Complainant

Respondent

Parties

Valerie  McDonagh

Society of Saint Vincent De Paul Council of Ireland trading as Society of Saint Vincent De Paul (Svp)(Vincents)

Representatives

Maurice Osbourne BL instructed by Roger Cleary of Cleary and Co Solicitors

Mark Curran BL instructed by Jessica Bielenberg of Mason Hayes Curran LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00067960-001

06/12/2024

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

CA-00067960-002

06/12/2024

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

CA-00067960-003

06/12/2024

The Complainant joined the Respondent charity in a HR role from the 23rd of April 2024.

A service of the Respondent that cares for children sought to recruit a new frontline worker, Mr X, in early May and he was offered a job subject to Garda vetting to commence on the 20th of May. While Garda vetting came back clear, a HR official (not the Complainant) raised concerns about the international documentation available related to Mr X’s international vetting, Mr X had lived in several different countries. The specific service in question wanted to continue to recruit Mr X and to update vetting while he was kept on restricted duties and this was permitted by the Director of HR. The Complainant was one of a number of staff who were concerned about this and the quality of Mr X’s international vetting. At first Mr X was employed on restricted duties but he was put on leave a week later while the Respondent continued to try to work through the vetting issues. The Complainant was assigned to this case by HR and raised a number of concerns related to Mr X’s vetting documentation. Vetting queries were not resolved satisfactorily and Mr X was dismissed at in early July 2024. For the avoidance of doubt there is no reasonable suggestion, much less evidence, that Mr X was a risk to children, both the Respondent and the Complainant were not satisfied as to the level of documentation and certainty they could obtain related to his background.

The Complainant was dismissed on the 18th of July on the basis of probationary performance. The Complainant disputes this and has submitted complaints alleging that her dismissal was in fact penalisation for her having raised protected disclosures related to Mr X’s recruitment.

The Complainant’s counsel made detailed written and oral submissions on her behalf. They submit that the Respondent flagrantly breached the Complainant’s employment rights by dismissing her due to her supposedly failing her probationary period. She was dismissed following her having raised serious concerns about the Respondent’s vetting process and the recruitment of Mr X. 

The Complainant gave evidence under oath.

Ms Bernadette Casey, the Respondent’s National Safeguarding Manager at the relevant time, gave evidence under oath as to her views on safeguarding in general and the Respondent’s handling of Mr X’s vetting. She is of the view that the appointment of an employee with insufficient vetting is too great a risk even in circumstances where they are supervised as supervision can fail due to staffing pressures and other issues.

The relevant evidence and submissions are detailed in the Findings and Conclusions section of this decision.

The Respondent’s counsel made detailed written and oral submissions on their behalf. They submit that the Respondent dismissed the Complainant legitimately and in the course of her probation on the basis that she was a bad fit and had poor communications skills. They dispute that she made any protected disclosures and that any purported protected disclosures had no link to the decision to dismiss.

Mr Lar Whelan gave evidence under affirmation. He is a HR Generalist who worked with the Complainant. His evidence related to his perception that the Complainant did not fit well into the team.

Mr Jonathon O’Rourke gave evidence under affirmation. He is the Head of Risk and Compliance and Governance and was involved with the queries that arose following Mr X’s recruitment. He provided evidence on that process and on the operation of the Respondent organisation in general.  

Ms Briona Sheils was the Respondent’s Head of HR and the Complainant’s line manager and gave evidence under affirmation. She was the person who decided to dismiss the Complainant and gave evidence of this decision and her involvement in the recruitment of Mr X pending complete vetting.

Ms Geraldine McStravick was the Respondent’s Head of HR from the 1st of July 2024 and was a senior member of the HR team since 2021 she gave evidence under affirmation. For the first month of her appointment she was shadowing Ms Sheils. She gave evidence of the meeting where the Complainant was dismissed and of the correspondence that issued around that and of her views of the Complainant’s fit within the team.

The relevant evidence and submissions are detailed in the Findings and Conclusions section of this decision.

CA-00067960-003 -Complaint of penalisation under Protected Disclosures Act

Section 12 of the Protected Disclosures Act prohibits penalisation of employees due to their having made protected disclosures.  The Complainant’s claim is related to her dismissal which she says is a consequence of her having made protected disclosures.  

Mr Curran for the Respondent has referred me to the decision of the Court of Appeal in Hosford v Minister for Employment Affairs and Social Protection [2024] IECA 294, in which it has stated that dismissal should be challenged through the Unfair Dismissals Act and rather than as penalisation under the Protected Disclosure Acts.  The decision of Judge Hyland specifically provides that:

“Section 6(2)(ba) of the Unfair Dismissals Act 1977 as amended (the “UDA”) provides for the case where an employee alleges dismissal, including constructive dismissal, on the basis of the making of a protected disclosure. In other words, s.12(1) is about penalisation short of  dismissal. On the other hand, where an employee complains that they were unfairly dismissed  due to a protected disclosure being made (whether an outright dismissal or a constructive  dismissal, as Mr. Hosford alleges occurred in this case), an employee should invoke the UDA rather than s.12(1).”

CA-00067960-001 - Complaint of breach of Section 5 of the Terms of Employment (Information) Act

Section 3(1A) of the Terms of Employment (information) Act provides that: an employer shall, not later than 5 days after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say: …. (h) either—(i) the title, grade, nature or category of work for which the employee is employed, or (ii) a brief specification or description of the work.

The Complainant was provided with a contract of employment on the 14th of April. This stated that her title was “HR Service Partner Reporting to the Head of HR” and referred to a job description. The job description outlines a broad HR role, focusing on excellence in the delivery of operational HR solutions, partnering largely with your own internal client group as well as playing a role within the broader HR team. The job holder will be expected to deliver excellent HR advice and support across all day-to-day aspects of the human resources management as well as supporting the strategic aims and actions required to deliver these and that The role holder will need to be flexible in delivery of service across the Society including Retail at times.

The Complainant has alleged that this particular was changed without notification in line with Section 5 of the Terms of Employment (Information) Act.

The Respondent did re-structure the Human Resources team and the Complainant’s title was changed from “HR Service Partner” to “Senior HR Business Partner” and the HR team as a whole moved from a National to a Regional model.

I do not think this could be reasonably considered to be a change in the particular as defined by the legislation and as outlined in the contract and job description. Even if it was the change was notified to the employee by way of email on the 16th of May which she acknowledged and as such a notification issued in line with Section 5.

CA-00067960-002 Unfair Dismissals Act

Section 6(2)ba of the Unfair Dismissals Act prohibits an employer from dismissing an employee for having made a protected disclosure. The burden is on the Complainant to prove that but for her having made a protected disclosure she would not have been dismissed.

The Complainant worked under Ms Sheils the National Head of HR. Ms Sheils provided evidence that she was the person who decided to dismiss the Complainant. She outlined that this was unrelated to the Mr X issue.

The difference in opinion related to Mr X relates to whether it was acceptable or advisable to employ him pending the completion of his international vetting. The hiring manager, who was head of the relevant frontline service wanted him to start and begin training and induction while both his garda vetting and international vetting was being completed. This was mostly because the centre manager was about to go out on annual leave. HR supported this option on the basis that they would use Head office rather than the service centre for handover and training. Garda vetting was then completed before Mr X’s start date but his international vetting was out of date. Ms Sheils explained that the HR function is support related and decisions are ultimately made by the hiring manager. She agreed to have the contracts issued while keeping the matter under review, she did so before the Complainant had raised any concerns with her. In an email chain on the 17th of May Ms Shiels asked that they move ahead with hiring and the Complainant seems to have accepted this approach and that the decision lay with local management, stating: I have had a look at the certificates and all indicate no convictions. I have checked his address history from his Garda Vetting application and all are dated after he left each country with some of them a few years old. Again it is a management decision if they wish to accept these or request new up to date certificates.

Ms Sheils notified the Head of Governance, Risk & Compliance, Mr O’Rourke, of the decision to hire Mr X in an email sent in the afternoon of the 22nd of May to ask his views from a risk assessment perspective. He also supported hiring Mr X on the basis that he remained appropriately supervised and use the time for onboarding training. In evidence, he outlined that the nature of the centre was that there were people, including family and other unvetted people, coming and going to public rooms on the bottom floors and that there were residential rooms on the upper floor which had to remain secure and to which Mr X was not going to have any access to unless accompanied by other vetted staff. Mr O’Rourke also explained that the threshold for international vetting relates to what information is practicably attainable, as opposed to Garda vetting which needs to be entirely completed.

After Mr X’s commencement on the 20th of May the Complainant was tasked with overseeing the completion of his international vetting and reviewing the file generally. Over the course of the week of the 20th of May she grew concerned about the standard of documentation which had been provided and the gaps in periods where the Complainant was residing in different countries. She engaged with Ms Sheils, Mr O’Rourke and Ms Casey as well as the National Children’s & Family Services Manager and the manager of the frontline service. By the 5th of June the decision was made by the board of frontline service to have Mr X put on administrative leave while the checks were completed. There was a period of further information gathering and review which the above staff were all involved in. It appears that there was some attempt to use the exercise of Mr X’s recruitment to improve the organisation’s understanding of and processes around more complex vetting going forward.

The Complainant, the National Children’s & Family Service Manager and Ms Casey continued to be concerned by documentation available and came to the conclusion that Mr X should be terminated. That recommendation issued from the National Children’s Family Service Manager on the 27th of June.

A week passed before Ms Sheils acted on this recommendation and confirmed HR would process the termination which occurred on the 8th of July. There is no reason to think that the issue should have been treated as urgent in circumstances where Mr X was on administrative leave.

Much of the hearing was taken up by witness evidence on this point and whether the Respondent behaved appropriately in regard to Mr X. However, on review of the available witness evidence and emails I am not sure how much of a dispute actually occurred. One set of colleagues recommended termination, another set seemed to have reserved their position pending further information and guidance but ultimately came to the same conclusion.

The Complainant provided evidence over the first two days of hearing. When she was asked about specific events or communications her answers were frequently unrelated to the question asked. Instead, she tended to refer to a wider narrative and argued, often in general terms, that there were no legitimate issues with her performance and that she was dismissed because she had made a protected disclosure. Her responses were closer to that of a press officer rather than a witness in that she didn’t answer the questions put to her but instead redirected to the issues she wanted to highlight. I do not believe that this was due to dishonesty, unfortunately the Complainant appeared to take her time as a witness as an opportunity to argue her case rather than provide evidence and in so doing has not provided reliable evidence. I did point out to her directly that her failure to answer the questions Mr Curran asked could result in me deciding her evidence could not be relied on however this form of engagement continued throughout her cross examination.  

The Complainant’s witness evidence also created a lack of clarity about her case. At times her position shifted as to what exactly she was challenging about the Respondent’s conduct and what she was penalised for. She initially provided evidence that the Respondent failed to engage with her concerns regarding childcare safeguarding. When Mr Curran demonstrated through copious email exchanges that there had been much engagement on the issue the Complainant stated that they had engaged but failed to act on that engagement. When Mr Curran raised the fact that Mr X was supervised in any engagement with children she stated that her concern was not just about children but about access to any vulnerable person. When Mr Curran pointed out that Mr X was on garden leave by the 29th of May and offsite the Complainant was focused on the fact that he was in receipt of pay for this period and that this came from charitable donations. Mr Osbourne did clarify on behalf of the Complainant that this case was not about any protected disclosure related to the use of funding.

As best I can understand it the Complainant’s case, in her own words, is as follows.  She had no performance issues put to her while in the first few weeks of her job. Her line Manager Ms Sheils approved the employment of Mr X on the 20th of May and then appointed the Complainant to investigate his vetting. As the Complainant’s investigation proceeded it became clear that it would draw focus to the fact that Ms Sheils had approved his hiring and that this exposed her somehow. Ms Sheils then manufactured performance issues to dismiss the Complainant.

On review of the evidence available to me I do not believe this is what occurred.

It is to be noted that Ms Sheils was quite open in email correspondence of the 22nd of May with the Head of Compliance and Governance that she had approved Mr X’s hiring with his vetting outstanding. It does not follow that this something she was trying to cover up or was concerned about the Complainant, a more junior member of staff, knowing about. It is not clear how the Complainant dismissal was supposed to have benefitted her or how she was at risk from the decision to employ Mr X on restricted duties pending full clearance. She had in fact handed in her resignation in May 2024 for unrelated reasons.

It is also important to note that the Complainant was not a lone voice in her concerns. Two other heads of function, both senior to the Complainant, were concerned about Mr X’s hiring and he was soon put on garden leave and then dismissed. In June 2024 the National Children’s & Family Services Manager was corresponding with Tusla about the issue to clarify the standard of vetting required and it appears that the Mr X did meet the legal requirements of the international vetting process but the Respondent was still not satisfied and decided to dismiss him.

The Respondent’s position on the matter largely aligned with the Complainant’s views and they followed the course of action she argued for and dismissed him. Their delay in this regard was minimal. There is no evidence to support the position that the Respondent generally or Ms Sheils specifically had any interest in retaliating against the Complainant, or anyone else, who raised concerns related to Mr X’s vetting.

However, there is evidence to support the Complainant having communication issues and this was the basis for her dismissal.

Ms Sheils gave evidence that she was concerned about the Complainant’s communication style. This involved things like emailing without salutations cc-ing colleagues in email that could be perceived as critical as well as the Complainant’s general tone. She explained that the Respondent is a member governed and volunteer led NGO. Tone is important in that context. This is particularly true of the HR function who management rely on to be the emotionally intelligent advisors and sounding boards and be able to advise them.

She raised concerns about the Complainant’s relationship building and her ability to operate in a team. She found the Complainant’s use of language and approach was too sharp, for instance she suggested that the centre manager needed to be reprimanded for pushing for Mr X to be onboarded by going directly to heads of functions.

Ms Sheils flagged a number of these items in a probation meeting on the 1st of July which was about 10 weeks after the Complainant had started working for the Respondent. She was not satisfied that the Complainant was adequately engaged in the probation review process, accepting of feedback or committed to improving. When she said she was concerned about how she was interacting with the team the Complainant did not accept this and instead sought evidence that she had interpersonal issues with other members of the team.

On the 3rd of July the Complainant sent the following email to her with five different people cc’d. 

Briona,

Please find attached the most up to date report. Can you now advise on what the agreed next steps are in bringing this matter to a conclusion?

We have received clear recommendations to bring this to a Decision Making  Committee, as well as the make up of that committee, I would support this recommendation strongly.

I would suggest that if this matter cannot be decided upon before the end of this week that an independent party is engaged to assist in the process. I, await your response.

Kind Regards,

Valerie

In evidence the Complainant stated that this email was not drafted by her and was instead drafted by the National Children’s and Family Services Manager and sent by her. This was unknown to Ms Sheils who took the view that the Complainant was not likely to improve in her communications style and would not be a good fit in the HR team. She moved to dismiss the Complainant and due to the Complainant’s unavailability on the 11th of July this occurred on the 18th of July.

For the avoidance of doubt I agree with Mr Curran’s submission that the above email does not constitute a protected disclosure. Any aspect of Mr X’s employment that could be considered a subject of a protected disclosure was well ventilated at this point and Ms Sheils concerns about the email related to the tone, the decision to cc a number of senior figures and her view that the email was undermining of her and those cc’d. I was guided by the High Court approach in Hosford v Dept of Employment Affairs and Social Protection [2020] IEHC 138 in relation to this issue.

When it was put to the Complainant, in evidence, that her communication style wasn’t well received by the Respondent she pointed to her significant experience in a corporate setting and in working in the UK as some sort of proof that this was not possible. After her examination in chief concluded I asked her whether she felt she had needed to adjust her communication style in coming to work for a member based NGO in Dublin after having worked in corporate environment in the UK. The Complainant didn’t answer my question and instead responded that she was “about the facts and this was about a protected disclosure.”  This would all point to the Respondent having a genuine problem with the Complainant’s communication style and her either being unable to accept this or her determining that it was her employer‘s style which was wrong and not hers.

Either reaction would be a perfectly legitimate basis for a probationary dismissal as well as unrelated to any protected disclosure.

CA-00067960-001

I find that the complaint is not well founded.

CA-00067960-002

I find that the complaint is not well founded.

CA-00067960-003

I find that the complaint is not well founded.