure to renew or early termination of a temporary employment contract,

(m) harm, including to the worker’s reputation, particularly in social media, or financial loss, including loss of business and loss of income,

(n) blacklisting on the basis of a sector or industry-wide informal or formal agreement, which may entail that the person will not, in the future, find employment in the sector or industry,

(o) early termination or cancellation of a contract for goods or services,

(p) cancellation of a licence or permit, and

(q) psychiatric or medical referrals;

It is also pertinent to point out that Penalisation is a post factum event in other words it has to happen after the Disclosure is made.

In the Documentation and Oral testimony there was ambiguity as to when a “Disclosure” was made as against an employee Grievance. Legal precedents have of late been careful to emphasise the differences between both issues. (Code of Practice on Protected Disclosures SI 464 of 2015). In this case this vital distinction was at best clouded.

However, if it is taken that the Disclosure was the first 2020 Grievance, then the Penalisation has to have taken place in the period to the Referral of the Complaint on the 29th June 2022. However, Section 41 of the Workplace Relations Act limits issues of complaint to the six months period to the WRC Referral of the Complaint – i.e., the reference period would have to be from 29th December 2021 to the 29th June 2022.

If it is taken to be the lodging of the Second Complaint to Frank Quilter, the Chairman on the 9th March 2022 the Penalisation period would have to be a period of six months (9th September 2022) after that date.  The WRC complaint was lodged on the 29 June – nearly 4 months later.

These issues were not discussed at length at the Hearing as neither side was professionally Represented. However, they cannot be ignored. The issue does not help the Complainant’s case.

3:3          Adjudication Discussion.

There was a considerable volume of written materials submitted in this case supported by extensive Oral Testimony. The Adjudicator read the written materials and hear the Oral testimony.

In her Oral testimony the Complainant made it clear that her relationship with the Organisation had irretrievably broken down and she wanted a Voluntary Severance Package. Her e mail of the 7th February 2022 had made this abundantly clear. The Organisation and Mr R had not responded favourably or at best were taking a long time to come to a conclusion.

The lodging of a Protected Disclosure complaint under the Charities Act,2014 to the WRC on the 29th June 2022 was clearly an act of frustration on the part of the Complainant.

In all the evidence presented both oral and Written materials there were no substantive Grounds of Penalisation as set out in the extract from the Protected Disclosures Act,2014 above. The careful delivery of the Chairman Mr Q’s Oral testimony was very clear on this point as was the very detailed Report from Mr Gibney, the HR consultant. Both Mr Q and Mr Gibney’s Report made numerous references to major shortfalls in evidence from the Complainant.

Mr Q was on sworn evidence and was a very competent witness.

In Oral testimony of the Complainant, the only major issue of complaint, it appeared to Adjudicator, was the reply in the Voluntary Severance application.  This is not penalisation as legally understood. To make a case that a Voluntary Severance negative reply is an act of Penalisation requires very strong evidence indeed.

In this case two very experienced HR Consultants had been commissioned to investigate the issues, Ms Vaughan and Mr Ribney. Commissioning and financing two Independent Reviews is not normally the action of an Employer bent on Victimisation. Mr R, the CEO, in his Oral testimony, again under Oath strongly denied any suggestions of Penalisation. As regards Working Weeks, he had a Managerial duty and if he had not agreed with the Complainant this was not Penalisation.

In Oral evidence it was discussed whether or not Mr Gibney, who was not present, had suggested a “cut your losses “approach to the Respondents. It was not absolutely clear what had been finally discussed on this point, but Mr R and Mr Q had emphasised that any such suggestion would have needed full Board approval. The Chairman, Mr Q, had never been aware of any requests of this nature, to the Board.

3:4       Adjudication Conclusion.

The Oral Testimony was crucial in this case. The Complainant clearly wanted to leave the Respondent’s employment and was seeking a VS package. She had stopped sending medical certificates since mid-2022. This VS option was not immediately forthcoming, and this was a source of great frustration to the Complainant.

The Complaint from the Complainant under the Charities Act 2009 of Penalisation was very largely born of this frustration.

To be absolutely Legally clear, the Complaint CA-00051409 under the Charities Act 2009 lacks a solid base of hard evidence of Penalisation action by the Respondent.

Co incidentally this is also the finding of both Mr Gibney in his lengthy and detailed Report and the Chairman, Mr Quilty, in an equally detailed Appeal decision.

The evidential point is leaving aside the Time Limit/Reckonable Periods arguments which are not in the Complainant’s favour although never discussed at the Hearing.

The Complaint has to be seen to lack required Legal substance and has to be deemed Not Well Founded. It fails.

Protected Disclosure, Penalisation, Charities Act,2009.