Complainant

Respondent

Parties

Emma  Daly

Dolphins Early Education And Childcare Centre

Representatives

William Wall Peninsula

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00056169-001

19/04/2023

The Complainant began working for the Respondent on the 27th of July 2020 as a childcare practitioner.  She submitted her resignation on the 15th of November 2022 and that resignation took effect on the 16th of December 2022.

Shortly after her resignation, on the 17th of November 2022, the Complainant witnessed an incident where she believed a colleague pushed a child. She reported this issue to management immediatley who conducted an investigation. On the 22nd of November the Complainant was informed that the Respondent had concluded their investigation and no further action was being taken. The Complainant became upset when she was told this and made clear that she would escalate the matter to Tusla. There is a significant difference of account between the parties as to how that interaction went and how the Complainant behaved.

The following day the Respondent put the Complainant on gardening leave until her resignation took effect.

The Complainant attended the hearing and gave evidence under affirmation. She made written submissions beforehand. Where relevant I have referred to the Complainant’s evidence in the findings section of this decision.

The Respondent’s representative made detailed written submissions.

Ms Jennifer Healy, Managing Director, gave evidence under affirmation. Ms Aimee Breen, Branch Manager, gave evidence under affirmation. Ms Tina Gunnery, then Preschool Manager, gave evidence under affirmation.   Ms Helena Dillon, assistant manager, gave evidence under affirmation.

On the 29th of August 2022 the Complainant was transferred to a new room with a colleague (“A”) who she had a good working relationship with. The Complainant had requested that she go part time, and this was facilitated by the transfer to the new room.

There was some rotation of staff and covering arranged for three and a half weeks. This was until another person  (“B”) was hired as room leader and assigned to the room from the 22nd of September 2022. B had a higher level of qualification that the Complainant and A and was paid at a higher rate. B’s first language was not English and she had only recently moved to Ireland. The Complainant went on annual leave for a week shortly after B was hired.

The Complainant’s evidence was that B had not been trained properly on the systems the Respondent had in place for updating documents and other issues. B was also unfamiliar with the restrictions in place regarding her until she her Garda clearance came through. She asked a lot of questions, was unfamiliar of the normal schedule on tasks like changing the children and on a couple of occasions left the room without telling the Complainant or A. The Complainant and A had ongoing communication issues with B. The Complainant became increasingly frustrated and submitted her resignation on the 15th of November.

The Complainant’s evidence was that there was a child, with some additional needs, based in their room. For the purposes of this decision this child is referred to as Y.

The Complainant provided context that Y loved splashing water. This could be problem when they would clean bottles in the sink using Milton. The Complainant’s evidence was that on the 17th of November she witnessed her colleague B washing bottles and that Y approached her to try to get to the water. B then pushed Y away from the sink. Y tried again and B again pushed Y away.

Both the Complainant and A raised the issue with management, specifically Ms Breen, later that day. Ms Breen assured them that they would look into it. Another member of management was delegated to investigate and the Complainant gave her a statement the following day, the 18th.

On the 18th of November a bullying complaint was submitted against the Complainant by B. At this point relationships had grown strained and management were trying to move around staff so B and the Complainant would not be working together. On the 21st of November the Complainant was told she was reporting to a different room. The Complainant was extremely upset by this and challenged why she was being moved rather than B. B was then moved instead of the Complainant.  But on the following day, the 22nd the Complainant was moved. She again challenged this but was told that she could be moved at the direction of management.

Later that day the Complainant was called into the office by Ms Aimee Breen. The Complainant was told that the Respondent was taking no further action regarding the incident on the 17th. The Complainant became angry and took this as her not being believed. Her evidence was that she said she was going to call Tulsa. She then left the room which had a gate instead of a door. The Complainant slammed that gate shut. She went downstairs and called Tusla.

Ms Breen’s evidence was that the Complainant remained around the office for a while and was shouting and swearing and believed she was being called a liar. Their evidence was that there were children nearby when this was going on. The Complainant disputes this.

The following day the Complainant was placed on garden leave until the termination of her employment. While the evidence is not entirely clear that the Complainant explicitly tried to retract her resignation at this point it appears that she at least expressed a desire to stay in her job. However any retraction was not accepted.

Protected Disclosures Act

The definition of the type of communications protected under this act is extremely wide. Particularly following the decision of the Supreme Court in Baranya v Rosderra Irish Meats Group Ltd.

In determining such a case I believe it can be prudent to work back to front. That is first determine whether the Complainant suffered a detrimental action on which a case for penalisation could be based.  If so, then determine whether detrimental action was in retaliation for the communications cited as disclosures. Only then, when those two steps have been satisfied, determine whether that those communications were in fact disclosures protected by the act.

Detriment

I am satisfied that the act of being put on garden leave can be considered a detriment. Being told not to attend work, even under pay, can obviously be damaging to person’s career and a cause of stress. In the particular circumstances of this case this also appears to have limited the Complainant’s options in trying to back track from a resignation she had submitted as a means of raising issues she had with B and which she did not think would be accepted (those issues are set out in ADJ-00044828).

Causation

The Respondent outlined that they believed the relationship with the Complainant was breaking down and that she was already working out her notice. Ms Tina Gunnery provided evidence that Aimee Breen and another manager who had been present on the 22nd raised serious concerns about the Complainant’s behaviour. She decided that they needed to descalate the situation and as the Complainant was working out their notice it would be best for everyone if they put her on garden leave for the remainder of her time.

Ms Gunnery’s and Ms Healy’s evidence was that this deicion was grounded in past interactions with the Complainant where she could be hot headed and had previous disagreements with staff. The threat to report the situation to Tulsa was not an issue for the Respondent as they had recently self reported an entirely separate issue and after having asked the inspector who visted because of that incident made a further self report on the issues the Complainant had raised on the 17th of November. They also met with Y’s parent.

In the circumstances I am accept that the Respondent has established that their decision to place the Complainant on garden leave and any associated refusal to consider the withdrawal of her resignation on that day was not due to the Complainant calling Tusla. It was instead due to a general breakdown in relations between the parties and concerns regarding the Complainant’s behaviour on the 22nd of November.  

As the cause of the detriment the Complainant suffered is unrelated to her alleged protected disclosure the complaint must fail.

The complaint is not well founded.