Complainant

Respondent

Parties

Dolores  Carroll

Daughters Of Charity Child And Family Service

Complainant

Respondent

Anonymised Parties

Representatives

Peter McKenna BL,                                     Mark Scanlon,                                                 J. D Scanlon & Company Solicitors

Peter Gilfedder                                       IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00060203-001

23/11/2023

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

CA-00061851-001

28/02/2024

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

CA-00061851-002

28/02/2024

In response to the Supreme Court decision in the constitutional case of Zalewski  -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) I can confirm that the within hearing was open to the public so as to better demonstrate transparency in the administration of Justice.

I have additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in circumstances where there is likely to be a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that, in order that things might be progressed, I have sought that each person giving evidence before me did so on Affirmation.

It is noted that the giving of false statement or evidence is an offence.

The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 23rd of November 2023.

I do note that, for reasons unexplained, the Complainant had issued a second workplace relations complaint form on the 28th of February 2024 (some three months after the first complaint form had issued). The later complaint form again claims Unfair Dismissals in much the same way as had been claimed in the earlier November 2023 complaint form.

Given that the employment herein appears to have terminated on the 28th of July 2023 it seems that the February 2024 complaint form is out of time.

The Unfair Dismissals complaint raised in the November 2023 complaint form is still live, and it is this complaint - CA-00060203-001 -that I am hearing.

At the completion of the hearing, I did take the time to carefully review all the oral evidence together with the written submissions made by the parties. I have noted the respective position of the parties.  I am not required to provide a line-by-line assessment of the evidence and submissions that I have rejected or deemed superfluous to the main findings.  I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held that a

“…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one.  Only broad reasons need be given…”. 

The Complainant was fully and legally represented at this hearing. When it came time to hear the Complainant’s evidence the Complainant was happy to make an Affirmation to tell the truth.  I was provided with a comprehensive submission dated the 24th day of June 2024 in advance of the hearing.  The Complainant additionally relied on the submission outlined in the Workplace Relations Complaint Form.  I was provided with supplemental documentary evidence in support of the Complainant’s case. No objection was raised to any of the materials relied upon by the Complainant in making her case. The Evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative.

The Complainant alleges that she was Unfairly dismissed when a Redundancy situation arose which Redundancy was - to the Complainant’s thinking  - spurious. The Complainant additionally makes the case that the alternative employment which the Employer offered to her was meaningless as the Employer knew she could never accept such a position.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. 

Unusually for this Adjudicator, I did invite the parties to see if a compromise could be reached. I appreciate an effort was made by the representatives in this regard but with no success.  I am happy to proceed to make a decision.

The Respondent had representation at this hearing in the form of IBEC.  The Respondent entity was additionally represented by two witnesses. The first witness (AC) was from HR and the second person held the role of Senior Services Manager. A written submission dated 1st of July 2024 was received by me in advance of the hearing. No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case. All evidence was heard following an Affirmation. The Respondent witnesses were cross examined as appropriate by the Complainant’s representation.

The Respondent rejects that there has been an Unfair Dismissal. The Respondent stands over the need to make the Complainant’s role redundant and the Respondent asserts that the Complainant was provided with an alternative role and with whatever supports were needed to get her settled into that role.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

The Complainant commenced her employment with the Respondent entity on the 8th of August 1995 and therefore had had almost 28 years of service built up with her Employer by the time she was made Redundant in July of 2023.

To better understand what has happened herein, the parties had to explain the internal structure of the Respondent entity to me. As I understand it, the Respondent is primarily funded by TUSLA. The Respondent is a not-for-profit entity offering therapeutic services, early years services and assessment services for and on behalf of TUSLA.

There are, as I understand it, up to sixteen “Family Centres” scattered around the Dublin area and beyond. The Centres are essentially anchored into areas where their services might be more acutely needed. In the early part of her career (2001) the Complainant was appointed to the role of Manager of one of these Family Centres situate in Darndale. By 2010 the Complainant had been moved into the role of Child Protection Manager which was a singular role which evolved in the Respondent entity as the Managers in each of the sixteen Family Centres needed advice and guidance on all Child Protection issues.  This role was located primarily in Phibsborough and the Complainant no longer headed up one of the Family Centres instead providing guidance and advice to the Managers across all 16 centres.

The Complainant, as I understand it, was at the same level as the Family Centre Managers in terms of employment structures.

I understand that in August of 2022 the three Senior Service Manager positions were created to manage the Family Centre Managers. The creation of these posts was never meant to impact the role of Child Protection Manager though seemingly they ultimately did so impact.

I have been told that in and around 2022, TUSLA was implementing a training programme nationwide that started with the Respondent. The sensitivities of this type of training is captured in the title “Always Children First”. The training involved child protection and awareness training. Not unexpectedly, issues of privacy and personal information came into focus and there can be no doubt that good practise would suggest that children’s details and circumstances should not be generally known to internal staff and that there should be a very strict code of disclosure in operation. The Respondent already had a good policy in this area, and it seems that within any child centre only the Manager (also known as the Designated Liaison Officer) had access to all the files in that centre with subordinates having access on a need-to-know basis.

At this time a Family Centre Manager/ Designated Liaison Officer would report into one of three Senior Services Manager who in turn would only have access to files in each of the three or four centres being overseen by that particular Senior Services Manager. For completeness, I should note that the Complainant also reported to one of these three Senior Service Managers being as she was at the level of Family Centre Manager

The anomaly in the system of privacy was the role held by the Complainant who (as the overall Child Protection Manager) had full and unfettered access to all the sensitive child-related files across all the separate 16 Family Centres. I am, of course, happy to confirm that there is no suggestion that the Complainant was using this information in an inappropriate or insensitive way. In her evolved role, the Complainant was extrapolating trends and concerns across all the work being carried out at a local level in all the Dublin Family Centres and her assessment of child protection requirements necessitated her having full access to the information being gathered by each of the centres. The Complainant had a unique overview from which She could deduce trends, concerns and statistics.

However, this practise is not considered to be compatible with GDPR and seemingly these concerns were raised by TUSLA in 2022.

This was a matter of some concern with Management in the Respondent. Such was their concern that they sought legal advice. In their submission it is noted:

On the 30th of March 2023, the Respondent’s legal adviser emailed Ms O’Hara following a conversation between the parties regarding the sharing of child protection information with the Child Protection Manager (Appendix 7 – legal advice email):

“As you know some of the principles of data protection law is that the data should be kept safe and secure, processed fairly and kept safe and secure. Under these principles, it is necessary to minimise the access to personal data to the minimum amount of people necessary. You indicated that the regional managers now oversee any child protection reports to ensure that they are followed up. Further, the CRM system is now also overseeing the child protection trends and tracking the information. Accordingly, it does not appear from what you have said that it is not necessary for the child protection manager to have access to this information any longer, given that she does not appear to need to process it as the functions for which she previously processed this data are being fulfilled elsewhere in the organisation.”

It is noted that Ms O’Hara was the Line Manager for the three Senior Service Managers already referenced. Ms O’Hara went on to hear an Appeal in this matter and her early involvement when acquiring the legal advice was raised as an issue by the Complainant.

In any event, and for the avoidance of doubt, I confirm that the legal advice as quoted does seem to be a fair assessment of the need to limit access to child protection reports and the practicality and legal correctness of giving the Child Protection Manager (the Complainant) unfettered access to same. I also confirm that once the question had been raised and the answer had been given, the Respondent was bound to act on foot of the advice given. Not to do so could have created a whole other unforeseeable suite of difficulties. I further note that changes such as this have been happening across all children centred workplaces in accordance with the regulations implemented under the Children First Act 2015 which hasChild Safeguarding at its heart.

It became unavoidable per the HR Manager’s evidence that the Complainant’s role had to be placed at risk of being made redundant. This was notified to the Complainant on the 13th of April 2023. Much was made by the complainant representative of the written direction given to the Complainant (by her Line Management) to stand down from opening up any new work which would involve having sight of sensitive files. She was directed not to do so.  This seemed extremely harsh to the complainant, but I accept that the Respondent was now bound to operate in line with the advice given or be fully liable for the consequences of not doing so. The witness said in her evidence that they needed to figure out the implications of the advice given.

The HR Manager further stated that the requirement to have a Child Protection Manager had, in any event, been somewhat diminished in recent years where the Differential Response Model had been completed and the recent creation of the Senior Services Manager roles had streamlined information gathering. I note that the Complainant had been given the opportunity to apply for one of these three roles but had opted not to proceed as the management structure did not appeal to her.

I also understand that the internal computer system (the CRM) had become increasingly finessed at extrapolating information that had heretofore been a part of the complainant’s role. Session notes and case notes are now kept on the system. It gathers statistics and creates reports as required.

The Respondent HR Manager and the Complainant’s Line Manager (herself one of the Senior Services Manager) entered into a protracted period of consultation with the Complainant concerning the fact that her role was being made redundant and her ongoing employment within the Respondent entity after that role was gone. The Complainant in her evidence is firmly of the view that the process was little more than token, and that there was no real desire to retain the Complainant and that the idea of finding an alternative role was always going to come down to offering her the only position in the whole organisation that she could not and would not take up.

The HR Manager said that he could see no way of adapting the complainant’s role so as not to fall foul of the GDPR expectations. In her evidence before me the Complainant suggested that there could have been a way to filter information so that she did not have to see names (which could be easily redacted) but would have access to scenarios. This was not, it seems, suggested by either party before being raised with me at the WRC and I have no idea if that could have worked.

I am satisfied that from the outset, the expectation on the part of Management was that suitable alternative employment could be found for the Complainant. The HR Manger said in evidence that they wanted to retain the Complainant’s capabilities and expertise. Having heard the complainant myself I accept that she has an enviable depth of knowledge and understanding of her field of expertise, the loss of which would have to be regretted.

Despite this the Complainant did, through her Representative, raise the issue of being made Redundant instead. The HR Manager took this query to the Board and the Board ultimately agreed that it would pay Statutory Redundancy with some reluctance. The preference, it seems, was to retain the Complainant as an Employee until her contracted retirement age.

The obvious role into which the Complainant could be placed was that of Family Centre Manager/Designated Liaison Officer. This was a role that the Complainant had previously handled and was a role commensurate with her rate of pay and other terms and conditions of employment. There seemed to be an expectation that one or more of these 16 roles was due to come up.

It seems to me that the Complainant and her representative were more fixated on continuing the Complainant’s child protection role in some form and had never really focussed on returning to a Family Centre in a manager capacity. I do accept that when asked, the complainant did indicate a few place names where she would be happy to work.

I am absolutely satisfied that behind-the-scenes management was aware of some movement where a position at the Arklow Family Centre was becoming vacant. The Complainant was not told about this vacancy, and instead the Manager from the Darndale Family Centre was quietly moved into that vacancy leaving a vacancy at the Darndale family centre. This was the vacancy earmarked as a suitable position for the Complainant and into which she was invited to seamlessly walk.

The difficulty was that the Complainant had developed (perhaps irrationally) an intense fear of working back at the Darndale Family Centre. As I understand it, the complainant had had quite a difficult time when she had worked as the Manager in Darndale previously. Her close colleague and good friend had died of a terminal disease while working alongside the Complainant during her previous time working there. The Complainant herself had been diagnosed with leukaemia when she was in Darndale and had had to leave the workplace for a period of time to try and fight that battle. I understand that there were another couple of traumatic issues around other members of staff which also impacted the Complainant. As she talked to me in her evidence about her time in Darndale and the prospect of returning there, the Complainant became emotional and upset.

From the Respondent’s perspective, the flat refusal to take a position in Darndale was unreasonable. In the first instance, the events of which the Complainant spoke had taken place more than 14 years previously. Secondly the Respondent was prepared and in fact was insisting that the complainant avail of any and all workplace supports which were available to her in taking up this position. A full range of training and induction was planned to allow the Complainant to re-immerse herself back into the role. There is also an Employee Assistance Programme in operation in the workplace. Lastly, I understand that the complainant had previously and temporarily been placed back as the manager in the Darndale family centre when a temporary vacancy had arisen due to illness. This placement was of short duration but had been successfully filled by the Complainant.

By the 30th of June However, the Complainant had flagged through her representative that she was not happy to take this role and was instead appealing the decision to make her role redundant in circumstances where she had not even seen the legal advice being relied upon by hr Employer.

The Complainant was thereafter given an opportunity to Appeal the decision to make her role Redundant. As previously noted, the person hearing the Appeal was Ms O’Hara who had, at a management level, been instrumental in obtaining the legal advice which had triggered the decision to put the Complainant’s role at risk in the first place. I find I agree with the complainant’s assertion that pulling Ms O’Hara into this role was not ideal as the perception of her having a pre-existing sense of what the outcome should be, is unavoidable.

I fully understand that the complainant was deeply upset that no obvious steps had been taken to see if any aspect of the complainant’s job cold be retained. She absolutely loved that job. It looked increasingly like (whether or not it was intended at the time) the creation of the three senior service Manager roles in fact ultimately also led to the demise of the Complainant’s role. This had not been foreseen at the time. The Complainant was also deeply upset at the manner in which her work quite simply dried up during the Consultation process which looked to her to be more pointed than I think it was intended.

Lastly, the complainant says that she could have accepted a deployment had it been a reasonable and fair one. To her mind Darndale was not acceptable but Arklow might have been had she been offered it. I note the respondent gave evidence that the Arklow position did not come with the same terms and conditions as the complainant had and it is their belief that she would have rejected it. I will never know if this would have been the case because no offer was made. It is pure conjecture on the part of both sides.

I do think that the complainant generally trusted and liked Ms. O’Hara with whom she had worked over the years and whilst Ms O’Hara did ultimately reject the Appeal, I do think she was sensitive to the complainant’s predicament. In fact, the complainant confirmed that Ms. O’H knew well the issues the Complainant had had in her previous time in Darndale.

Ultimately, I have to decide whether the Complainant was Unfairly Dismissed by reason of Redundancy. I find on balance that the role was correctly made redundant in line with expected norms around the areas of privacy and protection being applied in all sectors. This is acutely true in terms of the protection of children. The question then is whether the Respondent found suitable alternative employment or did the employer present the Employee with a position as a fait accompli armed with the knowledge that the complainant could and would not accept the role proposed. The suggestion then is that the Respondent effected a termination of the Complainant’s employment for nefarious reasons. I find this a proposition somewhat difficult to accept.

I am very taken with the proposition made and confirmed in the letter of appeal outcome wherein the Complainant was advised that if she took the role in Darndale for six months they would re-consider her position at the end of that six months. Given the level of support which the Employer intended giving there is a reasonable chance that the complainant may not have found the transition as unbearable as she thought she would. The only difficulty with what was on offer in this process was the apparent removal of the Redundancy package if the complainant took the role. The implication being that if things did not work out the Complainant would resign her position with no Redundancy on offer. There was only ever statutory Redundancy – the bare minimum – on Offer. However, as the complainant was 28 years in service it was a risk for the complainant to take a job which she was so deeply unsure of and then find herself six months later unable to continue in the position and with the redundancy package gone. Any subsequent resignation would be of her own volition with a loss of all her years’ service.  In effect the complainant was in a difficult place. No-one had thought to keep the option of Redundancy on the table up to the end of the six-month trial period on offer. To my mind this was a failing on the part possibly of the complainant’s rep and certainly on the part of the HR Manager who I accept is extremely busy and had given a lot of time to this matter but failed to see the significance of the decision that had to be made by the Complainant. I am firmly of the view that the Redundancy option should have been kept in the loop in setting out the six month trial period option.

On balance therefore I am finding that the complainant’s job was made Redundant. However, the way in which the Complainant’s employment was ultimately dismissed was unfair. There was the clearly procedural difficulty with assigning Ms. OH the role of hearing the Appeal. Thereafter there was the issue of giving the Complainant two very stark option – risking her health or taking the minimum Redundant to which she was entitled  

Dismissal by reason of redundancy was unfair in circumstances where the alternative employment which was offered was not (in these unique circumstances) capable of being tested by the complainant without losing her right to instead leave the workplace with her Statutory Redundancy built up over 28 years.

Had the complainant been told that if she worked in the Darndale position for at least six months it would not affect her entitlement to look for the agreed redundancy package so that if the trial period did not work out, things might have been different. At the very least therefore the complainant lost at most the opportunity to work and be remunerated (subject to tax etc.)for another six months before any Redundancy package should have been paid. I note the Complainant was paid in and around €46,000.00 in her Redundancy. In making an award for compensation for the Unfairness of the procedures applied I award a figure over and above the figure already paid by way of statutory Redundancy.

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

CA-00060203-001 –

Aspects of the termination of this employment were unfair such that it is appropriate that the Complainant be compensated for financial loss in the sum of €15,000.00.

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

CA-00061851-001 -  This is the same complaint as above. I make no decision.

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

CA-00061851-002 -  This is the same complaint as above. I make no decision.