Complainant

Respondent

Parties

Suzanne  Picton

Matt Talbot Adolescent Services Clg

Representatives

Lorna Madden BL instructed by  McCarthy Teahan LLP

Denis Collins BL instructed by O'Flynn Exhams LLP

Act

Complaint

Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00048362-001

27/01/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00048362-002

27/01/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00048362-003

27/01/2022

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

CA-00048362-005

27/01/2022

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

CA-00048362-006

27/01/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00051505-001

04/07/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00051505-002

04/07/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00051505-003

04/07/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00051505-004

04/07/2022

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

CA-00051505-005

04/07/2022

The Complainant was employed as the Financial Controller and Administration Coordinator of the Respondent, until redundancy on 11th February 2022.

The Complainant submits that she made two protective disclosures, one in 2019 and one in 2020, and that she suffered penalisation on foot of those protected disclosures. She submits that she suffered a litany of acts including the failure to allow her to apply for pay restoration; and the failure to align her pay to a HSE salary scale; the removal of some of her duties and the sidelining and diminution of her role, which she submits constitutes penalisation under the Protected Disclosure Act 2014 (as amended). The Respondent denies both that the disclosures made constitute protected disclosures within the meaning of the legislation, and also denies penalisation.

The Complainant further submits that she was penalised by being subject to a redundancy, which was in fact, an unfair dismissal, under the Unfair Dismissals Act 1977. The Complainant maintains that her selection for redundancy was unfair, which is denied by the Respondent.

The Complainant has filed a further complaint under s. 62(2) of the Charities Act 2009 but accepts that she cannot maintain a complaint under both that act and the Protected Disclosures Act 2014, in relation to penalisation.

The case was heard over three days. It was case managed on Day 1, and deadlines for submissions set. The issues were narrowed between the parties, and the substantive case was heard on Day 2 and Day 3.

-       CA-0051505-001 – The Complainant submitted that her redundancy payment was incorrectly calculated. This complaint was conceded by the Respondent and compromised between the parties prior to the hearing of the outstanding matters.

-       CA-0051505-002 – This complaint was no longer maintained by the Complainant. 

-       CA-0051505-003 – The Complainant was seeking outstanding arrears of pay restoration for the period of 01/02/2022 – 25/03/2023. This complaint was conceded by the Respondent and compromised between the parties prior to the hearing of the outstanding matters.

-       CA-0051505-004 – The Complainant was seeking a 5% employer pension contribution for the arrears of pay restoration due 01/02/2022 – 25/03/2023. This complaint was conceded by the Respondent and compromised between the parties prior to the hearing of the outstanding matters.

-       CA-0051505-005 – Unfair dismissal complaint due to unfair selection for redundancy and/or for penalisation. This claim is denied by the Respondent.

-       CA-00048362-001 – The Complainant is seeking pay restoration following the WRC decision in 2020. This Respondent submits that the Complainant cannot maintain a claim, in this regard.

-       CA-00048362-002 – The Complainant is seeking that her salary be aligned to HSE salary scales from 29th October 2021. This Respondent submits that the Complainant cannot maintain a claim, in this regard.

-       CA-00048362-003 – The Complainant is seeking that her salary be retrospectively aligned to HSE salary scales from July 2016. This Respondent submits that the Complainant cannot maintain a claim, in this regard.

-       CA-00048362-005 – The Complainant submits that she was penalised for making a protected disclosure. This claim is denied by the Respondent.

-       CA-00048362-006 – The Complainant submits that she was penalised for reporting breaches of the Charities Act. This claim is denied by the Respondent.

In addition to calling oral evidence (witnesses) at hearing, both Counsel for the Complainant and Counsel for the Respondent submitted extensive written submissions, as well as exhibited documentation, and relied on same in their closing statements when setting out their respective cases and legal arguments in relation to the complaints filed, in particular those complaints which turn on the basis of legal definition or dispute.

The Complainant, Ms. Picton, gave evidence on her own behalf, at hearing, on affirmation.

The Complainant outlined that in September 2008, she advertised her services in the Cork Examiner as a certified CPA, and she was approached by the then CEO, JB, and they agreed she would take up a position three (3) days a week as Financial Controller. She said that she received a contract of employment in May 2009. She initially started on a contract for services from October 2008, then from May 2009, it was incorporated into a job. The Complainant said that she started as a Financial Controller for the Respondent organisation on 01/05/2009.

She explained that another service was set up, a youth enterprise scheme, and her role increased from 3 days per week, then 4 days/4.5 days per week, and then to 5 days per week from 2015. She explained that as additional schemes (which required additional funding) were added, so were ten (10) new employees.

The Complainant explained that she had responsibility for statistics, collation of reports, engagement with the funders, budgets, quarterly reports to funders etc. She outlined that the person who had held the role previously was an administrator, whereas she was a financial controller. When she started, her salary was approximately €52,000 pro rata, at a three-day week, which was comparable to the administrator’s salary. She said that she just accepted that salary, she was happy with it, that she could potentially have received a higher salary elsewhere.

She outlined that by agreement between herself and the CEO (within 6 months of starting) that she was responsible for all of the invoices/budgets, quarterly/annual reports, regulatory compliance, updating records with the CRA on an annual basis, contracts, policy development (particularly the HR aspect of policies), and that she drafted the new sick leave policy which was implemented in 2015. She said that she had a fair amount of knowledge of policies as she had relevant previous experience in a prior role in UK. She said that her role also involved statistics, and that she provided monthly reports to the Board, providing reports on absenteeism (for example). She was asked how the sick leave policy and the additional duties related to her role as Financial Controller and she said that  “for me, everything goes back to costs.”  She outlined the relevance to the organisation’s primary funder, the HSE, and the implications of absenteeism in that regard.

She explained that, in her role, the CEO was her direct line manager and that the CEO reported to the Chairperson of the Board of the Respondent organisation.

She outlined that the duties of the CEO broadly included overseeing all of the managers, reporting directly to the Board, organising monthly meetings, liaising directly with the funders etc., and that the CEO had responsibility to bring in more funds from the sources that the organisation currently had, and from new sources.

The Complainant said that she had limited contact with the Chairperson of the Board, that she attended the board meeting once a year to provide the annual figures; and otherwise, would have seen the Chairperson of the Board of Directors very little in her workplace.

Protected Disclosure

The Complainant said that she started drafting a protected disclosure in late 2018, that the HSE was going to do a service review, that there had been numerous issues which had been ongoing. She said that the Chairperson told her that there was going to be a review at a meeting in Douglas. It was explained that this review was going to be a “service review”, whereas the previous ones were clinical. This review was going to be an overview of the service provision, staffing etc. and there would recommendations produced on foot of it.

The Complainant said that she had not received the report from the 2016 review. She said that the HSE said in relation to its 2018 review that it was going to provide a copy of the report to staff, but that was not issued to staff either.

She said there had been a more recent one conducted by Mr. Conal Devine.

The Complainant said that she submitted her protected disclosure to the HSE on 3/7/2019. She said that she had “significant concerns”, that she is a certified public accountant (CPA) and that she had “a responsibility to the public as well as the organisation”. She said that her concerns related to “spending, appointments, HR related matters and governance issues.” She said that she based her protected disclosure of the Memorandum of Understanding (MOU) and on the HSE Service Level Agreement (SLA). In particular, she highlighted appointments that had not been aligned to HSE salary scales (2015), board members not being notified promptly, misuse of funds and HR issues. She emphasised that the monies being used were public monies and the relevance and importance of the organisation being a charity (i.e. having charitable status). She also raised concerns into a “redundancy” which occurred in circumstances where the post still existed and was filled the following week. She said it was her view “that was not a redundancy” and she said that staff were told that the staff member in question had retired. She explained that the HSE does not fund redundancy but the Respondent organisation was able to do so. She also raised concerns about processes relating to procurement. She said those processes were being abused, that money was being spent on external consultations in relation to work related matters. She said that she had “nowhere else to go”, that “she could only go to the CEO.” Her protected disclosure was submitted to the HSE.

She was asked whether it makes a reference to the Protected Disclosure Act. She said there were two elements, under the legislation, that she thought were relevant – (f) and (g) – and that they pertained to:-

-        The misuse of public funds

-        The governance of the organisation

She said that she sent the document to the HSE disclosure’s recipient, AL. It was initially submitted on 3/7/2019, and that she subsequently met with her in approximately August 2019. They reviewed the documents, narrowed it down, and agreed that it would then be sent to the Board of the Respondent. The Complainant explained that she technically had the option of sending it in anonymously. However, she felt that it would have been quite obvious that it came from her. She said that she had no difficulty with it being disclosed that she was the person making the protected disclosure. She said that it was posted to all the home addresses of all the board members.

In January 2020, she made a second disclosure. She said it pertained to another expense, which she had been requested to pay. She said that there had been no procurement process, and it was an excessive amount for a charity to pay. She said that she went again to AL  in the HSE. She said that the date of the second disclosure actually crossed with AL making her decision on the first on (c. 20th January, 2020). AL made her decision a few days later.

The Complainant outlined that in relation to procurement and tender processes, she raised a grievance on 12/07/2019 against the then CEO, PR; and that there were a number of things, and it came to a head the day before.

She said that she was contacted by a staff member who was struggling in her post and was going to resign. That staff member had been in her job a year in Cara Lodge. The Complainant had met her only once previously. She said she told that staff member of the HR policies and expressly told her not to resign.

The Complainant explained that she, herself, had then been off work with a back injury but had continued to work from home doing the wages and some other things, as there was nobody else to do her role. She said that she came into the workplace and could barely stand. She said that there was a HSE meeting (this was her one-hour slot). She said the CEO came to her workplace, in Douglas, to reprimand her for being involved in a “staff matter” – she said that the person had resigned, and had thanked the witness for supporting her.

The Complainant explained that in 2018, staff were told they were not told to contact her directly; they were told they had to go through their line manager in Cara Lodge (whether it was for the signing of a mortgage application document, or anything else). The witness said that she took on the HR responsibilities – it was part of their management description. She explained that staff report to their line manager (e.g. in relation to absence), then the Complainant would be informed as there may be an implication for their pay. She said that she would calculate [the pay aspect] and would also advise the line manager [in relation to the HR aspect].

11/7 - there was another matter in a similar vein involving a grievance about intimidation. The Complainant was told not to be involved in staff matters, so she sent it to the Chairperson. She outlined that the Chairperson contacted the Complainant and suggested mediation. The Complainant said that she did not think it was a mediation matter, so the Chairperson said they would commence a process. She said that she heard nothing for six weeks. Then, it was suggested that it be incorporated into the service review (HSE) – the Complainant accepted that. She said that she was willing to put her trust in the process. Then, she was advised that someone had been appointed [to deal with it] the day after she had said she was happy for the HSE to do with it.

Letter dated 10/10/2019, to AL (HSE) from CC (then Chairperson), on behalf of the Respondent organisation

The Letter was written to the Protected Disclosures recipient. The Complainant was informed by the on 11/10/2019 that the response was not a response to the protected disclosure, but more a personal comment on her. She explained that it was only the following February, c. 20th February 2020, that she got a copy of the letter. She said that she was quite distressed about it and queried why someone would write about her personally.

Paragraphs 2, 3 & 4 were highlighted. Paragraph 2 set out her role. There was reference to the letter the Complainant sent the Chairperson on 24/08/2019. She had not heard anything for six weeks and was disappointed that she had not had any update. She then requested that the HSE deal with the matter, i.e. that it be incorporated into the HSE’s all-encompassing Service Review. The Complainant was asked whether that was the end of her grievance against the CEO, and she outlined that the Chairperson said that ‘if you’re not going to engage, nothing can be done.’

In November 2019, the grievance was re-instated against the CEO and was investigated in January 2020, by the person the Chairperson had appointed in August 2019. The decision was that the Complainant had not been intimidated, and that she had not been asked to collude in giving false information to the HSE – the investigator made the report, then two Board members were responsible for reviewing the report. The Complainant appealed that decision, and another two Board members were involved in the appeal.

The Complainant was asked as to the effect of receiving this letter in 2020. She said that she was “shocked”, that she thought it was “trying to demean me, trying to frame me in a bad light with our funders who I had established a good relationship with.” She said that it “moved away from the protected disclosure.” She said that the response targeted her personally. She characterised it as “very dismissive”, that she “didn’t do it lightly” and that she thought the response was “very dismissive of me, trying to discredit me as an accountant and my professionalism.” She said that she understood that the HSE would deal with it, that there had been a letter from the Respondent organisation saying that it would not deal with it – she referred to the relevant portion of the correspondence ‘I replied to Ms. Picton on 10/09…’ She said that it was stated in this letter of 10/09 to her that the Respondent organisation could not deal with it. She was asked whether it asked her how to engage. She said that she thought it “probably did”, that she could not remember if she actually responded to this. She said that she “had already made my position clear in August.”

She addressed the issue of a complaint made against her by GH, the then Residential Unit Manager in Cara Lodge, who was appointed to the position after the ‘redundancy’ in 2017 - on 14/10/2019 (within was made within a matter of days of the Respondent organisation submitting their response). The Complainant said, of the complaint raised against her, “her complaint was that I had supported another member of staff, and she was not happy about that and wanted it investigated.” On 15/10/2019, the witness was notified of the complaint.

A Letter dated 02/12/2019 from CC to the Complainant was opened [‘Re: Investigation’], and the Complainant was she was given until 5/12/2019 to clarify the terms of reference. The Complainant said that they were issued to her. However, she was absent due to work related stress from October to December 2019. When she returned to work (on a phased basis), she received this. She explained that she was only back to work full-time (working five days) from February 2020. She said that a lot of the formal correspondence was coming in to her, in her workplace, and it might have been recorded delivery. The Complainant said that ‘nothing happened’ but then, in January 2020, in or around the 20th, she contacted the Chairperson, CC. He said that he would ‘get the wheels in motion.’  He contacted GH who said that she did not wish to pursue. The Complainant was informed of that on or about 22nd/23rd January 2020.

The Complainant was asked whether that was the end of the matter. The Complainant requested the withdrawal of the complaint in writing. CC said that he would discuss it at the next board meeting, which took place on February 3rd, 2020. The DSAR indicates that it was not discussed. From the witness’s point of view, there was ‘no response.’

The Complainant said that she received correspondence drafted by the Respondent organisation’s legal representatives, with CC’s signature at the bottom stating that GH had withdrawn her complaint (and that her complaint was not upheld), but it was not from GH. The Complainant submits that this was not a withdrawal of GH’s complaint. The Complainant also raised concerns as to who had written what document (which she subsequently received) and pointed to the document properties, in that regard. She said that she was just told that the complaint was a matter that was going to be investigated, but she was not told that there were potential sanctions She also explained that she had sight of a letter from a firm of Solicitors, when she was securing the CEO’s email/computer after he resigned his position – he left in June 2021.

The Complainant was on sick leave from 23/10/2019 to 20/11/2019, and then went back to work on a phased basis. She said that she was suffering from work-related stress, that she was suffering with raised blood pressure, that her cholesterol very high, that she had stomach issues and repeated migraines. She was asked whether she had informed her employer of the reason for her sick leave. She said that she did - that initially she was on sick leave due to migraine; and she then had submitted a medical certificate for one month due to ‘work related stress.’ She further elaborated that it was her GP’s suggestion that she return to work, on a phased basis. A two-page email chain, dating from 26/11/2019, between from the Complainant to the then CEO, PR, was opened.

The Complainant outlined that she had been absent due to work-related stress, and she was very uncomfortable to attend a meeting, in the Mary St. location, due to stress. She was concerned that, the then CEO, PR, may not have been on his own. She pointed to a prior sequence of events in 2015 and 2016, and an incident in which the Complainant explained that she had left the building in distress. She used the word ‘intimidated’ to describe the experience, and she said that she left the meeting/building in tears. She said that she had no intention of going into Mary St. again, after that. She explained that the former clinical director had been there too, but since her departure in 2016, the then CEO, PR, was the sole occupant in that location. She explained that Senior Management meetings and Board meetings were held in Mary St.; and that while the previous CEO (PR’s predecessor) worked in same office as the Complainant, PR decided to occupy Mary St. The Complainant said that all the Complainant’s financial information was based on her computer in her office.

Email of 3/12 – the Complainant’s third response to the then CEO, PR, was opened: At this stage, the Respondent organisation was aware of the protected disclosure; there had been a complaint raised against the Complainant etc. She was very wary and refusing to meet with him. The Complainant said that she had offered to do a back-to-work interview. On 26/11/2019, the Complainant requested to meet with an Occupational Health consultant. She said that the result of the  Occupational Health report confirmed that her absence was due to work-related stress - it agreed with her GP. The Complainant is submitting that this is an instance of penalisation – that the board/chairperson had sight of it, and that it was not actioned. [The Complainant is also involved in personal injury proceedings ongoing in civil courts.]

The Complainant explained that she managed her return to work by using her annual leave in order to manage it. It extended into January (a four-day week), then in February – she was back working full-time (five days per week). Her request for annual leave was approved and paid – it covered all of that time. The CEO approved her annual leave.

The Complainant said that her concern was that she was not offered any EAP support and there was no investigation based on her absence for work, as suggested by Occupational Health. She outlined that there was no return-to-work interview because the Complainant had not gone into Mary St. The CEO had not come to her either. There was no correspondence, and no questions from any other manager either.

Insurance Policies

In relation to the insurance policies, the Complainant outlined that she had responsibility for a number of polices (employer’s liability, public liability, directors’ and offices’ cover, car insurance), on her appointment. She outlined how she saved the Respondent a significant amount of money in respect of the insurance policies (c. €10,000/11,000, which represented about 50%). She outlined that she reviewed them annually, recalculating costs/overheads additional to the policies, making sure the organisation had the correct level of cover etc. She said that she was responsible for dealing with the insurance companies – notifying them, liaising with them in relation to flooding, car accident etc.

The Complainant learned from the insurance broker that the D&O policy was being dealt with by the Board. The policy which had been taken out was incorrect and perhaps, a refund was due. So, she contacted the broker requesting information. The CEO, who was on annual leave at the time emailed (copying in the Complainant) to the effect that the Complainant was not to receive any documentation. She said that she had still had not been informed by the CEO that she was not responsible for this element of the policy. There were emails in April 2021 between the Complainant and the broker. Then, the Board was dealing with all of the policies directly. The Complainant had been dealing with this particular broker for a number of years and that prior to that, she had been dealing with the MD of the insurance company.

She said that the renewal date (17/5) came up for all the policies. So, she would start the conversation a month beforehand re: staffing changes (especially in light of the closure), that there were calculations that needed to be provided etc. The Complainant expressed concerns about the D&O policy which was taken out. She said that there were a number of employment related claims, and the policy had a €100,000 excess. She said that it is impossible to trade with that level of excess. She explained that declarations had to be made in relation to all issues that may result in claims possibly arising. She queried how a charity could possibly pay the first €100,000 excess on any claim. Then, it was clarified that the policy was incorrect, that there would be refund, and a re-negotiation occurred to change the terms of the policy. She was asked if essentially, she had raised an issue and did her job, and the issue was resolved? She said: “No.” that that occurred “at a later point, immediately prior to my redundancy.” She said that she was “still concerned to date, in relation to certain D&O matters, for the charity.”

CA-00048362-003: HSE Salary Alignment

It was outlined that the Respondent organisation is a s. 39 organisation –  it is funded by the HSE, but it is not a HSE organisation. The Complainant said that when the company was established in the first place, the salaries were aligned to HSE salary scales. Then, over time, HSE employees received benchmarking (‘prosperity and fairness’), but that did not apply to the s. 39 organisation. There were increases of c. 2.5% - that funding came in from the HSE, prior to 2009. In 2010, a pay cut of between 5% and 7% was implemented across all government, civil service positions. Since then, any changes that came in in the HSE, were not given to s. 39 organisations.

Email Chain from the Complainant to the then CEO, PR, 15/10/2020  the document sets out the salary scales.

Discussion in October 2020. Cara Lodge had closed. Discussions about future funding with the HSE and about the future regulation. Current pay and comparable salary scale – this is what was put to staff by PR – discussions ongoing with the HSE. The issue is that the Respondent organisation has separate funding by the HSE and the Probation Services – this only applied to HSE funded positions. Most employees were aligned except the top three.

The Complainant said that Grade 7.10 was not her salary scale. She explained that that is what she would see the alliance to. [She said that she was directed to record herself as part of the administration and clerical structure, whereas some accountants in the HSE would start off at Grade 7.] The Complainant said that PR had conversations with employees before talking to the Complainant or letting her know. She said that the Grade 7 information was supplied by the HSE. She said that they were given this document - the most recent salary scale information - so that it could be put into the Service Level Agreement (SLA). She gave examples of deficits in funding – that there was supposed to have a position for a play therapist, which still has not transpired.

23/11/2020 – She characterised the letter from PR to Complainant as a fundamental ‘misunderstanding’ in relation to s. 39 organisations with regard to the HSE pay-scales and the possibility of benchmarking.

She said that subsequent to the closure of Cara Lodge, two appointments were created, with the regularisation of pay-scales. One person was overpaid for what his position now was post-closure and the second person was on a pay-scale (HSE).

Ms. Madden BL read out the contents of the document from the HSE setting out the required professional qualifications for Clerical Officer Grade 6, as per 3/3/2017.

Portions of the email from PR to the Complainant, in relation to the s. 39 pay restoration process was read into the record. The sentence “I trust that there will not be a repeat of this kind of behaviour” was highlighted - the allegation was that the Complainant submitted information suggesting that her job was at a grade higher than the one it actually was. The Complainant explained that, in fact, the document was to be submitted to the HSE s. 39 Pay Restoration Team, for discussions in the WRC. The process was ongoing with the WRC for two hundred and fifty (250) s. 39 organisations who had not received any pay restoration to date. There were fifty (50) larger organisations had already received some restoration. She explained, that where there had previously been increments, that stopped. She said: “Pay stood still for ten (10) years.” The Complainant said that she was asked to complete the document by PR and was not given the two (2) weeks’ notice required to complete the document, which other organisations received.

The Complainant explained that she is an accountant, a CPA (Certified Public Accountant). She said that the dropdown only gave her the option to write her name. She said that the purpose was to list the category of employees and how many. She said that the title had no bearing on how much of a pay restoration an employee would get. She said that the title or her job then equated it to Grade 8 of the Management Accountant. Her job was Financial Controller.

The Complainant said that she was being instructed to record herself as a Grade 6, but her salary was greater than that. She would put herself as being able to earn approximately Grade 8 (in terms of qualifications and the type of job/work she was doing). She said that she was getting approximately Grade 7, in terms of her salary approximately. What ultimately occurred was that the Complainant did not submit her information with the document, as she was conscious of the imminent deadline - she removed herself from the process. She was asked why she was graded in 2020 as a Grade 6. She said: “I have no idea. I cannot comment. I don’t know what [PR] means by that.” She was asked about the second last paragraph of his letter, which sets out: “The Board of Management cannot sanction any further increases.” She explained that it was not a salary increase, but rather pay restoration, that her salary was cut in 2010 by €3,500. She was asked about the last paragraph, which mentioned “Grade 6.” She said: “No, my contract of employment says that I was a Financial Controller.”

She said that the sequence of events was that she received:-

-        €3,500 decrease

-        Then part adjustment, because the initial cut was -7% (which was adjusted to -5%)

-        Then the €4,000 she was receiving (previously invoiced for it) for particular duties was incorporated in her salary.

She emphasised that the suggestion her salary was “Grade 6 + 3.5%” is not true. She said that the mischaracterisation of her and her role as a ‘clerical officer’ was “to demean” her. She said that her “salary is equivalent to Grade 6 + 17.5%.”

She described herself as “incensed” when she received got this letter, and said that she “responded immediately.” She said that the letter is supposed to be about pay restoration, but the contents referred to other matters, including the closure of Cara Lodge. She pointed out that the Cara Lodge accounts still had to be prepared for the end of the year – 2020 accounts had to be done for the end of year.

She said that she was “penalised” and said: “Why was I not entitled to pay restoration when my pay was cut?” She said that people who started after 2010 had their pay aligned to something more updated. She said that she thought it went back to the protected disclosure, and that the organisation was treating it as if it pertained to pay, and not to pay restoration. She submitted that it was wrong in that regard.

The Complainant said that on 28/06/2021, restoration occurred, and employees received instalments of pay on foot of that in January 2021, July 2021 and January 2023. The Complainant prepared correspondence for all the employees getting pay restoration.

The email of 15/03/2021 to the Complainant was highlighted; as was the email from IBEC representative, JC, to EW, the Complainant’s Forsa representative, on 18/02/2021. The Complainant submitted that she had received near identical correspondence from PR, nearly a month earlier, in relation to collective redundancy, and accurate and up to date financial  information. She was asked what her reaction was, when she received it. She said that she was “incensed with the language”, that she thought it was “very strong”, “hostile”, “questioning my integrity and professionalism.” She said: “I don’t put anything out without making sure it is accurate.” She said that “someone who has no knowledge of me personally, says this to discredit me.” She said that it had been issued to a lot of people - a secretary in the union, to a representative etc. She said: “I’m horrified that something is being put out about me and my professionalism.” She added that her union representative was absent which is the reason for the delay.

The Complainant raised concerns in relation to the document properties of some of the digital correspondences she received, some of which came to her attention through a SAR request. The concern she is raising is the level of involvement of the former CEO, PR, in relation to documentation which was then issued to her by other parties (both internal and external); and concerns in relation to his level of involvement in matters where he was supposed to have recused himself, as a matter of fairness (to avoid bias). She further raised concerns that the level of involvement of PR was greater that the level of involvement he indicated he had. The Complainant advised the Board of her concerns – she was not making a complaint against PR, but rather, bringing her concerns to the Board’s attention. Counsel for the Respondent highlighted that the Complainant is not an IT expert, which was accepted by the Adjudication Officer, at the hearing – the Adjudication Officer took the approach that the Complainant could give evidence as to her observations (in relation to document properties etc.) but not give evidence as to what, if anything, those observations may mean.

A previous CEO of the Respondent organisation, JB, died. The Complainant was on compassionate leave, when she received correspondence in relation to a complaint PR raised against her – he was aware she was on compassionate leave, at the time.

The Complainant made a complaint against the then CEO, PR. PR made a complaint against the Complainant. An investigator was appointed. Correspondence from JC, IBEC representative seems to indicate that the CEO resigned in April. However, that was not obvious when staff informed in June, but she noted that he would have had a six (6) week notice period.

The Complainant raised governance issues – she highlighted issues in relation to differences in the governance of charities between non-complex and complex organisations, and that the Respondent organisation was adhering to the protocol for the wrong one.

The Complainant was asked if she received funding for education. She explained that she received two (2) lots. She received 50% funding towards a Leadership and Management course. She also did a Data Analytics course, which was funded.

She outlined that two WRC complaints were filed – 28/01/2022 and July 2022. The first complaint pertained to protected disclosure and pay; and the second pertained to other issues relating to pay and redundancy.

In respect of Conal Devine’s draft report, the Complainant explained that she received it by email with a specific password to open that particular draft to her. She said that it was initially given to others in the company, who had met him - managers, the Board, possibly the union. The Complainant had not met him, at that point. The Complainant was sent a copy after that. She said that it was immediately obvious to her on receipt of the report that “my job was on the line.” She said that she was not the only person to observe that. She said that was “before I had even given comments.” She said that he was “looking to outsource some of my role.” She said that she received a phone call from her union representative, “just on the strength of [the draft report].” He was enquiring as to whether she wanted him to approach the Respondent organisation at that juncture, in order to “explore options”, on the basis that it may be “better to leave rather than be pushed.” She said that the draft report “glossed over anything adverse (HSE)” and “made no reference to the fact that I had a complaint against the Board and the CEO.” The Complainant said that she completed comments and sent them back to Conal Devine.

Comments were confidential but were raised at the WRC hearing.

In October 2020, the HSE had agreed to fund the Complainant and the CEO as full-time employees (under the SLA) for the remainder of 2020 and through 2021, after the close of Cara Lodge. The Complainant said that “it was obvious that there were going to have to be changes.” She said that there had been a deterioration in the service users in the previous couple of years, that the organisation was growing, then reducing.

She was asked about the final report. She said that it was scanned very badly in a photograph format and sent to staff. She said that she had not received in as a PDF document. She said that it was put out by the Acting CEO, EF, at that time.

The sequence of events was that the final report was issued on 5/11 by the Acting CEO.

The Complainant said that none of her comments were included by Conal Devine.

She said it was clear that there was a potential issue with her role. She then received a letter from CC – a provisional selection for redundancy letter. She said that there had been no discussions prior to the letter. She said that on foot of that letter, there were discussions, on 10/12. She said that it was going to be Mr. Whooley and the Chairperson for the Respondent organisation, so she asked that Forsa would attend/represent, on her behalf, which it did.

She said they looked at exploring the reasoning behind the redundancy, what options were being considered, had they looked at a skills audit etc. She said there was a mention of ‘positions’ but was unaware at this time.

The Complainant said that what she commented on was that the skills in Mr. Devine’s report were duties she undertook, even though they were CEO duties, e.g. SLA documents, compiling them, budgets; overheads etc. She expressed the view that they were not being done by office managers. She said: “I never put myself forward for any position.” She said that she commented: “These are duties I currently undertake.”

She said that it was laid out in discussions with CC, the Chairperson – “the Board are going to do this, the managers are going to do that, the auditors are going to do this…”

She received notification of redundancy on 11/2/2022. She said that she received it by email from Mr. Whooley, but that the email was sent with no attachment. She said that she then received a further email at 4.55 pm on the Friday afternoon, with the attachment, which set out that her role was redundant effective immediately. She said that she was granted a notice period, i.e. that she would receive PILON (payment in lieu of notice).

She set out that there were three consultations - 14/1, 21/1/ and 28/1; that in terms of a skills audit, no costings were put on anything. She said that she had been involved in the management of IT, that she had implemented a new layer of IT throughout the organisation. She further said that she had been involved in governance. She expressed the view that was “all going to be dealt with, by everybody else, who didn’t have any prior knowledge or experience.”

The minutes of the Board of Directors, of the relevant date, were put to her. There were issues - pay restoration, funding (education), complaints against the Board. She said that she was offered €40,000 which comprised her statutory redundancy payment, the ex-gratia payment (which was an additional three weeks per year of reckonable service, that that had been negotiated and was precedented within s. 39 organisations), her outstanding untaken annual leave (approximately two weeks), pay restoration, and her notice period. That offer was made on 28/01/2022. It was suggested to her that five weeks’ pay per year of reckonable service would have amounted to a sum in the region of €61,000.

The witness was asked whether she had been notified prior to February that she had been formally selected for redundancy. She said that she did not accept that it was a redundancy. She expressed the view that people made redundant from Cara Lodge received their statutory redundancy, and their union got them jobs in the HSE. She said that the Respondent organisation did not have the funds to apply the precedent of three (3) weeks ex gratia per year, so there was a negotiation through the Labour Court.

The following documents were emphasised, in this regard:-

-        10/12/2020 - the pay restoration document [ADJ-00048362-001]

-        The template document starting: “Dear BLANK, re: restoration of pay for workers.” The Complainant wrote to the people who were entitled to it and those who were not.

-        The redacted email from CC, then Chairperson of the Board to JC, IBEC representative.

The sequence of events set out was:-

-       An external HR consultant was contracted in 2020.

-       Then, the issue of pay restoration in relation to the Complainant arose.

-       The CEO resigned, although the Complainant did not know this, at this time.

-       Then, the acting CEO was asked by Complainant to look at it.

-       Then, the HR consultant was asked to look into it by the acting CEO

Subject Access Request sent by Complainant to IBEC

The Complainant got sight of an email written by the HR consultant, which was thenforwarded by CC to JC, the IBEC representative, through the SAR request she made of IBEC.

ADJ-00048362-002

The first document contains the audit findings. Then, there is the issue of pay alignment, which is different from to the issue of pay restoration. This is the finding from the HSE findings – the recommendation that an internal audit be undertaken.

The witness expressed the view that she thought it was prudent, that she had reviewed pay scales and reviewed anomalies. She said that, then, things started to deteriorate.

She said that in 2015, the CEO was appointed. Then, in 2016, the Head of Services was appointed. Then, the Clinical Director. The Complainant wanted her salary regularised - she wanted to secure her position for the future.

The contracts post-2015 were an issue that the Complainant had raised in her protected disclosure. “All the other outstanding matters” referred to – that related to the issue of pay restoration, the funding investigation, the companies complaint.

On 30/11, the Complainant received a communication from Mr. Whooley who said that these matters will be addressed at the next Board meeting.

On 2/12, she received notification of potential redundancy.

She said that it had been going on since 2016, that she had been repeatedly fobbed off. She said: “I feel that it was deliberately targeting me.” She said that in 2019, that her salary was not Grade 6, 3.5%, but rather Grade 7, point 10 (towards the end of that salary scale). She said that this internal audit occurred as a result of the protected disclosure the Complainant made. She said that the audit addressed 2020, but not 2018 or 2019. This recommendation comes out of the internal audit, instituted as a result of the protected disclosure (recommended by HSE).

She expressed the view that there was a gender-based aspect to the issue - that senior management, female personnel were targeted and were going to be made redundant or, would leave the company. It was suggested to her that it was “not a surprise” to her. She said “I knew my job was gone.

Counsel for the Respondent intervened and objected, stating that there was “no element of discrimination” in the complaints filed by the Complainant.

The Complainant expressed the view that she had “always done the right thing”, that she had “stood by employees”, that the organisation has “a duty of care to everybody not just ourselves.” She said that “people came to me because I would steer them in the right direction.” She expressed the view that bullying  was endemic, in that particular residential centre, that multiple members of staff had come to her. She said that she was “then, reprimanded.”

She said that the then CEO, PR was “not aware of any complaints.” She said that they actually were “not complaints”, that she “raised concerns”, and that her “words” were then “twisted.”

The Complainant said: “I thought I was being targeted because I made a disclosure.”

On Cross-examination by Denis Collins BL.

It was put to the Complainant that she entered into a contract with the Respondent organisation, at the time that she started her job, and that she was a Financial Controller. It was put to her that she accepted a grade of pay that is the equivalent of a clerical office grade 6, and that she was not a clerical officer, and the contract is quite clear on that. The terms of the contract were put to her, that she had agreed to it, and that it was a private contract.

The contract changes were put to her – that in December 2011, her salary increased by 3.5%, in January 2013, her role increased from three days to four days, and her salary increased accordingly; then in 2014, there was a salary adjustment upwards from €42,000, on a pro rata basis, based on what she did. The Complainant explained that at one point, she was in receipt of a management fee from probation services, that she was working part-time for the Respondent organisation and was also working for herself. At that point, that work was invoiced. Then, later that was incorporated into her salary (2014) - €59,768. It was put to her that she was not happy with her salary/contractual arrangement? She said: “No, I just wanted to regularise it on a pay scale.” She said that the problem was that the Board would have to change it – it was not willing to do it. It took the view that it was not in a position to do it. In 2019, she was told of the decision. The Complainant explained that the salary she was in receipt of was not comparable to a Grade 6 + 3.5%, it was Grade 6 +17.5%, and that was the equivalent to a Grade 7 point 10.

It was put to her that s. 39 organisation were not bound by HSE pay scales. She was asked whether there were funding difficulties. She denied this, and said that the HSE & Probation Service were willing to fund the CEO and her job (Financial Controller). It was put to her that the Respondent’s position is that it paid the Complainant 3.5% above the position of a clerical officer. The Complainant said that she took the salary that was paid to the previous person in the role. But, the Complainant was a qualified accountant and the previous person was not. She said: “I don’t accept that my job was that of a Grade 6, and the responsibilities of that role.”

‘Subject to contract’

It was put to her that it requires two parties to amend the salary. She said that she accepted the salary, but not the scale. It was put to her that she had never received correspondence saying that her grade had changed. She said: “No, I didn’t.”

The Complainant said that Grade 8 Accountant is recognised in the HSE, and the Board was asked to consider it. She was represented by Forsa, at that time.

It was put to her that on 26/2/2019, it is indicated that her pay was comparable to Grade 7.

She said that a Management Accountant and a Financial Accountant are a Grade 8. She said that Forsa’s advice was that she was not going to get anywhere with that, and to submit on the basis of Grade 7. She said that her salary was at the very top of the Grade 7 scale, and which overlaps with Grade 8 scale. The Complainant explained that the dropdown menu only gave an option for accountant. Her title was Financial Controller, not Management Accountant, in the organisation. She said that her salary exceeds the top of the salary of Grade 6, that she was not looking for further income, but instead was looking for her salary to be on the correct scale. She said that it was only in 2020 (HSE discussions), that there would have been an increase, when they were regularising.

It was put to her that on 05/06/2019, there was a Board meeting, the upshot of which was that there were no further increments – that that was position of the Board and that has not changed.

The Complainant was asked whether the salary paid to her was the correct amount based on the contract. She said: “Yes, but it was not reflective of what was in my original contract.” She was asked: “You were being paid what was contractually due to you.” She said: “Yes.”

Protected Disclosure

The Financial Controller is responsible for the proper running of the organisation, has the best interests of the organisation at heart. The job description is set out at Footnote 12 of the Respondent’s submissions – page 60. The Complainant accepted the job description, as set out.

She agreed that her role encompassed this such as looking at performance issues, examining costs in terms of savings to be made, bringing them to the attention of the CEO and he would bring them to the attention of the Board; reviewing cost bases, reviewing them annually since 2009 – that she would look at, identify and detect if there was a problem. On the regulatory side, the Board has responsibilities but is not responsible for everything - the Charities Regulator had oversight. The Complainant had duties, which formed part of her role, in that regard also, in the context of the Respondent organisation being a charitable organisation.

It was put to her that in late 2018, she started compiling this issues/evidence, e.g. increased costs in HR matters and savings could have been achieved. The Complainant said that the expenditure that was going towards these costs since the appointment of the former CEO had increased significantly. She was asked if she thought the CEO was the cause of spiralling costs. She said: “No, it not just the CEO. Since he was appointed, HR, employment related issues – and the decisions made by the Board (legal expenses)” had resulted in increases in costs. She said that there was a staff member who had been suspended for four (4) years, and was paid for 2.5 years.

It was put to her that legal expenses, may be reasonable; that, expenses pertaining to an external investigator, may be reasonable. She said that a lot of the issues related to an individual; and then, the Board in its position had to deal with the repeated issues coming up. Her view was that the Board should be looking at it, from an oversight viewpoint.

She contrasted the cost of one external Consultant, which was €30,000. She contrasted this with the cost of pay restoration, which she said was in the order of €1,000.

She was asked about her disclosure in relation to the “unlawful use of funds.” She said: “Absolutely.” She highlighted a spend of €4,419 in one month in relation to legal fees, and said that prior to the appointment of PR as CEO, that would have been the amount for the full year. She said that the CEO was involved in one matter himself, and then, additionally, would go to lawyers (i.e. pay for legal services through the organisation) for any manner of letter etc., for anything that need to be issued.

She said that the CEO was earning approximately €70,000 but had no management experience.

She said that each year since 2015/2016, costs increased substantially. She said that she did not know what it was. She highlighted a figure of €16,000 where previously the spend would have been in the region of €4,000. She said that when costs “increase from €4,000 to €16,000, something has to give or has to be cut, which is the service provision.”

She said that the insurance policies the Respondent company had could provide legal advice and support it; but legal advisors were being paid, at additional cost.

Redundancies

The Complainant was asked who dealt with collective redundancies. The Complainant said that she did the collective redundancy calculations, in respect of the Cara Lodge closure.

She said that there was a redundancy in June 2017, there was a redundancy in relation to a residential centre/unit manager role. She said that the CEO, the union, and the Chairperson were involved in that, as well.

It was put to her that there was nothing unusual about the CEO being involved with that. She said: “I believe that the Board were informed of the redundancy retrospectively.”

She identified there as being a problem with a particular redundancy - she said that her issue with that redundancy was that the post was not redundant. The Complainant said that it was filled the following week, that the spend of €45,000 in those circumstances represents a misuse of public funds.

It was put to her that professionals’ fees can be expensive. The Complainant accepted that.

Procurement

She was asked about the issues she had raised in relation to procurement processes. She said that tender processes or quotations were not being obtained (as required). She said that when she queried if there had been a tender process, she was told: “No, the Board decided on this matter.” She said that the Board did not apply its own (internal) policy and also did not apply the HSE policies.

She was asked about the electrical works and whether they were carried out. She confirmed that they were. She said that the policy was manipulated by the CEO, PR. She said that there was a Health & Safety audit required but the quote given was in excess of €1,000. Therefore, three (3) quotations were required [in line with the procurement process]. What happened was that an invoice for less than €1,000 was produced and then, another section of the work was to be done at a later date. It was put to her that it was a matter for the electrician, to decide to invoice in a certain way. The Complainant disagreed with this. She said that they were using public funds and therefore had a responsibility to put them to best use. She explained that day-to-day expenses did not cover things like the roof, carpets etc., and monies had to be raised for those. She said that the work was carried out but was carried out in two stages, so they did not have to adhere to the policy. She alleged that this instruction came from the-then CEO, PR. [Adjudication Officer’s Note: Neither the electrician not the then CEO, PR, were proffered by either party, as witnesses.] She said that she questioned it with PR and that she received “a curt response.” She said: “He more or less told me to mind my own business.”

HR Consultant

The Complainant was asked whether the monies spent, in 2017, on a HR Consultant was actually spent on HR advice. The witness accepted that.

2015 - 2018: Criticisms by the Complainant

The Complainant was asked about some of the criticisms she had raised. She was asked about training which was provided by MH, in “Addiction in Case Management.” She said that it cost €2,000. She said that the same training (but on the correct system) was provided free by HSE. It was put to her that the Board and CEO took a different decision. She said that she was concerned about the decisions being made by the Board – governance decisions. She said that that the Respondent organisation’s obligation is compliance with Service Level Agreement (SLA). She said that as it cost €2,000 (which exceeds the €1,000 threshold in terms of the procurement policy requirements). She further explained that the training was inadequate and inappropriate, that it did not work in Ireland and was not compliant with the HSE’s policy.

Level 6 Qualification

She was asked about a Level 6 qualification and whether it added to the CEO’s skillset. She said: “No. I don’t believe so. I attended it – it was run by IBEC - along with the rest of the SMT. It was not beneficial to myself or the other managers.”

It was put to her that it is not unusual for a CEO to undertake an MBA. The Complainant queried it, in the context of the Respondent organisation being a charity.

She was asked if she thought it would be of benefit in business. She said: “Yes.” She said, however, “I just didn’t think it would be beneficial to [the Respondent organisation].”

It was put to her that the CEO, PR, did not have an MBA when it was arranged for him to undertake it. She accepted that.

In her protected disclosure, she was looking at how to improve accessibility of services, she had made recommendations, she thought there should be more focus on this. It was put to her that she wanted the HSE to look at that, how that could be improved, that she felt that it had not being accessed. She said that she was looking at provision of services and consistency of treatment in services, that she was looking at the measurement tools that were used and looking at consistency throughout the three centres as well.

She also highlighted that printing and publishing items of interest was relevant. She said that no research had occurred since 2013, that that was not being pursued. She said that it is part of the Memorandum of Understanding (MOU) to champion research – that there are attachments from the HSE (different departments – psychology,  pharmacy etc.) She said that “it came to a standstill.” She was asked if that was another concern which was pointed out to the HSE. She said: “Yes.”

It was put to her that she wanted to improve efficiency and the management of HR matters, in terms of the organisation (in the protected disclosure). She agreed with this.

It was put to her that in all those areas that she identified, that she had great knowledge in those areas. She agreed with that.

It was put to her that she did a review herself in 2018, which was part of her job description. It was put to her that the HSE did not make any findings in relation to those issues. She said that the HSE made a recommendation that the pay scales should be looked at – this was part of the internal audit. She said that the contents of that was not particularly in her documentation (in this case) because her case was about pay; but she said, that in terms of the protected disclosure, there were other recommendations. It was put to her that the disclosure was made to the HSE, and it carried out the review that it was not the Complainant’s employer that carried out the investigation. The Complainant said that the HSE has a screening process in relation to the protected disclosure, that her employer was asked to comment, and that its comment was the personal attack on the Complainant, making a myriad of complaints.

Pay

11/7/19 – It was put to the Complainant that the Board indicated that it was not going to pay her above their scale, and that Forsa represented her. The Complainant said that she was being paid above a Grade 6, at the time.

It was put to her that the Board indicated that the Complainant was not being paid above a Grade 6  – that it is the way that it is said – that it was not giving her an alignment, at that point in time.

Complaint against then CEO, PR:

It was put to the Complainant that on 12/07/2019, she made a complaint against the then CEO, PR. And that DOB was appointed in August 2019. She was asked if she were happy for DOB to investigate the complaint. She confirmed that she was. It was put to her that DOB circulated Terms of Reference on 7/09/2019, which she accepted. It was put to her that dates were being suggested. The Complainant said that she was not happy, as six (6) weeks had elapsed, so she said that she wanted the HSE to deal with it. It was put to her that the complaint that she was making was a grievance against PR, and the HSE was not her employer. She was asked whether it was more appropriate for her employer to investigate. She said: “Yes, but [her employer] had not appointed anyone in six (6) weeks.” It was put to her that while she was provided with Terms of Reference, did not return them. She said that she ‘gave reasons’ and that she “asked the HSE to take over the inquiry.” She pointed to being on sick leave on the basis of work-related stress. She said that when she returned, there were multiple emails from PR asking to meet, in Mary Street – at least three. She asked her employer to re-instate her complaint. She was asked whether, in November of that year, she was happy for her employer to deal with it. She said: “Yes.” It was put to her that the employment grievance falls within the domain of employment, and that it was appropriate for DOB to investigate it. The complaint was not upheld. She was asked whether she had appealed the outcome. She confirmed that she had. The appeal was not upheld.

Insurance policies

The Complainant said that she had sole responsibility for the negotiations of insurance policies, that the Board gave the responsibility to the Complainant on her appointment. It was put to her that the Board made the decision that the CEO, and the Board, were the appropriate people to deal with it. She said: “That was never conveyed to me.”

It was put to her that she reported to the CEO. She said that “the CEO never informed me that this responsibility had been removed from me.”

It was put to her that her decision could be overruled by the CEO - and by the Board as well - if he thought that it was not in the organisation’s best interests. She said: “Yes, absolutely.”

Pay restoration

It was put to the Complainant, that in terms of pay restoration, that she did not enter the figures pertaining to herself. The Complainant said that the task/document was given to her the day before the deadline, by the CEO. She said that, if she had not submitted it (i.e. not met the deadline), that would have affected the other employees who were entitled to pay restoration.

She was asked whether any changes/issues occurred over the following month. She said some issues occurred - that clerical staff pay had increased in December. In terms of the submission to the HSE, she removed herself. She said that a Management Accountant in the HSE is at a Grade 8. She explained that her salary (>€59,000) was greater than the top of the Grade 6 Salary scale, so entering her role as that classification would have had the effect of preventing her from access the pay restoration to which she was entitled – she would not have been part of the process if she had done that.

It was put to her that she had initially put herself in as a Management Accountant. She did not submit this information. She outlined the time constraints within which she was working, as the information was only provided to her one day before the deadline, by the then CEO, PR, although he had received it two weeks earlier. She explained that she was on leave, at the time, and working from home. She said that pay restoration was a possibility – 30/11/2020 through the WRC because of the Labour Court hearing. She did it all in one day. The deadline of 1/12/2020 meant she only had one day’s notice only.

The Complainant outlined that she had already started being excluded from HSE meetings. The CEO was the point of contact for the Respondent services.

It was put to her that there was an additional month allowed, subsequently; that the HSE contacted the Board too. The Complainant said that changes could have been made, but she was instructed by (PR) to “submit the information that I had been given.” It was put to her that she did not point that out to the HSE. She said that she did not because it did not reflect the Respondent organisation’s response.

She was asked about there being ‘a dropdown’ for her particular scenario. She said: “I did my best at that time, for the company.” She said that the information (re: pay restoration) had been sent out to approximately two hundred and fifty (250) organisations. She explained that “I wasn’t going to be able to change anything [dropdown menu]”, that she was working on a ShareFile, and under a “restricted timeline.”

Redundancy

It was put to her that there was a 33% reduction in funding, and a 50% reduction in staff.

It was put to her that the letter 1/11/2021 indicated that the Board of Directors recognised that there was a change in circumstances. It was put to her that Mr. Conal Devine was appointed, that she met him and provided her comments to him and that she made no proposals to him. She was asked whether she accepted the findings of his report. She said: “Yes.” She accepted that there were substantial changes in the organisation, and matters had to change in terms of the structure and of governance.

It was put to her that the Board wrote to her on 2/12 and that she was given an opportunity to engage in the redundancy process that she appointed Forsa to represent her, in the process; and that Forsa raised various queries in respect of some of her duties and what would happen with those. It was put to her that she received answers from the Board through Forsa, and Forsa advised her in respect of those. She agreed with that. It was put to her that the first letter indicated that she was at risk of redundancy; and that her Forsa representative, EW, received a copy of this letter, and that she was able to consider it in detail.

It was put to her that as a result of the closure of Cara Lodge, the requirement to have a Financial Controller was greatly reduced. She accepted that not having a CEO or a Financial Controller may reduce costs, but the costs had not been identified. She said that the Respondent organisation’s 2022 accounts were not on either CRO or the CRA. She said they had been due by the end of October 2023, to determine any significant savings.

It was put to her that she was offered an ex-gratia payment –  and that she would have experience of those, in the industry she is in – but that she chose to decline it. It was put to her that ultimately, she received statutory redundancy payment.

It was put to her that there was a 33% reduction in funding, and that cost savings were made by not having to pay a financial controller. She said: “Yes, it just depends on how the tasks are distributed.”  It was put to her that the CEO role was also made redundant, and that funding reduced in accordance with positions that were required. She was asked in terms of the redundancy process whether she accepted that the Board followed the advice of Conal Devine. She said: “No, because they chose not to appoint a Chief Officer, which he recommended.” She said: “I would have expected (based on his report) some sort of amalgam of CEO and Financial Controller, and then the lesser administration duties to be distributed to lower-level staff.” It was put to her that Conal Devine in his evidence had explained that the Board chose to go with his options, and, that, in his professional opinion, did not have any disagreement with it. It was put to her that it was a business decision by the Board.

On Re-direct

The Complainant reiterated that her salary was a Grade 6 – €52,000 [pro rata] when she started. Then, her salary was increased by 17.5% approximately.

She was asked whether she had received the pay alignment sought, whether it would have created a salary increase. She said that it would not in 2016, nor in 2017. It possibly may have in 2018, because had she been aligned to the Grade 7, she may have been in receipt of a Long Service Increment (LSI). She said that the HSE scale with a LS1 is approximately €61,000 and that it is received after three (3) years on the previous increment. In 2020, she may have been in receipt of €63,000, on that basis also, i.e. the maximum increase would have amounted to a gross figure of €4,000 per annum. That does not include any pay restoration. The figure for pay restoration would have been €1,934 euros – pay restoration, up until the termination of her employment.

She said that even if she had been aligned to Grade 8, pay restoration would still have been €1,934 euros, as that element related to being restored to 2010 wages.

She said that she exceeded the top of the Grade 6 salary scale, and the position that was being taken by her employer that no restoration due was because she was being prevented from receiving the restoration of her salary, which was cut 2010, to which she was entitled.

She outlined that the then CEO, PR, had a Certificate in Chemistry and a Degree in Theology, and so the issue of him upskilling arose. He was to undertake an MBA over two years, at the cost of €13,500 per year. The full cost was paid by the Respondent organisation, for first year. He did not complete the course of study. The Complainant said – looking at the accounts/documentation available – that there were three positions within the organisation set out, and, that someone, within the organisation, is being paid more than the HSE salary.

She further highlighted the issue of the electrical works.

She highlighted the recommendations set out in the internal audit - recommendations were made pertaining to internal controls, visas cards, pay etc.

The Complainant’s current position in relation to employment

In response to a query by the Adjudication Officer, it was outlined that since 11/2/2022, the Complainant has been out of work – she has been unfit for work, due to work-related stress. She is seeing her GP, is on various medications and has fibromyalgia. She has had no employment since her role was made redundant. She is also involved in ongoing personal injury proceedings, taken on the basis of work-related stress.

Ms. Lorna Madden BL – final comments, on behalf of the Complainant

In relation to the issue of pay restoration, Counsel for the Complainant submitted that she was the Financial Controller, and her salary increased from Grade 6 to Grade 6 +17.5%.

She submitted that the reason that the Complainant wanted the alignment was that she wanted her salary regularised.

She said that the contract - which is a private contract - is only a reflection of the Complainant’s salary, that the Complainant wanted that reflected in her actual contract.

She submitted that in relation to the issue of pay restoration, the Complainant would have received the pay restoration due to her, but for the Board not allowing her to reflect herself at a proper salary/grade when she applied for pay restoration. She said that the then CEO, PR, who was an employee of the Board, told her that she could not reflect her grade as a Grade 8 or a Grade 7.10, and that she did not get it. It is submitted that the Complainant never approached the HSE, as that was entirely a matter for the Respondent – she was simply trying to put in, her actual position within the company as an accountant, the sum of money would have been paid by the HSE, not by the Respondent. The value of it was €1,934.

In terms of pay alignment, she wanted it to simply be regularised. She wanted her salary to reflect her actual grade. The private contract has already been changed by the fact that the salary has already been increased.

It is submitted that pay alignment in 2016 would have had no effect; there would also have been no effect in 2017; in 2018 [LS1]; and in 2020 [LS2 – another increment]; The maximum it could have amounted to was €4,000.

What the Complainant was seeking was to have her position regularised, and to actually just reflect what she was actually being paid.

In terms of the protected disclosure, a very lengthy documented was submitted – the Complainant identified the protected disclosure, and identified the section of the Act. What is required is required that she has a reasonable belief that tends to show that one or more relevant wrongdoing. The Complainant was cross-examined on these issues and she was able to stand over it. The only response that is being put to her is: ‘Well, that’s your opinion.’ However, the Complainant was able to explain why.

In terms of procurement, for any works which will cost more than €1,000, a procurement process is required, and no procurement process was conducted. The Complainant also addressed the expenditure of monies on an MBA at a cost of 13.5K (per year) which was not completed. She raised issues in relation to the cost of salaries, which were over and above the HSE scale, and which was not in line with the Service Level Agreement (SLA). Counsel for the Complainant pointed to the electrician, the purchase of the car, and the expenditure on the MBA, and emphasised the procurement point.

It is submitted that the Respondent organisation is in receipt of public funding and charitable funding as well – some monies are received from charitable donations. That comes with it, constraints and requirements. Counsel for the Complainant submitted that she did not think that there is any doubt that the document itself is a protected disclosure – she submitted that it is legally within that description, and submitted that it would be ‘incredible’ to think that it did not. She emphasised the insertion into the 2014 Act - s. 12(7)(c) of the Act (by way of Amendment in the 2022 WRC Act) that insertion into the 2014 Act reversed the burden of proof.

Counsel for the Complainant pointed to the letter of October 10th, and submitted that it degraded the Complainant, and that it very clearly gives the view of the Respondent to the protected disclosure, and submits that it clouds and gives context to the actions that are taken afterwards. That letter was sent to the Quality and Patient Safety Manager (HSE), who had received a protected disclosure; and it is submitted that that was designed to denigrate the Complainant, to damage her, and to dismiss the contents of her disclosure.

It was also emphasised that the Complainant was only able to read the contents of that letter in February 2020, by virtue of a Freedom of Information (FOI) request appeal.

It is submitted that the very fact that that letter was sent in response to a protected disclosure goes a long way to support the claim in relation to penalisation. After that response, a stream of actions which follow also support that claim.

Counsel for the Complainant, submitted that both Mr. Cotter and Mr. Whooley in their evidence, in relation to s. 39 organisations said that it is only right that the Respondent organisation should engage in pay restoration. They both expressed the view that there should be no issue. It is submitted that an issue was needlessly created. The amount of money involved was ‘minimum’, in the region of €1,900, and not to be paid by the Respondent organisation.

It was further submitted that the Complainant’s grievances were not acted upon particularly promptly – there was a six (6) week delay, then it was dealt with. Then, she did not pursue it at that time. Counsel for the Complainant contrasted how that was handled with the timeline of the complaint made by GH. The Complainant was on sick leave for month October and November. The Complainant asked for the formal withdrawal of that complaint, and again, it is submitted that there was “a massive delay.”

In relation to pay restoration, it is there was a huge delay in dealing with it.  

She submitted that the Complainant raised matters with the Board in April 2021. By the time the matter was being dealt with, the CEO and the Chairperson were no longer there, but the Board of Directors was.

Counsel for the Complainant further emphasised the issues in relation to meetings in Mary St.; the insurance policies being taken away; the Grade 6 alignment; the then CEO’s, PR’s, grievance against the Complainant received while at a former CEO’s funeral (on compassionate leave); that her complaint/grievances were not really investigated, not pursued, that she did not get funding for her training; and the redundancy process.

She submitted that the Respondent did not consider the options properly – there were three options outlined,  but it chose something else - to make the CEO and FC redundant.

She further pointed to the Board of Management meetings – December 15th – where the Board of Management ‘lumped’ the Complainant’s issues together, and indicated it would contact the Complainant. The Complainant had not been told at that point ‘you will be made redundant.’ Counsel for the Complainant submitted that it was ‘highly unusual’ for an employee to be made redundant “effective immediately”, especially in such a protracted process.

It was submitted that the Complainant had a diminishing role – the aspect of her role pertaining to insurances was taken away from her – she was not told, and no reason was given. Those duties were taken on by the Board of Directors.

Counsel for the Complainant submitted that it is for the Respondent to contest that these are not instances of penalisation. It is submitted that the Respondent’s evidence does not rebut that, and it was clear by the evidence of the (voluntary) directors – they are still the employer –  that they did not know the everyday workings of the Respondent organisation, that they did not know what was happening with the CEO and the COO.

Counsel for the Complainant referred to Mr. Whooley’s evidence in respect of what he thought was meant by ‘penalisation’, i.e. that in the context, it’s a free is given against you. She submitted that the Respondent simply did not know what was going on, and cannot rebut that this was penalisation, in this instance. She submitted that he did not know the legal meaning of ‘penalisation.’

She clarified, in terms of the complaints filed that penalisation pertaining the statutory redundancy falls under unfair dismissal; that the other acts of (alleged) penalisation fall under the Protected Disclosures Act.

Counsel for the Complainant rebutted the legal point raised by Counsel for the Respondent, in relation to s. 5[A] of the Protected Disclosures Act. She submitted that that section pertained to a situation where it is someone’s job to prosecute/investigate, whereas in this instance, the Complainant’s s to comply with things – that, she submitted does not negate her obligation and does not negate her protective disclosure. She further emphasised the word ‘exclusively’ in the Act, in relation to interpersonal  grievances, and submitted that this was not the case, and that the disclosures made pertained to governance, use of public monies, and compliance in relation to procurement policy and under the Charities Acts.

It is submitted that the Complainant has made five complaints under the following headings alleging that the Respondent:

-        Failed to pay the correct redundancy payment. [CA-00051505-001]

-        Failed to pay monies owed to the Complainant pursuant to the Payment of Wages Act, 1991. [CA-00051505-003 & CA-00051505-004]

-        Unfairly selected the Complainant for redundancy. [CA-00051505-005]

Redundancy

The Respondent submits that it will not take issue with the Complainant’s allegation that her redundancy should have been calculated at 12.89 years of service.

Payment of Wages

The Complainant advances several complaints under Section 6 of the Payment of Wages Act, 1991. The Respondent organisation proposes to briefly address the position in respect of each of the specific complaints under the Payment of Wages Act, 1991

Complaint CA-00051505-002 - The Complainant no longer maintains this complaint.

Complainants CA-00051505 – 003 and CA-00051505-004

The Complainant maintains that the total alleged to be owed to the Complainant on foot of these complaints amounts to €606.98. The Respondent organisation is willing to pay this amount to the Complainant in settlement of the Complainants CA0051505 – 003 and CA-00051505-004.

It is submitted that the Complainant makes a complaint that she was unfairly selected for redundancy. It is submitted that the Respondent organisation vehemently denies this allegation as maintained in Complaint CA000515-005. It is submitted that the Respondent organisation fully disputes this allegation in circumstances where the Complainant’s role was genuinely made redundant.

Background

It is submitted that the Respondent organisation is a company limited by guarantee and registered as a charity with the Charities Regulator. The Board of Directors of the Respondent organisation is made up of five directors, elected on a yearly basis. The Board of Directors is accountable for the provision of services in line with objective quality criteria, cost effectiveness and value for money. It is submitted that the Respondent organisation was established in 1999 as a community-based service responding to unmet needs, principally identified by the families of young person’s experiencing drugs and alcohol addiction. The service developed rapidly, with a residential service in Cara Lodge in West Cork and assessment and day therapeutic services in Trabeg, Douglas, Cork.

It is submitted that funding for both the day service and assessment, after care in Trabeg and the residential services in Cara Lodge were funded primarily through the Health Service Executive (Section 39 of the Health Act (Social Inclusion Grants). It is submitted that the terms of that funding arrangement are supported by increasingly detailed annual service level agreement between the Respondent organisation and the HSE. In late August 2020, the HSE/Cork Kerry Community Healthcare informed the Respondent organisation that Cork Kerry Community Healthcare would cease funding the residential element of the Respondent organisation service from 19th October, 2020. It is submitted that the Respondent organisation were informed that the demand for residential adolescent addiction services in the region had reduced. It is submitted that the Respondent organisation was informed that it was now necessary to realign services so that the needs of as many young people as possible can be met. It is submitted that Cara Lodge ceased operating in October 2020 resulting in 20 staff being involved in a re-deployment and redundancy programme.

It is submitted that the Respondent organisation recognised the significant change in the organisation. On 11th June 2021, the Board of Management of the Respondent organisation agreed to an independent review of the operational and governance structures of the Respondent organisation with a view to ascertaining whether the Respondent organisation meets the requirements of the realigned service [Copy of the Minutes of Board Meeting 11/06/2021 submitted].  It is submitted that the Respondent organisation commissioned Conal Devine & Associates to carry out an independent review of all aspects of governance and operational structures within the Respondent organisation so as ensure that services would continue to be delivered in an efficient and effective manner having regard to service users, staff, funding, agencies and regulatory bodies. On or about September 2021, Conal Devine & Associates furnished a report to the Respondent organisation. [Copy of Conal Devine Report dated September 2021 submitted] It is submitted that the report was shared with the Complainant and all staff across the organisation on 1st November 2021 [Copy of letter to the Complainant dated 1/11/2021 submitted].

Chronology of Redundancy

On 2nd December, 2021, the Respondent organisation wrote to the Complainant advising that she was placed at risk of a possible redundancy. The Complainant was invited to a meeting to be held on 10th December, 2021 and was invited to bring a colleague or union representative to said meeting. [Copy of Letter dated 2/12/2021 submitted.]

On 9th December, 2021, the Complainant first replied to the Respondent organisation advising that she was unable to attend the meeting on 10th December 2021. The Complainant advised that she wished for Forsa to represent her interests in the within matter. [Copy of email dated 9/12/2021 submitted]

On 14th December 2021, Forsa replied on behalf of the Complainant seeking details of the decisions made and processes leading to the Complainant being put on risk of redundancy. [Copy of letter 14/12/2021 submitted]

On 15th December, 2021, it was agreed at a meeting of the Board of Directors that a meeting should be arranged with Forsa to discuss the Complainant’s provisional selection for redundancy and other outstanding matters. [Minutes of Board Meeting 15/12/2021 submitted.]

Three consultation meetings occurred thereafter with the Complainant’s representatives. The Respondent organisation highlighted that the Devine report was commissioned after the resignation of the CEO as the Respondent organisation was unsure whether to hire someone into the vacant CEO role or not. The Respondent organisation had undergone significant restructuring in the form of a closure of Cara Lodge.

Following the consultation of 21st January, 2022, an email outlining the points of discussion was sent to the Complainant’s representative on 28th January, 2022. [Copy of email 28/1/2022 submitted].

In the said email, the Complainant’s job description was reviewed in detail and clarified [Copy of Job description submitted]. It was explained that owing to the HSE led closure of Cara Lodge, the responsibilities and requirements to have a Financial Controller were genuinely reduced.

It was explained how the Respondent organisation saw this as a genuine redundancy situation and at the time and did not have any suitable alternative roles within the organisation.

Further clarification was sent to the Complainant’s representative, outlining the costs savings the Respondent organisation was making as a result of the decision to make the Complainant redundant following the 3rd consultation meeting on 3rd February, 2022 [Note to Eddie Walsh 3rd February, 2022 submitted].

On 7th February 2022, JC of IBEC, engaged on behalf of the Respondent organisation,  wrote to the Complainant’s representative advising that the Respondent organisation was of the view that they followed a thorough process and believed they had satisfied the union’s request [Email from JC, 7th February, 2022 submitted].

On 8th February 2022, the Complainant responded rejecting the Respondent organisation’s position that the redundancy selection was genuine [Letter 8th February, 2022 submitted].

The Complainant also stated that she wished to make an application to the Circuit Court, alleging that she was being unfairly dismissed for making a protected disclosure.

On 11th February 2022, a formal letter was sent to the Complainant, by post and email, advising that she had been selected for redundancy and outlined that a redundancy payment would be made to the Complainant [Letter 11th February, 2022 submitted].

Emails were then exchanged between 14th February and 16th February, 2022, whereby the Complainant further took issue with the decision to make her redundant [Emails 14th February to 16th February, 2022 submitted].

Mr. Denis Collins BL, opening remarks for the Respondent.

The Respondent is a voluntary organisation, run by a Board of Directors.  The Complainant was the Financial Controller, as per footnote 7 of her Contract of Employment.

In relation to the issue of pay alignment: The Complainant’s salary was set by the Board. The contract was between the Board and the Complainant. Public pay scales were sometimes used as a guideline. Re-alignment was sought, re-alignment was not granted. There was no obligation to grant it, the Board was not bound to do so. The Respondent organisation was a s.39 organisation. The Complainant was paid in accordance with her contract - nothing arises under the Payment of Wages Act 1991 claim. There was ‘no right’ here – she could make representations to her employer, but matter of contract, what was due to her was paid.

In relation to the ‘Protected Disclosure’, it was made to the HSE but no wrongdoing was found to have occurred. The grievance was borne out of the Complainant’s interpersonal difficulties with the CEO. An investigation was carried out by Mr. David O’Brien into the matter, and there were no findings of wrongdoing. It did take some time to complete, but it was a matter dealt with by the HSE.

There was no detriment to the Complainant in terms of the disclosure she made. Whether there was penalisation or notwill be the focus of the Respondent’s evidence and penalisation is denied in terms of what of has been alleged, or at all. The Respondent says that there was no penalisation – the Complainant’s request for re-alignment occurred in 2016, and thereafter, from her perception there were interpersonal difficulties. There were significant changes in the organisation which ultimately led to a redundancy situation. Her case is denied.

In terms of the Protected Disclosure:- The organisation substantially changed in August 2020, in circumstances where one of the primary funders (HSE) took away significant funding. There was a 33% reduction in funding, a 50% reduction in staff. There were staff redundancies and re-deployments. There was a seismic shift, as the organisation dealt with the funding issue (HSE). The Complainant was the Financial Controller.

It is in that context - a substantial reduction in funding and number of employees - the Respondent engaged Mr. Conal Devine looking at the structure. He is an independent expert who advised the Board as to what appropriate steps needed to be taken. Ultimately, that resulted in the Complainant being made redundant. The CEO resigned and has not been replaced. The structures were examined (Financial Controller, EO – those structures). There was no requirement for a full-time financial controller – it will be the Respondent company’s evidence that the organisation is now managed without a CEO or financial controller. The changes had nothing to do with disclosures made by the Complainant - it had to do with the funding that had been taken away. The Respondent organisation has made substantial savings by using external auditors.

Mr. Finbarr Cotter, 1st witness for the Respondent, gave evidence on oath.

He outlined his involvement in the Respondent organisation since 2002 and was on the Board from 2003. He explained that within six (6) months of going on the Board, he was appointed ‘Chair’ (in 2003). That continued until 2015/2016, at which point CC became ‘Chair’, but he suffered a significant health incident last Christmas. As a result, since December 2022, Mr. Cotter is now the ‘Acting Chair.’

The witness outlined what the Respondent does. He explained that it looks after young people, aged 11-23, with drug and alcohol substance/misuse. He said that “we don’t provide the service as addiction service; we don’t want to name them.” He explained that the service was funded by the HSE, the Probation Service, and by the Education Board in Cork. He said: “We provide expert counselling to young people and their families.” He said that there was a Day Service on the South Douglas Road, that in West Cork, there was a residential service – he said that was the most expensive part of its operation as it involved young people in care and a lot of statutory requirements for young people in care.

He outlined that it was a s. 39 organisation. He said that s. 39 organisations provide every bit as good a service as the HSE directly, but they receive third-party funding and therefore cannot afford to pay their staff as much. He said that was a big problem in the industry in general, that a lot of staff are tempted away to HSE jobs. He outlined that employees of s. 39 organisations are not civil servants, that contracts of employments are private contracts between the Board and the employee.

He said that the Respondent organisation had three (3) centres:- The residential centre in West Cork, the Day Centre in the South Douglas road, and ‘YES’ – the Youth Education Scheme, which is funded by the Probation Service.

He explained that the Board of Directors is voluntary, that the members ‘give time and effort’ and have done so for many years. He explained that the organisation used external auditors  and was reviewed by the HSE.

The letters from the then CEO, JB referred to by the Respondent on 20/12/2011 were put to the witness. He said that the HSE scales were used as a guidance, that they can review the matter – that it was point 6 on the administrative scale.

He was asked about the Complainant’s contention that her pay was reduced in 2010, along with everyone else, and that she is looking for pay restoration. He said that in 2010, all salaries were reduced at the time because their funding was cut due to the economic crisis, and that the organisation had to ‘cut [its] cloth’ accordingly. He said that the Board determined salaries and wanted to keep the services going too.

He was asked about the Complainant’s contract. He said that the contract was permanent but referred to the reliance on HSE funding. He said that the Complainant had subsequently received a 3.5% salary increase, above the (reduced) salary.

Another letter to the then CEO, JB, dated 24/06/2013, was put to him, with respect to the LRC decision to reduce the cut (7% to 5%) and a once-off of retrospective pay.

It was put to him that the Complainant applied to have her salary re-aligned with public salary pay-scales. He said that her union (Forsa) was recognised by the employer and dealt with employee issues. There was a letter from Forsa on 24/04/2019. Ultimately, the Board made a decision that the Complainant was not entitled to it. There was a letter to Forsa from the Board, on 12/09/2019, the contents of which were read into the record and put to the witness, which sets out that the Complainant’s salary application had been considered, and declined. It set out that the Complainant’s salary exceeded the top of the scale and therefore ‘no further increments are due.’ Ms. Picton’s contracted scale was deemed by the Board to be appropriate for the post.

On Cross-examination – Ms. Lorna Madden BL

The witness confirmed that he had been on the Board of Directors since 2003 and the Complainant started in 2008. It was put to him that the Board was provided with this protected disclosure by the Complainant to HSE in July 2019, and that the HSE then liaised with Board and sent the Board a copy, which he confirmed.

It was put to him that the pay restoration and pay alignment issues relate to staff who got a wage cut in 2010, and that the decision was that all the employees who got a pay cut in 2010 should have their pay restored. It was put to him that the Complainant’s pay was never restored. He said that he couldn’t be specific. It was outlined that the Complainant received a pay cut along with all the other employees, in 2010, that in 2013, she got an increase, then the determination was that all employees who got a pay cut in 2010 should have their pay restore, and the terms of the agreement were restoration from January 2021 onwards, and it applies to all the employees – there were to be staged restoration payments in January 2021, June 2021, then after that, in 2022, pay per annum increased (5%), along with backpay restoration.

The witness said that he was not on the Board, at that time. He outlined that he had had very serious health issues during that period; and that as a result, from March 2020 to February 2022, he was not at Board meetings, even though he was on the Board.

Ms. Madden BL for the Complainant outlined that there were three key events in relation to the Complainant’s pay:

1.      Pay was cut in 2010

2.      In, 2014, Ms. Picton took on a managerial role and it was sanctioned by the Board that her pay would be increased by €4,000.

3.      Then, there was the issue of pay alignment.

The witness said that due to the timing of certain events (and his ill health), he was not particularly involved. He explained that the closure of Cara Lodge occurred in October 2020 and he was not particularly involved, at that time; and similarly when the review was conducted by Mr. Conal Devine, the witness was similarly also not particularly involved.

It was put to the witness that the salaries were benchmarked against HSE scales. He said that s. 39 organisations (of which the Respondent is one) are not funded to the same level as the HSE. He expressed the view that it was “a total injustice that we’re not funded to the level HSE pay but we’re not.”

He was asked about the recommendation for an audit to be conducted. He said: “I’d recommend it myself. I think it’s the right thing to do – I think the HSE are awash with money, and they should pay the staff.”

It was put to the witness that in respect of a Grade 6 employee, a Clerical Officer, the description from HSE is that there is a requirement to have a Leaving Cert., but that Ms. Picton was much more qualified than that. He was asked whether he accepted that she was senior management. He said that she performed a senior management role.

On re-direct

It was put to the witness that the direct evidence was the Board was guided by public scales, but not bound by them. He concurred.

Mr. Donal Whooley – 2nd witness for the Respondent, gave evidence on oath.

He outlined that he started with the Board in 2013, as a Director. He explained that his role was entirely voluntary, that he had received no payment of any description; and that he is currently the Secretary of the Board.

He was asked about the HSE internal audit. He said that one of the recommendations was that the Board would review the pay scales. He said that there was a meeting with the Complainant – a November meeting, and the Board responded in November 2021.

He outlined that protective redundancy notice came through following that. He said that he got an email to say that redundancy and all other matters would be dealt with through Forsa.

He outlined that, like Mr. Cotter, he had suffered health issues during the relevant time frame; and additionally, a very close family member had died after a long illness - he had been responsible for that family member’s care.

He outlined that, around that time, there had been adverse publicity regarding monies, in an national newspaper, that there were questions from the HSE, that nothing untoward found, but that was one of the recommendations that was made (the audit). He was asked about the Complainant’s role (and whether she had made a protected disclosure to the HSE, in respect of it), and he said that he did not think anyone was specifically named in it, but he think the line was ‘to review our pay-scales’ (HSE recommendation)

He said he had missed a lot of time at that point, for the personal reasons outlined.

He explained that he would be of the same view as the first witness, Mr. Cotter, that the Respondent organisation was “not obliged to align with them” [HSE pay-scales], but that he thought that “people working in s. 39 organisations should be paid properly with HSE funding.”

He was asked whether he thought the Complainant was penalised for making a disclosure to the HSE. He said: “No. I think anyone is entitled to make a disclosure.”

It was put to him that the Complainant was always a Financial Controller and part of the Senior Management Team (SMT). The witness strongly disagreed with the suggestion that the Complainant’s role had been downgraded (to Clerical Officer). There was no direction from Board to that effect.

He was asked whether he recalled that a complaint was made about PR, then then CEO. He said that he did ‘not specifically’ recall. He said, that “at that stage, I was only attending the odd meeting at that stage, my [family member] was seriously ill and died February 2020.” He re-iterated that he had been involved in his family member’s care.

The complaint occurred in July 2019, and was referred for investigation to DOB in August 2019. In summary, the Complainant alleged that she was questioned and intimidated. The witness said that DOB’s findings cleared the Board of any wrongdoing. He was asked whether DOB made any findings of any wrongdoing against PR, the then CEO. He said: “I don’t think so. No.”

The complaint made against the Complainant in 2019, and subsequently not pursued by the person who made the complaint, was raised. It was put to him that the Complainant alleges that the complaint was manufactured.

The issue of the then CEO, PR, was raised. He said that the Complainant was contacted by PR in relation to it, that PR was still CEO at that time, he was never suspended, that he was still doing his job, that he had received no direction from the Board not to contact the Complainant. The witness would have perceived the CEOs emails to the Complainant as part of his job, as CEO. The witness said that he was not aware that the Complainant was on stress-related leave at that time. He said that he was “not involved in the nitty-gritty.”

He was asked as to whether it as normal for Ms. Picton to be part of the senior management team and to report to the Board, as part of the SMT. He said that the primary responsibility falls to the CEO to report to the Board. He said that it had changed in approximately 2017; that previously each manager would have given their report to the Board prior to the CEO, but from 2017 onwards, it was just the CEO reporting to the Board, as part of a new streamlined process.

It was put to her that the Complainant makes the allegation in her complaint that the CEO directed employees not to engage with her.

The witness was asked as to his recollection of how the redundancy came about. He outlined that Cara Lodge closed in 2020. He said that prior to that, the Respondent organisation was in receipt of €1,3000,000 and €280, 000 from the Probation Service. In 2020, that figure reduced to roughly €1,000,000; and in 2021, it dropped to €544,000. He said that there was a reduction in employees from thirty-three (33) to fifteen (15), all due to the closure of Cara Lodge, as well.

He elaborated that in 2020, the residential unit closed; and that was where most of the organisation’s expenditure was. In terms of the reduction of employees (from 33 to 15), he said there were some redundancies and some employees were re-deployed. He agreed with the proposition that there was a 50% reduction in employees. He said that after the closure of Cara Lodge, the Respondent organisation was now down to two (2) streams, that there was a  stream funded by Probation Services, and there was a stream funded by the HSE. He said that the HSE was bigger.

The witness said that his understanding is that the Board had an obligation to make sure that its company did not run into debt. He said that it “had to face up to facts”, that it “took nearly twelve (12) months to think about it.” He said that “the Board knew we had to do something” and that it was “slow to make anyone redundant, but had to do something; should we wind up totally? Should we split them into two separate units and run them separately?” He said that the conclusion was they “needed someone outside to look at it.”  The witness also said that as a result of his health problems in 2021, he missed a few meetings.

The witness outlined that the CEO resigned in 2021. He said that Mr. Conal Devine was commissioned, that he asked to look at the effectiveness of  the governance structures within the Respondent, and to provide any suggestions he had to make. He said that Mr. Devine spoke to all members of the Board and spoke to members of staff. He said that from memory, he did not speak to former CEO. He said that in September 2021, the Board was given an opportunity to consider Mr. Devine’s report.

He was asked what were the witness’ conclusions based on his report. He said that his view on the report was that it indicated the organisation could “keep going as we were at the moment, but long-term we couldn’t keep the show on the road, as it was.”

It was put to him that it was recommended one person be appointed (who was not the CEO) to do all tasks - finance, regulatory compliance, human resources. He said that there was a concern that the Respondent organisation could have lost further funding, explaining that this was just after Covid, said that the Board “didn’t know” [in terms of funding]. He said: “So, it was decided that the managers would each be given full responsibility for their own section (budget etc.)” Payroll was outsourced – it was made external.

The issue of potential redundancies after the Conal Devine report was raised with the witness. He agreed that he became aware that there may be redundancies, that roles may be at risk. He said that the CEO post was redundant and the post of Financial Controller was made redundant. He outlined that one of the managers, EF, who was doing the CEO post on an interim basis did not want to continue in it, that she wanted to go back into her own area (clinical).

He said that, prior to the protective notice being issued, all staff were asked for their observations, to be in by 06/11/2021 (from memory).

Protective Notice            

The witness set out that there was an ‘At Risk’ Letter, dated 02/12/2021, sent from the Respondent organisation to the Complainant. A meeting was set up for Mary Street, and the Complainant could bring a representative, if she so wished. The Complainant responded advising that she unable to attend the meeting of 10/12/2021 (Copy of email submitted dated 09/12/2021 submitted) but wanted to appoint Forsa to represent her interests. The Board agreed to that. A letter was sent from Forsa to the Respondent organisation (Copy of letter submitted) raising questions about decisions made and the processes leading to the Complainant’s risk of redundancy. The minutes of the Board meeting were submitted.

The witness said that his recollection was that CC, then Chairperson of the Board, and IBEC representative, JC, represented the Respondent organisation and Forsa representative EW represented the Complainant. He said, from memory, he believed there were three (3) meetings. He said that the Complainant was given the opportunity to make representations and was also given the opportunity to put forward alternatives.

A document was exhibited which outlines the second consultation meeting from Board to EW (Forsa). The witness was asked for his understanding. He said that each manager would be responsible for their own budget and would report directly to the Board, and that they would be given any supports they needed – HR, Payroll, GDPR. He said that had been done for the last twelve (12) months, he said it was “working way.”

He was asked, in relation to the Complainant’s prior role/duties if there had been a significant drop in the volume of work. He said there had been. He thought it was down to about a day/day-and a half per week.

He said that “specialised stuff like HR, are brought in as needed.”

He was asked whether an auditor was brought in to deal with regulatory matters. He said: “We had an external auditor, at all times.”

He outlined that the figure for the auditor last year was approximately €15,000-€20,000. He said that “last year, it was just under €20,000” and the Board had “budgeted the same for this year.” He said that two (2) positions had been made redundant (CEO & CFO), and that amounted to a saving of between €110,000 - €120,000 per annum.

He said, in relation to the “Line Managers”, that there were now two (2) sites, and therefore now only two (2) managers. He said each manager got an extra allowance to do the extra duties, but the overall savings were still between €110,000 - €120,000 per annum, overall.

He was asked if the Board outlined these cost savings to the Complainant during the consultation process. He said he presumed so.

On 03/02/2022 - the 3rd consultation meeting (Minutes submitted): CC, then Chairperson of the Board and IBEC representative, JC, were in attendance, as was Forsa representative, EW.

On 27/02/2022, there is email from JC to EW, setting out: “For the sake of clarity, MTAS feel that they have followed a thorough process….followed union requests for clarifications, observations, etc.)”

It was put to him that the Complainant believed that the redundancy was not genuine. He agreed that that was her perception.

On 08/02/2022, there is an email from the Complainant to Mr. Whooley setting out that she thought she had been unfairly selected for redundancy.

Letter dated 11/02/2022 confirming the redundancy and setting out the payments for the purposes of redundancy in that letter. He explained that it was sent twice, by email, because the attachment did not go through the first time, but it had already gone by registered post, in any event.

The witness was asked whether redundancy was connected with the protected disclosure(s). he said there was “no connection”, that it was a “total business decision where we, as a Board, had to make sure that we lived  within our means.”

On cross-examination

The witness was asked about the July 2019 protected disclosure, which was sent by the Complainant to the HSE, which the HSE then sent to the Board about approximately October 2019. He said that he was “in and out at the time”, that his close family was dying, at the time. He acknowledged that he had seen the protected disclosure at the time, but said that he could not remember anything about it, at this point. 

He re-iterated that the redundancy was solely a business decision.

Some of the key contents of the protected disclosure were put to him:

-       Paragraph M – potential savings of €10,000, in relation to the expenditure of public funds

-       Paragraph P – management issues.

-       Issues in relation to deposit monies, and the rates of return being received.

-       Legal advice (employment matters), the Complainant believed this could be covered by insurance.

It was put to him that the content pertained to the use of public funds, that the Complainant was raising issues in relation to two matters – the use of public funds and management.

Specific points raised were put to him. The issue of whether the legal advice would have been covered was asked. He said that he did not know, that that area would not be his forte.

He was asked about potential savings in relation to groceries expenditure of €10,000. He disputed that and said that FEAD (was the organisation which) supplied the food, and that did not cost anything to the Respondent organisation. It was put to him that the FEAD application had not been made, the previous year.

It was put to him that the Complainant had raised a concern in relation to hiring of a UK consultation, costing €2,000, providing training in addiction services, which could have been free provided by the HSE. It was further put to him that the UK training was a waste of time because the case management training protocols applied were wrong (based on the training), and therefore not applicable here.

The cost of a MBA for the CEO, at €13,500 per year, for each of two years was put to him, as an expense the Complainant had highlighted as unnecessary/excessive. The witness said that it was to upskill the then CEO, that he had paid for some of it himself. The qualification remained uncompleted. It was put to him that there was another course available at UCC, which was specifically run for non-profit organisations, at a fraction of the cost of the MBA. The witness said: “I think the MBA would have been seen as a better qualification.”

The terms of the Service Level Agreement were put to him (Section XI), as was the fact that there had been the purchase of a VW Caddy which was high value capital item (c. €23,000), with no tender process.

Electrical work conducted in December 2018, but not completed as per schedule was put to him. It was put to him that the CEO appointed the electrician himself, that no tender process was completed, that the work was completed in separate tranches amounting variously to €976 and €518.24.

It was put to him that the reason for this sequence of events was the contractor was under the impression that he would have to come under €1,000, so did the work in separate blocks and issued separate invoices, rather than trigger an audit/requirement for a tender process.

The witness said that a comprehensive, internal audit was conducted by the HSE and no wrongdoing was found.

16/01/2020 – Further letter (to the HSE). The witness was asked if he was familiar with that letter, if he had ever been made aware that there was a further protected disclosure. He said: “Certainly, in January 2020, I would not have been at meetings.”

He was asked for his understanding of a protected disclosure. He said that his understanding of a protected disclosure is that an employee who has concern can raise them, that in this case it was with the HSE, and that it is done without bias. He said the employee was “entitled to do it, had every right to do it.”

He  was asked whether it was discussed at a Board meeting. Yes, the protected disclosure was raised, that the Complainant did and was entitled to do it; that there was “no comment either way [from the Board].”

It was put to him that a letter was sent to the HSE, to AL, by CC on behalf of the Board of the Directors. He was asked whether he remembered discussion that that letter is going to be sent out. He said he did not remember, that it could have been discussed.

It was put to him that the issues raised in the protected disclosure were not similar to the issues that are brought up in the grievance. The witness reiterated that he had a difficulty at that time, that he just could not remember. He said that he thought DOB’s report covered the period from Oct 2019 – Jan 2020, but “I was out of action.”

It was put to the witness that there were 124 issues listed in the protected disclosure, that they are not listed in the grievance, that there is only a small amount of overlap, but the response alleged that the Complainant was “seeking to use the protected disclosure process inappropriately.” He said that he could not remember whether he was in attendance at the Board meeting or not, that he would have to check back in the letter.

It was put to him that the letter (response) does show bias, that it is raising that the Complainant is using the protected disclosure process inappropriate and is only raising a protected disclosure due to grievance. He said: “I can’t comment on it. I just don’t know.”

He was asked in relation to penalisation, and whether it was ever explained to him at a Board meeting what that was. He explained that it would normally happen that a Board would agree that a letter would be sent out, but that the letter would very often be then drafted with legal advice.

It was put to him that penalisation is ‘any act of omission that affects a worker or is to a worker’s detriment’ and it was put to him that the letter constituted a penalisation of the Complainant. The witness said: “I would see it as  a defence. She wasn’t picked out for redundancy or anything like that.”

He was asked about the appeal of the DOB grievance. He said that – from memory - he and another Board member sat in on an appeal, as he had not sat in on the initial stage of the process.

He said that five or six things were cleared by the Board. He said that the report was upheld on appeal.

He was asked about ‘interpersonal grievances’. The Complainant had brought complaints against a named individual, which were being investigated. He said that a complaint was brought against the Complainant by a different named individual, that a decision was taken that should go to an investigator the same day it was brought. He said it ‘wasn’t a manufactured complaint, that it couldn’t’ have been a manufactured complaint.’ It was put to him that he had never spoken to that member of staff, and further, that he was not in a position to give evidence as to whether the staff member manufactured the complaint or not.

It was put to him that he did not know when Ms. Picton was on leave, that he was not involved in quarterly meetings, that the Board was not involved in the everyday. He said that there was “no penalisation in relation to the redundancy.” It was put to him that the Complainant’s case is that she was penalised by the CEO or the Chairperson, and “you’ve no knowledge of that.” The witness said: “No.”

He was about the insurance policies for the Respondent organisation. He said that in 2021, the Chairperson had responsibility for insurance renewal up until he suffered ill health. He said that prior to realignment of company, the Chairperson took it over. Then, the Board retained it. He was asked whether he know why the Chairperson took over responsibility for insurance.

Pay-restoration issue

There witness was asked about the issue of pay restoration, and the time-line was laid out. He was asked about the issue pay restoration in respect of the Complainant in or around October, 2021. He said that he brought it to the Board, that it was as a result of the HSE internal audit, that’s the pay alignment.

It was put to the witness that the pay restoration applied to any employee who was working there in 2010. He said: “Something at the back of my mind says that you had to sign something to get the pay restoration – I could be completely wrong.”

It was put to the witness that the Complainant, as Financial Controller, went through the employees and identified who was eligible for a pay restoration and who was not, and sent each a letter, but she could not send herself a letter. She raised it, that she was also one of the group who was entitled to pay restoration. [This should have been in January 2021.] The witness said that when the Complainant sent her email, she appointed Forsa ‘all other matters.’ [That email was sent nearly a year later; then the redundancy occurred in January 2022].

The witness said: “I can’t say why.” [re: delay]

It was put to the witness that the Complainant sought pay restoration and was told that she would not be given it, and that that is penalisation. He said: “I didn’t tell her, anyway.”

Letter dated 18/02/2021

The witness was asked about the letter dated 18/02/2021. The witness highlighted the date of the letter, and said that he was “just after coming out of hospital” at that point and “not at any meetings until June.”

He spoke of the time-line, in terms of sick leave and resignations, during that period. He then took over as company secretary in June 2021.

He was asked about the Complainant’s role aligning with ‘Grade 8’ and he said that he understood her grade was Grade 6).

It was put to him that the letter points to Cara Lodge closing. However, pay restoration is not an increase on the Complainant’s pay. The witness accepted that.

It was put to the witness that pay restoration – where it could be, it should be – would have resulted in approximately €3,500 per annum for the Complainant. The witness said: “I’m not aware of the exact figures.” He was asked whether there had been any legal comment in relation to pay restoration. He said: “I’m not aware.”

The witness was asked about the issue of pay alignment (on foot of the internal audit by the HSE). He said: “We agreed to look at that.” He said: “That was the part of what I understood in the email I sent back to Ms. Picton.” It was put to the witness, that he understood that Forsa was dealing with redundancy, pay restoration and pay alignment and it was put to him that when the amount is only €3,500, that failure to restore pay constitutes penalisation. He said: “I don’t think so. I just don’t know. Simple as that.”

It was put to the witness that it was penalisation to not restore the Complainant’s pay and to ask her to prove it - to look at all these other factors - when nobody else was asked to do that, that all other employees simply had their pay restored. It is put to him that it was only the Complainant who had to have her pay addressed, assessed and investigated.

The Conal Devine Report

The Conal Devine Report was commissioned by the Board. It pertained to operational, organisational and governance issues. He was asked about whether it related to cost cutting. He said: “We had to cost-cut whether we liked it or not because we didn’t have the money.” He said that the Board was “looking at anything that would help to make the organisation more efficient.” He said the organisation had a lot of issues, industrial-wise, and the Board wanted to make sure that “the whole place was clarified.”

Cara Lodge was closing, in October 2020, (Tier 4 – essentially a residential service) – he said that the HSE told the Respondent organisation that they were closing it, and only gave one month’s notice. He explained that three employees transferred across to day services. In 2021 going forward, there was going to be absolute closure of Cara Lodge – the funding was now €544,000. There was a redundancy process in relation to that. The CEO and Financial Controller were not made redundant, in that process. It was put to the witness that those roles continued to be funded by the HSE, that that was stated in Conal Devine’s report, and was not contested. The witness said: “That, I don’t know.”

The HSE funding was put to the witness – that it had been in the region of €1,300,000, then €1,0500,000, then it dropped to €544,000 (relating to the closure of Cara Lodge), but in 2022, the funding went up to €886,000 and in 2023, there was at least the same funding again. It was put to him that this was at odds with his repeated assertion for the need to cost-cut. He outlined that the Respondent organisation (through the Board) had a responsibility, that it was in receipt of public service money, and it had to use it properly, and “our main objective is to protect the services for the children/young people.” He said the organisation “had an obligation to spend it wisely.” He said that the decision of the Board was to streamline things as much as it could to preserve the services for the children and the young adults.

In relation to the CEO and Financial Controller roles, he explained that the new structure meant that two managers had taken on extra duties with some extra support. He was asked how much they were given (financially) in order to take on those extra duties. He said that it was €10,000 in total, which was distributed on a pro-rata basis – one got €3,000 and the other got in the region of €6-7,000.

He said that 6-8 hours is what the bookkeeping company is spending, approximately 1-1.5 days per week. He said that service was costing in the region of €20,000 per annum (inclusive of VAT).

He explained that in terms of HR, that the organisation brings in outside HR advice, and that it “brings them in, as we want.”  He said that “in 2022, nobody came in”. In relation to the question of HR costs in 2023, he said: “I suspect it is not major.”

He stated that there was a staff of fourteen (14) including the two (2) managers.

Potential alternative approaches the Board could have adopted were put to him. He said that “the concern within the Board was that the funding could go at any stage.” He explained that the Board “wanted to set up a situation where [the two sites] were independent.”

He was asked about the possibility of the Complainant doing a three-day week. He said that he did not think that there was three days’ work per week there. That 1.5 day per week was spent on payroll etc. (by the outsourced bookkeeping agency), and then the was the extra work taken on by the managers. He said the managers had taken on more responsibility and expressed the view that it had “focussed the minds of the managers.”

He explained that the CEO position was also abolished. He said that the organisation “had to be conscious of public funding.” He said that the Complainant’s role cost €60,000 per annum, and that the total cost including pension was approximately €69,000. In 2022, the Respondent organisation spent approximately €35,000, thus saving about €35,000 per year.

The possibility of a p/t CFO position was put to him. He said that it may or may not have happened this year (2023). He said that he “could not see why we should pay approximately €60,000-€70,000.” It was put to him that a part-time role would be approximately half that, i.e. in the region of €35,000 per annum. He said that: “Two separate units is better.”

The increase in funding in 2022 was again re-iterated to the witness. It was put to the witness that the Complainant was not genuinely made redundant. The witness denied this and re-iterated the need to realign things. It was put to the witness that the real reason the Complainant was let go was that she was ‘a bother to the company.’ The witness denied this, saying: “Ms. Picton was very good at her job. We just had to streamline what we were doing.”

On re-direct

The witness was asked for his understanding of penalisation. He said: “If you did something wrong, it’s like in a match, there’s a free given against you, you’re penalised.”

He said that the DOB report arose from a grievance raised by the Complainant against the CEO, separate and distinct to the disclosure. His understanding was the grievances were investigated by the Board, not the HSE.

In terms of pay restoration, he explained that the Respondent organisation is a s.39 organisation, and, is not obliged to engaged in the pay restoration process, but it did. He expressed the view that it was the correct thing to do, but that the organisation was not obliged.

In relation to 18/02/21 Data Set in relation to pay restoration which had to be submitted to the HSE, it was suggested to him the Complainant had identified her role as ‘Grade 8’. The witness stated that it was his understanding that the Complainant’s grade had not changed from her contract.

The witness was asked in relation to the suggestion of a p/t Chief Officer role, set out towards the end of the Conal Devine’s report, whether the Complainant is qualified to be a CEO? He said: “That, I don’t know.”

He was asked whether the Complainant had ever worked as a Chief Officer for the Respondent. The witness said: “No.”

Mr. Conal Devine, gave evidence on affirmation – 3rd witness for the Respondent

Mr. Devine broadly outlined his background and experience, which was extensive, and dated back to him graduating with a law degree from UCD in 1983. He outlined his consultancy work – he founded his own consultancy practice in 1998. He outlined his background in arbitration, and the fact that he holds a post-graduate diploma in arbitration from UCD.  He broadly outlined his work history, including his former role in the IMO as an IRO, membership of the public services committee, and that he has been a lecturer and tutor with the Law Society in the last number of years.

He stated that his services were contracted towards the end of May 2021, by the Respondent organisation. He was asked for his availability to conduct a governance review for the Respondent organisation. He said that he produced a draft Terms of Reference, and the Respondent organisation populated it with information/detail.

He said that in June that year, an amount of publicity was attracted by the organisation around the same time. He said that it came across his desk, that he saw those reports in the ‘Irish Examiner’ newspaper. He said the context was that the organisation was offering unusual residential services, in West Cork, that there had been quite a troubled set of redundancy negotiations with Forsa at the time, and that the Respondent organisation was now faced with decisions taken by the HSE that the Tier 4 service that had been provided through the HSE funding (Cara Lodge) was closing. That left the organisation with a therapeutic service in Trabeg and second service (YES). The question was how the governance structure of the service going to function going forward, with one leg of the three legs gone.

He said that there was a lot of publicity in the national media at that time. The approach he adopted was to get as much information as possible at that time, and to get an appropriate governance structure.

He said that comments made were not attributable to any particular person, responses were summarised under hearings. He said that he conducted online interviews (due to Covid) and in-person interviews, when those became possible, towards the end of the summer. He said that it was possible to meet with [four or five members of] the Board. It was possible to meet with the Executive. He said that the CEO had stepped down some time in early June and despite being contacted, he did not make himself available.

He also met with stakeholders – the Probation Service, the HSE, and the Department of Youth Affairs. He did not meet with the ETB. He said that all members of the Board were spoken to individually, then he spoke to them in person towards the end of the process. He said that he had quite a lot of contact with the trade union which represented staff.

He said that the Complainant made herself available, that initially he spoke to her online; then, afterwards, in person.

He said that the organisation required very significant restructuring and re-focus, given a very substantial part of its service was gone. He said that every person interviewed attested to the value of maintaining the Trabeg and YES services – ultimately, it was going to be a matter for the Board (having regard to what their funders’ views). He said: “I gave them guidance in terms of the options that I believed were most evident in relation to their objective of maintaining services.”

He said that ‘business as usual’ was not an option for the Respondent organisation, that it had fiduciary duties under the Companies Acts and the Charities Act, and that it was acknowledged by everybody, without exception, that the structures that were in place (governance, employment etc.) could not continue.

He said that in terms of the executive management structure, every element of it had to align with the HSE’s objective of having a single residential location in the South - which was elsewhere. (It is in Kilkenny, and is run by a different service provider, not the Respondent organisation.)

He said that the reality of the significant reduction in funding available because of the Cara Lodge closure had to be reflected in all structures, including the executive structure, as it was a publicly funded organisation. He said that it had been made clear to him, that there had to be significant changes in order for public funding to continue.

He said that he produced a draft report, and that all of the interested parties were provided with an opportunity to comment on it. He said that the Complainant was very helpful, as was Forsa, as were other members of the Executive management team.

He outlined his concern, that his report/recommendations, had to make it clear to the funding agencies that business as usual was actually not an option – it was not sustainable - as the funding agencies had been very clear that while there was funding committed for 2022 under SLA, that funding would not continue unless there was clear change going forward.

·        One suggested approach, set out in his report, was a p/t Chief Officer role.

·        Another option – was to potentially have some shared services, across some like-minded organisations/services.

·        A third option was that the Respondent organisation would look at a more formal arrangement with another organisation (either as a partner; or if the Respondent organisation would not continue).

He said that the significant challenge for the organisation was matching their structures with the resources it now had, on foot of the much more limited services it would be providing going forward.

He said that the Complainant made comments on the report as did Forsa, explaining that Forsa also represented the Complainant, so some of her answers were encompassed in that also. He said that the Complainant was very pragmatic in her approach as to what Cara Lodge being closed down meant, that she understood it meant there were going to have to be significant changes in relation to the structure of the executive management team, and how the Board ran things.

He was asked whether she ever expressed a view in relation to the impact on her role. He said: No, that he could not recall that they got into that type of detail. He explained that he had to be quite cautious in relation to his approach, saying that he was aware there were some parallel processes (in relation to grievances) ongoing and did not want to stray into that area.

He was asked about the draft report with the Complainant’s comments included. He said that her comments were consistent with everyone else’s, describing her comments as “very pragmatic.” He explained that the Board ultimately decided that because of the uncertainty in relation to the funding for Trabeg and YES services, that each of those services would be separate and self-governing but reporting to the same Board. He said: “I can understand why they decided on that.” He expressed the view that he thought the Board needed to show the funding agencies that it was very clearly going to set out an aligned governance structure which reduced costs. He outlined that the simplified structure is “not something I came up with, but I can understand why they went down that road.”

On cross-examination

The witness was asked whether he had conducted interviews or relied on documentation. He outlined that he was looking to establish facts, that there was an allocation of funding. He looked at the Service Level Agreement (SLA) – he examined the substantive one with the HSE in detail. He said that he examined any documents available in the CRO and examined any reports available in relation to Cara Lodge, just to glean information.

His approach was to establish facts, and to corroborate those facts at interview, that he was discerning opinion as to how this organisation could proceed, and in what form. He expressed the view that in order to save the two services, radical re-structuring would have to happen.

He said that what was very clearly set out for him (by the main funding agency) was that in order for the two services to remain, it would be provided by a different organisation or there would be radical restructuring, and to recognise that it was a very different service that would remain. He outlined that the funding organisations were clear that their expectation was the organisation would present a different structure that was proportionate to the service that remained. The SLA was already in place/agreed for 2021, following the closure of Cara Lodge. [He was examining what would happen going forward.]

He referred to a Parliamentary Question which was answered in relation HSE structuring services for young people in addiction, in a different way (Tier 2 or Tier 3 – Day services). He said that aspect was publicly known but what was not publicly known was that the organisation structure - and that included every element of the organisation structure and governance structure - would have to be streamlined so that it reflected the new direction the HSE were funding in.

The ‘YES’ element received funding largely from Probation Service (i.e. it was not HSE funding). It  pertained to education and training (not HSE).

He said that he was not looking at any of the roles in particular but rather was looking at governance. Cara Lodge was already gone at the stage the witness was doing his review.

He outlined that the Board of Directors was voluntary. At that point, there were two (2) clinical managers, as well as the CEO role and Financial Controller role, and that there was also a contracted p/t HR person.

It was put to the witness that he was not explicitly told that those roles would not be supported in a new SLA. He outlined how SLAs work – he said that the organisation sets out what it has and then seeks funding on that basis. It was put to him that there is base-level funding, and that the organisation then continues to apply for funding when those funds are used up. The witness was asked whether he looked explicitly in terms of salaries. He said that he did not, that he looked at the larger figures in terms of the budget, that he was looking at significantly reducing headcount – those larger figures. He did not enquire as to what people’s individual salaries were. The services were reduced and therefore there was a financial reduction in funding. It followed that there is a reduction in responsibilities across some elements of the executive team. It is more nuanced than that – because it is about whether it is justifiable if the organisation has moved from three (3) services to two (2) services. He outlined that it was clear that ‘business as usual’ could not go on.

It was put to him that the Complainant had commented in relation to some of the duties listed in the report ‘these areas are covered in my current job description.’ He agreed with that. It was put to him that Forsa had made the same point. He accepted that but said that “a Chief Officer is where the buck stops.” It was put to him that he had not suggested that the clinical manager and the YES manager would take on Chief Officer duties in addition to their own roles, that what the witness suggested was that there would be a Chief Officer, and those two managers, but that what the Board has done is got those two managers to report into the Board. There is an enhanced Shared Services’ arrangement – Payroll, HR, Health & Safety. Regulatory compliance is done externally by some contracting agencies. Some of the functions can be outsourced, but not the governance. He said that some of those things (around safety and quality, in particular) were already being looked at, at HSE level.

It was put to the witness that when he suggested an enhanced use of shared services would be more financially viable for the HSE, there were no external figures. He accepted that. He said that it was an option – a combined Chief Officer role and enhanced use of shared services - that was available to Respondent to explore and would be objectively justifiable based on the significant cut associated with the closure of Cara Lodge.

He outlined that another possibility was that the Board would continue as a board but would be taken over by another agency. He said that he aware towards the end of his time there, that the HSE seemed to be quite positively disposed towards that option. He said that “it was clearly in the air at the time.”

He was asked about the scope of his Terms of Reference. He said that he summarised what was been said to him by employees. He outlined that it was a fraught time for the organisation, that there was absolutely no doubt about that - that there was a recently departed CEO, adverse publicity and that while no concerns had been identified there was a HSE financial audit which took a lot of time of the Executive. He said that he was aware that other processes were underway, and that people were very reticent to meet with him or to say anything that would jeopardise any other processes which were under way. He said that he “had to respect that.” He was asked whether it affected his recommendations. He said: “No.”

He was asked in relation to some of the feedback/comments [SP60] from the Complainant. He said: “I could not see any benefit for a recommendation for the same structure just on a p/t basis.”

At that point, the CEO had resigned, and the CEO role was still in the SLA, at the time. He said that he could understand the option the Board ultimately elected – no CEO, no Financial Controller (CFO) or Shared Services, that he “could understand why they went down that road.” It was put to him that he did not recommend that. He said: “No. Perhaps I should have.” It was put to him that he also did not recommend a CFO with no CEO. He said: “No.” It was put to that he had only suggested a CEO on a p/t basis, despite the Complainant’s comments [SP60], made at that time.

The witness was asked about the implications for HSE funding; and if a role were reduced, the difficulty in increasing it again subsequently. He accepted the proposition that it is more difficult to subsequently access additional funding for a role, if a role has been previously reduced, as everything has to be done within the agreed terms of the SLA and cannot be unilaterally determined. He re-iterated that the decision the Board took was that those duties could be fulfilled by enhancing the roles of the managers.

On Re-direct

The report submitted, was confirmed as a matter of evidence to be the witness’ report.

Mr. Collins BL – Closing Remarks

Counsel for the Respondent addressed the contents of the written submissions .

In relation to the Payment of Wages claim – ADJ-00048362-001, ADJ-00048362-002 and ADJ-00048362-003, he submitted that the Complainant’s contract with her employer was comparable to a Scale Grade 6  (CO), in her role as Financial Controller. He said that there was a dispute between the parties as to what her appropriate grade should be. He said that 3.5% increase on top of the Grade 6 was agreed between the parties, and paid [The Complainant disputes this.] He said that it was set out and accepted in evidence that the Complainant had been paid in line with her contract, as agreed.

He submitted that the Complainant took issue with the contractual position, and, in protest, she refused to submit her details in accordance with her contract (in relation to the information to be submitted to the HSE). The template was provided by the HSE, and the appropriate drop down or tag for her role was to be inputted, and that it was not grade 6 comparable for a clerical officer. He submitted that the Board’s view was that that what occurred was the Complainant’s own fault, that it did not occur through any fault of the Board. The statutory position was applied. The Board held the discretion, especially when the Complainant was initially engaged and was happy to be engaged, on that alignment. He emphasised that the Respondent organisation was not bound by HSE pay scales.  It used it to align but was not bound by it. The Complainant was seeking alignment to Grade 8 of the HSE pay scale (2/10/2018).

He distinguished between pay alignment and pay restoration. He said that pay restoration would have to be dealt with first, that Forsa engaged, and was dealing with matters (22/2/2019).

He submitted that the idea that it would be more appropriate for the Complainant’s salary to be aligned with a salary at Grade 7 HSE pay scale was a matter for the Board to consider. It was a (change in the) contractual position, which would require both parties to agree.

In relation to the Complainant retrospectively seeking to have her salary re-aligned, dating back to 2016, he submitted that she was seeking for the Commission to change her contract in remuneration from 2016 onwards so that it can be aligned with a salary/scale which she thought was more appropriate. He submitted that the relevant section of the Payment of Wages Act pertains to unlawful deduction, and that the Payment of Wages Act is not applicable here, as the Complainant was paid her contractual wage, that she had made various representations, which relate to her contract but there is no breach of her contract. He submitted that in order to trigger the Payment of Wages Act, there has to be a breach, and there is no breach – no unlawful deduction - in this particular case.

He submitted that the second significant issue is the disclosure made by the Complainant on 3/7/2019. The Commission will have heard the evidence – and that for the Commission to be satisfied – that she has satisfied her proofs under 2014 Act, i.e. that a protected disclosure was made, and that the Complainant was then penalised by her employer, that detriment was suffered. He emphasised that there has to be a causal connection between making the protected disclosure and the detriment suffered.

He submitted that the disclosure made is not a protected disclosure – that it does not fall within the definition of protected disclosure in the Act. He said that there has to be a reasonable belief of wrongdoing. The Complainant’s job was Financial Controller – he submitted that her role was to manage financial performance. He said that she has considerable knowledge, and is an accountant, by profession. She reported to the Board and reported to the CEO. He said that there were a lot of issues raised, pertaining variously to HR issues, external investigators, legal issues etc. and that she was relying upon grounds (f) and (g) under the Act, [(f) ‘that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur, (g) ‘that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement,’]. He submitted that the bar to achieve such a level of wrongdoing - gross negligence or gross mismanagement - is very high, and that the Complainant has not established that level of wrongdoing. He submitted that the money was properly used – it was spent as it was said it was spent. He submitted that that does not constitute improper use of funds or gross negligence or gross mismanagement.

Counsel for the  Respondent was highlighting paragraph 113 of Barrett V Commissioner of An Gara Siochana [2023] IECA 112 whereas Counsel for the Complainant is highlighting paragraph 114 of the same case.

He emphasised that there had to be a reasonable belief of ‘unlawful’ use of funds. However, the funds were used for the purpose set out. He said that in relation to the issues in respect of procurement – there was no specific incident. There were concerns but not definitive statements such that a wrongdoing was committed – he highlighted that no money went missing. He submitted that the Complainant raised concerns, because she wanted the HSE to see if there were other issues that could be looked at. He said that there were various concerns raised – including payment of redundancy packages, paying staff on leave, the cost of hiring third parties, the funding of an MBA in UCC for the CEO and why was a Masters’ degree was not considered instead.

He said that in relation to the penalisation element of the claim, that the point was raised that her position was downgraded in her submission, that she was downgraded to a clerical officer. He submitted that the Respondent organisation denied this and said that she was always a Financial Controller. He said that the only reference to ‘Clerical Officer’ was for the purpose of determining what her appropriate salary was. The Respondent completely denies that it took any such steps on foot of her complaint to the HSE.

He submitted that in terms of the allegation that her complaints were not dealt with, in a timely fashion, that this was disputed. He submitted that the Complainant raised a complaint against the then CEO, PR, on 12/07/2019 and the Board acted immediately and appointed an appropriate investigator. He submitted that the Complainant sought to have the HSE investigate it, which he submitted she accepted in her own evidence. He submitted, that DOB’s appointment occurred in November, the Terms of Reference were agreed in December – they had been sent in September. The investigation was conducted in January and February. The complaint was not upheld. The Complainant appealed that finding. Again, the complaint not upheld, on appeal.

In terms of the redundancy, he submitted that there was a huge reduction in funding, that the Board took every step possible to try to look at this. It appointed Mr. Conal Devine to conduct a review. In his evidence, he outlined the scale of the reduction in funding and in staff. The Respondent gave the Complainant every opportunity to comment on Mr. Devine’s report – she was not precluded from those processes. He submitted that a lot of the functions in her job description were reduced, that she appointed Forsa to represent her, that she saw the responses to those queries raised, and that she was given opportunities to ask questions and to receive responses. He submitted that the Complainant did not agree with the redundancy and she did not accept an ex gratia payment. He submitted that the redundancy did not arise due to protected disclosure or penalisation on foot of it.

He said that cross-complaints arose arising from the complaint by the Complainant, that the relationship was ‘not great’, but it did not interfere with the Board’s proper management of the organisation or with the proper management of her employment. He said that the redundancy was ‘a business decision’, it was ‘nothing personal’ against the Complainant.

In relation to the alleged protected disclosure and penalisation, he submitted that the Commission has to be satisfied that there is evidence that there is a protected disclosure, and that there is penalisation. He submitted that this was not a sustainable complaint under the 2014 act, and he was relying upon: s. 5 [5] and s. 5[A] of the legislation in that regard, as outlined.

He further submitted, in relation to the allegation of Unfair Dismissal, which is denied, that no loss of earnings occurred as the Complainant was unavailable for work due to illness, and therefore, any claim under the Unfair Dismissals Act would be confined to a maximum of four (4) weeks’ remuneration, under the legislation. However, he stressed that the redundancy was legitimate – that it was a legitimate business decision.

CA-0051505-001 – The  Complainant’s redundancy payment was incorrectly calculated, by a minor sum. This matter has been resolved between the parties. I find therefore that this complaint is not well-founded.

CA-0051505-002 – This complaint is no longer maintained by the Complainant.  I find therefore that this complaint is not well-founded.

CA-0051505-003 – The Complainant was seeking outstanding arrears of pay restoration for the period of 01/02/2022 – 25/03/2023. The matter has been resolved between the parties. I find therefore that this complaint is not well-founded.

CA-0051505-004 – The Complainant was seeking a 5% employer pension contribution for the arrears of pay restoration due 01/02/2022 – 25/03/2023. This matter has been resolved between the parties. I find therefore that this complaint is not well-founded.

CA-0051505-005 – Unfair dismissal complaint due to unfair selection for redundancy and/or for penalisation. 

The burden of proof in respect of a claim for Unfair Dismissal is on the employer: s. 6(1) of the Unfair Dismissal Act 1977 sets out that “subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

It falls to me to determine whether a dismissal is both substantively and procedurally fair.

The Labour Court case of Beechside Company Ltd t/a Park Hotel Kenmare and A Worker LCR211798 wherein the Labour Court stated: “The Court has consistently held the view that it is imperative that an employer in a dismissal case must not only show that there were substantial grounds justifying the dismissal but also that fair and proper procedures were followed before the dismissal takes place. This requirement of procedural fairness is rooted in the common law concept of natural justice.”

I find that the dismissal was substantively fair. I find that there was a genuine redundancy situation. I do not accept the submission that the redundancy was the last act in a pattern of penalisation. I find that the redundancy occurred in a situation, whereby there was a significant reduction in external (HSE) funding, where one of the three services operated by the Respondent organisation was closed, and where the parameters in which the major funder (HSE) was willing to operate going forward had been clearly indicated to Mr. Conal Devine, the independent expert appointed to conduct a review.

I find that both the roles of CEO and Financial Controller no longer exist within the organisational structure – the role of financial controller was made redundant, and the reporting structure changed. There had also been a previous redundancy and redeployment process, as a result of the closure of  Cara Lodge.

I also find that the redundancy process was conducted in line with the requirements of best practice, from a procedural perspective. The Respondent appointed IBEC to represent it, and the Complainant was represented by her union, Forsa. The Board commissioned an independent review, to be undertaken by Mr. Conal Devine – who I found to be a very cogent and credible witness, at hearing. The context in which it commissioned that review was a significant cut in funding, the closure of one of its facilities, and the surrounding context in which that closure occurred, as well as the resignation of the then CEO. The Board then considered the report produced - the Board is the decision-maker, in this regard. It then engaged in a redundancy process – the Complainant was notified that her role was ‘at risk’, there was engagement, consultation meetings over a reasonable timeframe, and the right to representation was given reality. Ultimately, the Complainant was notified that her role was being made redundant - statutory redundancy pay was offered along with a substantial ex gratia payment. The statutory figure was accepted and processed whereas the ex-gratia sum was not accepted on the basis the Complainant maintains that this was an unfair dismissal.

It is not the case that the Complainant’s role is the only one which no longer exists within the organisational structure: The CEO was not replaced, beyond a person acting up in the interim on a temporary basis, and ultimately that role was made redundant too. The reporting structure was altered into a flatter reporting structure – managers are now reporting directly into the Board, i.e. they have some enhanced duties in this regard, and there is no CEO and no internal Financial Controller. The financial duties which used to be performed as part of the internal Financial Controller role are now being outsourced on a part-time basis, c. 1.5 days per week. Other duties have been subsumed by the (enhanced) managers and by the Board.

The history of the Complainant’s role was that it had started on a part-time basis, had grown over time, and then became full-time. I find that genuine restructuring in the context of a substantial cut in funding occurred. The background context is the closure of one arm of the Respondent’s activities (and a significant reduction in funding going forward), as well as governance issues arising and the resignation of the then CEO. In that context, a decision was taken by the Board to streamline the reporting structure and redistribute some of the Complainant’s duties to the managers of units, and then to outsource the other aspect of her role. Additionally, the CEO was not replaced, and the role was made redundant. At the time of hearing, there was no CEO position, nor Financial Controller position, within the organisation. The Board took that decision in a particular regulatory, financial and legal context.

I find that the Complainant’s role was made redundant in line with s. 7(2)(b) of the Redundancy Payments Act 1967, i.e. that the employee was dismissed by reason of redundancy in circumstances where “wholly or mainly” due to “the requirements of that business for employees to carry out work of a particular kind, or for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish.” I further accept the submission by Counsel for the Respondent, relying upon Suretank Ltd. V. Declan Kilmartin, UDD 1931, in this regard.

An excerpt of the written submissions in relation to complaints CA-00048362-001,  CA-00048362-002 and CA-00048362-003, made on behalf of the Complainant set out the following:-  A HSE Internal Audit commenced in February 2021. The outcome of the Internal Audit was a recommendation for salaries to be aligned to HSE salary scales. The Acting CEO agreed that this recommendation would be complied with by 29th October 2021. The Complainant’s salary was never aligned to the HSE scale.

In July 2016 the Complainant requested an alignment of her salary to HSE public sector salary scales to reflect her role as Financial Controller and as a Certified Public Accountant. When the Complainant was appointed in May 2009 her salary was equivalent to a Clerical Officer Grade VI, the Complainant’s role was still considered to be equivalent to a Clerical Officer Grade VI, despite two salary increases, the expansion of her role, and the fact that the Complainant was a qualified CPA, which qualification she used and was required in her role. A Clerical Officer Grade VI represents an individual qualified to Leaving Certificate level. Following the recommendation of the HSE Internal Audit in 2021 the Complainant is seeking the retroactive alignment of her salary to Grade VII, which is indicative of what she should have been paid in her role during this time.

Preliminary Objection

Section 41(6) of the Workplace Relations Act 2015 provides that a complaint should be presented within the period of six months beginning on the date of the contravention to which the complaint relates. […]In light of the decision of Hogan J. in Health Service Executive v McDermott [2014] IEHC 331, everything turns on the manner in which the claim is formulated. In this matter, the Complainant has stated that her salary was never aligned to the HSE salary scale and there has been an ongoing breach. It is submitted that the complaint relates to a time period within the six-month prescribed period. 

Sullivan v Department of Education PW [1998] 9 E.L.R. 217 is being relied upon in respect of its finding that as there is no specific definition of ‘deduction’ or ‘wages’ in the Payment of Wages Act… [it] includes all sums to which an employee is properly entitled. If an employee does not receive what is properly payable to him or her from the outset, then this can amount to a deduction within the meaning of the 1991 Act.

It is the Complainant’s submission that she did not receive what was properly payable to her. Dunnes Stores V. Lacey & O’Brien [2007] 1 IR 478 is being distinguished on its facts, from the case herein. It is submitted that, in the case herein, the Acting CEO agreed that the recommendation would be complied with.

The Complainant is also relying upon Puodziulaityte v Word Perfect Translations Ltd (ADJ-00031254), the complaint in respect of three months' unpaid wages was referred to the WRC on 4th January 2021. These monies were paid on 15th January 2021 and the company submitted that, consequently, there was no unlawful deduction as of the date of hearing. Moreover, the company submitted that any stress or anxiety suffered during the delay in payment could not be compensated through this Act. The Adjudication Officer held that the question of whether there had been a contravention of the Act was to be assessed as of the date the complaint is referred to the WRC. redress, however, was to be assessed as of the date of hearing. He said that the word “compensation” in subs.(1) should be given its ordinary meaning, namely “redress to include consequential loss”. Here, the Complainant incurred loss in not  being paid on time and compensation was awarded.

The Respondent maintains that at all times, the Complainant was paid her contractual remuneration.

CA-00048362-001 – The Complainant is seeking pay restoration following the WRC decision in 2020.

Having carefully considered this, I am satisfied that I have no jurisdiction in respect of this. I therefore find that the complaint is not well founded.

I find that the Complainant was paid her salary, as per her contract – something she, very fairly, accepted, in evidence. The detriment she suffered, was the failure to process her application for pay restoration in line with the terms of the WRC negotiation – I have dealt with that failure under penalisation, in CA-00048362-005

I have carefully considered s. 5 of the Payment of Wages Act and the decision cited, ADJ-00031254. With respect, I find that I have no jurisdiction to award compensation or redress beyond any unlawful deduction actually made. I do not accept the submission made by Counsel for the Complainant, with respect to ‘ongoing breach.’

I further find that Health Service Executive v McDermott [2014] IEHC 331 is the applicable law with respect to the application of the six-month time limit.

CA-00048362-002 – The Complainant is seeking that her salary be aligned to HSE salary scales from 29th October 2021. 

I am satisfied that I have no jurisdiction with respect to this. I therefore find that this complaint is not well founded. Alignment to HSE salary scales is a matter of negotiation between the parties, i.e. it is a contractual matter.

I am satisfied that the Complainant was, at all times (with the exception of the failure to process her application for pay restoration in line with the terms of the WRC negotiation, and the manner in which she was treated in relation to that, which I find under CA-00048362-005 to constitute penalisation) paid her contractual salary.

As above, I am satisfied that the limits of s. 5 of the Payment of Wages Act 1991 are clear within the legislation, and I am satisfied that Health Service Executive V. McDermott [2014] IEHC 331 is the applicable law, with respect to time.

CA-00048362-003 – The Complainant is seeking that her salary be retrospectively aligned to HSE salary scales from July 2016. 

Again, I am satisfied that I have no jurisdiction with respect to this. I therefore find that this complaint is not well founded. Alignment to HSE salary scales is a matter of negotiation between the parties, i.e. it is a contractual matter.

As above, I am satisfied that the limits of s. 5 of the Payment of Wages Act 1991 are clear within the legislation, and I am satisfied that Health Service Executive V. McDermott [2014] IEHC 331 is the applicable law with respect to time.

CA-00048362-005 – The Complainant submits that she was penalised for making a protected disclosure. I find that the Complainant did make a protected disclosure within the meaning of the legislation, and that she was penalised by her line manager, the then CEO of the Respondent organisation, and to a lesser extent by the Board, on foot of that. It seems to me that the reporting structure in place at the time facilitated this, i.e. the Complainant reported to the then CEO, who in turn reported to the Board – the weaknesses in that governance structure were highlighted when the Complainant attempted to raise concerns, to be heard and ultimately to make protected disclosures. The vertical governance structure also facilitated the penalisation she suffered. I do not accept the submission made on behalf of the Respondent that the issues which occurred are fully encompassed within the frame of ‘interpersonal difficulties’ under the legislation. I find that her disclosures went considerably beyond that.

I accept the Complainant’s evidence in relation to her role and her qualifications/duties, i.e. that she was a CPA (subject to regulation) within a Financial Controller role. She raised concerns in relation to the use of public funds and matched her governance concerns with respect to funds, management and governance, as against the SLA in place between the Respondent organisation and the HSE. A key issue appears to be the appointment of the then CEO into a role for which he appears to have had little in the way of relevant qualifications or experience, in circumstances where he was required to operate within a highly regulated framework with respect to the use of and disbursement of public funds and charitable funds. It is fully accepted that there is no suggestion of any individual enriching themselves or anyone else in respect of how funds were used, i.e. there is no allegation of diversion of funds out of the organisation, no suggestion of embezzlement and no suggestion of personal enrichment.

The concerns raised – and the protected disclosures made - related to the organisational approach in relation to public and charitable monies having become somewhat profligate in breach of the required constraints, policies and frameworks to which the Respondent organisation was subject; and, further, not being in line with the procurement requirements nor the regulatory and governance requirements, as set out within the SLA. Separately, there were personal grievances raised too. The issues highlighted as part of the protected disclosures made, were compounded by the reporting structure whereby the person who had made the protected disclosure reported directly into the then CEO (whose approach to the governance and financial matters was a significant part of – although not the whole of - the subject of the disclosures) who in turn reported into a voluntary Board, which met at intervals throughout the year, but was not ordinarily on site during the working week.

Both witnesses from the Board who gave evidence at the hearing had suffered significant ill health during the relevant time-frame, and had not been in attendance at some of the Board meetings, within the relevant time-frame as a result. One of the witnesses was also significantly involved in providing care for a close family member, who died, within the same period. It is a feature of voluntary boards that people giving freely of their time and efforts are often very committed to a particular cause and/or organisation, but may not have relevant governance, management, or regulatory experience. Equally, there is typically no requirement for volunteers to have legal, accounting or HR/employee relations experience, but the Board is still subject to the constraints of operating in a highly regulated sphere, as well as the requirements set out under employment law with respect to the rights of employees. It has fiduciary duties, and, in this instance, obligations under the Charities Act as well as the Companies Acts.

I find that the Complainant was targeted, sidelined and penalised and her role diminished as a direct result of her having raised concerns and made protected disclosures. I also specifically find that the treatment she received in relation to the issue of pay restoration – and filling in the HSE template – whereby the failure/refusal to process her application for pay restoration thus preventing her from accessing pay restoration to which she would otherwise have been entitled, and the singling out of her in that regard, constitutes penalisation in and of itself. The Complainant set out very cogently in writing, for the CEO, why his approach constituted a fundamental misunderstanding of the purpose of the exercise, and why it was incorrect. I fully accept the Complainant’s evidence as to why she did not circumvent the management instructions directly issued to her by her employer, and approach the HSE (one of its funders) herself. I find that the tone and content of some of the correspondence received by the Complainant from (or on behalf of) the Respondent organisation to be ‘extraordinary’ in nature, and there is very little reality to it. I do not accept that the concerns raised or disclosures made related wholly or mainly to ‘interpersonal difficulties’. I find that they went significantly beyond that, and addressed governance issues, procurement issues, managerial decisions, and concerns around decisions involvement the disbursement of monies in relation to what, in the context of an organisation in receipt of and utilising both public and charitable funds (which is therefore subject to the requirements of significant regulatory constraint and scrutiny), may constitute undue profligacy, even if the same decisions around spending in a private firm may not attract the same concern or criticism.

I also accept the submission made by Counsel for the Complainant as to the correct legal interpretation of the applicable section of the legislation in relation to whether what the Complainant disclosed was simply encompassed within the nature of her role – an argument being advanced on behalf of the Respondent. I find that it was not encompassed with in her role in the sense advanced, and that the requirements of the Complainant’s role to comply with the regulatory, financial, management, governance and procurement frameworks as well as the agreed SLA, within the context of the disbursement of public funds and charitable funds, do not undermine her protected disclosure. Nor does the fact that she is a qualified CPA, subject to regulation by her regulatory body. This is to be contrasted with the contents of a caseload of someone working as a prosecutor, for example.

Once a protected disclosure within the meaning of the legislation has been established and detriment shown – and I accept that a protected disclosure has been established, and detriment demonstrated, inter alia, in respect of the nature of the response received (personalised) and in relation to the pay restoration issue – the burden of proof with respect to rebutting allegations of penalisation falls to the Respondent organisation. I find that it has simply been unable to do so. The evidence of the Board members in relation to what constitutes penalisation was not correct. Furthermore, a voluntary Board is simply not on site during the day to day running of the organisation. The two Board members called to give evidence at hearing had also been absent for significant periods during the relevant time-frame, due to personal circumstances (ill health, caring duties, bereavement). Board composition also refreshes over time. I accept the submission made by Counsel for the Complainant that the Complainant was a ‘bother to the organisation’ with respect to the concerns she raised and the disclosures she made and, that this is what precipitated how she was treated, targeted, sidelined and ultimately penalised, by her then line manager and to a lesser extent by the then Board.

I find that the Complainant has established that she had a reasonable belief of things which tended to show one or more instances of wrongdoing, and that she disclosed those appropriately, as required i.e. that her disclosures meet the threshold of constituting a protected disclosure under the Act. I find that she suffered detriment. I find that that detriment was causally linked to the disclosures made, which constitutes penalisation within the meaning of the legislation. I find that the Respondent has failed to rebut the allegation of penalisation, in line with the amended burden of proof in respect of penalisation, in this case.

The maximum jurisdiction under the Protected Disclosures Acts (as amended), is the equivalent of five years’ remuneration and it falls to me to measure an appropriate award in the circumstances, having regard to all the facts of the particular case and the applicable case law. I measure that award at €75,000.

CA-00048362-006 – The Complainant submits that she was penalised for reporting breaches of the Charities Act. It was accepted by Counsel for the Complainant at hearing that she cannot maintain both complaints CA-00048362-005 and CA-00048362-006. As I have found in favour of the Complainant under CA-00048362-005, I find that this complaint (CA-00048362-006) is not well founded.

CA-0051505-001 – For the reasons set out above, I find that this complaint is not well-founded.

CA-0051505-002 – For the reasons set out above, I find that this complaint is not well-founded.

CA-0051505-003 – For the reasons set out above, I find that this complaint is not well-founded.

CA-0051505-004 – For the reasons set out above, I find that this complaint is not well-founded.

CA-0051505-005 – For the reasons set out above, I find that this complaint is not well-founded.

CA-00048362-001 – For the reasons set out above, I find that this complaint is not well-founded.

CA-00048362-002 – For the reasons set out above, I find that this complaint is not well-founded.

CA-00048362-003 – For the reasons set out above, I find that this complaint is not well-founded.

CA-00048362-005 – For the reasons set out above, I find that this complaint is well founded. I award the Complainant €75,000 compensation in respect of the penalisation suffered and direct the Respondent organisation to pay the Complainant within 42 days of the date of this decision.

CA-00048362-006 – For the reasons set out above, I find that this complaint is not well founded.

Protected Disclosures; Penalisation; s. 39 Organisation; Pay Restoration; Pay Alignment; Voluntary Board; Charities Act;