Complainant

Respondent

Anonymised Parties

Childcare Assistant

Childcare Provider

Representatives

Barry O’Mahony BL                          Ryan McAllister                                              ARAG Legal Protection

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-00067103-001

01/11/2024

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

CA-00067103-002

01/11/2024

This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with 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) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing.

I informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and where there is potential for a serious and/or direct conflict in the 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 I have administered the said Oath/Affirmation as appropriate and in order that matters might progress. It is noted that the giving of false statement or evidence is an offence.

The specific details of the complaint are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 1st of November 2024. In general terms, I will therefore be looking at issues that have arisen in the six-month period directly preceding this date and which have legitimately triggered a cause of action.

An application was made by the parties herein requesting that when the decision is issued, it might be anonymised. This is in circumstances where the workplace involves very young children and their parents. I am satisfied that that due to the existence of these special circumstances the decision will be anonymised, and an anonymised version of the decision may be uploaded onto the WRC website.

The Complainant was not represented and made her own case. The Complainant has set out her complaints in her workplace relations complaint form dated the 1st of November 2024. It should be noted that where persons have been named therein, I have simply inserted X so as to ensure anonymisation is preserved. The statement reads as follows:

The complaint I wish to make is about my manager X and the company in which I worked with X childcare I have lost my job due to the fact that I reported child abuse to my manager. These two employees also engaged in abusive bullying behavior and harassment towards myself. My manager X was made aware of these of this harassment and bullying and I even made an informal written complaint to her. And nothing was done to stop this from happening, I had made an anonymous phone call to Tusla the 23 Rd of march regarding abuse of children, the manager X than proceed to tell other staff members and parents that it was all lies and made up, i have made four statements to tusla , the Investigators and the guards around the abuse . And because of this my job was gone and contract not renewed , I received no formal meeting to discuss this no communication from either X or X board member.. I found out because X removed me from the work Whatsapp group, and many txt and email later , I was informed by X board member that a letter was sent out to me by post which I never received , 21 days after my initial contract tent of the tent 24 hours and formed by X true email the 29th of October that my contract was not was not being renewed and this is because i came forward about the child abuse from X and X and that my manager X was made aware of this abuse and done nothing she was the deputy dlp and done nothing she never reported a toddler or the guards and this is why my contract wasn't renewed Specific Complaint CA-000.

The Complainant sent further statements for consideration on the 12th, 17th and 26th of November 2024. The Complainant additionally gave her own oral evidence on affirmation in the course of the hearing. The Evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative.

The Complainant alleges that she was Unfairly dismissed. The Complainant has also made a case of having been dismissed by reason of having made a protected disclosure.

Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on the burden of proof to be attained by both parties herein.

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 Respondent had full legal representation at this hearing. The Respondent entity was represented by a number of witnesses including the Board chairperson and the Creche Manager. The Respondent provided me with a comprehensive written submissions dated the 3rd of April 2025. 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 questioned by the Complainant.

The Respondent rejects that there has been an unfair dismissal and does not accept any contravention of Employment Rights as protected by statute. The Respondent further rejects that it has penalised the Complainant for having made a protected disclosure. It is for the Respondent herein to establish that the dismissal was fair and reasonable in the circumstances.

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.

I have carefully considered the evidence adduced over the course of the hearing day.

The Respondent witnesses included the childcare Manager a Ms. ML and a board member. The Respondent entity is a centre dedicated to the provision of Childcare. This is a not-for-profit enterprise. The centre’s objective is to provide safe, affordable, high-quality childcare for the community and surrounding area. I note that the centre states that it provides a child centred, stimulating early education programme where equality and diversity are celebrated. The Respondent is overseen by a voluntary Board of Management of which MOS is the chair.

By way of an introduction, the witness Ms. ML stated that the Respondent childcare/creche facility is always looking for new and replacement staff. There are strict ratio levels operating in the childcare sector. These are set down by TUSLA. The Complainant had replied to an advertised position and once her Garda vetting had been completed the Complainant started in the Respondent facility on the 10th of October 2023. The Complainant was provided with a comprehensive Contract of Employment which, for the purposes of these proceedings, included the following paragraph:

“This is a specific purpose contract for one year subject to the terms and conditions within.”

Ms. ML explained that nearly all of their staff start on a limited fixed purpose Contract. She explained that one of the reasons for this is the uncertainty around annual funding being raised and received at this community-based facility.

The Complainant was to start on the basis of an 18-hour week, and she was described to me as holding a position of “floater”. The Complainant was expected to move around and cover maternity Leave or other absences. The Complainant was also expected to fill short term vacancies created by members of staff who were undergoing external childcare teaching programmes. I understand up to two members of staff were on extended leave obtaining childcare qualifications.

ML was the Complainant’s line Manager and found her to be a good worker. She indicated that the workplace operated a system of TOIL a system where an employee who works extra hours (beyond their normal working time) is given time off instead of extra pay. It’s essentially compensatory leave. In the circumstances some weeks the Complainant did more than the eighteen contracted hours, some weeks she did less.

At the end of March of 2024, the Respondent received notification that TUSLA had received Unsolicited Information (UI). This, as I understand it, is information not requested by TUSLA, but which someone voluntarily provides because they are concerned about a child's welfare or safety. The information was provided anonymously and it made a number of allegations of mistreatment of children in a specific classroom in the creche. These were described to me as serious child safeguarding issues.

In and around the same time (late March 2024) an issue had arisen in the workplace concerning how and when personal breaks were being taken. The Complainant had made an allegation against two of her colleagues alleging bullying on their part. This was a Grievance raised by the Complainant. In her evidence the Complainant said that she found there to be an oppressive atmosphere in the Creche largely because of the behaviour of the two individuals about whom she had made a complaint. The Complainant described the atmosphere as toxic.

In response to the unsolicited information issue, The Board liaised directly with TUSLA about the appropriate response to be taken. TUSLA advised that an external person ought to be appointed to carry out an investigation and a private childcare consultancy firm was duly appointed (C&B). Before the investigation was fully underway, ML gave evidence that she was personally approached by a concerned father who had received a text (from an unnamed member of the creche staff) concerning his child wherein a member of staff was named as having mistreated his child. A few days later ML was approached by a member of staff who made an allegation against the same named member of staff concerning the alleged force feeding of a child.

Despite what must have been a tumultuous period, it seems that the Employer did communicate with the Complainant concerning the bullying grievance she had raised. Rightly or wrongly, the Complainant was invited to move to another room in the creche on an interim basis. This was I believe intended to be a short-term solution to buy time. It was done against the backdrop of the TUSLA mandated investigation. I think I must see it as an attempt to deal with the hierarchy of problems being experienced in the workplace.

I note that as the investigation being conducted by C&B was already underway, the decision was made (in consultation with C&B) to suspend that member of staff about whom the two complaints had now been made.

C & B went on to meet with all the other members of staff to interview them. This included the Complainant. The outcome of this process was further advice given by C & B to the effect that the Employer ought suspend three members of staff with immediate effect. It seems that in the course of interviewing the staff (on or about the 24th of April 2024) C & B found that these three members of staff had witnessed unacceptable behaviour and that had not brought this behaviour to the attention of Management. In fact, the disclosures only came out as part of the TUSLA mandated investigation. I note that the Complainant was one of the three people singled out for suspension at this time. In particular I understand that the Complainant had particularly come into focus as she is a “mandated person” and is strictly obliged to have reported safeguarding breaches in a timely manner. The Complainant seemingly waited for a formal investigation process before revealing information she was aware of. As I understand it, a mandated person is a professional who, because of their role and qualifications, has a statutory obligation to report any knowledge, belief, or reasonable suspicion that a child is being harmed, has been harmed, or is at risk of harm. The Complainant was legally required to report child protection concerns to TUSLA or the Designated Liaison Person ( who was ML in this workplace) under the Children First Act 2015.

ML indicated that no report had been made by the Complainant to her in her capacity as the Designated liaison person. The Complainant had therefore only voiced her concerns sometime after any incident she had witnessed and only as part of a formal investigative process. I understand that her statement to C & B was quite detailed. In the circumstances the Complainant was suspended. In her evidence, the Complainant said that she did not know that ML was the designated liaison person.

MOS who also gave evidence as Board member stated that the loss of the three members of staff was very difficult in the workplace. MOS indicated that the steps taken were taken in good faith and on the advice of C & B who are professionals in this field. On balance I accept that the Employer was not being asked to do anything unreasonable and abiding by the advice given seems, to me, to have been prudent in all the circumstances. It is unacceptable in the childcare setting that incidents of concern were not immediately reported and instead some sort of code of silence operated.

ML gave evidence that the Complainant was shocked that she was being suspended after having given an honest interview. It was now also necessary that the Employer conduct a formal investigation into the Complainant’s actions (and those of her named colleagues) as reported by C & B. MOS gave evidence of how the Investigation grew larger and larger as parents had to be brought into the picture and the Gardai had to be notified of possible assault allegations.  In addition, TUSLA had to be kept notified and updated. Ultimately TUSLA conducted it’s own investigation which went on to January 2025. Things had gone public by then.

It was while the Complainant was out on suspension that her one-year Contract of Employment came to a natural end. The Respondent maintains that, as anticipated, two members of staff who had been on extended leave (when the Complainant had originally been taken on) had returned to the workplace. This had reduced the need to have the Complainant put in her contracted 18-hour week. In her evidence to me, ML indicated that there was no reason to renew the Complainant’s contract of employment going forward. The Complainant was notified of the termination of her employment and her final wages paid.

The Respondent says that it was not aware that the Complainant had been the person responsible for the initial unsolicited information until the workplace relations complaint form was served on them.

On balance I am satisfied that eh Complainant made a protected disclosure. The Complainant was suspended (for unrelated reasons) in the course of the follow-on investigation which investigation had been triggered by the UI. She was suspended because she and two of her colleagues were understood to have known about and/or witnessed acts of mistreatment against children without ever having reported these issues to management.

The Complainant in the course of evidence  has accepted that these findings and she confirmed that she has seen this behaviour lots of times. She gave evidence that she opted not to raise it with management as she felt that it would fall on deaf ears.

It is worth noting that the complainant was well able to make a written complaint concerning allegations of bullying against her and it is hard to reconcile this with her seeming inability to make a report concerning the mistreatment of children who have no voice.

The Complainant blamed a very toxic atmosphere where everyone was either afraid to or not bothered to address ongoing issue of cruelty to children. This is a somewhat shocking position to have taken.

In the course of evidence, the Complainant agreed that had she ever returned to the workplace she might well have been subjected to a  disciplinary action arising out of her apparent failures to act in accordance with her status as a mandated Person.

On balance I am accepting that the Complainant’s employment came to an end by operation of law. The Contract of employment had simply expired and the Complainant’s return to the workplace (which would not have been possible until 2025 at the earliest) had been rendered unnecessary by the return of absent staff.

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

CA-00067103-001 - The Complainant was not unfairly dismissed and this complaint fails.

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

CA-00067103-002  - The issue of a protected disclosure having been made only came to light long after the end of the employment relationship. No action taken was taken on foot of it or in response to a protected disclosure having been made.

In any event, Section 12 of the Protected Disclosure Act  at Section 12 (2) precludes the Complainant from pursuing and obtaining relief pursuant to the penalisation provisions (in the PDA) as well as pursuing relief under the Unfair Dismissals Act, 1977.