ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00063140
Parties:
| Complainant | Respondent |
Parties | Anna Kosowska | Fitzwilliam Nursery & Montessori School |
Representatives |
| John Connellan BC Law |
Complaints:
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-00076337-002 | 13/10/2025 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00076337-003 | 13/10/2025 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 | CA-00076337-004 | 13/10/2025 |
Date of Adjudication Hearing: 16/06/2026 and 26/08/2026
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made, the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015. In particular, the said Adjudication Officer is obliged to make all relevant inquiries into the complaint. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will take into account any and all documentary or other evidence which may be tendered in the course of the hearing.
Pursuant to Section 6 of the Unfair Dismissals Act, the dismissal of an employee shall be deemed, for the purpose of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal. In circumstances where the fact of dismissal is not in issue, the evidential burden of truth rests with the Respondent to demonstrate the dismissal was justified and it shall be for the employer to show that the dismissal resulted wholly or mainly from one or other of the specified grounds (as outlined in the Act – conduct, redundancy etc.), or that there were other substantial reasons justifying the dismissal. Gross Misconduct might be considered a substantial reason.
Where it is found that the dismissal of an employee has wholly or mainly been brought about by reason of the employee having made a protected disclosure then the dismissal is automatically deemed an unfair dismissal (Section 6(2)(ba)). This protection is even afforded to the Employee who has less than one year’s continuous service with the employer who has dismissed him or her.
In this particular instance, the Complainant herein has referred a complaint of having been unfairly dismissed form her place of employment by reason of having exercised her rights under the Protected Disclosure Act 2014. The complaint form was lodged on the 13th of October 2025 and within the statutory six-month period allowed for the bringing of a complaint from the date of the termination of employment, which happened on the 22nd of August 2025.
Even though the Complainant has less than one year’s continuous service the Complainant is allowed to pursue this claim in the ordinary way.
Where an employee has been dismissed and the dismissal is found to be unfair the employee shall be entitled to redress pursuant to Section 7 of the 1977 Act. Such redress might include re-instatement, re-engagement or compensation for any financial loss attributable to the dismissal where compensation for such loss does not exceed 104 weeks remuneration. The acts, omissions and conduct of both parties will be taken into account when considering the extent of the financial loss and there is a positive onus on a Complainant to adopt measures to mitigate the financial/ remunerative loss (which includes actual loss as well as estimated prospective loss).
7.1 (b) (ii) states that
“if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances”,
In addition to the Unfair Dismissal claim above, and in accordance with Section 41(4) of the Workplace Relations Act, 2015 an employee can present a complaint or complaints or dispute of any perceived contravention by the Employer of any of the Acts (Statutes) contained in Schedule 5 of the Workplace Relations Act of 2015. Any such complaint (usually presented in the format of a workplace relations complaint form) is made to the Director General of the WRC.
In this instance, the Complainant has made two further complaints of the Employer having contravened Acts contained in Schedule 5 above referred to. This includes an alleged contravention of the Terms of Employment (Information) Act, 1994 in circumstances where a Contract of Service has commenced and where the said Employee employed by an Employer is entitled to have been provided (within two months of the commencement of the employee’s employment with the employer) with a Statement of certain Terms of the employment.
The said terms are specified in Section 3 of the 1994 Act and include items such as names, addresses and place of work. There should also be a job title and a description of the nature of the work. The start date and the nature/duration of the Contract should be included in the statement as well as the terms of the remuneration. This statement should be dated and signed with copies retained by both parties.
Lastly, the Complainant herein has submitted a complaint under Section 27 of the Safety Health and Welfare at Work Act 2005 (referenced in aforementioned schedule 5) which protects employees from being penalised for having acted in compliance with the SHW Act, for having performed any duty under the SHW Act, for having made a complaint (or other representation) under the SHW Act (to a safety rep, an employer or the Health and Safety Authority) or who has otherwise engaged in an exercise which might be deemed a protected act for the purposes of compliance with the Safety Health and Welfare at Work Act 2005. An Employer shall not penalise or threaten penalisation in such circumstances.
“penalisation” in the context of s. 27 of the Safety Health and Welfare at Work Act 2005 would include (but is not limited to) suspension, lay-off, demotion, transfer of duty, imposition of discipline or penalty and coercion or intimidation. The penalisation will usually be an identifiable act or omission on the part of the employer which affects, to his or her detriment, the employee. The word “detriment” is given it's ordinary and natural meaning of causing harm or damage (Per Hyland J. in the case of Conway -v- Department of Agriculture 2020 IEHC665)
It is noted that Section 27(4) of the Safety Health and Welfare at Work Act provides that penalisation may include Dismissal and further specifies that if the penalisation constitutes dismissal the employee may institute proceedings under the Unfair Dismissals legislation.
Section 28 of the Safety, Health and Welfare at Work Act 2005 confirms that a decision of an adjudication officer under section 41 of the Workplace Relations Act in relation to a complaint of a contravention of Section 27 of the SHW Act shall do one or more of the following –
Declare the complaint was well founded.
Require the Employer to take a specific course of Action.
Require the Employer to pay to the Employee compensation of such an amount that the Adjudicator considers just and equitable in the circumstances.
Background:
This hearing was conducted over the course of two days and 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 13th of October 2025. In general terms, I will therefore be looking at statutory contraventions that have arisen in the six-month period directly preceding this date. At the completion of the hearing, I did take the time to carefully review all the matters presented to me in the course of the two days of hearing. I have noted the respective position of the parties. I am not required to provide a line-by-line assessment of the evidence and submissions that have been presented to me and instead tend to concentrate on the issues which have guided me to the final recommendations being made. In this regard, I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held that a “…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one. Only broad reasons need be given…”. |
Summary of Complainant’s Case:
The Complainant was not represented and provided her own account of the facts of the different complaints which have brought these parties before the WRC. The Complainant came with her husband/partner. When it came time to hear the Complainant’s evidence, the Complainant agreed to make an Affirmation to tell the truth. The Complainant provided me with two separate submissions. These were submitted on the 2nd of June 2026 and the 21st of June 2026. The second one was by way of a reply to the Respondent’s submission. Supporting documents were included in the submissions. The Complaint Form is dated the 13th of October 2025. The Complainant additionally relied on the submission she set out in the Workplace Relations Complaint Form received by the WRC as follows: Under the complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 the Complainant stated: I have never received any employment contract although i asked my manager many times. She was always answering: I'm sorry, i will bring it tomorrow. In spring time, the company had Tusla inspection in other creches and during the inspection Aisling came to my classroom, when I was busy with children with a fake contract and forced me to sigh in. When I was trying to read this contract she stopped me saying "It's fake, for Tusla with your starting day at the day I received your garda vetting", it means about a month latter as Aisling asked me to start work immediately without garda vetting. She promised me my real contract 'tomorrow', but it never happened. Under the complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 the Complainant stated: During my employment, I repeatedly raised serious concerns about breaches of childcare regulations and health and safety. These included: Being regularly forced to work alone with double the legal number of children, including children under three years old, contrary to Tusla ratio requirements. Being required to care for a child with additional needs without AIM (Access and Inclusion Model) support, even though my manager was receiving approximately €800 per month in AIM funding under my name. I never received any additional payment despite being promised it. Having no access to staff toilets, as the staff toilet had no running water for over two years. Staff were forced to share the children’s toilets (only two available for six teachers). My manager serving burnt food to children, including meals contaminated by melted plastic lids, which I reported as unsafe. Reporting an incident of child abuse in writing. I raised these matters verbally and in writing, including in our teachers’ WhatsApp group, where I sent messages and photos as evidence. I have screenshots showing my complaints and the manager’s responses. Each time I raised these concerns, my manager ignored or dismissed them. When I said I would report the issues to Tusla, Pobal, and the Food Safety Authority, she told me she had worked as a manager for 25 years and was “not afraid of anybody.” She also told me that “everyone leaves this place because of you and your complaints.” I believe my dismissal was a direct act of retaliation for raising these serious issues and for indicating that I would make official reports to the relevant authorities. Under the complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 the Complainant state: I was complaining of manager serving burnt food with melted plastic lids in it. I was complaining of no access to the toilet - she turn the water off around 2 years ago and all teachers were forced to use the only two children's toilets. Two of the teachers complained to the manager of urine infection all the time but the manager still refused to fix the toilets. I was left alone, many times with a double number of children including a child with special needs. I was provided with supplemental documentary evidence in support of the Complainant’s case. No objection was raised to any of the materials relied upon by the Complainant in making his case. The Complainant alleges that she was Unfairly dismissed in circumstances where she had been raising concerns under the Safety, Health and Welfare at Work Act, 2005. Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on how the burden of proof operated. I confirm that 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. |
Summary of Respondent’s Case:
The Respondent had full legal representation at this hearing. The Respondent entity was also represented by a number of witnesses including the Area Manager and an Assistant Manager. The Respondent provided me with a comprehensive written submission received by the WRC on the 16th of June 2026. 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. |
Findings and Conclusions:
I have reviewed the respective positions of the parties and the material submitted in support of those positions. It is clear to me from the evidence given by the Complainant that she was never entirely happy in this workplace. She was engaged as a childminder and commenced her employment on 27 September 2024. Both parties agreed that the Complainant did not have workplace-specific Garda vetting in place at that time. The General Manager, AK, gave evidence that, as the Complainant came from a childcare background and had previously undergone Garda vetting, she did not foresee any difficulty in engaging the Complainant immediately and allowing the vetting process to be completed thereafter. AK confirmed that the breach might be seen as a minor non-compliance issue. I understand that the relevant Garda vetting was received approximately three weeks later, in mid-October 2024. The Complainant states in her evidence that she was unhappy with this arrangement, although not to the extent that she declined the offer of employment and/or immediate employment. The next issue to arise concerned the absence of a Contract of Employment. The Employer maintains that it provided the Complainant with a contract, dated in accordance with the completion of the Garda vetting process, and claims that the Complainant refused to accept it because it did not reflect her actual commencement date. The Complainant, on the other hand, contends that she was never provided with a Contract of Employment. In addition to the absence of a Contract of Employment, the Complainant was not provided with payslips during the course of her employment. While I note that payslips were subsequently furnished after the Complainant had lodged her complaint with the WRC, I find the lack of formal employment documentation during the employment relationship to be a concerning feature of her overall workplace experience. From the start of her employment the Complainant says that she was concerned at the regularity with which the appropriate adult-to-child ratios set out in the Child Care Act 1991 (Early Years Services) Regulations 2016 were being breached. I am aware that different ratios operate in different settings depending on the service being provided (full-day care, part-time care, sessional preschool services etc). AK gave evidence that her ratios were generally in order as she had six full-time members of staff for 38 children. The Complainant spoke of her deep dissatisfaction with the toilet arrangements in the workplace. In particular the Complainant stated that she felt it was inappropriate that she and other members of the staff had to share the children’s two toilet facilities on site. AK on behalf of the Respondent stated that there was a second option open to staff, as there was a toilet in the basement. The basement was used for storage. AK conceded that the use of this toilet was not ideal as it involved unlocking the basement door and thereafter descending the stairs. This was time consuming and possibly dangerous if the basement door was left open. AK agreed that her staff did not tend to use the toilet in the basement. When asked by me, AK confirmed that there is no general prohibition on staff and children using the same toilet facilities in an early year or pre-school setting. The focus of the Tusla regulatory framework and guidance is on ensuring that there are adequate sanitary facilities, appropriate supervision, child protection safeguards, and respect for children's dignity and privacy. The Complainant also raised concerns regarding the quality of the food being served to the children. She gave evidence that meals were, on occasion, either burnt or undercooked. As I understand it, the food was supplied by a specialist childcare catering company which prepares meals off-site and delivers them in frozen trays to childcare providers for reheating and serving on the premises. I am satisfied that there was no issue with the food as supplied. The reheating instructions were clear, and the catering system itself appears to have complied with the applicable standards. Rather, it appears that difficulties arose in the reheating process and, in particular, in ensuring that food was cooked evenly and monitored appropriately while in the oven. From the evidence before me, it seems that food would periodically become overcooked around the edges while remaining cooler in the centre of the tray. The Complainant furnished a significant number of photographs depicting trays of food with burnt edges. While these images do show evidence of overcooking at the perimeter of the trays, the majority of the food depicted appears otherwise edible. AK strongly rejected the suggestion that charred or unsafe food was being served to the children. She accepted, however, that there had been an ongoing issue with one of the ovens, which required it to be operated at a higher temperature than would ordinarily have been the case. She explained that, unless the cooking process was closely monitored, the edges of pies and traybakes could become blackened. AK's evidence was that these overcooked portions were not served to the children. She further maintained that undercooked food would not have been served, as food probes were routinely used and temperatures recorded in accordance with the centre's food safety procedures. AK’s evidence was backed up by her assistant Manager SS who trained in food preparation and safety. Having considered the evidence of both parties, I am satisfied that there were occasional issues with the reheating process which resulted in some food becoming overcooked at the edges. However, I have not been presented with evidence sufficient to conclude that unsafe food was routinely or ever served to the children. I fully accept that the Complainant’s primary concern was always the children in her care. She wanted them to be safe and well looked after. Her hyper vigilance should be seen as a positive thing in a workplace involving our youngest and most vulnerable citizens. However, it is clear from the WhatsApp messages provided that the Complainant had the capacity to rub her colleagues up the wrong way. Indeed in the course of her evidence before me, the Complainant seemed to be suggesting that the staff endangered the lives of children which was an outrageous and utterly unsubstantiated allegation to make. Both AK and the Complainant gave evidence regarding the day-to-day care needs of a particular child, Y. Y had additional needs and was prone to becoming distressed and soiling herself. The evidence was that Y was also considered a flight risk and could leave a room unexpectedly. The Complainant gave evidence that she observed a colleague, M, raising her voice to Y and was concerned that M was finding it difficult to manage Y's care needs. The matter came to light after the Complainant raised her concerns with AK. On balance, I am inclined to accept that this information was provided word of mouth and not by email/letter. In her evidence to me AK accepted that, following the information provided by the Complainant, she spoke with M and removed her from the direct care of Y. According to AK, M did not dispute the concerns raised and was issued with a verbal warning. Thereafter, the Complainant assumed primary responsibility for Y's day-to-day care. AK gave evidence that the matter was dealt with appropriately and in accordance with the relevant guidelines. She did not consider that the circumstances warranted a referral to Tusla and instead had addressed the issue internally. The evidence was that the crèche received additional funding to assist in meeting Y's care needs and to improve staffing ratios. This support had been approved following an assessment of Y's needs. The Complainant appeared to be of the view that she should personally receive this additional funding. However, AK explained that the purpose of the funding was to enable the crèche to provide additional staffing resources and enhanced support for Y, rather than to supplement the wages of any individual employee. It was common case that the Complainant devoted a significant amount of time to Y in her capacity as Y's key worker. AK explained that each child attending the crèche was assigned a key worker and that, notwithstanding her responsibilities in relation to Y, the Complainant's role had not materially changed. Accordingly, she remained on her contractual rate of pay. AK agreed that in the aftermath of this incident that she was short staffed for the room that the Complainant was in. Unfortunately, the replacement employee that she did engage had no relationship with the Complainant and the level of tension in the room meant that she had to intervene and ask for professional standards to be upheld. AK said that the Complainant was not good fit for her workplace. As she had managed creches and childcare facilities for 25 years she felt she had the experience to assess the situation. She observed that the Complainant was perpetually unhappy and always complaining. She could see that the complainant was making those around her unhappy and she genuinely believes that a few good staff members moved on from her employment because of the intensity of working alongside the Complainant. By August of 2025 (noteworthy for being one month shy of the year of service) the Complainant was told by AK that “it was not working out.” The Complainant was told she could finish on the day and would be given one week of Notice. I fully accept that the Complainant was not on notice of the fact that her job was in jeopardy. She was not disciplined and was given no opportunity to improve her performance. It was the proverbial bolt out of the blue. I accept that the Complainant must have been upset and distressed. AK is not convinced that the Complainant had not seen it coming. She is adamant that the Complainant knew or ought to have known that her behaviour was impossible. In the aftermath of her dismissal the Complainant raised workplace issues/concerns with three separate overseeing bodies. The Complainant notified TUSLA, thereby triggering concerns about the health, safety and welfare of children in the Respondent facility resulting in an onsite visit. The evidence demonstrates that TUSLA was satisfied with operation of the facility. The Complainant informed the HSE that the provision of meals was substandard and contrary to HSE regulations. A full inspection was conducted. The evidence demonstrates that HSE was satisfied with operation of the facility. Lastly the Complainant notified Pobal, which is the State body responsible for administering a range of childcare funding programmes on behalf of the Government, including the Access and Inclusion Model (AIM), which provides supports to facilitate the inclusion of children with additional needs in early years settings. This triggered a compliance check which found the Respondent to be compliant The point to be noted herein is that the Complainant did not, in the course of her employment, conduct herself in such a way that it might reasonably be inferred from such conduct that she had made a protected disclosure or been a whistleblower. This simply did not arise in the course of the employment. It seems therefore that the Complainant’s contention that she was dismissed mainly because she had made a protected disclosure is an incorrect assertion and her claim under the Unfair Dismissals Acts fails. Equally the Respondent cannot be found to have in some way penalised the Complainant for having raised an issue under the Safety Health and Welfare at Work Act 2005. This simply did not arise in the course of the employment. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00076337-002 – The complaint herein is well founded. The Complainant was not provided with a Contract of Employment in the course of her employment. I award compensation in the amount of €1,280.00. Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00076337-003 – The Complainant was not dismissed for having made a Protected Disclosure and the complaint fails. Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 CA-00076337-004 – The complainant was not penalised for having raised an issue under the Safety, Health and Welfare Act. The complaint is not well founded and fails.
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Dated: 22 September 2026
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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