ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00050890

Parties:

Complaint:

Date of Adjudication Hearing:  14/03/2024, 24/09/2024, 25/09/2024, 20/05/2025 and 20/05/2026

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015  following the referral of the complaint to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The complaint was considered at hearings on 14 March 2024, 24 September 2024, 25 September 2024, 20 May 2025 and 20 May 2026.  At the hearing on 20 May 2025, the solicitor for the Respondent advised that the Board had resigned and that the former Chair Mr MB was now in place as Chairperson.  The solicitor, Mr Goff stated that the Respondent now concedes all the allegations made by the Complainant and the Board offers an unequivocal apology to the Complainant.  His instructions were that the Complainant is de facto the Chief Executive Officer of the Organisation, that the two reports at the centre of the Complainant’s complaints will be expunged from the record and that no evidence was being offered in regard to the Respondent’s position.  The only matter therefore to be addressed was that of remedy.  The hearing on 20 May 2026 heard evidence from the Complainant as to the detrimental effects she suffered on foot of the protected disclosures she made.

Summary of Complainant’s Case:

The Acts of penalisation in this case occurred on or after January 2024 (“the 2024 complaint”). This claim was lodged on or about 28th March 2024. The claim is related to an earlier claim for penalisation bearing complaint ref: CA 00058333-001 (“the 2023 complaint”). While the protected disclosures giving rise to the offending behaviour in both cases are in large part the same, the penalisation giving rise to both complaints is separate and distinct.

Where relevant in terms of facts and law the Complainant will rely on the written submissions made in respect of the 2023 Complaint (“the 2023 submissions”). As appears therein the Complainant has set out in detail facts relating to her role within the Respondent and the making of her protected disclosures (“PDs”).

The 2023 submissions refer in detail to the “second Report” obtained by the Respondent and which made various recommendations. The 2024 claim arises on foot of acts and decisions taken by the Respondent seeking to execute and implement various recommendations of that Report that affect the Complainant’s role. It is submitted that those acts and decisions caused unjustified detriment to the Complainant and that same arose due to her having made protected disclosures.

The Respondent has continuously sought to portray the Report as an independent process and report into organisational matters procured at the behest or in conjunction with the HSE. However, for reasons largely set out in the 2023 submissions the Complainant rejects this.

The penalisation complained of in respect of the 2024 complaint can be summarised as follows:

• Appointing an interim CEO to perform in part or in whole the Complainant’s role, therefore effectively demoting the Complainant.
• Assigning the Complainant’s duties to the interim CEO.
• Initiating a process to recruit a permanent CEO to perform in whole or in part the Complainant’s role, thereby effectively demoting the Complainant.

The Complainant sought undertakings from the Respondent to cease the above actions, including pending resolution of the 2024 Complaint. However, these were originally not forthcoming and the Complainant sought injunctive relief from the Circuit Court seeking the same protections pursuant to section 12 (7) (A) of the PDA.

The Complainant was originally granted interim-relief and thereafter, pending full hearing of the injunction, the Respondent provided undertakings, including not to recruit a CEO, pending full hearing of the injunction.

Following four affidavits and written legal submissions, when the matter came on for full hearing the Respondent offered the following undertakings to remain in place pending resolution of the 2024 claim:

1. Board not to proceed with recruitment of CEO.
2. Board to permit applicant to fully perform all of the functions attaching to her role, in particular to continue to attend board meetings in the same capacity as she attended prior to the 24th of January 2024, i.e., her capacity as Director of Services (DOS) only, i.e., to provide DOS report (using the template provided by the Board to her, subject to the Board providing necessary notice (usually 2 weeks) [agenda and relevant extract from minutes] for meetings by the applicant, and report directly to the Board.
3. Applicant not to be required to report to the Interim CEO
4. Plaintiff costs to be adjudicated in default of agreement.

The undertakings remain in place pending finalisation of these proceedings.

The Complainant has made several protected disclosures as detailed in the 2023 submissions regarding the Claimant’s concerns over expenditure by the Chair on consulting services without proper approval or authority.  She had also made a complaint of bullying and harassment against the Chair.

PDs and the 2024 Complaint

The following are the relevant protected disclosures:

A written disclosure to MB, former member of the Board, dated 31 March 2022 regarding expenditure of public funds by the Chair of the Board (“the Chair”) on legal and consultancy services without knowledge or approval of the Board and mistreatment and encroachment by the Chair.

August 2022 to HR Manager re Bullying and Harassment by the Chair

A disclosure to KW of the HSE, dated 26 January 2023 concerning efforts to have invoices discharged without the requisite procurement protocols

A written disclosure to Ms RG, the HSE’s Authorised Person for Protected Disclosures, dated 20 February 2023 concerning improperly procured services and instructions by the Chair to discharge invoices 

A disclosure to the office of the AP HSE regarding splitting invoices and fear that this was designed to circumvent procedures 27 February 2023

To the Charities Regulator as part of a joint disclosure with EMT regarding financial and governance issues 24 April 2023

To National Office for Protected Disclosures HSE regarding governance issues and  mistreatment and penalisation of employees of WIDA 21 August 2023.

The Respondent was continually put on notice that the Complainant had made PDs.

This includes inter alia by way of correspondence:

i.from the Complainant on 9th March 2023

1. from the solicitors for the Complainant on 31st March 2023

iii. from the PNA (the Complainant’s trade union) on 19th and 26th July 2023

In addition to the above the HSE cited engagement with the Complainant on governance concerns and the making of protected disclosures among its reasons for issuing the First Notification Letter to the Respondent on 2nd March 2023.

2024 PENALISATION

On or about 25th January 2024 the Complainant was called to a meeting with the Respondent that she understood to concern a post redundancy crisis. However, at this meeting, which lasted in or around one minute, the Complainant was advised by the then Chair that a new interim CEO would start the following day.

The same day the Complainant received an e-mail from the Chair in which he stated as follows:

“As you know, the Board of WIDA has been discussing the recruitment of a CEO for the organisation for some time. We are now preparing to commence that recruitment process, which we anticipate commencing within the next 2-3 weeks. …, a draft role description has been prepared. … I want to make it clear that the CEO role is a new one, that it will not replace the Director of Services role and that you will remain in place as the Director of Services. You may alternatively choose to apply for the CEO role. … In the meantime, I can also confirm that, as of 22 January 2024, the HSE has agreed the appointment of an interim CEO of WIDA, pending the recruitment of a permanent CEO. The interim CEO provided by the HSE is…”

Despite the comments relating to her role a comparison of the proposed role with her own then existing functions confirmed to the Complainant that this was an attempt to demote her where heretofore she had been the most senior member of the executive.

In addition, following the appointment of the interim CEO the Complainant’s day-to-day functions were, unilaterally altered and diminished. Prior to such appointment, as head of the EMT, she had reported directly to the Board at Board meetings. However, this function, as well as others ceased on appointment of the interim CEO.

The Complainant’s concerns were further confirmed when she was instructed to raise issues relating to her employment with the interim CEO. Apart from the fact that the Complainant was being instructed to discuss details of her employment with a person not employed by the Respondent, this was a clear and fundamental alteration of her line of management where previously she directly reported to the Board.

On foot of comments made by the Chair to the effect that a CEO would be employed to run the Respondent “the way the Board wanted it run” and that he “hates whistleblowers”, the Complainant submits that the above actions were taken on foot of her having made PDs.

Through her solicitors the Complainant sought various undertakings from the Respondent that it would desist from appointing a CEO and cease in its attempts to undermine her role. However, she received no comfort in this regard where the solicitors (at the time) for the Respondent claimed that the actions of the Respondent did not usurp the functions of the Complainant.

In correspondence dated 11th March 2024 the solicitors for the Respondent denied that appointment of a CEO was a usurpation of the Complainant’s role. It did so largely on the grounds that the role of CEO would have a “heavily strategic focus”.

However, from the job description for the role of DOS it is clear that the Complainant’s role has always involved a strategic function. In addition, the Complainant has at all material times until appointment of the interim CEO carried out the functions associated with the proposed CEO role included in the letter of 11th March 2024 from the solicitors for the Respondent.

The letter of 11th March 2024 stated that the proposal to create the role of CEO arose “from an operational review that was conducted in 2022 and a report that issued in October 2022”. The Complainant submits that this makes it clear that the Respondent was seeking to execute elements of recommendations made in the second Report to fundamentally diminish the Complainant’s role within the Respondent.

In addition, reliance on the second Report fundamentally undermined the Respondent’s claim that there would be no change to the Complainant’s role. This is clear in that the report itself contained the Respondent’s organisational chart prior to its recommendations showing the role of DOS above the EMT and reporting to the Board. In contrast, the chart showing its recommendations placed a CEO between the Board and the EMT. The role of DOS was no longer above the EMT but on the same level. In the circumstances, execution of the recommendations could only be a demotion of the Complainant’s role.

As previously set out the Consulting firm first became involved with the Respondent following the publication of the first Report to deal with what are disputed and groundless findings and recommendations (as set out in the 2023 submissions). An invoice from the Consulting firm shows that certain members of the Board, including the Chair, met with the Consultant on the 11th May 2022, shortly after publication of the first Report.

On 13th June 2022 certain members of the Board (being then Chair, Treasurer and NP, but excluding MB and FH) met with the Consultant. The following day this Deponent received an e-mail from the Consultant dated 14th June 2022 concerning an invitation to a meeting with him to discuss the disputed findings and recommendations.

As appears in the Consultant’s Invoice the then Chair met with him on 14th and 29th June for one on one meetings. In addition the invoice records that the Consultant met with certain members of the Board on 15th, 16th August and 1st September 2022. However, neither MB nor FH (both then members of the Board) were invited to these meetings or aware that they were taking place. By the time the Complainant was invited to a meeting to discuss what had then become the organisational review there had been at least 32 hours meeting between the Consultant and select members of the Board and the Chair.

The second Report used to undermine the Complainant’s role was therefore not independent. There was a clear conflict of interest in that the Consulting firm had been retained to implement the disputed findings of the first Report. Furthermore, its services were not procured by the entire Board but certain elements of it and in particular the Chair who was the subject of PDs made by the Complainant. Further evidence of the lack of independence between the Consulting firm and the Board is evidenced by the following:

i.On 18th July 2022 the Chair shared with the Consultant an e-mail from MB (dated 12th July 2022) bringing to the Chair’s attention PDs made by the latter and members of the EMT.

1. On 18th July 2022 the Chair shared with the Consultant an e-mail from MB dated 14th July 2022 in which he again discussed the PDs and notes that the Board had voted not to investigate the Complaint of bullying and harassment made by the Complainant.

iii. On 18th August 2022 the Chair e-mailed the Consultant informing him of the response of the Complainant when requested to share staff data and information.

1. On 26th August the Chair forwarded to the Consultant an e-mail from the Complainant relating to issues of data protection. In the course of that e-mail the Chair wrote the following:

“Hello all, There’s your refusal right there from dos and hr. I’d like to know what we are going to do about this please.”

The Complainant maintains that the Respondent’s course in seeking to execute the second Report’s findings in respect of the proposed CEO role in January 2024 was on foot of her having made PDs. The assertion that such action was justified by the second Report is rejected for the above reasons and those set out in the 2023 submissions where that Report and its process were clearly procured and influenced by the then Chair and elements of the Board. In particular the Complainant maintains that execution of the recommendation arose due to her PDs relating to the Chair’s continued instructions to discharge invoices to the Consulting firm.

Even in the absence of any issue relating to the lack of independence of the Consulting firm the Complainant maintains that the decision to implements its findings in a manner that caused detriment to the Complainant arose on foot of the making of the aforesaid PDs, in particular those involving the then Chair.

The Respondent refused to give undertakings, pending resolution of this dispute, in relation the above actions (save that the Complainant did not need to discuss her employment with the interim CEO). In the circumstances the Complainant was compelled to bring an application seeking the protection of the Court pending this claim. That application was fully contested by the Respondent to the point where numerous affidavits and legal submissions were necessary, yet undertakings were then provided on the morning of hearing.

In the circumstances the Complainant maintains that the above amounts to further penalisation and further that it is only the temporary undertakings currently in being (and obtained by the Complainant bringing Circuit Court proceedings) that is staying its hand.

LAW

The Complainant will rely on the legal submissions set out in the 2023 submissions in respect of this complaint.

In addition to the burden of proof on the Respondent set out in respect of penalisation in section 12 (7C) of the PDA (providing a presumption that the penalisation was a result of having made a protected disclosure) the Complainant will rely also rely on section 5 (8) of the PDA which provides as follows:

“In proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary that it is”.

In the circumstances, having made disclosures the Complainant is entitled to the presumption (by virtue of section 5 (8)) that they are protected disclosures. Furthermore, the Complainant is (by virtue of section 12 (7C), entitled to the presumption that penalisation suffered was as a result of having made those protected disclosures.

CONCLUSIONS

The Complainant submits that she has made numerous disclosures that come within the definition of “protected disclosure” set out in the PDA and that she is entitled to a presumption in that regard.

Having done so, the Respondent then approved the appointment of an interim CEO above the role of DOS and sought to recruit a permanent CEO. The introduction of an interim CEO fundamentally altered the management structure in place and the attempt to recruit a CEO seeks to do so in a permanent way. The effect of that alteration is to push the Complainant’s role of DOS from above the EMT to equal with it and place a new role above that of the Complainant where there had been none.

In the circumstances the Complainant has suffered detriment within the meaning of section 3 of the PDA.

The Complainant submits that she suffered that detriment for having made protected disclosures and further that she is entitled to a presumption in that regard by virtue of section 12 (7C) of the PDA.

The Complainant seeks identical remedies as to those set out at paragraph 74 of the 2023 submissions:

1.Require the Respondent to quash all and parts of the Report proposing or recommending the imposition of a CEO or other office holder above the DOS in the line of management.

2. Require the Respondent to cease all steps and processes in being or contemplated to place a CEO or other office holder above the DOS in the line of management.
3. Require the Respondent to bring to an end the role of interim CEO.
4. Require the Respondent to acknowledge the role of DOS as de facto or actual CEO and most senior executive reporting to the Board.
5. Complaint(s) made by the Claimant against WIDA to be investigated by the independent and agreed third party.
6. Compensation

The Complainant gave detailed evidence of her experiences over a period of some 4 years of what she described as ‘pure torture’ inflicted on her by the former Chair of the Board. 

In summing up the Complainant’s case, Mr Shaun Boylan BL referred to the long road travelled by the Complainant in seeking justice.  From the bullying & harassment complaint from the HR Manager which could be said to have been the catalyst for the subsequent behaviour of the Chair and Secretary of the Board to the engagement of consultants designed to demote the Complainant and the actions of the Chair and the other members of the Board, it is clear that on foot of protected disclosures made by the Complainant, she had been treated adversely on the extreme end of the spectrum.  The Complainant and her Trade Union were obliged to engage in High Court action in 2024, involving considerable expense and extremely tense engagements, where the Respondent refused to give undertakings until the very last minute.  This, the Complainant’s Representative states requires compensation on the upper end of what is provided for in redress.

Summary of Respondent’s Case:

As stated in the background the Respondent offered no evidence and conceded the case in full.

Findings and Conclusions:

I note the Respondent now does not contest the claims made by the Complainant.  While it is therefore not necessary for me to rehearse all elements of the Complainant’s complaint, nevertheless it is imperative to recount the main elements to provide a reasoned conclusion on what is required in the form of redress. 

The applicable law

Section 5 of the Act defines protected disclosure: 

5. (1) For the purposes of this Act “protected disclosure” means, subject to subsection (6) and sections 17and 18 , a disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker in the manner specified in section 6 , 7 , 7B, 8 , 9 or 10 .

Section 3 of the Protected Disclosure Act defines penalisation: 

“penalisation” means any act or indirect act or omission which occurs in a work-related context, is prompted by the making of a report and causes or may cause unjustified detriment to a worker and in particular includes—

(a) suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion or withholding 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) coercion, intimidation, harassment or ostracism,

(f) discrimination, disadvantage or unfair treatment,

(g) injury, damage or loss,

(h) threat of reprisal.

(i) withholding of training,

(j) a negative performance assessment or reference,

(k) failure to convert a temporary employment contract into a permanent one, where the worker had a legitimate expectation that he or she would be offered permanent employment,

(l) failure to renew or early termination of a temporary employment contract,

(m) harm, including to the worker’s reputation, particularly in social media, or financial loss, including loss of business and loss of income,

(n) blacklisting on the basis of a sector or industry-wide informal or formal agreement, which may entail that the person will not, in the future, find employment in the sector or industry,

(o) the early termination or cancellation of a contract for goods or services,

(p) cancellation of a licence or permit, and

(q) psychiatric or medical referrals.

The protected disclosures

This instant complaint was received 28 March 2024.  The Complainant made a number of protected disclosures regarding governance and financial issues which she viewed as wrongdoings by the Chairperson and/or members of the Board of Management. The Complainant and colleagues also made a complaint to the HSE in the form of a protected disclosure that the Chair and/or members of the Board were penalising staff for having raised concerns regarding interference and mistreatment.

Penalisation

It is contended by the Complainant that the penalisation complained of in respect of the 2024 complaint can be summarised as follows:

Appointing an interim CEO to perform in part or in whole the Complainant’s role, therefore effectively demoting the Complainant.

Assigning the Complainant’s duties to the interim CEO.

Initiating a process to recruit a permanent CEO to perform in whole or in part the Complainant’s role, thereby effectively demoting the Complainant.

I note that the Complainant sought undertakings from the Respondent to cease the above actions, including pending resolution of the 2024 Complaint. However, these were originally not forthcoming and the Complainant sought injunctive relief from the Circuit Court seeking the same protections pursuant to section 12 (7) (A) of the PDA.        I note the evidence that the Complainant and her Trade Union and Legal Counsel had to fight ‘tooth and nail’ at the Court, seeking undertakings which were not forthcoming.

I note that the Complainant was called to a meeting with the Respondent on 25 January 2024 at which the Complainant was advised by the then Chair that a new interim CEO would start the following day.  The meeting was said to have lasted one minute.

The same day the Complainant received an e-mail from the Chair in which he stated that he wished to make it clear that the CEO role was a new one and would not replace the DOS role.  He stated that the Complainant would remain in place as Director of Services. 

Given the role of the DOS, I find this clearly indicates constitutes penalisation in the form of demotion and transfer of duties in accordance with the definition in Section 3 (b) and (c).

I find that the Respondent’s course in seeking to execute the second Report’s findings in respect of the proposed CEO role in January 2024 was on foot of her having made Protected Disclosures.

Redress

Schedule 2 provides for redress for contravention of Section 12 of the Act:

1. A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 12(1) shall do one or more of the following, namely-

• (a) Declare that the complaint was or, as the case may be, was not well founded,
• (b) Require the employer to take a specified course of action,
• (c) Subject to paragraph 2A, require the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all the circumstances, but not exceeding –
• (i) Subject to clause (ii), 260 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977, or
• (ii) In the case of an employee who is a worker referred to in paragraph (h) in the definition of worker in section 3(1), and is not in receipt of remuneration, including allowances in the nature of pay and benefits in lieu of or in addition to pay, from the employer concerned, €15,000.”

I declare that the complaint is well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

 Schedule 2 of the Protected Disclosures Act 2014 requires that I make a decision in relation to the complaint in accordance with the redress provisions under that Schedule of the Act.

Based on the findings and reasons above, I declare the complaint to be well founded.

I require the Respondent to take the following specified course of action:

1. To quash the first and second reports.
2. To cease all steps and processes in being or contemplated to place a CEO or other office holder above the DOS in the line of management.
3. To bring to an end the role of interim CEO.
4. To acknowledge the role of the Complainant as de facto CEO and most senior executive reporting to the Board.
5. To offer a full and unequivocal apology to the Complainant for the mistreatment she suffered during the period June 2023 to May 2025.
6. I further require the Respondent to pay to the Complainant compensation of €161,620 which I consider to be just and equitable in all the circumstances of this case.

Dated:   8th July 2026

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Key Words: