Complainant

Respondent

Parties

Edel Ambrose

Sankalpa Ltd

Representatives

Michael Kinsley BL instructed by Daly Kurshid Solicitors

Jason Murray BL instructed by  McCartan & Burke Solicitors / Fiona Egan, Peninsula for the first two days

Act

Complaint Reference No.

Date of Receipt

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

CA-00042153-001

26/01/2021

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

CA-00042153-002

26/01/2021

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

CA-00042153-003

26/01/2021

The complainant worked as the respondent manager between the 8th October 2018 and the 23rd October 2020, when she resigned. She was paid €59,280 per year. The respondent is a charity. The complainant asserts that she was constructively dismissed, that she was penalised for making protected disclosures as well as that she was discriminated on grounds of sexual orientation and victimised in contravention of the Employment Equality Act. The respondent denies the claims.

On affirmation, the complainant outlined that she was headhunted to fill the Director role in the respondent. She started the role in October 2018. She had worked in addiction and homeless services for two decades. On commencing the role with the respondent, she was tasked with improving recovery models and improving the skills of staff. The respondent operated a community recovery programme in managing addiction and to help people return to work.

The complainant said that she loved her time with the respondent. They had sought to create an ‘open door’ model and she was able to grow the project. They were able to help people find employment. The complainant outlined that she met the board about every 8 weeks and supplied the board with reports. She prepared financial reports in respect of 2018 and 2019.

The complainant outlined that she had made the respondent’s services more accessible to users. She had designed and implemented a three-stage process, with the third stage being placement in the labour market. The number of clients increased from 0 in stage 1 to between 50 to 80; from 2 to 12 in stage 2 and from 8 to between 30 and 40 in stage 3.

In respect of the CE Assistant Supervisor, the complainant outlined that the CE placement of the CE Assistant Supervisor was due to end in November 2019. The CE Assistant Supervisor then took up the Assistant Supervisor role and became a full-time permanent employee. The complainant described that she had a good relationship with the CE Assistant Supervisor, but that there were misunderstandings. The CE Assistant Supervisor, for example, would refer to the complainant’s wife as her friend and not as her wife. The complainant said that the CE Assistant Supervisor informed the complainant of domestic violence, so the CE Assistant Supervisor and her child came to the complainant’s home for Christmas.

The complainant said that she was very surprised by the allegation made by the CE Assistant Supervisor on the 11th May 2020. The CE Assistant Supervisor had made an allegation of harassment against a male colleague. The CE Assistant Supervisor accused the complainant of not accepting her account because the complainant would not allow the CE Assistant Supervisor to sleep with the complainant’s brother. The complainant said that this allegation was preposterous. The allegation alarmed the complainant, so she asked for a colleague to join the meeting and to take notes. The CE Assistant Supervisor made further allegations in writing and also emailed her resignation.

The complainant outlined that she met with board members on the 26th May 2020 about the allegations. She described the Chair as being incredibly hostile in his approach to the meeting. The complainant felt that Sandra Kernan had a view that the complainant needed to be supported. The Chair asked the complainant whether she had thrown a pen. The complainant denied the allegations.

On her return to work after the June public holiday, the complainant met two directors, Sandra Kernan and Brenda Kane, who informed the complainant that there were allegations from other staff and that the complainant was being suspended. The complainant later received a document containing additional allegations from the CE Assistant Supervisor but no other staff member. The complainant asked for CCTV footage to be viewed as one of the allegations stated that the complainant had waved her arms at the CE Assistant Supervisor. The footage would show that this was not the case.

The complainant said that she met the investigator appointed by the respondent. The investigator also met with the witnesses. The investigation report was issued, and the complainant was told to immediately go back to work. The complainant was concerned about the damage to her reputation and needed legal advice. She emailed the board about her delaying returning to employment. The Chair emailed to threaten her with disciplinary action if she did not return. He stated that the report had cleared the complainant and as a consequence she should return. The complainant also sought to raise a grievance, but the respondent would not process this.

The complainant wrote to the Health Service Executive on the 19th June and the 21st July 2020 with her concerns regarding the actions of the board. She raised issues regarding the governance of the board and that the Chair was appointed in breach of the Charities Regulator Code of Practice. She was aware that the board met the Health Service Executive on the 10th July 2020. She had also contacted a local TD.

The complainant attended work on the 27th July 2020. She observed that the CE Assistant Supervisor was also in work. She was accompanied by Jennifer Clancy, a former director. They had to wait as the Chair was two hours late. When the meeting started, the Chair challenged the right of Ms Clancy to be at the meeting. The complainant said that the Chair raised his voice while she was quiet. She described the Chair as shaking with anger and that it was ‘coming out of him sideways’. The complainant said that she felt intimidated and threatened. She described this as being similar to a number of other interactions with the Chair. The complainant described that at the meeting the Chair kept asking the complainant whether she was ‘taking her chair’.

The complainant outlined that she was not allowed autonomy once she resumed the role. She described it as horrendous and that she needed the permission of the Chair to carry out tasks. The complainant’s name was removed from the bank account. Brenda Kane was added to the bank account and the credit card. The complainant needed permission of the Chair to authorise any payment. She commented that she felt nothing but fear for the Chair. She had asked Ms Clancy to attend the return to work meeting because she did not feel safe being with the Chair.

The complainant outlined that the CE Assistant Supervisor made allegations against other employees. The CE Assistant Supervisor, for example, accused a colleague of spitting at them. The CE Assistant Supervisor withdrew the allegation when she was shown CCTV footage depicting that the incident had not taken place. While the complainant supported the staff members as best she could, she was disempowered and could not take disciplinary action without the support of the board.

The complainant described the meeting of the 17th September 2020. This was an evening board meeting. She described the room layout as her being seated in the middle of the room, facing the board members. She said that she was interrogated by the Chair. She explained the purchase of a head lice medication, how she had needed it following an interaction with a service user and why, on medical grounds, she could not use a normal lotion. The complainant described the Chair as humiliating her and being physically disgusted by her presence. The complainant outlined that the Chair challenged her for writing to the HSE and to the local TD. The Chair asked the complainant who did she think she was. The complainant described the meeting as a ‘kangaroo court’.

The complainant outlined that she contacted the local TD in September 2020 as they were unable to pay suppliers. The HSE had said that there would be an investigation.

The complainant outlined that as Manager she increased the respondent’s funding and services. The funding increased to €600,000 per year. She increased the range of services. The respondent had a surplus of about €32,000 and she availed of this to ensure that staff received mandatory training. There had been a training embargo for financial reasons. Minutes of board meetings referred to the provision of training.

The complainant outlined that she had no choice but to resign. She resigned on the 23rd October 2020. The letter of the 2nd November 2020 was the only response of the respondent. The complainant described the letter as containing threats and lies. She had been raising concerns since the 2nd June, so it was not true for the respondent to say in their letter that she had only raised issues in the letter of resignation.

The complainant said that she was paid approved overtime, and this was processed by the external pay roll provider. The complainant said that she moved to a new role and was paid €19,000 per annum less in this role. The complainant outlined that she believed that roles she sought in 2021 were not offered to her because of a bad reference from the respondent.

In further evidence, the complainant outlined that she had agreed with the HSE to establish an isolation unit. This occurred in March 2020 in the context of the pandemic. She had liaised with the Chair on this project. No issue was raised regarding the finances until after her return from suspension. The complainant surmised from the respondent minutes that the board did not meet to discuss her return to work.

The complainant referred to email correspondence with the HSE in August 2020. This was when she did not have access to the accounts. The credit card was locked, and they were unable to pay bills. The complainant said that this was not noted in the minutes. The complainant said that she was accused of being a liar at the meeting of the 22nd October 2020. The complainant had explained why phones were provided to homeless service users in order for them to access homeless services. A named director accused the complainant of being a liar. This intervention was not properly recorded in the minutes.

The complainant said that she did not have enough in the tank to deal with this ordeal. She was running on fumes following chemotherapy. She was accused of lying and her reputation was left in tatters. She spoke with her wife and felt that she was done.

The complainant outlined that every time she raised her voice she was met with punishment. She instanced a phone call she received from Finglas Garda Station in August 2021 regarding an allegation made to it by the respondent. This delayed her Garda vetting for a new role, but this was resolved following the intervention of her solicitor with An Garda Siochana. The report to the Gardai took place on the same day as mediation occurred at the Workplace Relations Commission.

The complainant outlined that there was an unresolved issue regarding her being a frontline healthcare worker in the pandemic, which she was but the respondent had failed to acknowledge.

Cross-examination of the complainant

In cross-examination, the complainant outlined that the Service Level Agreement referred to her role as ‘Director of services’. She was the most senior member of staff and was responsible for the daily management of the organisation. She oversaw the daily and monthly financial transactions and reconciled the accounts. She verified that the Department of Social Protection monies were spent on their designated purposes.

The complainant said that she enjoyed the role up to May 2020. She had relatively little to do with Ms Kernan until she returned to work from suspension, when she was micro-managed. The complainant accepted that the respondent had a duty to investigate the issues raised by the CE Assistant Supervisor. She was flabbergasted by these allegations, and they were distressing. The complainant accepted that the allegations made by the CE Assistant Supervisor were held to be ‘unfounded’. The complainant did not accept that she was invited back to work but that she had been instructed back to work. The complainant had not seen the investigation report and wanted to know what supports the respondent would put in place for her return. The complainant said that she was not reluctant to go back to work but had concerns that the respondent had to address. She said that the offer of counselling in the email of the 11th June 2020 was in response to several of her emails looking for support.

The complainant said that she had asked for the allegations to be given to her on the day she was suspended, but this did not occur. She was not advised of a timeline or informed of what was going to happen. She emailed to challenge the suspension. In respect of the phone call with the Chair, the complainant said that she was concerned that the Chair referred to the allegations being ‘unsubstantiated’ when they were held to be ‘unfounded’. She was concerned at the Chair’s aggressive tone. She received the Chair’s email after her saying that she would not attend work the following day.

In respect of the return to work meeting, the complainant said that the Chair spoke to her in an aggressive manner. He said that Ms Clancy did not have the right to be present. The complainant said that the Chair was shouting at her. He kept saying ‘are you going to take your chair’ as a barrage. The complainant outlined that she was trying to talk and trying to answer. The Chair accused the complainant of being the most disingenuous person he had ever met. Ms Clancy said that the complainant was the innocent victim. The Chair outlined that he wanted a weekly report and that there would be weekly meetings.

The complainant outlined that she believed the respondent carried out a financial investigation while holding the September meeting and discussing the 2019 accounts. This was a harrowing event. The Chair kept saying that the complainant had seen the draft accounts, but she had not. The complainant had assumed that she was going to see the accounts at the meeting. She described being cross-examined by the Chair, who challenged the manner of her appointment. The Chair raised the complainant’s contacting the HSE about his appointment as Chair of the respondent. The Chair challenged the complainant on the head lice product she used. The complainant said that the Chair kept shouting at the complainant and insisting that she had seen the accounts. The complainant denied having seen the accounts as she was suspended in June. The complainant outlined that she answered the Chair’s questions in detail.

It was put to the complainant that the respondent had not carried out a financial investigation but that she had been asked questions in the context of the audit. She replied that she had not perceived the meeting to be an investigation. She had been asked the same question many times and she considered some of the questions to be a personal attack. She said that the minutes referred to an ongoing ‘financial investigation’. It was put to the complainant that Mr Byrne had offered his support. The complainant replied that she had answered his questions and had also said that she was being bullied at the meeting. She replied that he had not denied this or offered his support. She outlined that Mr Byrne had emailed questions, which she had answered, and said that the complainant could reach out to him. The complainant then replied that she was being bullied by the Chair.

It was put to the complainant that Mr Byrne’s email offered support and did not indicate that the meeting the night before had been difficult. The complainant replied that their correspondence had been cordial, and Mr Byrne had not been intimidatory or aggressive. She had emailed Mr Byrne to say that she was being bullied by the Chair. This was a reference to the Chair’s treatment of her overall. It was put to the complainant that she had not expanded on this and had resigned.

In respect of her letter of resignation, the complainant said that she was accused of taking monies and anticipated that she would be the subject of another round of false allegations. She outlined that she should have had the accounts prior to the meeting, and it was unusual that she did not have the accounts. The complainant outlined that the accounts were sent to her on the 8th June, but she did not then have access to this email account. She said that Mr Byrne had acknowledged that the complainant should have had access to the accounts.

Evidence of Lucy O’Connor

On affirmation, Ms O’Connor said that she worked as CE supervisor at the respondent between the 1st November 2019 and the 4th January 2021. The witness outlined that the CE Assistant Supervisor reported to her. She said that after the June 2020 bank holiday, she was informed that the complainant was on leave but not that she was suspended. She was informed that two directors would be managing the respondent. She outlined that Ms Kernan asked her whether the complainant had shouted at her. Ms O’Connor told Ms Kernan that the complainant had never shouted at her. She was later informed that the complainant was suspended, and Ms O’Connor would be spoken with as part of the investigation.

Ms O’Connor outlined that part of her role involved reporting to the Department of Social Protection, a funder of the respondent. She had required access to the computer of the CE Assistant Supervisor. On gaining access, Ms O’Connor observed that the CE Assistant Supervisor had the complainant’s personal email open and the complainant’s bank details. This amounted to a data breach. She met with the Chair on this, and he offered to help.

Ms O’Connor said that on the complainant’s return, they could not pay any of the bills. This was especially problematic for the Department of Social Protection funding, which required the monies to be paid by the respondent and then recouped from the Department. Not having access to the respondent bank accounts was upsetting to the complainant. It was frustrating for Ms O’Connor as she could not buy supplies.

In respect of the complainant’s return to work meeting, Ms O’Connor saw the Chair and Ms Kernan go into the room. Ms O’Connor was in an adjoining room. She could hear raised voices, and in particular the raised voice of the Chair. He was the only male at the meeting. She heard Ms Clancy referring to having to leave. Ms O’Connor entered the room via the connecting door and met the complainant, who seemed ‘shook’.

Ms O’Connor outlined that previously the complainant had been directing staff, but now needed permission and to send an email before any decision. A male colleague made a complaint about the CE Assistant Supervisor and was saying that no one was getting back to him. By September, Ms O’Connor could see that this was having a toll on the complainant. In respect of the September meeting, Ms O’Connor outlined that she observed the layout of the room via CCTV. She said that the Chair directed that the layout of the chairs be changed for the meeting. One chair was placed in front of a table, behind which the other chairs were placed. Ms O’Connor described this as ‘awful’. The complainant had informed her that the meeting was awful.

Ms O’Connor said that Ms Kernan told her that the complainant had resigned. A named interim manager commenced. Mr Grace asked Ms O’Connor to come into his office every time the CE Assistant Supervisor was in his presence, as the respondent never dealt with his grievance. Mr Grace then resigned in December and Ms O’Connor resigned in January 2021. She mentioned what happened to the complainant when she was discussing her own resignation with Ms Kernan.

In cross-examination, Ms O’Connor said that she saw the Chair move the chairs in advance of the September meeting.

Evidence of Lisa Whelton

On affirmation, Ms Whelton said that she was the case management lead with the respondent. She coordinated care plans across the respondent services. She left on the 16th October 2020 and was there for 18 months. She outlined that they were a small team that worked closely with the complainant. Prior to the complainant, a number of previous managers had not worked out and the direction of the respondent was not going well. On taking up the managerial role, the complainant made successful changes to programmes.

Ms Whelton said that the complainant was always ‘quite stoic’ and did not personalise her work. She described the complaint as being extremely upset and crying at Ms Whelton’s return to work meeting with the Chair and Ms Kernan. Ms Whelton felt that the complainant had been disempowered. She was concerned for the complainant and asked if she was okay. Ms Whelton did not feel that the complainant was being treated appropriately. She felt that the board members were tense and suspicious. Ms Whelton outlined that she was out sick for two months following an incident of sexual harassment. She had complained about the actions of the named director. She returned to work in early August.

Ms Whelton outlined that in early June, she was spoken with by Ms Kane and Ms Kernan regarding the complainant. The directors took the complainant’s keys and was suspended. Ms Whelton saw the directors put boxes of office files into a car.

Ms Whelton described that the CE Assistant Supervisor returned to her role and had always been retained on pay roll.

In cross-examination, Ms Whelton said that the team was friendly but did not socialise outside of work. She had not attended board meetings. She had seen how the Chair had treated the complainant at Ms Whelton’s return to work meeting.  

Evidence of Paul Grace

On affirmation, Mr Grace outlined that he was a team lead at the respondent. On the 6th May 2020, the CE Assistant Supervisor approached him saying that she was getting a hard time at work ever since he had asked her out. He replied to the CE Assistant Supervisor that he had never asked her out. She referred to him having given her a lift. Mr Grace was very concerned about what the CE Assistant Supervisor was claiming and raised this with the complainant, who said she would speak with the CE Assistant Supervisor.

Mr Grace went on a period of work-related stress leave. At his return to work meeting with the Chair and Ms Kernan on the 7th August 2020, the respondent promised that there would be an investigation. The Chair and Ms Kernan stated that it was the complainant who was responsible. He said that this was their attempt to ‘coerce’ him to say that the complainant was responsible for the allegations and that she had caused the situation. He described that while this was his return to work meeting, the directors made it about the complainant and not his return to work. Mr Grace outlined that the respondent directors had a ‘clear agenda’ against the complainant.

The respondent’s solicitor declined the invitation to cross-examine Mr Grace.

Evidence of Jennifer Clancy

Ms Clancy gave evidence remotely. On affirmation, Ms Clancy said that she commenced as a director in June 2013 and was in post for 6.5 years. She was chair for three years and finished in 2019. She was a director when the respondent hired the complainant, and they were ‘absolutely happy’ with the complainant. They had not found a suitable candidate in two previous processes. The respondent had no concerns about the complainant’s performance.

Ms Clancy said that she was aware of the complainant’s suspension. She had been contacted by the complainant over the summer of 2020. The complainant was very stressed. Ms Clancy agreed to accompany the complainant to the return to work meeting. She wrote to the respondent to inform them that she would accompany the complainant to the meeting. There was no response to this.

Ms Clancy outlined that she and the complainant sat in the reception area to await the Chair. They had met Ms Kernan, who did not say that Ms Clancy should not be in attendance. When the meeting started, Ms Clancy said that the Chair shut both her and the complainant down. The Chair would not allow them to speak and said that Ms Clancy should not be there. Ms Clancy described the Chair as being ‘aggressive and intimidatory’. Ms Clancy said that she left the meeting because of this intimidation.

Ms Clancy outlined that she was aware of the complainant’s disclosures to the HSE. Ms Clancy said that she worked in the addiction sector for 20 years and was aware that people in the HSE and outside were talking about the complainant’s disclosures. The complainant had informed her about the garda vetting issue and the references.

Ms Clancy said that the way the complainant was treated was extremely unfair and unjust. There was no due process, and she was shocked. Ms Kernan had managed a process with a previous manager very well and this manager was given support.

Closing of the complainant

In closing, the complainant outlined that she had clearly set out her unhappiness to the employer, for example in July 2020 and in the email of the 23rd October. She had raised these issues beforehand. The respondent had not looked to see what it could do and instead replied to the complainant by threatening litigation.

In respect of the protected disclosures, the complainant had disclosed information regarding relevant wrongdoings internally and then to the HSE. The complainant’s evidence pointed to significant mistreatment as a result of the disclosures. The complainant had given a clear account and as had four other witnesses. The evidence pointed to shouting and aggressive treatment at the return to work meeting. The complainant’s evidence was consistent with the tone of the respondent’s correspondence. They indicated the aggressive attitude of the Chair. It was not credible that the full disclosure was not discussed at the meeting with the HSE on the 10th July.

The complainant outlined that questions were asked in respect of the finances. The complainant says that the questions were unwarranted and spurious. At the meeting, the complainant was tackled by the Chair for contacting the TD, but this was not recorded in the minutes.

The complainant’s letter of resignation set out in full how she was upset and how she was mistreated. The respondent’s reply did not offer to deal with the allegations and this reply was aggressive. This tone was because the respondent knew well what the complainant was referring to in the letter of resignation and the disclosures.

It was submitted that account could be taken of the attitude of the respondent to the hearings. This included the allegation that the complainant had committed a data breach. It was then the case that the documents did not exist. They were later produced following an order from the adjudication officer.

The respondent had made a complaint to the Gardai in September 2021, and nothing had happened since. The complainant has not been notified of any investigation. It was a matter to be weighed up that the respondent had made this complaint 24 months after the invoice and 12 months following the complainant’s resignation. The complainant utterly rejected any allegation of impropriety.

The complainant outlined that it was her case that the respondent had provided a negative reference in respect of a named role. The mistreatment was the dismissal and the referral to the Gardai. The complainant took up a role that was paid €20,000 less per year. It was submitted that the complainant’s name was now blackened. This was corroborated by the evidence of the witnesses who owe nothing to the complainant. The complainant outlined that she commenced a new role in September 2022 on €58,600 per year. Her earnings were reduced by €23,000 for 12 months.

The complainant submitted that she had made out a prima facie case of discrimination. The complainant’s letters to the respondent in July 2020 set out grievances. It was the Chair who was causing most of the strife.

The respondent denied the complaints. It submitted that the complainant resigned and had not engaged the grievance process. There was no evidence of discrimination, and the suspension pre-dated the complainant’s disclosures.

Evidence of Sandra Kernan

On affirmation, Ms Kernan gave an outline of her professional background and that she joined the board in 2015. She got on well with the complainant and supported her with her tasks. The CE Assistant Supervisor had raised an allegation that she was being harassed and bullied in the workplace. The CE Assistant Supervisor outlined that she had resigned under duress. The CE Assistant Supervisor raised the allegation against the complainant.

Ms Kernan outlined that the board asked her and the Chair to investigate the allegation. They spoke with the complainant, who denied everything. The meeting ended on good terms. They looked at the CCTV. The complainant was suspended in June 2020 because there were so many allegations and accusations of harassment. They had wanted this to stop. The CE Assistant Supervisor had said that the complainant had thrown a pen. This decision was nothing to do with the complainant’s sexual orientation and there was no disclosure at this stage. The CE Assistant Supervisor was then on sick leave and returned on the 23rd July.

Ms Kernan said that they did the right thing in suspending the complainant. She became aware on the 10th July of the complainant’s letters to the HSE. The respondent met with the HSE and the HSE official read out a couple of lines from the complainant’s letter. This stated that the complainant had no confidence in the board.

Ms Kernan outlined that the investigation commenced in early June and finished in July. The allegation was held to be ‘unsupported’. The respondent was ‘happy’ with the result and decided that everyone should go back to work. She said that the Chair was to contact the complainant and the CE Assistant Supervisor. Ms Kernan outlined that she and the Chair were to ‘welcome’ the complainant back at the return to work meeting on the 27th July 2020. She was to do an operational handover and the Chair wanted to discuss notice of a pending (separate) claim to the Workplace Relations Commission.

Ms Kernan said that at the meeting, the Chair sat in the manager’s chair. The Chair said that Ms Clancy could not stay. Ms Kernan said that her recollection of the meeting was ‘positive’ but that Ms Clancy would not move when they had said that she could not stay. Ms Kernan described that there were ‘silences’ in the meeting but no ‘raised voices’. She described the meeting as being ‘firm’ as it could not proceed. The complainant was quite quiet, and the Chair gestured for her to take the manager’s chair.

Ms Kernan outlined that the Chair raised the correspondence from the Workplace Relations Commission and that the WRC letter had been sitting on the complainant’s desk since March 2020. The Chair said that he would deal with the matter and contact the WRC. Ms Kernan continued the debrief with the complainant, outlining that the respondent had new HR and account support. They spoke for about an hour and the complainant confided things to her. Ms Kernan offered the complainant lunch, but she was going for a walk. Ms Kernan outlined that the meeting started properly when Ms Clancy left. The one to one with the complainant lasted for two hours.

Ms Kernan said that between then and October 2020, their relationship was good. She checked in with the complainant a couple of times per week. She only attended the respondent offices if she was required to or asked by the complainant. The complainant informed her that the CE Assistant Supervisor had suicidal ideation. Ms Kernan met with the CE Assistant Supervisor and did not find this to be the case.

Ms Kernan outlined that she was shocked to receive the complainant’s resignation. She felt betrayed as she had supported the complainant so much. She had been there for the complainant and was supportive. She had offered the complainant counselling which she did not avail of. She did not know what the clandestine meeting was as referred to in the letter. There had not been a financial investigation, but there was the annual audit. Routine questions were emailed to the complainant. She outlined that the complainant never submitted a grievance. There were no payments due to the complainant as all monies had been paid to her. Any payments over €5,000 ought to have been approved by the board. Ms Kernan outlined that no step was taken against the complainant because of her disclosures or her sexual orientation.

Cross-examination of Sandra Kernan

In cross-examination, Ms Kernan outlined that the complainant had forwarded the complaint made by the CE Assistant Supervisor against the complainant. The respondent did not then make the decision to suspend the complainant. The respondent met the CE Assistant Supervisor on the 16th May and the complainant on the 26th May, going through the accusations.

It was put to Ms Kernan that the complainant was suspended, not because of the allegations, but because of her email of the 29th May where the complainant offered to meet the CE Assistant Supervisor but cited stipulations. Ms Kernan did not accept this and said that the delay in suspending the complainant was because of a delay in holding a board meeting.

It was put to Ms Kernan that the investigation exonerated the complainant. Ms Kernan replied that the investigation had found that the allegations were ‘unsupported’ and accepted that the complainant was exonerated.

It was put to Ms Kernan that the complainant had set out her concerns following the conclusion of the investigation, but these concerns were not addressed in the Chair’s ‘stark’ reply. Ms Kernan replied that she had no input into this letter. She outlined that the investigation was over, and the complainant was ‘vindicated’. The Chair was taking advice from a HR company. The respondent stood over the investigation and decided that the investigation was final. It decided that everyone should go back to work.

It was put to Ms Kernan that the letter is very hostile and threatens disciplinary action. Ms Kernan replied that she did not have input into this letter. The phone call between the Chair and the complainant was not agreeable as the complainant would not go back to work.

It was put to Ms Kernan that the complainant had made the first disclosure on the 19th June and later raised governance issues. It was put to Ms Kernan that the minutes of the 10th July meeting indicate that the HSE read out the complainant’s email. Ms Kernan replied that this minute was inaccurate, and this document had been prepared by the HSE. It was put to Ms Kernan that having arranged the meeting with the respondent about the disclosure, the HSE would have read out the disclosure. Ms Kernan replied that the HSE had not read out the full email. It was put to Ms Kernan that this was not consistent with the minutes or with common sense. Ms Kernan outlined that they met the HSE again in September and the Chair was in touch with them about changes to the board.

It was put to Ms Kernan that the Chair had lost his temper at the return to work meeting and had been loud and aggressive. Ms Kernan replied that this did not happen. It was put to Ms Kernan that a witness had heard shouting from the adjoining room; Ms Kernan replied that this did not happen. It was put to Ms Kernan that Ms Clancy had given similar evidence; Ms Kernan replied that she would not have stayed at the meeting if there was shouting. The Chair was ‘firm’ that Ms Clancy could not stay at the meeting. It was put to Ms Kernan that the complainant’s account was consistent with the tone of the Chair’s letter; she replied that the Chair was only there to deal with the WRC issue.

It was put to Ms Kernan that the complainant had a torrid time after the meeting and was treated inappropriately. Ms Kernan replied that she had a good relationship with the complainant, and she had not witnessed any such treatment. Ms Kernan outlined that the September meeting was not a reprimand but an ‘opportunity’ for her to raise her interaction with a local TD. It was put to Ms Kernan that the complainant had been accused of ‘running’ to the local TD at the meeting, but there was no reference to this in the minutes.

It was put to Ms Kernan that the complainant had emailed Mr Byrne regarding not being informed of board changes or that a deficit had accrued. The complainant had also raised the contact with a local TD and that she was questioned about a sandwich. Ms Kernan replied that the Chair put routine questions to the complainant about invoices and the complainant had become aggressive. She reacted differently to him.

It was put to Ms Kernan that the emails showed that the complainant was not happy, in contrast with Ms Kernan’s evidence; she replied that she had a good relationship with the complainant, who could have spoken to her at any opportunity. Ms Kernan was surprised by the content of the letter of resignation. She did not input into the respondent’s reply to the resignation. It was put to Ms Kernan that the respondent’s reply did not address the matters raised by the complainant; she replied that the matters raised by the complainant had been passed over to the investigator. The investigation was the final word so there was no need to address the issues raised by the complainant. It was put to Ms Kernan that the letter was inappropriate; she replied that she had offered the complainant support. In October, she had spoken with the complainant and suggested that she go home when she mentioned seeing her doctor.

It was put to Ms Kernan that the Chair had said on the 26th May that the complainant had thrown a pen; Ms Kernan replied that the issues were passed over to the investigation. There were a number of serious allegations leading to the suspension.

It was put to Ms Kernan that the complainant had no choice but to resign. Ms Kernan outlined that she was never asked for a reference in respect of the complainant. She agreed that the complaint was made to the Gardai in September 2021.  This issue had only come to light in 2021 and there is an ongoing investigation. It was put to Ms Kernan that this amounted to a further incident of penalisation. Ms Kernan did not accept this. The invoice had only come to light when a manager was looking to send a service user on a course. 

In re-examination, Ms Kernan said the complainant was suspended before the disclosure to the HSE. Some of the meetings with the HSE were routine. She had never discussed the disclosure with the HSE. The complainant’s disclosure had not caused any difficulties with the HSE. The HSE official had read two lines from the complainant’s email. He gave his opinion but did not go through every line of the email. The issue with the previous manager was dealt with by Ms Clancy and this was a different situation. Ms Kernan outlined that Ms Clancy should not have been at the complainant’s return to work meeting in 2020 and she no longer had anything to do with the respondent. The complainant had been a signatory on all bank accounts, apart from the credit card. They applied to change the name on an account following a director’s resignation. Changes to the board required changes to the account. The Chair had resigned as director and the B10 was filed in February 2022.

Evidence of Kieran Byrne

On affirmation, Mr Byrne outlined his professional career. He joined the board of the respondent in August 2020. He attended the meeting of the 17th September 2020 and was the acting secretary. The invite to this meeting went out on the Monday and the meeting took place on the Thursday. The auditors had sought information about the 2019 accounts and there was some urgency. This was a smaller meeting than other meetings. The meeting sought clarification from the complainant as to the finances. He recalled the local TD being mentioned at the meeting. This was a passing reference. He was taking the minutes and did not feel that it merited being minuted. The meeting lasted 90 minutes and the complainant was present for an hour. The minutes were not amended to record the complainant’s follow-up comments. Mr Byrne outlined that no allegation of impropriety had been alleged against the complainant for contacting the TD.

Mr Byrne outlined that the email of the 22nd September set out the six questions that were the crux of the meeting. The draft accounts had issued in March 2020 and there was a lot of flux. He had seen the complainant’s resignation email. He was not aware of any financial investigation. He had attended the meeting with the HSE in September 2020 and this followed their approach to the HSE regarding governance and oversight. He had wanted to ensure that the oversight was robust. He had met the HSE with Ms Kernan and the Chair. The complainant had not attended the meeting as it was a matter for the board. He could not see why the complainant should attend this meeting. He said that this was his first time on a board of a registered charity.

In cross-examination, Mr Byrne did not accept that his email to the complainant amounted to a financial investigation. He said that the respondent was seeking clarification. He had noted the points made by the complainant in the reply of the 28th September. He did not recall any question at the September meeting about the complainant’s chemotherapy, but he did recall the discussion of a treatment for head lice infestation. He outlined that he was uncomfortable that this was an in-person meeting, and the room was laid out to accommodate social distancing. He could not recall whether the seats were arranged in a semi-circle, but the complainant was seated in a chair.

Closing of the respondent

The respondent outlined that it was made up of voluntary members. It did great work. It described the Employment Equality complaint as a nothing and there was nothing to indicate a prima facie case of discrimination. The complainant had been suspended prior to making the disclosure. The respondent appointed a new Chair in this period.

It was submitted that the complainant had not made a disclosure within the ambit of the Protected Disclosures Act. There was credible evidence that only two lines of the complainant’s disclosure had been read out at the July meeting. The complainant had made two disclosures, but they contained buzz words and had not been substantiated. The complainant had not incurred any detriment. She had been suspended prior to the disclosures. She ought to have returned to work when told to. The respondent was not aware of the contents of the disclosures.

In respect of the Unfair Dismissal claim, the onus was on the complainant to show that there was a dismissal and that there was a breach of contract or that no other employee would reasonably put up with the situation. There was a reference in the crafted letter of resignation to the straw that broke the camel’s back. The complainant had tended to her outgoings and then orchestrated her leaving. The doctor’s letter of the 13th October refers to the complainant having left the job, but she had not resigned yet. The complainant had contacted accounts on the Tuesday and was paid on the Thursday and then resigned.

It was submitted that the complainant was senior in the respondent organisation and knew well how to make a formal complaint. The complainant, however, had not made any formal grievance to the board. The complainant did not make a grievance and there was no straw that broke the camel’s back. The respondent submitted that there was no penalisation. The complainant had orchestrated her walking away and she had chosen to leave.

The complainant commenced employment with the respondent on the 8th October 2018. The title of the complainant’s role was ‘Manager’ and she reported to the Chair of the respondent. The complainant was the most senior employed member of staff and managed a team of about 15. The respondent is staffed by direct employees and CE participants. The services of the respondent are funded via financial support provided by the Health Service Executive and the Department of Social Protection. The respondent is a registered charity and its charitable purpose include the advancement of community development, promotion of health and the integration of those who are disadvantaged. The respondent operates a holistic drug rehabilitation service to assist those recovering from addiction.

As set out in the evidence, the services provided by the respondent increased greatly as the complainant implemented a new model to manage and facilitate rehabilitation. It was not disputed that a training embargo was lifted, and training provided to staff, as required by the service level agreements with the funders. The evidence indicates that funding to the respondent doubled in this period. The increased client numbers, the increase in the number of clients who completed Stage 3 and the increase in funding took place against the background of unprecedented belligerence meted out to the complainant on behalf of the board.

The complainant resigned her employment on the 23rd October 2020. Other key members of staff also resigned: Paul Grace, Lucy O’Connor and Lisa Whelton. They attended the hearing of the complainant’s case, to give evidence in support of her complaints, as did Jennifer Clancy. This was strong and credible testimony. The complainant outlined that she was penalised for making protected disclosures and constructively dismissed from her employment. She also claimed discrimination on grounds of sexual orientation and victimisation.

The respondent denies the claims. Two directors, Sandra Kernan and Kieran Byrne, gave evidence on its behalf. It was initially represented by Peninsula Business Services, and then by McCartan & Burke Solicitors and then Jason Murray BL.  

Prior to making specific findings in respect of the claimed contraventions of the Protected Disclosures Act, the Unfair Dismissals Act and the Employment Equality Act, the following issues merit consideration.

The parties submitted the various email interactions between the complainant and the respondent directors over the course of 2019 and the early part of 2020. They indicate a functioning, cohesive relationship between the complainant and the directors. In the email of the 2nd August 2019, for example, the complainant suggests that the named bookkeeper attend a Finance Sub-Committee meeting to present detailed financial information to ensure corporate compliance. It is notable that the respondent, led by the complainant and in conjunction with the HSE, set up the first Covid-19 isolation unit at the onset of the pandemic.

Allegations made by the CE Assistant Supervisor

The CE Assistant Supervisor was initially a CE participant and in the complainant’s time, then directly employed as a CE Assistant Supervisor, reporting to Ms O’Connor. The complainant and her family hosted the CE Assistant Supervisor and her family for Christmas 2019 after the CE Assistant Supervisor raised domestic violence she faced.

The CE Assistant Supervisor resigned her employment on the 8th May 2020. On the 11th May 2020, the CE Assistant Supervisor made a written complaint that was reformulated into a statement. This makes allegations against the complainant, the bookkeeper and a named male colleague. One version of the statement includes an allegation against a former female supervisor. The CE Assistant Supervisor raised wide-ranging issues, going back to the start of 2020 and alleging shouting, bullying and issues with processing invoices. The CE Assistant Supervisor states that the workplace was ‘unsafe’.

Ms Kernan and the Chair interviewed the complainant about the allegations on the 26th May 2020. First, I note that the minute of the meeting is clear that the CE Assistant Supervisor was the only person to have made allegations in respect of the complainant. Other staff members had not made allegations in respect of the complainant. Second, I note that the CE Assistant Supervisor made additional allegations to those set out in the statements. These were put to the complainant on the 26th May 2020. There was greater detail about the allegations of ‘inappropriate conduct’ against the named male colleague, as well as a new allegation of ‘inappropriate conduct’ against a second male colleague. There is no suggestion that the respondent took any steps to investigate or act upon the issues raised against other staff members, other than the complainant. I note from Mr Grace’s evidence that the CE Assistant Supervisor made an allegation about him, which he reported to the respondent and which the respondent did not follow up.

It is significant that the CE Assistant Supervisor made serious allegations about several staff members. The only set of allegations subject to an investigation by the respondent was the allegations against the complainant. No action was taken on the allegations against the other staff members; the staff members were not suspended, and no investigation was undertaken. The respondent has not explained this difference in approach. It is the complainant’s case that she was singled out because of the seven ‘stipulations’ set out in her email of the 29th May 2020. This singling out included the decision to suspend the complainant.

The decision to suspend the complainant

As set out in the evidence, the complainant was suspended from her employment from the 4th June until the 27th July 2020. This was pending an external investigation into allegations made against the complainant by the CE Assistant Supervisor.

The investigation team, Ms Kernan and the Chair, met the complainant on the 26th May and held wide-ranging discussions on the multiple issues raised by the CE Assistant Supervisor. The minute records that the last order of business was the criteria to accommodate the CE Assistant Supervisor’s return to work. There is nothing about the complainant’s possible suspension or the appointment of an external investigator. The minute suggests that the meeting would be the end of the matter.

I note that the board minute of the 1st June 2020 records the decision to suspend the complainant in the following terms:

‘It was agreed by the board that Sandra Kernan and [the Chair] had brought their initial investigation as far as it could be taken by them, and having made recommendations to the board, that the matter now be passed to Human Resources. This was agreed unanimously. It was further agreed by the board unanimously that Edel Ambrose (Service Manager) be suspended without prejudice pending the final outcome of any and all investigations. Various measures to be implemented including the handing over of premises keys and company phone, and all computer codes and passwords. It was agreed by the board to consult with Human Resources about an external company to conduct the next stage of investigations.’

Surprisingly, these same minutes also note, under AOB, that the bookkeeper would be asked to present regarding the 2019 draft accounts. This is surprising as the CE Assistant Supervisor also made allegations against the bookkeeper. Even if the bookkeeper was self-employed, it is striking that the respondent had no qualms about the bookkeeper being involved in the respondent even though she was the target of allegations by the CE Assistant Supervisor. This was in contradistinction to the CE Assistant Supervisor’s allegations against the complainant, which were, according to the respondent, sufficient to warrant the complainant’s suspension.

I note that there was only ever one person who made allegations against the complainant and others. This was the CE Assistant Supervisor. The letter of suspension refers to ‘allegations’ generally and does not specify that there was one person making allegations. I accept the complainant’s evidence that she was informed on the 4th June 2020 that others had made allegations, when this was not the case.

As noted, the CE Assistant Supervisor made allegations of ‘inappropriate conduct’ against two named male staff members. Neither of these colleagues were suspended. The respondent has not explained the basis of such differential treatment: what justified the complainant being suspended even on a without prejudice basis, when no such action was even contemplated in respect of the two male colleagues?

I note the evidence adduced on behalf of the complainant that a process involving a previous manager, led by Ms Kernan, did not require the suspension of the then Manager. This process is referenced by the CE Assistant Supervisor, who acknowledges her allegation against the previous manager. Ms Kernan is praised for her role in this earlier process. It is entirely unclear why the respondent adopted a different approach in respect of the complainant, when the process involving the previous manager was so effective.

In assessing the respondent’s decision to suspend the complainant, I note that the CE Assistant Supervisor was not attending work following her resignation but was retained on pay roll. There was no need to keep the complainant and the CE Assistant Supervisor apart as the latter was no longer attending work. I note that the respondent had then received Mr Grace’s complaint against the CE Assistant Supervisor for making false allegations. It had a ready means of assessing the allegations made about the complainant (Ms O’Connor and CCTV) in order to assess their prima facie credibility. The respondent considered none of these factors in reaching the decision to suspend the complainant. This is something that required detailed explanation, in particular to discount the complainant’s inference that this was a reaction and an over-reaction to the suggestions made by the complainant in the email of the 29th May about the return to work of the CE Assistant Supervisor.

It is also significant that the complainant’s contract of employment does not provide for a right to suspend her, and the reference to suspension in the employee handbook only refers to suspension being a Stage 4 disciplinary sanction. The employee handbook does not provide for a general right to suspend an employee pending an investigation. The only form of suspension contemplated by the employee handbook states:

‘29.6 Stage 4 – Suspension Failure to improve on previous warnings or if an additional or more serious breach occurs, the employee will be suspended with or without pay. During any period of suspension, an employee is expected to seriously consider their future with the Company. A record of the suspension will be kept on the employee’s personnel file for a twelve-month period and will be disregarded after that, if satisfactory improvement is shown. Depending on the seriousness of the matter, an employee may be suspended without warning at the Written Warning stage of the procedure.’

It is striking that the respondent did not set out the basis for suspending the complainant. No such basis is to be found in the contract of employment. The only basis is set out in the employee handbook, and this is part of the disciplinary process. Suspension is the stage before dismissal; the employee is explicitly asked to consider their position.

I find that the decision to suspend the complainant was not a bona fide ‘without prejudice’ suspension, but retaliation for the complainant’s ‘stipulations’ in the email of the 29th May 2020. I make this finding for the following reasons.

First, suspension was not in keeping with how the respondent responded to previous allegations regarding other managers. Matters were investigated, with the then manager kept in situ.

Second, there is the startling fact that the CE Assistant Supervisor made allegations against four people, but only one (the complainant) was suspended. No satisfactory explanation has been presented why the two male colleagues were not suspended, while the complainant was suspended. The respondent had no qualms about the bookkeeper’s involvement in the respondent, notwithstanding her also being the target of allegations by the CE Assistant Supervisor.

Third, the decision to suspend the complainant in early June was not in keeping with the investigation carried out in May 2020. The two directors met the complainant on the 26th May 2020. They discussed the allegations and the circumstances in which the CE Assistant Supervisor could return to work. Nothing suggested an escalation to the complainant being suspended. What intervened was the complainant’s email, setting out ‘stipulations’ for the return of the CE Assistant Supervisor.

Fourth, there was no obvious reason why the complainant should be suspended. The CE Assistant Supervisor was not attending work, so the complainant could not be in contact with her. There were obvious sources of evidence for the respondent to check pending the independent investigation, for example asking Ms O’Connor or checking CCTV. The respondent could have easily checked whether the prima facie evidence warranted suspension. The respondent, however, did not make any such preliminary enquiries pending the decision to suspend. It is undeniable that the complainant was performing well in the role, as attested by the evidence of her colleagues and the previous Chair. In 2020, the respondent board readily took on a more interventionist role in the running of the organisation, so why not do this with the complainant in situ?

For the above reasons, I find that the complainant was suspended as retaliation for her setting out entirely reasonable concerns about the return of the CE Assistant Supervisor. These concerns were entirely reasonable as the CE Assistant Supervisor had made wide-ranging, unfounded and ‘preposterous’ allegations against the complainant, two other members of staff and the bookkeeper. The Chair and his predecessor sought to undermine the complainant’s position as Manager by suspending her. I find that this was not warranted in the circumstances.

External investigation report

The respondent board meeting of the 3rd June 2020 selected Resolve to investigate the allegations made by the CE Assistant Supervisor. The external investigator was asked to investigate the allegations made by the CE Assistant Supervisor only in respect of the complainant. In line with the terms of reference, the two male colleagues, against whom the CE Assistant Supervisor had also made allegations, were interviewed as witnesses. The external investigator sought to interview the bookkeeper (against whom allegations were also made), who declined to take part.

The external investigator published the final report on the 17th July 2020. The report sets out the comprehensive nature of the investigation, covering many issues occurring between January and June 2020. It records what each of the witnesses said and the relevant documentation. The report sets out detailed conclusions on each issue. It concluded that the CE Assistant Supervisor had ‘not established’ that what she alleged had, in fact, occurred. It concluded that the complainant had not acted or behaved inappropriately. Overall, it held that the allegations against the complainant were ‘unfounded’.

The Report outlined that it was a matter for the respondent to consider the next appropriate steps to take. Furthermore, it identified that the CE Assistant Supervisor had raised many issues that were not within the scope of the investigation and that this was a matter for the respondent.

I note the Report makes the following comment in respect of the complainant: ‘All accounts given regarding [the complainant’s] general manner suggest that she remains calm to the point of quietness during challenging conversations.’ This was in the context of the Report’s deliberations of whether the complainant had shouted at the CE Assistant Supervisor (it concluded that the complainant had not).

Actions following the investigation report

The respondent circulated the final investigation report to the parties in the morning of the 21st July 2020. The email stated that the respondent board had ‘met to consider the findings of the report’. The email to the complainant invites her back to work and to meet the Chair and another director about the ‘operational handover, and any other pertinent matters’. The corresponding email to the CE Assistant Supervisor stated that the Chair and a director would meet her ‘to welcome you back to work’.

The board of the respondent met on 10 occasions between the 16th May and the 22nd October 2020. Many were emergency meetings arising from the allegations made by the CE Assistant Supervisor. It is, therefore, extraordinary that the respondent board did not meet to discuss the issues arising from the external investigation. While the Chair’s email refers to the board having met, this is not accurate. There was no such meeting. The board met on the 11th July 2020 where the investigation is described as ‘ongoing’. The next meeting was the 17th August 2020, which notes discussions with the Manager regarding issues arising from the Report but there were no such discussions on the immediate receipt of the report.

As noted, the report concluded that the CE Assistant Supervisor had wide-ranging concerns about the workplace, including that it was not safe. She had made allegations against four members of staff; the allegations against the complainant were deemed unfounded. It is extraordinary that the respondent did not address any of these issues, including the finding that the CE Assistant Supervisor had made such unfounded allegations. It is extraordinary that the reaction of the respondent was to ‘welcome’ the CE Assistant Supervisor back to work in the context of the unfounded allegations, inter alia, against her Manager.

Understandably, the complainant was happy to be vindicated in respect of all these allegations but that she was ‘gravely concerned’ by the actions of the CE Assistant Supervisor. In the email of the 23rd July 2020, the complainant stated that she wished to commence a formal grievance regarding the CE Assistant Supervisor and ‘the making of false and malicious allegations towards’ her.  The complainant makes five requests of the board in respect of her return to work and the management of the CE Assistant Supervisor.

The reply of the Chair dismisses the complainant’s grievance and the five requests. It states ‘Please note that your requests are not to be considered at this time, as you will be returning to work as normal.’ It is extraordinary that the letter states ‘Please note that a failure to return or to provide a reasonable excuse may result in disciplinary action being considered by the company’. This was extraordinary belligerence in the light of the complainant’s careful correspondence of the 23rd July 2020 and in the context of the unfounded allegations made against the complainant. This belligerence towards the victim of the unfounded allegations is in marked contrast to the ‘welcome’ afforded to the maker of these same unfounded allegations.

The contract of employment refers to the respondent ‘adhering’ to the grievance procedure, which sets out that it is ‘readily accessible’ and included addressing concerns about any member of staff. It sets out a formal grievance procedure, including timelines, and that grievances would be upheld or not. The grievance procedure does not allow the respondent to simply dismiss a grievance without investigating it. It is clear that the complainant had raised a formal grievance, so, per the contract of employment and the employee handbook, the next step was for the grievance to be investigated. It is significantly not in keeping with the contract of employment for the respondent simply not to entertain the grievance. From the complainant’s point of view, things were far from normal, and it was her contractual right to pursue this as a grievance and in keeping with SI 146/2000. 

The return to work meeting

There is a conflict in evidence regarding the tenor of the complainant’s return to work meeting of the 27th July 2020. The complainant described the Chair as raising his voice and shaking with anger. The complainant outlined that she felt intimidated and threatened. Ms Clancy was in attendance at the meeting and described the Chair as being ‘aggressive and intimidatory’ and that she left the meeting because of the intimidation. Ms O’Connor gave evidence of hearing a raised male voice and meeting the complainant, who was shook. The respondent did not accept this account. Ms Kernan, who was present at the meeting, said that it had been positive, with no raised voices. The respondent had been firm that Ms Clancy could not stay for the meeting.

While I accept that Ms Kernan was in attendance to address operational issues with the complainant, I do not accept her recollection of the meeting. I find as fact that the Chair acted aggressively and in an intimidatory fashion in barracking the complainant and Ms Clancy and raising his voice. This belligerence is entirely in keeping with the tone of his correspondence. The complainant and Ms Clancy gave clear and concise accounts of the incident and the Chair’s behaviour. Ms O’Connor gave evidence of hearing the loud male voice and the Chair was the only male at the meeting.

I find as fact that the return to work meeting occurred in the way described by the complainant. This was deliberate intimidation and humiliation of the complainant, for example the repeated demand for the complainant to take her chair (in which the Chair had placed himself). This incident amounts to an egregious breach of the complainant’s contractual entitlement to dignity at work. There is obviously no place in the workplace for such behaviour.

Directors taking operational control of the respondent

I accept the complainant’s evidence and that of the other witnesses that the Chair and directors took operational control of the respondent, even after the complainant’s return from suspension. The complainant had to obtain permission to complete financial transactions and to make significant operational decisions. This disempowered the complainant as manager of the respondent.

During the adjudication process, I directed that the respondent provide unredacted board minutes for the period between May and October 2020. The respondent provided this documentation on the 8th June 2022. I accept that the respondent complied with the direction. It is, however, notable that the only financial issue minuted over the 10 board meetings between the 16th May and 22nd October was the 2019 draft accounts. At no meeting over this period is the board recorded as discussing current, 2020 spending of the respondent. Normally, the complainant would present up-to-date financial information to the board, in order for the directors to exercise oversight on year-to-date spending. What occurred between May and October 2020 is that the directors took operational control of the respondent and did not record their oversight of year-to-date 2020 spending in board minutes. In fairness to Mr Byrne, the first mention of reviewing YTD 2020 spending was made by him at the meeting of the 22nd October 2020 and this was to occur at the following meeting.

Financial issues raised by the respondent

As noted, it is extraordinary that there was no board meeting to discuss the immediate outcome of the external investigation. This was because the respondent was no longer directing its fire at the complainant on the basis of the unfounded allegations but now on what the respondent described as an unapproved overspend. I agree with the complainant’s description of the financial allegations as ‘spurious’. I reach this finding for the following reasons.

First, I note the complainant’s emails to the board over the course of 2019 and early 2020 where the complainant was careful to ensure that the board had up-to-date financial information. This indicates a board and senior manager working together. Second, the respondent made a strategic decision to increase its services (and doubling its funding) and needed to end a training embargo. It had accumulated a surplus and this surplus paid for the training. It is entirely appropriate for a charity to spend the monies allocated to it in furtherance of its charitable objectives, rather than to maintain a surplus.  Third, I accept that this was done with the agreement of the then board and the respondent has not tendered evidence to suggest otherwise. Fourth, I note the complainant’s considered reply of the 22nd September 2020 where she addressed Mr Byrne’s questions in detail. As well as the ending of the training embargo, the complainant outlined that a staff member was employed in August 2019 on the understanding that the HSE would back-date all their salary. The actual backdating was only applied to January 2020, causing the respondent to incur an unexpected salary cost of €12,417.84 for 2019.

Meeting of the 17th September 2020

There was a conflict in evidence regarding the tenor of the meeting of the 17th September 2020. The complainant outlined that she was ‘cross-examined’ by the Chair in a heightened manner and accused of ‘running’ to a local TD. She was pressed on spending on a specific treatment for head lice (which she incurred following an interaction with a client) and a food item. I note that these were minor, 2020 items of expenditure when the meeting was about the 2019 accounts for the whole organisation. The complainant stated that she attended the meeting without having seen the draft 2019 accounts. She outlined that the room layout was changed for the meeting. This was corroborated by Ms O’Connor who observed the Chair reorganising the room layout. The respondent outlined that the meeting was a review of the 2019 draft accounts and that the fact the complainant had not seen the accounts were an issue of concern.

The complainant’s account of the meeting is supported by the concerns she raised in the email of the 28th September 2020. She raises aspects of the meeting not included in the minutes. The respondent does not dispute the complainant’s points and says that the minute is a summary. The respondent’s email of the 29th September 2020 stated that the complainant’s points ‘formed part of the discussions’ that took place at the meeting.

The complainant’s points included the manner in which the Chair interacted with the complainant, causing her to feel ‘intimidated and bullied’. This was specifically arising from the Chair’s questioning of her about speaking with the local TD. The complainant also cited persistent questioning regarding a food item (which she could not recall). The complainant cited that the Chair had humiliated her by pressing her about the treatment she purchased for head lice infestation. She explained that she had caught head lice while caring for a client and could not use over the counter treatments because of her chemotherapy. Interrogating the complainant about using this medication, despite her explaining her cancer treatment, represents a new low.

The complainant cited that she was questioned for over an hour. The respondent did not dispute the accuracy of the complainant’s account as set out in the email of the 28th September 2020. I appreciate that this was Mr Byrne’s first meeting with the respondent. It is striking, however, that an employee could state that she felt ‘intimidated and bullied’ at a meeting and the only reaction is to ‘note’ the point. The complainant has set out that she was repeatedly the subject of belligerence by the Chair. It is notable that people of such professional standing as Mr Byrne and Ms Kernan never took any step to prevent or mollify the Chair’s belligerence. That belligerent behaviour is so ingrained in the Chair’s approach that it is something to ‘note’ and not something to act upon.

The complainant’s resignation and the respondent’s reply

The complainant attended the board meeting on the 22nd October 2020 as ‘guest’. Her evidence was that she was called a liar by a director regarding the provision of phones. This fact is not disputed by the respondent. It is striking that there is no mention in the minutes of this exchange, and neither is the phone issue referenced. If a director had such a serious concern, one would expect to see it minuted and referred to investigation. Instead, the accusation is left to hang in the air.

The complainant resigned on the 23rd October 2020. The complainant was described as stoic and this is evidenced by her persevering for so long, given the belligerence she was subjected to.

The resignation email referred to a fundamental breach of contract and a breach of trust and confidence. She referred to asking for support and protection around ‘lies’ but that she had been met with intimidation and bullying. She challenged the basis of what she termed a ‘financial investigation’ without her knowledge. She referred to being vindicated by the external investigation.

The Chair replied on the 2nd November 2020 and this correspondence was ‘on behalf of the Board of Management’. It acknowledged the termination of the complainant’s employment. It stated that the complainant had failed to provide notice. It stated that the respondent had ‘no previous knowledge’ of the issues raised by the complainant and that she had not raised a grievance. It stated that the payments made to the complainant on the 22nd October constituted ‘gross misconduct’ and that this is subject to investigation. It cited concerns about the deletion of emails and computer files and that this was ‘a further breach of [the complainant’s] contract of employment]. It stated that failure to return this material constitutes gross misconduct.

Ms Kernan outlined that she had ‘no input’ into the letter. The allegations made in the letter were never substantiated, nor subject to an investigation, leading to findings. The accusations were left to hang in the air. The accusation regarding taking material was never substantiated and equally never subject to an investigation leading to finding. The complainant sought the data held by the respondent on her, and this was the subject of extensive correspondence between the parties.

There was a sting in the tail in this case – the complainant’s evidence was that on the day of mediation at the WRC, the respondent contacted local Gardai, accusing the complainant of misappropriation in respect of a 2019 invoice. This took place in August 2021. Irrespective of the lack of any Garda follow-up, it is notable that the respondent has taken no steps to pursue the matter, for example to hold an investigation. Instead, the accusation is made and left hang in the air.

The external disclosures

The complainant sent two named HSE officials a ‘letter of concern’ on the 19th June 2020. She stated that this was her vote of no confidence in the then chairwoman and the directors and their ability to oversee the management of the service. The complainant said she understood the impact of writing this letter. She stated that the respondent had disregarded allegations made against her and the wider team. She referred to a colleague who had recently resigned because of the allegations. She referred to her suspension and that she had yet to be informed of the terms of the external investigation. She raised the behaviour of the board at the workplace and the manner in which she was approached.

The HSE acknowledged the complainant’s email and stated that it would be meeting the respondent on the 10th July 2020 to ‘discuss all points raised’ in her email. The complainant thanked the HSE for its reply, stating that the continuity of care at the respondent was her greatest concern.

The parties differed as to whether the HSE had read out the complainant’s full 19th June 2020 email at the meeting of the 10th July. The respondent stated that only a short extract was read out. The complainant submitted that this was not credible and not in keeping with the HSE minute of the meeting. I also note that the HSE stated that it would raise ‘all points’ with the respondent. I, therefore, find as fact that the HSE read out the complainant’s email in full and this formed the basis of the discussion of the 10th July 2020.

The complainant sought an update from the HSE on the 20th July 2020. She outlined that the external investigation had taken place and that she had not been contacted by the respondent. On the 21st July 2020, the complainant sent a second email to the HSE. The complainant sets out the outcome of the external investigation, vindicating her. She referred to the correspondence from the Chair and stated that he had not been appointed in line with the Charity Regulator code of governance. The post of Chair had not been advertised and there was no assessment of the Chair’s skills or suitability.

The complainant also made a disclosure to a local TD. This disclosure related to the functioning of the respondent, for example its ability to pay bills, and how she was being treated. In turn, the local TD was in contact with a named HSE manager (to whom the complainant had made the earlier disclosures).

CA-00042153-001

This is a complaint pursuant to the Unfair Dismissals Act. The complainant resigned on the 23rd October 2020.

Constructive dismissal – burden of proof

The definition of ‘dismissal’ in section 1 of the Unfair Dismissals Act sets out that dismissal includes ‘the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer.’

This definition sets out two circumstances in which an employee might consider themselves to have been dismissed by the ‘conduct’ of the employer, i.e., where they were ‘entitled’ to terminate their contract or where it was ‘reasonable’ for them to do so.

An employee is ‘entitled’ to consider themselves to have been dismissed when the employer has repudiated the contract of employment. It is ‘reasonable’ for the employee to consider that they have been dismissed when they can no longer be expected to put up with the ‘conduct’ in question.

Berber v Dunnes Stores

In a claim of (constructive) wrongful dismissal, the Supreme Court in Berber v Dunnes Stores (12th February 2009) held: ‘There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee. In assessing whether there has been a breach by the employer what is significant is the impact of the employer’s behaviour on the employee rather than what the employer intended. Having regard to the mutuality of the obligation the impact of an employee’s behaviour is also relevant. The test is an objective one: if conduct objectively considered is likely to cause serious damage to the relationship between employer and employee a breach of the implied obligation may arise.’

Finnegan J. further described the test in the following terms regarding whether an employer’s actions breached the term of trust and confidence:

‘1. The test is objective.

2. The test requires that the conduct of both employer and employee be considered.

3. The conduct of the parties as a whole and the accumulative effect must be looked at.

4. The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.’

In Berber, the Supreme Court held that the employer had committed a repudiatory breach that went to the root of the contract of employment through ‘oppressive conduct’ in the light of the employee’s precarious physical and psychological health.

Application of the law to the facts of this case

I find that the respondent committed repudiatory breaches of the contract of employment of such gravity and including of the term of mutual trust and confidence that led the complainant to conclude that she was entitled to consider herself to have been dismissed.

The breaches include the decision to suspend the complainant in retaliation for her asking that certain steps be taken to help manage the situation with the CE Assistant Supervisor. The decision to suspend was not in accordance with the contract of employment or the employee handbook. The complainant was singled out in the framing of the external investigation.

The CE Assistant Supervisor made allegations against several people but only one staff member, the complainant, was investigated or suspended. It includes the failure of the respondent to address the wider issues raised by the external investigator. Rather, the CE Assistant Supervisor was ‘welcomed’ back to work without any consequences for her unfounded allegations. The behaviour of the Chair at the return to work meeting amounted to a repudiatory breach of the contract of employment and a breach of the term of mutual trust and confidence. The respondent then effectively displaced the complainant as manager, undermining her authority. Accusations were made about the complainant and significantly, no other completed investigation took place other than the one that vindicated the complainant.

The Chair’s behaviour on the 17th September 2020 was an egregious breach of the contract of employment. It was a further serious breach for another respondent director to ‘note’ the bullying and harassment and not to act upon it. These factors mean that the complainant also met the ‘reasonableness’ test with the added factor of her having raised a grievance, which the respondent refused to process, in contravention of the employee handbook and contract of employment.

For the above reasons, I find that the complainant was unfairly dismissed. The complainant found new employment on the 1st November 2020, and this was on a lower salary. She has since found employment at a similar level of salary to the role with the respondent. Her losses amount to €23,000 and this is the amount awarded pursuant to the Unfair Dismissals Act.

CA-00042153-002

This is a complaint of penalisation pursuant to the Protected Disclosures Act. I find as fact that the above disclosures were disclosures of relevant information regarding relevant wrongdoing, within the ambit of the Act. The complainant raised concerns about the governance of the organisation and how she and other staff were being treated.

I find that the Transitional Provisions in Schedule 7 of the Protected Disclosures Act, 2022 do not apply to this complaint. The ‘but for’ burden of proof on the complainant is, therefore, the applicable burden of proof. The complainant must, of course, show detriment and must also demonstrate causation in that the making of the disclosure was an operative cause, but not necessarily that it was the only operative cause, for the detriment.

It is true that the Chair was belligerent on the 26th May 2020 and the decision to suspend occurred prior to the making of the first disclosure. I have said that it was wrong for the respondent to single the complainant out for investigation and suspension when allegations had been made against others.

I have found above that the Chair engaged in expressly belligerent, intimidatory behaviour at the return to work meeting. This followed the disclosure and the meeting with the HSE of the 10th July 2020. I find that the disclosure was an operative cause in the Chair’s belligerent display at the meeting. This caused great discomfort and distress to the complainant.

I find that the disclosures in June and July were an operative cause in the board re-directing its fire from the unfounded allegations against the complainant to the ‘spurious’ financial concern. It is remarkable that the board did not meet immediately following the external investigation. It did not address the broader issues highlighted by the external investigator. The respondent declined to process the complainant’s grievance, despite there being no basis in the contract of employment or employee handbook for this refusal. The respondent welcomed the CE Assistant Supervisor back notwithstanding her unfounded allegations and their impact on respondent staff. I find that the disclosures to the HSE were an operative cause for how the respondent acted. This greatly undermined the complainant’s position in work as manager of the facility.

After the complainant was fully vindicated by the external investigation, the respondent adopted the approach of raising issues, but never following through with completed investigations and findings. This includes the ‘spurious’ concern regarding the 2019 accounts and the accusations relating to the phone and the boxing invoice. If there was any basis for any of these accusations, there would have been an investigation and findings. I infer from there being no completed investigations that there was no basis for the accusations. An operative cause in the making of the accusations and leaving them hang in the air was the disclosures, causing the complainant detriment.

The complainant was subjected to belligerent interrogation by the Chair at the meeting of the 17th September 2020. The complainant’s description of this being bullying and intimidatory was not disputed by the respondent in the contemporaneous emails but was ‘noted’. The Chair challenged the complainant for making the disclosure to the local TD. She was accused of ‘running’ to the TD. The meeting was about the 2019 accounts, but the complainant was interrogated about 2020 minor items of expenditure. The amount of respondent funding and service provision had increased over the course of 2019 (in large part, due to the complainant), yet the Chair interrogated the complainant about a sandwich. I find as fact that the Chair interrogated the complainant about the head lice treatment she had to use on health grounds in order to humiliate her. She had to explain the reason she could not use over the counter products (her cancer treatment) and the interrogation had the effect of causing great discomfort to the complainant.

The Protected Disclosures regime was introduced to provide protections to employees and others for raising concerns about ‘relevant wrongdoing’. There is an obvious need to provide protection to managers of publicly-funded charities. They spend monies on the public’s behalf and in the aid of vulnerable client groups. The ability of people to raise issues of concern with members of the Oireachtas is part of the democratic fabric of this country. It is for the TD or Senator to pass on the concern, as they see fit. A person who raises a concern with their Oireachtas member should not be penalised for doing so. An employee who is so penalised is entitled to the protections afforded by the Protected Disclosures Act.

For the above reasons, I find that the complainant was penalised for making disclosures. The disclosures were an operative cause in how the complainant was mistreated following the disclosures. This included allowing the CE Assistant Supervisor return to the workplace without any issue being raised for her unfounded allegations against the complainant and others. This undermined the Manager’s authority in having to deal with both the CE Assistant Supervisor and their colleagues. The disclosure was an operative cause in the respondent failing to adhere to its employee handbook in investigating the complainant’s grievance.

The June and July disclosures were an operative cause for the way the complainant was treated at her return to work meeting. It was a belligerent display, intended to humiliate the complainant. The respondent directors asserted operational control of the company, curbing the complainant’s ability to do her job, i.e. to manage the organisation. The respondent then developed a practice of making accusations but not following through with a completed investigation and findings. Leaving accusations, for example the spurious financial issue hang in the air was an act of detriment arising from the disclosures.

I find that the disclosure to the local TD was an operative cause in the hour-long interrogation of the complainant at the September meeting. It was an operative cause of the deliberate humiliation of the complainant, in challenging a small item of expenditure despite knowing that it arose from the complainant’s medical treatment. As stated, this amounts to a new low.

I accept the complainant’s evidence regarding the effects on her of the penalisation. There is public importance in protecting managers who make disclosures to their funders regarding the organisations they manage. Raising a concern with a member of the Oireachtas is part of the democratic fabric of this country, in particular with regard to the administration of public services.

Taking these factors together, I find that the complaint is well-founded, and the respondent shall pay to the complainant just and equitable compensation of €60,000.

I have made an award pursuant to the Unfair Dismissals Act. There is no question of double compensation. The penalisation award is for the effects of the unlawful penalisation and detriment caused to the complainant during her employment. The Unfair Dismissal award is for financial loss incurred by the complainant after her employment was ended unlawfully.  

CA-00042153-003

This is a complaint of discrimination on grounds of sexual orientation and victimisation, in contravention of the Employment Equality Act. I accept the complainant’s evidence about the comments made to her by the CE Assistant Supervisor and another. I note that the complainant raised this in correspondence with the respondent and no direct response was forthcoming from the respondent. This issue, however, was not prominent in the great many issues raised in the course of the interactions between the complainant and the respondent. I, therefore, find that there was no contravention of the Employment Equality Act.

CA-00042153-001

I decide that the complainant was unfairly dismissed, and I award compensation of €23,000.

CA-00042153-002

I decide that the complaint of penalisation pursuant to the Protected Disclosures Act is well-founded and the respondent shall pay to the complainant compensation of €60,000.

CA-00042153-003

I decide that a complaint of a contravention of the Employment Equality Act is not made out.

Unfair Dismissals Act / suspension / repudiatory breach / Protected Disclosures Act / ‘operative cause’ / penalisation