Complainant

Respondent

Parties

Hayley  Simmonds

Home From Home Childcare Limited

Representatives

Mr. Jason Murray BL, instructed by  Moran & Ryan Solicitors

Mr. Richard Grogan, Richard Grogan and Associates, and then, Mr. David O' Riordan, Sherwin O'Riordan Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00035436-001

25/03/2020

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

CA-00035519-001

31/03/2020

The Complainant commenced employment with the Respondent on 9th April 2014. At all relevant times the Complainant was engaged as a “Early Years Educator”. The Complainant was a full-time, permanent member of staff in receipt of an average weekly payment of €500. The Complainant remained in the Respondent’s employment on the date of the hearing.

On 25th & 31st March 2020, the Complainant referred the present complaints to the Commission. Herein, she submitted that she had suffered ongoing and substantial penalisation following the referral of two separate protected disclosures to the Respondent. In denying this allegation, the Respondent firstly submitted that the Complainant did not make any such disclosure in the course of her employment. Secondly, they submitted that th Complainant suffered no penalisation or adverse treatment of any description in the course of her employment.

Give the date of the referral of the Complainants, the parties encountered a delay in having the matter listed for hearing. Notwithstanding the same, it is understood that the matter was listed in late 2020 for an initial date of hearing. As the matter apparently did not finalise on that date, the matter was adjourned for completion. Thereafter, following the Judgement of the Supreme Court in the matter of Zalewski v. Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24, the matter was further adjourned to permit evidence to be taken on oath. Following the Judgement of the High Court in the matter of Burke -v- An Adjudication Officer [2021] IEHC 667, the Adjudication Officer initially designated to hear the matter recused herself from any further involvement in circumstances whereby unsworn testimony had been heard in advance of sworn evidence. On foot of the same, the hearing was designated to the present Adjudication Officer to commence anew.

Following a case management session, conducted by means of the remote platform, the parties agreed to issue a single submission in respect of all matters, including an authority referenced by the Adjudicator. Following a series of adjournments, the substantive matter was heard, and finalised on 19th June 2023.

Both parties issued extensive submissions prior to the hearing. The Complainant gave evidence in support of her complaints, while the operations manager and a childcare assistant gave evidence in defense. All evidence was given under oath or affirmation and was opened to cross examination by the opposing side.

In evidence, the Complainant stated that she was engaged as an “Early Years Educator” by the Respondent. In this regard, she stated that the position that she applied for was entitled “Early Years Educator – Montessori Room”. The Complainant stated that she applied for this role in particular, as it matched her professional qualifications and experience. 

On 22nd October 2019, the Complainant was obliged to write a letter of complaint to the Operations Manager of the Respondent. This correspondence alleged “unacceptable behaviour and treatment” at the hands of one of the Complainant’s colleagues. The Complainant alleged that her colleague chastised her in respect to her alleged conduct at a staff meeting the day before. The Complainant stated that she believed this behaviour to be “unprofessional” and that the same was “another example of her persistent bullying behaviour, which is leading to a toxic working environment and must be addressed”. In evidence the Complainant stated that on this occasion, her colleague followed her around the room in order to chastise her, leading her to feel unsafe. The Complainant also had concerns regarding the welfare of the children under their supervision at this time.

The Complainant stated that the Operations Manager of the Respondent refused to properly respond to this complaint. By correspondence dated 30th October 2019, the Managing Director of the Respondent acknowledge the correspondence and enclosed a copy of the Respondent’s grievance procedure. On Monday 11th November, the parties had an informal, ad hoc meeting whereby the Complainant reconfirmed her wish to have the matter dealt with on a formal basis. Sometime later, on 18th November 2019, the Managing Director of the Respondent confirmed that the Complainant’s wishes in this regard and set out the procedure to be adopted thereafter.

By letter dated 13th January 2019, the Managing Director of the Respondent again corresponded with the Complainant regarding her complaint. This correspondence goes on to state that the Managing Director of the Respondent carried out “an initial examination” and decided that the most appropriate course of action is to resolve the matter informally. The Complainant referred to this development as “bizarre” and entirely outside the scope of the Respondent’s own policy. In this regard, the Complainant submitted that the Operations Manager of the Respondent avoided the investigation of her complaints in an effort to avoid exposing the respondent to the complaint to disciplinary sanction.  

Following the same, the Complainant correspondence with the Respondent on 21st January 2020. Here the Complainant alleged that the Respondent had not “attached the appropriate level of seriousness to allegations that I have made”. The Complainant described the events of 22nd October 2019 stating that the action of her colleague was “done with total disregard for the children in my care and in my view represents a gross failing…to uphold and maintain and all times a duty of care for all our children entrusted to us by parents”.

The following day, the Complainant stated that she suffered a further act of penalisation on the part of the Respondent. On 22nd January, the Complainant was approached by the Managing Director of the Respondent and informed that she was to be moved from the Montessori year one room to the junior “wobbler” room. In evidence, the Complainant stated that she viewed this as a significant demotion. She stated that the position she applied for and completed was that of Montessori teacher, she stated that the proposed move would not utilise any of her training and was more in the line of childcare, rather than education. The Complainant commenced in this demoted position until 29th January 2020, when she was forced to commence a period of certified, stress related sick leave. 

Thereafter, the Complainant engaged a firm of solicitors to correspond with the Respondent on her behalf. The Respondent was unambiguously called upon to desist in the unlawful treatment of the Complainant and was put on notice that their actions amounted to penalisation within the definition of the impleaded Act. In a belated attempt to mitigate the effects of the penalisation, the Respondent commenced a formal procedure investigating the complaints on 23rd March 2020. The Complainant submitted that the report in relation to the same painted an entirely inaccurate portrayal of the events in questions, with directed references to her own alleged (and fully disputed) actions on the date in question. The Complainant submitted that this investigation referred to numerous “file notes” completed by the Respondent, with the accuracy and authenticity of same being called into question by the Complainant. In particular, the Complainant referred to minutes of a meeting displayed by the Respondent which was entirely disputed by the Complainant. In addition to the same, the Respondent referred to numerous other “files notes” which were signed by all parties apart from the Complainant and constituted, in her eyes, a “witch hunt” against her. In addition to the foregoing, it was submitted that many of the relevant file notes were only collected after the Respondent had issued its “initial examination”.

By submission, the Complainant stated that she issued two protected disclosures to the Respondent. She submitted that both the documents 22nd October 2019 and 21st January 2020, referenced a series of relevant wrong doings on the part of the Respondent. Following from the same, the Respondent commenced penalised the Complainant by initially attempting to dispose of the matter by way of the informal process, then by unilaterally and unfairly demoting the Complainant and finally by engaging in an ongoing “witch hunt” whilst the Complainant was on sick leave. Having regard to the foregoing, the Complainant submitted that the Respondent was in breach of the impleaded Act.

From the outset, the Respondent submitted that they disputed the allegations raised by the Complainant on a factual basis, and submitted that the Complainant had not, at any point of her employment, raised a protected disclosure within the meaning of the present Act.

In this regard, it was agreed that the Complainant raised a grievance regarding certain personal matters in October 2019. On receipt of the same, the Operations Manager of the Respondent issued extensive correspondence to the Complainant, enclosing the relevant internal procedures and asking whether the Complainant would prefer for the matter to be dealt with by way of the informal or formal procedures. By response dated 30th October 2019, the Complainant advised that she was happy for the Operations Manager of the Respondent to progress the matter. While the Respondent was happy with this clarification, it was noted that the Complainant did not elect between the formal or informal procedures. In this regard, the Operations Manager of the Respondent met with the Complainant informally on 11th November whereby she confirmed that she wished for the matter to be dealt with on an informal basis. This election was confirmed by way of correspondence dated 18th November 2019. It was noted that this correspondence outlined that the next step was to be an “initial examination” to be carried out by an impartial member of management. In evidence, the Operations Manager of the Respondent stated that she believed that this initial examination would determine whether the matter is one that is one that could be resolved by way of mediation or other informal process prior to the same being the subject of a formal investigation. In evidence, the Operations Manager of the Respondent stated that she believed that as the matter was an inter-personal dispute, a mediated meeting between the parties might be the most appropriate method of resolution. In this regard, the Respondent wrote to the Complainant on 13th January 2020, setting out the findings of this initial examination and seeking the Complainant’s agreement to the same.

By correspondence dated 21st January 2020, the Complainant set out, in clear terms, her disappointment with this suggestion and indicated that the Respondent was not attaching an appropriate level of seriousness to the complaints. The Operations Manager of the Respondent disputed this version of events and stated that she felt that she was investigating the complaints to the best of her ability and was simply seeking to resolve the Complainant’s issue in the most appropriate and discrete manner possible.

Regarding the re-assignment of the Complainant to the alternative room, the witness stated that they were required to recruit a new Montessori teacher as a staff member had commenced maternity leave. Whilst a replacement was hired, this employment only lasted for one day, leaving the Respondent in some difficulty. In circumstances whereby one of the other staff members had the appropriate qualifications, the Operations Manager had a conversation with her regarding a potential move to the Montessori room. Following this conversation, it was decided, on an operational viewpoint, that the most efficient manner of re-organising the Respondent’s activities would be to assign the Complainant to the junior room, with the other staff member moving to the Montessori room with support. When the Operations Manager of the Respondent informed the Complainant of this proposal, the Complainant indicted her unhappiness with this development and questioned the qualifications of the incoming staff member. In this regard, the Operations Manager of the Respondent stated that the Complainant’s contract was clear in that she could be re-assigned to other sections of the business in accordance with their needs. Thereafter, the Complainant worked in this role for a period of time, but unfortunately commenced a period of sick leave shortly thereafter.

Regarding the alleged “witch hunt” against the Complainant, the Operations Manager of the Respondent denied that this constituted adverse behaviour or that the same was in any way motivated by the alleged protected disclosure. The witness stated that on receipt of the complaint, she believed that it was important to collect as much contemporaneous information as possible. In this regard, the Operations Manager of the Respondent advised that the relevant file notes were the method by which she collected this evidence in the event that the same would be required at a later date.

The present case involves an allegation by the Complainant that she suffered persistent and ongoing adverse treatment following the referral of two separate protected disclosures. In particular, the Complainant submitted that the Respondent actively avoided the investigation of her initial complaint, that they demoted her the day following her second disclosure and that the Respondent conducted a “witch hunt” against her, under the guise of an ad hoc investigation. In denying these allegations, the Respondent initial submitted that the complaints referred by the Complainant did not constitute protected disclosures within the meaning of the present Act. They further submitted that the Complainant did not suffer any form of adverse treatment of any description in the course of her employment.

In order to be successful in either of the complaints referred, the Complainant will firstly have to demonstrate that the complaints raised constituted protected disclosures within the meaning of the impleaded Act. Secondly, she will have to demonstrate that the issues arising thereafter constitute detriment that might give rise to penalisation within the meaning of the Act. Finally, the Complainant will have to demonstrate a causal connection between the alleged protected disclosure and the alleged detriment suffered.

Regarding the initial point, Section 5(1) of the Protected Disclosures Act defines a “protected disclosure” as a “disclosure of relevant information made by a worker in the manner specified”.

Section 5(2) defines “relevant information” as that which, “in the reasonable belief of the worker…tends to show one or more relevant wrongdoing”.

Section 5(3)(b) provides that example of “that a person has failed, is failing or is likely to fail to comply with any legal obligation…” as an example of a “relevant wrongdoing” cited above.

Section 5(3)(d) enumerates fact that “the health or safety of any individual has been, is being or is likely to be endangered” asa further example of a “relevant wrongdoing”.

During the proceedings, the Complainant referred to various extracts of her letters of 23rd October 2019 & 21st January 2020 as fulfilling the criteria above. In particular, the allegation that the Complainant’s colleague had engaged in “persistent bullying behaviour, which is leading to a toxic working environment and must be addressed” was said to constitute an allegation that the Complainant’s health and safety was endangered. The Complainant also referred to the section whereby she alleges that her colleague “proceeded to challenge and chastise me across the room full of children” as a further example of a reference to the endangerment of her health and safety, as well as a breach of the Respondent’s legal obligation in respect to those in their care.  

Regarding the second correspondence, the Complainant referred to an allegation that, “Over the course of the summer of 2019 I made repeated efforts, to report, to you, verbally, the ongoing and sustained bullying of the accused”, as being a further disclosure in respect to the endangerment of her health and safety. 

In this regard, Section 8(1) of the Safety, Health and Welfare at Work Act 2005 provides that,

“Every employer shall ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees.”

In this regard, failure to prevent the alleged bullying of the Complainant may constitute a failure to comply with a legal obligation or an allegation that the health and safety of the Complainant is being endangered.

In the matter of Baranya v Rosderra Meats Group Limited [2021] IESC 77, the Supreme Court held that, per Hogan J., an Adjudicating body must examine,

“…did those words expressly or by necessary implication amount to an allegation tending to show that workplace health and safety was or would be endangered, even if that complaint was personal to him. The allegation must, of course, contain such information – however basic, pithy or concise – which, to use the language of S.5(2) of the 2014 Act, “tends to show one or more relevant wrongdoings” on the part of the employer”.

In the matter of Celtic Working Platforms -v- Cian Carlin, the Labour quoted with approval the following passage from Babula v Waltham Forest College [2007] ICR 1026t,

“Provided (the Complainant’s) belief (which is inevitably subjective) is held by the Tribunal to be objectively reasonable, neither (1) the fact that the belief turns out to be wrong – nor, (2) the fact that the information which the claimant believed to be true (and may indeed be true) does not in law amount to a criminal offence - is, in my judgment, sufficient, of itself, to render the belief unreasonable and thus deprive the whistle blower of the protection afforded by the statute.”

In the initial submissions, much of the Respondent’s position related to the fact that as the complaints related, in the main, to allegations relating to the Complainant herself. In this regard it was submitted that the same should be rightfully considered as grievances as opposed to protected disclosures.

In the matter of Rosderra Meats, quoted above, Hogan J. held that,

“It is true that what may be termed the exclusionary provisions of s. 5(3)(b)…seek to exclude complaints which relate to the worker's contract of employment. Taken on its own, this might suggest that purely private complaints which are entirely personal to the worker making the complaint fall outside the scope of the Act. But even here the apparent width of the statutory exclusion is deceptive and, at one level, ineffective. This may be illustrated by the following example. One may suppose that every contract of employment contains obligations regarding pay. It is, of course, clear from these highlighted words that an employee could not make a protected disclosure by means of a complaint in respect of any alleged contractual default on the part of an employer on any matter, including pay. Yet there seems no reason at all why a complaint made by an employee regarding an alleged failure on the part of an employer to comply with his or her statutory obligations regarding the mode and method of payment of wages under the Payment of Wages Act 1991 could not also be regarded – at least in principle – as a protected disclosure for the purposes of s. 5(3)(b) of the 2014 Act. To that extent, therefore, it might be said that s. 5(3)(b) did not achieve the objective it sought to achieve by excluding only contractual complaints which are personal to the employee concerned and it is, to that extent, anomalous.”

Later, at paragraph 36,

“…it is clear that purely personal complaints in relation to the issues of workplace health or safety can in fact be regarded as coming within the rubric of protected disclosures for the purposes of s.5(2) and s. 5(3) of the 2014 Act.”

Having regard to the foregoing, it is apparent that the Complainant expressly raised allegations of bullying in both the correspondence of 23rd October 2019 and 21st January 2020. Both such allegations imply that the Respondent failed to provide a safe place of work in accordance with the Safety, Health and Welfare at Work Act 2005 and consequently served to endanger the Complainant’s health and safety. Having considered the Complainant’s direct evidence in this regard, it is apparent that these matters were verbally raised on prior occasions and it is clear that, subjectively at least, she believed the same to be reasonable. 

While I note that the Complainant did not expressly state that the issues raised constituted protected disclosures, nor was any of the language of the Act utilised in either correspondence, in the matter of Clarke-v-CGI Food Services Limited & Anor. [2020] IEHC 368, Humphries J. held that,

“One can make a protected disclosure without invoking the 2014 Act or without using the language of “protected disclosure”. It is often only after the victimisation, dismissal or other adverse consequence arrives that one has to “retrospectively” figure out what really happened and analyse it in the statutory language. There is nothing wrong with that process and it is certainly different from “retrospectively” creating a case from nothing”.

Having regard to the foregoing, I find that the complaints raised by the Complainant constitute protected disclosures within the meaning of the impleaded Act.

The next matter to be considered is whether the alleged adverse treatment suffered by the Complainant constitutes “penalisation” for the purposes of the impleaded Act. In this regard, the Complainant has alleged that the Respondent’s failure to progress her complaint in accordance with the relevant internal procedures, her alleged “demotion” to the junior room and the purported investigation taken outside of the terms of an internal policy constitute penalisation for these purposes.

In this regard, Section 1 of the Act defines “penalisation” as,

“…any act or omission that affects a worker to the worker’s detriment, and in particular includes—

(a) suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) the imposition or administering of any discipline, reprimand or other penalty (including a financial penalty),

(e) unfair treatment,

(f) coercion, intimidation or harassment,

(g) discrimination, disadvantage or unfair treatment,

(h) injury, damage or loss, and

(i) threat of reprisal;

Having regard to the list above, it can be seen that the definition of what may constitute “penalisation” is extremely wide, and encompasses almost any form of adverse treatment that leads to a detriment. In addition to the matters above, it is noted that the Section refers to these instances “in particular”, and may include other, unenumerated, forms of adverse treatment that leads to a detriment.

Regarding the first issue, it is common case that the first written complaint issued by the Complainant on 23rd October raised serious allegations regarding the conduct of one of the Complainant’s colleagues. This complaint ends with the statement that, “I trust this complaint will be treated and serious manner”. Thereafter, the Respondent replied and asked whether the Complainant elected to pursue the matter under the “informal” or “formal” procedures. When the Complainant confirmed, in no uncertain terms, that she wished for the matter to continue under the formal policy, the Operations Manager of the Respondent undertook an “initial examination”, with the outcome of same being that the matter should be resolved informally. By response, the Complainant took exception to this development, accusing the Respondent of failing to treatment the complaint with sufficient seriousness. By submission, the Complainant submitted that the Respondent penalised her in failing to properly investigate her concerns at the relevant time.

In this regard, it is apparent that on receipt of the initial complaint, the Respondent acknowledged the same, set out the relevant internal procedure and enquired as to the course of action the Complainant wished to pursue. It is further noted that the response received by the Complainant did not clarify whether she wished to pursue the matter formally or informally. When the Complainant clarified the same, the Respondent outlined their interpretation of the formal process by way of correspondence dated 18th November 2019. This correspondence states that the Operations Manager of the Respondent intended to carry out an initial examination to determine whether the matter would be appropriate for a mediated resolution. I this regard, it is noted that the “formal procedure” under the Respondent’s dignity at work process provides that,

“An initial examination will be carried out by a designated, impartial member of Management who will determine the appropriate course of action to be taken e.g. a mediated solution or attempt to resolve the situation informally”.  

In the event that the outcome of this initial examination is “inappropriate or inconclusive”, then the matter will then proceed to formal investigation.

Having considered the same, it is apparent that on receipt of the Complainant’s letter of complaint the Respondent acted reasonably and sought to follow their own internal procedures. While I do agree that the procedures are somewhat confusing, in that they appear confuse and conflate the formal and informal processes, the Respondent’s adherence to the same cannot be said to constitute a detriment that might give rise to penalisation as defined within the Act.

Regarding the second issue, the Complainant alleged that her transfer to the junior room constitutes a demotion and, as a consequence, constitutes penalisation. In this regard, the Complainant submitted that the role she applied for was an “Early Learning Educator in the Montessori Room”. In addition to the same, she submitted that the job title of her contract referred to her as an “Early Learning Educator”. She submitted her transfer to the junior room constituted a demotion in circumstances whereby she would not longer have any engagement in early learning or Montessori teaching, and would not be utilising her prior qualifications or experience. In contesting this position, the Respondent submitted that the Complainant’s hours of work, rate of pay and location of employment remained constant throughout the Complainant’s engagement. During the proceedings, they referred to the following line of the job title referred to by the Complainant, which stated that,

“Your duties may be modified from time to time to suit the needs of the business”.

The Respondent also referred to the “Job Flexibility” section of the contract, which states that,

“It is an express condition of employment that you are prepared, whenever necessary, to transfer to alternative departments or duties within our business”.

Having regard to the foregoing, the Respondent submitted that they were simply relying on an existing contractual entitlement in seeking to move the Complainant to a different room. They submitted that the Complainant suffered no detriment on foot of the same and, consequently, this development could not classified as “penalisation” for the purposes of the present Act.

Having considered both these arguments, it is apparent that what the Complainant views as demotion, is seen as a lateral move without detriment by the Respondent. However, taking the Respondent’s argument at its height, I note that the first part of subsection C, listed above, expressly enumerates the “transfer of duties” as being an example of penalisation. Having considered the factual matrix presented by the parties, it is apparent that this is precisely what has occurred- the Complainant’s duties were transferred to another member of staff and she was expected to take on alternative duties. While the Respondent has submitted that the Complainant suffered no financial loss or diminution in the conditions of her employment, I note that the matter of transfer of duties is listed independently to such matters and, consequently, may constitute penalisation of itself. While the Respondent has set out the Complainant’s obligations for flexibility, it falls to them to exercise this right on a reasonable basis. Having regard to the foregoing, I find that the transfer of the Complainant’s duties may constitute a detriment that could give rise to a complaint for penalisation in accordance with the Act. 

Finally, in relation to the enquiries undertaken by the Respondent, it is difficult to see how the same could be viewed as penalisation for these purposes. As set out above, the Complainant issued a number of serious complaints and requested that the same be dealt with under the formal policy. Following the reporting of the same, the Complainant commenced a period of sick leave, leading to a further delay in the investigation of the relevant matters. During this period, it is apparent that the Operations Manager took it upon herself to collect statements from various parties in relation to their recollection of the incidents in question. While it is correct to say that the Operations Manager was not the investigator under the formal policy, the collection of contemporaneous accounts of the matters in question cannot be said to constitute a detriment that might give rise to penalisation.

The final point that must be demonstrated by the Complainant is a causal link between the detriment and the protected disclosures. In this regard Section 12(1) of the Act provides that,

“An employer shall not penalise or threaten penalisation against an employee…for having made a protected disclosure”

In the matter of Aiden & Henrietta McGrath Partnership -v- Ann Monaghan [2017] 28 ELR 8, the Labour Court held that,

“Thus, the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the complainant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that ‘but for’ the complainant having committed the protected act he or she would not have suffered the determined. This involves the consideration of the motive or reason which influenced the decision maker in imposing the impugned detriment.”

In support of this aspect of the complaint, the Complainant referenced the sequence of events. She submitted that she issued her first letter of complaint, alleging that the Respondent avoided their obligations in respect of the investigation of the same. Thereafter, the Complainant raised a further protected disclosures outlining the Respondent’s failures in this respect. She submitted that the following day, the Respondent demoted her from the role. In this regard, the Complainant submitted that this temporal proximity, in addition to the severity of the detriment, established that the same occurred as a result of the Complainant’s protected disclosure.

In the case of In the case of John Clarke v CGI Food Services Limited and CGI Holding Limited [2021] 32 E.L.R.25 Humphrey’s J. held as follows,

“Decision- makers have to look beyond the mere face value of either side’s arguments in a dismissal dispute given the ease in which a position can be contrived and manipulated Royal mail Group Ltd v Jhuti [2019] UKSC 55 considered.”

Humphreys J. went on to state that,

 “…the evidence here establishes substantial grounds for contending that the performance issues were an attempt, as put in the submission by the employee “to dress up the dismissal as a performance- related dismissal” As put by Lord Wilson in Royal Mail Group Ltd v Jhuti [2019] UKSC 55 at para.60,

“If a person in the hierarchy of responsibility above the employee……determines that, for reason A (here the making of a protected disclosure), the employee should be dismissed but that reason A should be hidden behind an invented reason B which the decision-maker adopts (here inadequate performance), it is the Court’s duty to penetrate through the invention rather than to allow it also to infect its own determination”

While the matter reference above related to a disciplinary process leading to dismissal, the same principle holds true in the instant case. In this regard, the Respondent’s motive for transferring the Complainant must be interrogated to determine whether the same arose as a consequence of the protected disclosure.

In this regard, it is noted that the advertisement for the role and contract of employment are clear in that the Complainant was engaged as a “Early Years Educator”. It is also apparent that the contract specifies that the Respondent may alter the Complainant’s duties dependent on the needs of the business, with the relevant flexibility clause being opened as part of the proceedings. Notwithstanding the foregoing, the Respondent is correct in that the timing of the matter is suspect, with the Complainant being informed of the move the day after issuing the protected disclosure. However, having considered the evidence of the Operations Manager, it apparent that certain staffing issues, entirely independent of the protected disclosure, arose at this time. In this regard, the Complainant’s colleague commenced a period of maternity leave in or around the relevant time for the purposes of this complaint. In anticipation of the same, the Respondent hired an employee to replace the Complainant’s colleague, presumably on a fixed term contract. The evidence of the Operations Manager was that this person left the business after one day and without providing adequate notice. This, understandably, left the Respondent in a position whereby they were thrown into a staffing crisis, one made all the more acute by the legal requirements regarding the ratios of children to childminders present in the industry. On foot of the same, the Operations Manager commenced a re-organisation of the business, with part of the same involving the transfer of the Complaint to another room within the business. In this regard, I find that the transfer of the Complainant’s duties arose, not as a result of any protected disclosure on her behalf, but as a consequence of the staffing issue existing at the relevant time. In this regard, I note that the evidence of the Operations Manager at the hearing was corroborated by statement issued by her as part of the investigation process.

Having regard to the foregoing, and the totality of evidence presented, I find that while the Complainant did issue protected disclosures, and did suffer a detriment thereafter, said detriment did not arise as a consequence of the protected disclosure. As a consequence of the foregoing, I find that the complaints are not well-founded.

CA-00035436-001

I find that the complaint is not well-founded.

CA-00035519-001

I find that the complaint is not well-founded.

Protected Disclosures, Penalisation, Causal Link