Complainant

Respondent

Parties

Siobhan Rogers

Wilsons Hospital School Company Limited by Guarantee

Representatives

Self-Represented

Mr. Mark Curran BL, instructed by Mason, Hayes & Curran LLP

Act

Complaint Reference No.

Date of Receipt

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

CA-00066377-001

30/09/2024

The Complainant’s commenced employment on 1st September 2023. At all relevant times the Complainant’s role was described as that of “Head of Facilities”. The Complainant was a permanent, full-time member of staff.  The Complainant’s employment terminated following her resignation on 12th July 2024.

On 30th September 2024, the Complainant referred the present complaint to the Commission. Herein, she alleged that she had been penalised by the Respondent for raising various protected disclosures in the course of her employment. In particular, the Complainant alleged that following communication of dozens of such disclosures, the Respondent demoted her, isolated her in the performance of her duties and subjected her to ongoing inappropriate behaviour. By response, the Respondent accepted that the Complainant made multiple disclosures in the course of her employment. Nevertheless, they denied that that the same constituted protected disclosures within the meaning of the Act. They further denied that the Complainant suffered any form of detriment within the meaning of the Act following said disclosures.

Following a case management conference in relation to these matters, a hearing was convened for two days in September 2025. This hearing was held in person at Mullingar Courthouse, Co. Westmeath.

Both parties issued extensive submissions in advance of the hearing. Said submissions were expanded upon and contested in the course of the hearing. The Complainant, and two former colleagues gave evidence in support of her complaint, while a manager and board member of the Respondent gave evidence in defence. All evidence was given under oath or examination and was opened to extensive cross examination by the opposing side. During the cross examination of the Complainant, various messages that had not been included in the submissions were put to her. As this occurred towards the end of the first day of hearing, the Complainant was permitted to take the evening to examine the same and to continue her evidence the following day. At this juncture, the Complainant stated that she recalled the content of the messages in question and confirmed that she wished to continue with her evidence.

Prior to the substantive hearing of the matter, the Respondent submitted that the allegation of constructive dismissal as a form of penalisation was not actionable under the impleaded Act. In this regard, the Respondent referred to the recent Court of Appeal matter of Hosford v The Minister for Employment Affairs and Social Protection [2024] IECA 294.

Herein, at paragraph 7, Hyland J. held 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).”

Following a brief discussion on this point at the outset of the hearing, the Complainant accepted that she could not pursue a complaint regarding dismissal as form of penalisation under Section 12 of the impleaded Act. Nonetheless, the Complainant submitted that she suffered various forms of penalisation short of dismissal, most notably demotion, isolation and inappropriate inter-personal meetings. In circumstances whereby the same may constitute forms of penalisation for the purposes of the Act, the matter proceeded on this basis. No further issues regarding my jurisdiction to hear the complaint were raised at any stage of the proceedings.

In evidence, the Complainant stated that she commenced her employment with the Respondent on 1st September 2023. Her role was defined as Head of Facilities, with a mandate to ensure the boarding element of the Respondent's operations ran efficiently and profitably. During her initial recruitment, the Complainant was interviewed by the Board of Management and the then principal. She stated that at all times she enjoyed a constructive professional relationship with the principal, and they worked collaboratively to improve the Respondent’s organisational efficiency.

Almost immediately upon her engagement, the Complainant discovered various irregularities in the Respondent's operations. Consequently, she issued an extensive series of communications which she deemed to be protected disclosures. On 25th October 2023, the Complainant informed the principal that the water maintenance contract had been cancelled, necessitating the purchase of bottled water and causing financial strain. Furthermore, she identified various irregularities as regards the payslips for her predecessor, which were again referred to the principal. The Complainant reported her observation of a staff member providing an inaccurate handwritten timesheets to a colleague, leading her to suspect that fraudulent timesheets were being processed through the Respondent's payroll.

On 3rd November 2023, the Complainant raised further concerns regarding the administration of inaccurate timesheets on the part of the Respondent. The Complainant also raised issue in respect to various potential data protection breaches, specifically the unauthorised removal of files and the Respondent’s failure to secure data within the organisation. In December 2023, the Complainant reported her belief that a school fuel card was being utilised for staff members' private vehicles. These disclosures, amongst many other irregularities, were duly referred by the Principal to the Board of Management with the assistance of the Complainant.

On 3rd March 2024, the Complainant identified that the Respondent's phone banking system was registered in the name of a single individual rather than the school. This lack of financial oversight was again reported to the principal and subsequently to the Board. On 21st March 2024, a contractor claimed unpaid invoices for work conducted during the COVID-19 lockdown. However, following investigation by the Complainant it was determined that the contractor had in fact been overpaid and owed funds to the school. This irregularity was again reported to the principal and Board.

By submission, the Complainant referred over twenty such irregularities she discovered in the course of her duties. In this regard, the Complainant submitted that the same referred various relevant wrongdoings as regards the Respondent’s legislative obligations in respect to human resources, data protection, banking, funds management and corporate compliance.  The Complainant stated on each of these occasions she reported the same to the principal who then, with her assistance, reported same to the Board.

In May 2024, the Complainant was informed of a forthcoming organisational restructuring within the Respondent. In this regard, the Respondent informed her that a new management tier was introduced, with an independent third party being appointed to oversee the facilities department. In evidence, the Complainant stated that she viewed the appointment of this person as a demotion, as her job description was head of facilities reporting directly to the principal.

Following this appointment, the Complainant stated that she was sidelined from any further investigation of the matters that she had uncovered. She further submitted that she was thereafter excluded from Board meetings regarding the matters in question. The Complainant stated that the newly appointed person did not seek her views in relation to the matters in question but instead chose to seek assistance from the persons implicated by the Complainant’s prior investigations. The Complainant submitted that the newly appointed individual did not meet with her with any regularity and any such meetings, when they were convened, were held at unusual times including outside of office hours. In evidence the Complainant stated that the few meetings with this individual were extraordinary in nature. She stated that at the outset of one such meeting, the Complainant was instructed to place her mobile phone in a drawer so as to prevent persons from covertly recording the meeting. The individual in question also proceeded to scan the room where the meeting was being held for covert listening devices. The Complainant stated that in the course of this meeting, the newly appointed individual indicated that much of the blame for the irregularities in question lay with a former colleague of the Complainant’s, a view that the Complainant absolutely did not share. The Complainant stated that she was informed that she could raise a protected disclosure in respect of this person, and it was implicated that the person in question may have “groomed” her. In evidence, the Complainant stated that she found context, tone and subject matter of this meeting to be deeply uncomfortable, oppressive and profoundly unprofessional. In evidence the Complainant stated that following the series of actions set out above, she commenced a period of certified sick leave. Following the same, in consideration of the actions of the Respondent to that point, she reluctantly determined that she should resign her employment to preserve her wellbeing. The Complainant issued notice of her intention to resign, with the same taking effect from 23rd July 2024. The Respondent made no effort to meet with her or discuss any of the issues she raised prior to the same taking effect.

A former colleague of the Complainant gave evidence to the effect that she met with the Complainant following a meeting with the third party. The witness confirmed that the Complainant appeared extremely upset at this time, with the Complainant conveying a negative account of the meeting in question. A second former colleague of the Complainant gave evidence of the inappropriate nature of a meeting he held with the newly appointed manager.

In summary, the Complainant stated that following the discovery numerous irregularities within the Respondent organisation, she issued dozens of protected disclosures. Following same, the Respondent elected to demote her from her position and appoint an external individual to her former role. The Complainant further alleged that she was subjected to inappropriate treatment at the hands of her newly appointed line manager, that she was isolated in the performance of her duties, was induced to raise a disclosure against a blameless person and was subject to bullying behaviour. The Complainant submitted that this treatment left her with no option but to resign, with the same amounting to constructive dismissal.

The Respondent denied that the Complainant had made any disclosures capable of being deemed protected disclosures within the meaning of the Act. Furthermore, the Respondent denied that the Complainant had suffered any “detriment” within the meaning of the Act as interpreted by the Superior Courts. Without prejudice to the foregoing, the Respondent submitted that the Complainant could not establish a causal connection between the purported detriment and the alleged protected disclosures.

While the Respondent did not dispute the factual basis of the various communications made by the Complainant to the then principal, they submitted that these did not constitute protected disclosures within the meaning of the Act. The Respondent stated that several of the alleged disclosures were never formally reported but merely constituted discussions between colleagues regarding matters of interest arising in the normal course of duties. They further contended that a number of these issues related to interpersonal grievances exclusively affecting the Complainant, which should be excluded pursuant to Section 5A of the Act. Additionally, the Respondent argued that certain disclosures related to the Complainant’s standard duties as Head of Facilities, thus falling under the exclusions of Section 5(5) of the Act.

The Respondent further submitted that the Complainant could not have formed a reasonable belief that the issues raised constituted relevant wrongdoing on the part of the Respondent. They asserted that allegations regarding financial management and data protection were not, at their height, capable of constituting relevant wrongdoings under the Act. It was also noted that the Complainant had not formalised these concerns through the appropriate internal channels. While it was accepted that the Complainant reported certain matters to the principal, the Respondent maintained that these actions remained within the normal scope of her professional responsibilities.

Regarding the alleged detriment, the Respondent accepted that an individual was appointed in May 2024 to act as a newly appointed line manager. Nonetheless, they submitted that this did not diminish the Complainant’s status or create a new reporting line. The Respondent stated that the appointment this individual was an operational decision to allow the principal to focus on educational matters while appointing a person of equivalent seniority to govern facilities. In this regard, they submitted that the newly appointed individual replaced the principal as the Complainant’s line manager, rather than creating a new reporting layer within the organisation.

The Respondent acknowledged that the Complainant was no longer invited to Board of Management meetings following this appointment but argued that this did not represent a diminution of status. They stated that her prior attendance was not a standard requirement of her role but was necessary only to provide background information on the various she had raised in the course of her duties. Once the new manager was appointed, the Complainant returned to her normal duties, which did not and was not intended to include routine Board attendance.

The individual appointed by the Respondent provided evidence to dispute the Complainant’s version of events regarding their professional interactions. He stated that he was initially appointed on a temporary basis to rectify financial irregularities within the Respondent and he had hoped to work collaboratively with the Complainant in this regard. He denied isolating or criticising her, stating that he met with her whenever her availability and annual leave permitted. The witness denied that any meetings were oppressive, though he admitted expressing concerns that some of their meetings may be subject to covert recording. The witness stated that he had experienced such covert recordings in previous roles and he remained wary of the same thereafter.

The witness further accepted that he stated that the Complainant could raise a protected disclosure against a particular colleague but denied that she appeared distressed by this suggestion. He claimed that their interactions were generally positive in nature and noted that the Complainant’s resignation letter made no reference to the allegations raised during the hearing. Furthermore, he stated that the Complainant left a voicemail prior to her resignation in July 2024, expressing that it had been a pleasure to work with him and offering her future assistance if the same was required.

In summary, the Respondent maintained that the Complainant failed to demonstrate any protected disclosures or any detriment amounting to penalisation. They highlighted that the Complainant did not utilise the Respondent’s comprehensive reporting procedures despite being well aware of same. The Respondent concluded that the Complainant’s evidence at the hearing was entirely at odds with the contemporaneous evidence of the issues, in particular her comments to the newly appointed line manager just prior to her resignation. In consideration of the accumulation of the foregoing points, the Respondent submitted that the Complainant’s application should be deemed to be not well-founded.

In the present case, the Complainant has alleged that she was penalised following the communication of a series of protected disclosures to both senior management and the Board of Directors of the Respondent. While she accepted that her dismissal could not be categorised as penalisation for the purposes of the impleaded Act, she submitted that she endured various forms of penalisation prior to the termination of her employment. In this regard, she submitted that many of her duties were removed following communication the disclosures. She further contended that she was effectively demoted, professionally isolated and subjected to inappropriate behaviour by a newly appointed member of management. By response, the Respondent denied that the Complainant had made any protected disclosures within the meaning of the Act. Furthermore, they maintained that she suffered no actual detriment and, consequently, could not demonstrate penalisation.

In this regard, Section 5(1) of the Protected Disclosures Act defines a “protected disclosure” as the “disclosure of relevant information made by a worker in the manner specified”.

Thereafter, Section 5(2) defines “relevant information” as that which, “in the reasonable belief of the worker…tends to show one or more relevant wrongdoing…”.

Regarding the disclosures, the Respondent raised no material contradiction to the evidence provided. Almost from the commencement of her employment, the Complainant referenced dozens of irregularities concerning the Respondent’s operations. These matters were wide ranging, including suspicions that the Respondent was falsifying staff timesheets and failing to maintain records in accordance with relevant laws. She also raised numerous concerns regarding data protection and the lack of financial controls relating to online banking and fuel cards. These disclosures were made on multiple occasions during the first months of her employment and were reported to both her direct line manager and the Board of Management.

In this regard, Section 5(2)(b) enumerates the following as an example of a “relevant wrongdoing”,

“…that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services.”

In this regard, it is not in dispute that the Respondent has a legal obligation to operate and maintain accurate working records under the Organisation of Working Time Act and to properly maintain and secure personal data under the Data Protection Acts. Many of the disclosures raised by the Complainant unambiguously allege that the Respondent in is breach of these legislative requirements, amongst many others. In this regard, it is clear that the Complainant reported relevant wrongdoing within the meaning of the Act in the course of her employment.

The Respondent argued that these discoveries and subsequent reporting of the same fell within the Complainant’s normal duties as facilities manager. In this regard, the Respondent submitted that the exclusion set out in Section 5(5) of the Act should apply. This provision provides that,

“A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer.”

In support of the same, the Respondent opened the Labour Court matter of Carr -v- Donegal Council PD/15/5. Here, the Court held that,

“There can be no doubt that the complaints made by the Appellant to his managers within the Service were made by him pursuant to the discharge of his duties as a Station Officer. All of the complaints alleged to be protected disclosures were made by him to the management of the service.”

In the High Court matter of John Clarke v CGI Food Services Limited and CGI Holding Limited [2021] 32 E.L.R.25, Humphreys J. held that, with regards to Section 5(5),

“…there are two requirements (an investigative function and misconduct other than by the employer), which must both be present to exclude something from the definition of relevant wrongdoing, and which are joined by the word “and”. In Carr the Labour Court not only addressed the duty to investigate, but also dealt with the second requirement as to whose wrongdoing was at issue, as noted above. Merely finding that the complaint was made pursuant to the discharge of the employee’s duties…would not be sufficient in itself to exclude it from the definition of a protected disclosure.”

In the matter of Nolan v Fingal County Council [2022] IEHC 335, Phelan J held that,

“It seems to me that the language of “function to detect, to investigate or to prosecute” connotes either a public law role or at least an official role pursuant to a particular contractual obligation in detecting, investigating or prosecuting rather than a role which might be implied as arising from the general duties on an employer.”

Regarding the present case, clause 18 of the Complainant’s contract of employment set out a series of “duties of employment”. Amongst the numerous items listed in this section include, “liaising with the principal regarding contracts of employment, working time directives…”,“maintaining archives”, “attending to planned and unplanned repairs”, “queries regarding the payment of allowances”. In these circumstances, it may well be the case that many of the issues raised by the Complainant fell within related to her normal duties. However, it is also the case the Complainant role had no public function, as set out in Nolan, cited above. It is also the case that the Complainant’s role was to ensure the efficient running of the facilities of the Respondent, and was not to investigate and rectify irregularities caused by her predecessors and colleagues.  Notwithstanding the same, the second part of the test mandates that the allegation of misconduct in question must relate to someone other than the employer. In this regard, the misconduct in question is squarely levelled against the employer itself with no other party implicated. In this regard, it is apparent that the second part of the test outlined in Section 5(5), cited above, has not been complied with, and the exclusion cannot apply to the present case.

Having regard to the accumulation of the foregoing points, it is apparent that the matters complained of relate to relevant wrongdoings as defined by the Act, specifically regarding legal obligations to maintain correct working records and comply with data protection requirements, amongst others. It is not the case that the issues in question relate to inter-personal grievances that may be excluded from the definition, nor can it be said that the exclusion at Section 5(5) applies. The Complainant’s uncontested evidence was that she reported these issues as they arose, on an almost contemporaneous basis to her direct line manager, and then assisted with the reporting of the same to the board. In these circumstances, it apparent that many of the Complainant issued numerous protected disclosures during her brief tenure with the Respondent and she is precisely the type of person the Act seeks to protect from penalisation as a consequence of the same.

Thereafter, the Complainant submitted that she incurred various forms of penalisation as a direct consequence of having issued these protected disclosures. By submission and in evidence, the Complainant stated that this penalisation fell under three broad headings; a demotion from her duties, professional isolation in the performance of her duties and inappropriate behaviour on the part of the newly appointed line manager.

In this regard, Section 3(1) defines “penalisation” as,

“…any direct 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”.

This section goes on to specifically enumerate, “transfer of duties, change of location of place of work, reduction in wages or change in working hours”, “the imposition or administering of any discipline, reprimand or other penalty (including a financial penalty)” and “discrimination, disadvantage or unfair treatment” as specific examples of detriments that might give rise to a finding of penalisation.

In the matter of Conway v Department of Agriculture, Food, and the Marine [2020] IEHC 665, Hyland J. held that,

“Section 12(1) prohibits penalisation (which necessitates an inquiry as to whether an act or omission affecting the worker to their detriment exists) where it results from the making of a protected disclosure.”

Later, at paragraph 75, Hyland J finds that,

“The ordinary and natural meaning of the word detriment is harm or damage. Thus, the legislature requires that the detriment must be of a nature as to harm or damage the person making the disclosure.”

The first heading of alleged detriment concerned the alleged demotion of the Complainant. In mid-2024, it is common case that a third party was appointed as the Complainant’s line manager, which altered the existing management structure. However, from the evidence of the parties, it is apparent that suggests this appointment was intended to split the principal’s duties, allowing the principal to focus on the administration of education, while this newly appointed third party oversaw the operational aspects of the Respondent. It is common case that following this appointment, the Complainant retained her title, salary, and duties as Head of Facilities. In these circumstances, while it is the case that the Complainant reported to a new line manager, this reporting structure remained similar, with the Complainant reporting to the newly appointment manager instead of the principal. Having regard to the foregoing, I find that the Complainant was not demoted in this respect and that this cannot form a basis for of finding of detriment as set out above.

The second heading of detriment alleged that the Complainant was sidelined and ostracised in the performance of her duties. While it is the case that the Complainant was no longer invited to attend Board of Management meetings following the appointment of the new line manager, it is also the case that this did not form part of her normal duties. In consideration of the evidence of the parties, it is apparent that her prior attendance was necessitated only by the discovery of the irregularities she had raised. Once these had been brought to the attention of the Board, there was no requirement for her to attend at any further meetings. In evidence, the Complainant raised issues regarding the manner of the third party’s investigation methods and her perception that she was being excluded from the ongoing investigation into irregularities in the Respondent. While it is noted that this was disputed in evidence by the Respondent, the manner by which the third party conducted his duties remains the province of management and cannot be viewed as a detriment to the Complainant herself. In this regard, it remained the case that the Complainant was free to raise further disclosures following the appointment of the third party, and indeed it form part of her case that she was encouraged to do so thereafter. In this regard, the manner of investigation thereafter remains the prerogative of the Respondent, and the Complainant’s perception of removal from the same cannot form grounds of detriment as provided for by the Act.

The final matter concerned allegations of bullying by the newly appointed line manager and inappropriate behaviour during meetings. In evidence, the Complainant described various meetings between the parties as oppressive and irregular. In particular, the Complainant raised issue with the statement during such a meeting that the Complainant was being “groomed” by a colleague, and the insinuation that this colleague may have been responsible for many of the issues uncovered by the Complainant. In evidence, while the third party did not dispute many of the comments attributed to him, he submitted that a mutually beneficial and professional relationship existed between the parties for their short engagement. Having heard the evidence of both parties, it is apparent that a significant conflict of evidence arises as regards the characterisation of the professional relationship of the witnesses.

In such circumstances, an examination of the relevant contemporaneous evidence is required. In this regard, it is common case that the Complainant did not utilise formal grievance procedures in relation to the investigation of inter-personal disputes, despite her acceptance that she was well acquainted with the same. On the contrary, it is the case that the Complainant accepted that on the final day of her attendance with the Respondent, she left the third party a voice-note stating that it was “a pleasure to have worked with (him) for the short period of time of time that I have done”. While the Complainant’s evidence in this regard was that she did wish to damage relationships with the Respondent prior to leaving employment, and this is not without merit, the fact remains that she failed to raise any form of contemporaneous grievance in relation to the detriment alleged. It is also the case that the contemporaneous correspondence issued by the Complainant directly contradicts the position adopted at the hearing. In consideration of these factors, I find that the Complainant did not suffer a detriment as set out in the Act. 

In summary, while it is the case that the Complainant raised numerous protected disclosures during her employment, she has not demonstrated that she suffered a detriment as defined by the Act or relevant authorities. Having regard to the foregoing, I find that the present complaint is not well-founded.

I find that the complaint is not well-founded.

Protected Disclosure, Detriment, Investigation