THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998 to 2011
Decision DEC - E2012 - 027
PARTIES
A Complainant
and
An Educational Body
File Reference: EE/2009/170
Date of Issue: 13th March, 2012
Headnotes: Employment Equality Acts, - Section 6(2)(a), gender ground - Section 6(1)(ii), conditions of employment - out-of-time - Section 14A, harassment - no nexus between alleged harassment and gender - prefer evidence of witness - Section 74(2), victimisation - disciplined for taking case to Tribunal
1. Dispute
1.1. This case concerns complaints by the complainant that she was discriminated against by the respondent on the ground of gender, contrary to section 6(2)(a) of the Employment Equality Acts, 1998 to 2008 ("the Acts"), in relation to (i) access to employment, (ii) conditions of employment, (iii) promotion/re-grading and (iv) training contrary to Section 8(1) of the Acts, that she was harassed by the respondent on the Gender ground contrary to Section 14A of the Acts and that she was victimised by the respondent in terms of Section 74(2) of the Acts.
2. Background
2.1. The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 11th March, 2009, alleging that the respondent had discriminated against her and harassed her on the ground of gender. On 6th September, 2011, the complainant made a further complaint of victimisation.
2.2. Written submissions were received from both parties. On 1st September, 2011, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Gary O'Doherty, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Acts, on which date my investigation commenced. Hearings of the complaint were held on 25th January, 2012 and 7th February, 2012. One further document was sought from the complainant and final correspondence in this respect was received on 9th March, 2012.
3. Summary of the Complainant's case
3.1. The complainant is an Art Teacher in a school, School Z, which is under the control of the respondent. She stated that she was and is a successful productive teacher. She stated that, on 31st August, 2004, she attempted to enter the ladies staff toilet in her school but found it locked. She said that she approached the Principal, Mr. A, about the matter, and followed this up with a written complaint. She stated that the men's staff toilets were not locked. She stated that she was later told that the rest of the female staff had voted on the matter and the majority view was to keep the toilets locked. She said she did not feel there was a vote as people were intimidated into supporting the locking of the toilets and had "words put into their mouths" in that respect.
3.2. The complainant submitted that this was discrimination on the gender ground, as men were able to access their toilet without a key whereas she could not. She provided the Tribunal with substantial correspondence and written submissions to support her allegations in this respect. With respect to the question as to whether this matter had been referred to the Tribunal within the time limits prescribed in the Acts, the complainant submitted that, in the first instance, this incident was the catalyst for the discrimination, harassment and victimisation that was to follow and was a series of linked events in that context. She also submitted that it was ongoing discrimination in any event as she was still required to use a key to enter the toilets.
3.3. The complainant stated that, on 31st August, 2004, in the course of her conversation with Mr. A about this matter, he raised his voice in a threatening manner and that she felt harassed by his treatment of her in this respect. She stated that Mr. A had harassed her since then.
3.4. The complainant gave a very detailed account of this harassment, stating, inter alia, that he would follow her even when she attempted to mislead him. She stated that he would shout and her and constantly 'project' his voice. She stated that he constantly stared at her and was always in close proximity to her. She stated that he was constantly calling her a liar. She also described how he would interfere with her teaching of her class and would "tackle" her in front of her students. She stated that he was always asking her why she was not in class when she never missed a class. She said that "there was no let-up" and his behaviour was "off-the-wall". She said that his behaviour in this respect was designed to make one feel frightened. She said that he did not speak to men the way he spoke to her and that he "inflicted terror" on female members of staff.
3.5. The complainant also gave a detailed account of specific examples of this harassment. In particular, she stated that Mr. A took disciplinary action against her with respect to renovations she undertook in her Art Room. She stated that she had asked him if it would be ok for her to carry out these renovations as she considered that the Art Room layout was dangerous. She said that he laughed in response and she took that as implicit agreement with her proposal in this respect. She described how she removed some of the floor coverings and placed some furniture outside the Art Room (and thus outside the building). She stated that she went off to a class and when she returned she described how she considered that Mr. A and the Deputy Principal harassed her and told her they would be taking disciplinary action against her. She then gave an account of that disciplinary action and its outcome.
3.6. The complainant also described in detail other particular incidents of alleged harassment. She stated that, following the completion of this disciplinary process, a glass case, which had been one of the pieces of furniture which she had left outside her room, was moved outside by Mr. A. She described how she noticed that this glass case "kept moving", in that she could see it through the window of the classroom and, from time to time, it would be in a slightly different position to where it was the day before. In essence, she related how she considered that Mr. A, and/or someone on his behalf, kept deliberately moving the glass case in order to frighten her in the context that her removal of the glass case outside had been the cause of disciplinary action being taken against her.
3.7. The complainant also referred to two occasions in which she stated that Mr. A made physical contact with her, including an incident where he came so close to her that she had to get off the chair she was sitting on at the time. She also stated that Mr. A would watch her through the window of the male staff toilet while he was urinating. She also described one occasion when he went into the ladies staff toilet because he thought she was there. She also stated that Mr. A harassed other female members of staff and gave an account of when she witnessed him doing so.
3.8. The complainant gave a detailed account of the harassment complaint she filed with the respondent against Mr. A in that context. She stated that it took her months to get the matter investigated. She provided the Tribunal with a copy of the very detailed correspondence between herself and Mr. A and/or the respondent in that respect. She also provided the Tribunal with a copy of the report from Ms. B, the investigator who was appointed by the respondent to investigate the matter. She outlined the difficulties she had with this investigation and the harassment policy of the respondent. In particular, she stated that its policy required that a complainant show intent on the part of the alleged harasser and that there must be a series of incidents to constitute harassment whereas the Acts do not require same. She made a number of detailed submissions in that respect.
3.9. The complainant also stated that both Mr. A and the respondent harassed her by placing obstacles in the way of her obtaining a post of responsibility and she gave a detailed account of how they did so. She also stated that the respondent suspended discussion around providing her with this post pending the outcome of her claim of harassment against Mr. A. In that respect, she stated at the hearing that she was not in receipt of a special duties post allowance (having previously 'acted up' a post), contrary to the respondent submissions in this respect. She stated that this was also victimisation. In response to the respondent's contention that she refused meetings in this respect, she stated that she was unable to attend certain meetings for various reasons outlined.
3.10. The complainant also described what she called the "ethos of Miss" that existed in correspondence between the respondent and herself. In essence, she gave a detailed account of instances where she claimed that certain of the respondent's employees used the term "Miss" in correspondence with her in a manner which was designed to be threatening and intimidating. She said that "every time (Mr. A) loses the plot" he would call her "Miss". She stated that this shift in ethos and "bad behaviour" began in November 2009. She stated that this was harassment and was also victimisation as the purpose of the "ethos of Miss" was to force her to withdraw her complaint to the Tribunal. She provided the Tribunal with substantial correspondence and further written submissions to support her allegations in this respect.
3.11. The complainant also made further claims with respect to being victimised by the respondent. In that context, she gave a detailed account of her communication with the respondent with respect to an investigation that had been carried out into an allegation that she was sexually harassed by a student, Student X. She stated the respondent initiated an investigation into the matter despite the fact that she told it that she did not want the matter investigated. She stated that she consequently withdrew the allegation at the outset of this investigation and that the investigator, Mr. C, informed her that no further action would be taken.
3.12. She stated that, nevertheless, Mr. C produced a report on the matter in which he alleged that her claim was vexatious. She stated that the respondent proceeded to take disciplinary action against her in that context. She also called Mr. C's independence into question and gave reasons as to why she considered that to be the case. She said that she also felt harassed by this report, particularly in the context that it was first provided to her while she was in hospital. She also pointed to the fact that the respondent had included the taking by her of her complaint to the Tribunal in its list of reasons for taking disciplinary action against her. She provided the Tribunal with substantial correspondence and further written submissions to support her allegations in this respect.
3.13. The complainant denied using her claim to the Tribunal in order to threaten the respondent in that context. She referred to Noonan Services Ltd. -v- A Worker in stating that her correspondence with the respondent was a legitimate attempt at negotiating a solution to addressing her concerns.
3.14. The complainant also referred to correspondence between the respondent and its solicitor and other third parties, including Ms. B and Mr. C. She stated that the respondent referred to the claim to the Tribunal in this correspondence. Indeed, she stated that the EE1 and EE2 forms were copied to these individuals. She stated that this was an offence under the Acts as it was a breach of confidentiality and was a further attempt to victimise her for taking her claim to the Tribunal. The complainant also submitted that she was victimised by the respondent in being required to attend its occupational health doctor and that information with respect to her claim to the Tribunal was similarly supplied to him. She added that she should not be disciplined for being out on a sick certificate.
4. Summary of the Respondent's case
4.1. The respondent submitted that the matters relating to the locking of the toilets were out of time as the events in question had taken place almost three years before the complaint was made to the Tribunal. In any event, Mr. A, who was present at the hearings, stated that the door to the ladies toilet had been locked by the caretaker without his knowledge. He said that he took action as soon as the complainant made him aware of the issue. In the short-term, he said that he changed the locks and provided the complainant with a key to the toilet. He said that a survey was then carried out of all the members of staff of the school, both female and male, with respect to whether they wished to have their toilets locked. He stated that this survey showed that the majority of the female members of staff wished to have their staff toilet locked whereas the males wished to leave their toilet unlocked.
4.2. Mr. A added that, the following year (2005), the males then reversed their view and decided by majority to have their toilet locked. In that context, the respondent stated that, after 2005 at least, there was no difference in treatment. It further submitted that this was not discrimination in any event as, inter alia, the staff themselves made the decision. It also stated that the female toilets were locked at the request of the majority of the female members of staff. Mr A added that he understood the reason for the locking of the toilets was that students were using them and, inter alia, smoking in them.
4.3. Mr. A gave a detailed response with respect to the allegations of harassment of the complainant by him. He gave an account of the meeting with her on 31st August, 2004, about the locking of the toilets. He denied using a threatening or intimidating tone or shouting at her then, or ever. He denied harassing her in that context. He also denied following her, lying to her, interfering with her class in the manner described by the complainant or "tackling" her in front of her students. The respondent pointed out that the complainant had been unable to provide dates for these alleged incidents of harassment.
4.4. Mr. A gave an account of the "damage" he said that the complainant caused to the Art Room. He denied giving her permission, express or implied, to do what she did in that respect. He defended his decision to take disciplinary action against her and denied that he harassed her in that context. He categorically denied that he, or anyone on his behalf, moved the glass case in question once it had been placed outside the complainant's room.
4.5. Mr. A accepted that there may be occasions when he would raise his voice but he stated that he did so only when necessary and he would do so to any student or member of staff where he considered it to be warranted. He said that he did recall an incident where he had questioned the complainant as to whether she should have been in class on one particular occasion but stated that he would have done so with respect to any other teacher. He said he did recall another occasion when he had accessed a computer immediately after her. However, he denied the complainant's description of this particular incident, in particular that he got so close to her that she had to get off the chair she was sitting on. He also denied ever making any physical contact with the complainant.
4.6. Mr A denied ever watching the complainant while urinating or running into the ladies toilet when he thought she was there. The respondent stated it was impossible for Mr. A to have been able to see into the complainant's room while urinating and provided photographic and documentary evidence to support its submission in this respect. Mr. A also gave an account of the incidents which the complainant referred to in which she alleged he harassed other members of staff. He gave his own description of what took place and stated his actions were legitimate and not harassment in any event. He denied ever "inflicting terror" on any member of staff.
4.7. Mr. A added that the complainant was difficult to manage, was constantly out sick and absent from the classroom. He accepted he had given her a good reference, but said that it would have been a different matter if he had been asked to answer "forensic questions" in that respect.
4.8. The respondent gave its own detailed account of the investigation it undertook of the complainant's complaint of harassment to it. It said that it had processed these complaints "as best it could". It also provided relevant correspondence and further written submissions with respect to the complainant's allegations in this respect. It stated that its Harassment policy was the policy followed by other similar bodies and had been agreed with certain Trade Unions. It said it had also sought legal advice from appropriate organisations expert in the area as to whether these policies were appropriate and was advised that they were. In that context, it submitted that its policies were sound and were properly applied to the complainant's complaint against Mr. A.
4.9. In any event, and with respect to this particular complaint, it stated that it went beyond what was required of it by those policies in terms of bringing in an independent investigator (Ms. B) and in the manner in which it took great care to carry out a thorough investigation of the complainants' complaint. It added that Ms. B's investigation found that the complainant's harassment complaint was unfounded.
4.10. The respondent also denied that the use of the term "Miss" in certain correspondence had the intention of either harassing or victimising the complainant. It stated that this title was commonly used by teachers in this jurisdiction and all the parties against whom this particular claim was made were teachers and were used to corresponding with other teachers in those terms. It accepted that some letters to the complainant used the title "Ms" and/or her forename and explained that this occurred when it was not a teacher writing the letter (e.g. a Secretary had drafted the letter). It also pointed to the tone of these letters saying they were often conciliatory. It also provided relevant correspondence and further written submissions with respect to the complainant's allegations in this respect.
4.11. In short, the respondent denied that it, or its servants or agents, had harassed the complainant, or attempted to harass her, in any way.
4.12. With respect to the victimisation claim, the respondent, in the first instance, stated that the primary reason for taking the disciplinary action in question was because the complainant had made a vexatious claim of sexual harassment of her by a student. It stated that the claim of sexual harassment was made by the complainant and that, once made, an investigation of same had to be carried out irrespective of any attempt to withdraw it. It stated that Mr. C had told the complainant this and that he would have to continue his investigation in that context. It also denied that Mr. C was not independent and gave a detailed response to the complainant's allegations in that respect. It added that this was an unprecedented claim (a claim of harassment by a teacher against a student) and in that context it was particularly careful to follow due process and to ensure a prompt and speedy investigation.
4.13. Mr. A said there had been a "long saga" of the complainant refusing particular post duties. In that respect, the respondent stated that it had entered into discussions around the complainant's special duties post prior to the making of her complaint of harassment against Mr. A. It stated that these discussions were suspended pending the outcome of the harassment claim. However, it stated that it understood that the complainant was in receipt of a special duties post allowance and so did not consider she would be financially disadvantaged by this postponement. It denied that its actions in this respect were harassment and/or victimisation. It added that the complainant had refused to attend certain meetings to discuss this matter.
4.14. The respondent accepted that, in outlining its reasons for taking disciplinary action against the complainant, it had referred to her claim to the Tribunal as a reason for doing so. However, it submitted that it was acting in good faith and it was not its intention to victimise her. It stated that it accepted the complainant's right to take a claim to the Tribunal and did not wish to interfere with that right.
4.15. The respondent also asked the Tribunal to consider that this complaint was just one of a series of complaints that she had made. It asked the Tribunal to consider that, particularly in light of the vexatious nature of at least one of those claims, it had cause to question whether the complainant was continuing to act in the best interests of her employer and her role as a teacher given the number of grievances she had against it. In that respect, it said it was only noting the volume of complaints processed by her. It said it was not raising a question as to her right to go to fora such as the Tribunal but that her doing so was being used as a threat against it.
4.16. While not directly relevant to the Tribunal, it also pointed out that, in a claim in another forum, the complainant had made an untrue allegation that she had reported an instance of child abuse to the respondent and no action was taken. The respondent also asked the Tribunal to consider the amount of time, resources and effort that it had to put into defending these claims. It said that it was not the taking of the complaints by the complainant but the lack of seriousness with which it was done which it took issue with. It also asked the Tribunal to consider the consequences of these numerous claims on its other employees and, in particular, on Student X. It also asked the Tribunal to consider that the complainant's claim and subsequent withdrawal of that claim against Student X had left the respondent open to litigation in turn from his parents.
4.17. The respondent stated that these were the primary reasons for including the complaint to the Tribunal in the disciplinary process. It added that it had no difficulty with coming to the Tribunal to answer the claims and fully respected the Tribunal's right to investigate them. It also described the negotiations it had with the complainant's Trade Union with respect to the disciplinary process in question and that it had agreed to change the process and scope of it in that context.
4.18. The respondent stated that any discussions or correspondence it had with third parties about the Tribunal complaint were carried out for legitimate reasons and were not victimisation. In particular, it stated that its correspondence with its solicitors was in the context of defending its position in the claim. With respect to the investigations of Ms. B and Mr. C, it stated that it provided copies of the complaint forms to those individuals as those forms were relevant to the investigations being carried out by them. It stated that the complainant was required to attend its occupational health doctor in her own interest and to assess whether she was fit to work.
5. Conclusions of the Equality Officer
5.1. Section 85A of the Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of "sufficient significance" before a prima facie case is established and the burden of proof shifts to the respondent. Therefore, in deciding on these complaints, I must first consider whether the complainant has established the existence of a prima facie case. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent.
5.2. Section 6(1) of the Acts provides that discrimination shall be taken to occur where "a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds..." Section 6(2)(a) of the Acts defines the discriminatory ground of gender as follows - "as between any two persons ..... that one is a man and the other is a woman". Section 14A of the Acts defines harassment as being "any form of unwanted conduct on any of the..grounds...which has the effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person". Section 74(2) of the Acts provides that victimisation occurs where ".... adverse treatment of an employee by his..employer occurs as a reaction to..(a) a complaint of discrimination made by an employee to the employer.."
5.3. The issues for me to decide in this case, then, are i) whether the complainant was subjected to less favourable treatment in comparison to (an)other person(s) on the ground of gender; ii) whether the complainant was harassed by the respondent; iii) whether the complainant was victimised by the respondent. In reaching my decision in this case, I have taken into account all of the submissions, both oral and written, made to the Tribunal in the course of its investigation.
Less Favourable Treatment on the Gender Ground
Access to Employment
5.4. Access to employment claims relate to cases of recruitment or entry to employment. In this claim the complainant was already working for the respondent and her claims in relation to the time she was working for it are being considered in other contexts. Therefore, I find that the complainant has failed to establish a prima facie case in relation to access to employment.
Training
5.5. No evidence was presented to the Tribunal that the complainant was not provided with training that anyone else was provided with. Her claim cannot succeed in that context.
Promotion-Re-Grading
5.6. The claim of the complainant with respect to promotion/re-grading had been outlined by her in her complaint form and in her submissions in advance of the hearing. There was not a scintilla of evidence either in these submissions, or in her elaboration upon them at the hearing, to suggest that there was less favourable treatment of her on the ground of gender. Therefore, she has failed to establish a prima facie case of discrimination on the gender ground in that respect. (The complainant did adduce evidence that she was harassed and/or victimised with respect to this special duties post. This evidence is considered herein under the relevant headings.)
5.7. It should be noted that, at the hearing, the complainant sought to refer to a separate promotion competition, unrelated to any other matter addressed in her complaint form or submissions. In that context, she referred to the decision of the High Court in Co. Louth VEC -v- Equality Tribunal in stating that the complaint form is only intended to set out the broad outline of the complaint and it should be permissible to amend the claim as set out in that form.
5.8. However, I note that McGovern, J. also stated in this decision that this can only be done so long as the general nature of the complaint remains the same. He went on to say that "what is in issue here is the furnishing of further and better particulars" and "the respondent....must be given a reasonable opportunity to deal with these complaints and the fair procedures adopted by the Equality Officer must be fair and reasonable and in compliance with the principles of natural and constitutional justice.".
5.9. This evidence that the complainant sought to adduce at the hearing had not been referred to in any way in advance of the hearing, had not been referred to at any stage of the hearing itself up to that point and was not linked in any way to any of the other matters that had been addressed in that context. Furthermore, the complainant had been provided with ample opportunity to adduce evidence of less favourable treatment on the gender ground with respect to the matters already referred to in submissions and oral evidence (as at par. 5.6 above). It was also clear at the hearing that she sought to introduce this completely new evidence only because it was clear to her at that stage that her claim was unlikely to be successful based on the evidence she had already adduced in that respect.
5.10. In all the circumstances of the present case, then, I am satisfied that this new evidence fundamentally altered the nature of that part of her claim. Therefore, I am of the view it would be contrary to fair procedures and natural justice for me to consider it. In any event, it was not referred within the time limits provided within the Acts. It should also be noted that the complainant also sought to introduce other similar evidence and/or issues, even a new ground, which were similarly inadmissible and/or irrelevant to the matters before the Tribunal. Equally, they could not be considered.
Conditions of Employment
5.11. I now turn to the issue of the locking of the toilets. The respondent submitted that this part of the claim was out of time as the incidents complained of had taken place in 2004 when her claim of discrimination was not submitted until 2009. The complainant submitted that, in the first instance, this incident was the catalyst for the discrimination, harassment and victimisation that was to follow and was a series of linked events in that context. She also submitted that it was ongoing discrimination in any event as she was still required to use a key to enter the toilets. However, it is clear that the men's toilets have also been locked since 2005 and so the alleged less favourable treatment element of the claim (i.e. that women were treated differently to men in this respect) ended then.
5.12. With respect to the matter being the first in a series of linked events, as is the essence of the complainant's submission, the remaining matters of relevance to this complaint are entirely separate issues of harassment and victimisation. With respect to her claim that the locking of the toilets was the catalyst for the harassment and victimisation that followed, I am not satisfied that it was. There is no evidence of less favourable treatment on the gender ground in that context, at least after 2005. Therefore, as I am satisfied that the locking of the toilets was a single incident of alleged discrimination unrelated to any of the other matters before the Tribunal, I am satisfied that, in all the circumstances of the present complaint, the complainant's claim of less favourable treatment on the gender ground with respect to this matter is out of time.
Claim of Harassment
5.13. It is clear that it is not the general use of the title "Miss" by the respondent that the complainant took issue with; rather, that the use of that title in particular correspondence had the purpose of intimidating her. I note that all the persons accused of using that title in this fashion were teachers or former teachers and that referring to female teachers as "Miss" is common practice in that profession. While the complainant was also sometimes referred to by her forename and/or "Ms", I am satisfied that the use of the title "Miss" was random and had no ulterior motive.
5.14. The complainant is correct in stating that intention is not a requirement to prove harassment under the Acts. Harassment takes place if the alleged act or acts had either the purpose or effect of violating her dignity and created an intimidating, hostile, degrading, humiliating or offensive environment for her. However, the burden of proof is with the complainant to show that the act or acts alleged had that purpose or effect. In all the circumstances of the present complaint, and having carefully considered the evidence in this respect, I am not satisfied that she has done so with respect to the use of the term "Miss" in correspondence with her.
5.15. The complainant also submitted that she was harassed by Mr. A over a number of years and on numerous occasions. There was a conflict of evidence between the complainant and Mr. A in this respect. Mr. A denied that any of these incidents took place as described by the complainant. He stated that many of them never took place at all. With respect to those incidents which he accepted did take place, his account of those incidents was entirely different to the account given by the complainant. I found the evidence of Mr. A to be the more compelling in this respect. Therefore, I am satisfied that none of the incidents in question took place in the manner described by the complainant.
5.16. In so far as I prefer the evidence of Mr. A, and with respect to the incidents alleged to be harassment in that context which did take place, it could still be the case that the incidents in question were harassment. For example, I am satisfied that, at least on occasion, Mr. A used a loud and authoritative voice in his dealings with members of staff and/or students in the school. However, it is clear that he did so irrespective of the gender of the person at the receiving end. While I do not doubt that the complainant occasionally found this to be intimidating, it was not related to her gender and was not harassment on the gender ground.
5.17. I also note that the complainant, by her own admission, removed floor coverings and moved furniture in the Art Room. I do not accept she received any permission from Mr. A, either express or implied, to do so. In that context, I am satisfied that Mr. A was legitimately entitled to act in the manner in which he did and that he did so in the context that the complainant had caused considerable damage to school property without authorisation. This does not constitute harassment within the meaning of the Acts.
5.18. The complainant also suggested that Mr. A (or persons or persons unknown acting on his behalf) then put the glass case outside her window and moved it minute amounts from time-to-time in order to intimidate her as outlined at par. 3.6 above. As I prefer the evidence of Mr. A in this respect, I am satisfied that he did not take any such action, nor did he ask anyone to take such action on his behalf. The complainant also claimed that the treatment of her by Mr. A and the respondent generally with respect to her special duties posts was harassment. However, there is no evidence that any treatment of her in this respect was related to her gender. Therefore, it cannot have been harassment on the gender ground.
5.19. As regards any of the other incidents which I am satisfied did take place, there is no evidence that the treatment of the complainant (or anyone else) by Mr. A, or any other employee or agent of the respondent, was related to her gender. Therefore, none of these alleged incidents were incidents of harassment within the meaning of the Acts and the complainant's claim of harassment also fails.
5.20. However, I would add that I consider that the complainant is correct in stating that the harassment policies of the respondent are flawed. Firstly, they require a complainant to show intent on the part of the alleged harasser. Secondly, they state that a single incident cannot be considered to be harassment. As I have indicated in this decision, the Acts require that the act or acts of harassment in question had the purpose OR effect of harassment. Intention cannot be a requirement of harassment in that context. Furthermore, harassment (as opposed to bullying) can consist of a single act depending on the circumstances of the case.
5.21. In that context, I would urge the respondent to consider revising its harassment policies and I would refer it to the Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2002 in that context. However, as I am not finding in favour of the complainant with respect to her harassment claim, I consider that it would be ultra vires for me to make an order in that respect.
Claim of Victimisation
5.22. In Tom Barrett v Department of Defence the Labour Court set out the three components which must be present for a claim of victimisation under section 74(2) of the Acts to be made out. It stated that (i) the complainant must have taken action of a type referred to at paragraphs (a)-(g) of section 74(2) - what it terms a protected act, (ii) the complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the complainant.
5.23. It is clear that the complainant had informed the respondent at an early stage that she considered she was being treated less favourably by it on the gender ground and, later, that she was being harassed by it within the meaning of the Acts. She then made her claim to the Tribunal in that context in March 2008. It is clear that she meets test (i) in that context with respect to each element of her victimisation claim.
5.24. The complainant took issue on a number of occasions with the respondent speaking to particular parties about her case. She stated that this was an offence under s. 97 of the Acts. She also stated that it was victimisation in that the respondent was informing these parties of these matters in order to make her life more difficult because she had made a complaint to the Tribunal. It is not a matter for me as an Equality Officer to make any determination with respect to an alleged breach of s.97. While the provision of the EE1 and EE2 forms to Ms. B and Mr. C were perhaps inadvisable and certainly not necessary, I do not consider this was adverse treatment arising from the complainant's statement that she considered her treatment to be discrimination, particularly as both of these persons were investigating claims with respect to matters pertaining to these Acts in the first instance.
5.25. With respect to the special duties post, it is also clear that any discussion with respect to it was also suspended pending the outcome of the harassment claim against Mr. A. This certainly caused the complainant distress, and clearly was adverse treatment. This particular action does meet test (ii) above. The question remains as to whether it was related to a protected act.
5.26. I am satisfied that discussions on the complainant taking up a post of responsibility had already been taking place for several months before being suspended. I am satisfied that the respondent was under an erroneous assumption that the complainant was being paid a special duties post allowance as she had been acting in that capacity previously. I am also satisfied that the respondent was seeking to have the relationship between the complainant and Mr. A resolved to a certain extent before concluding those discussions. I am satisfied that the negotiations around the special duties post were extremely difficult in the context of the deteriorating relationship between the complainant and Mr. A. I am satisfied that the respondent acted in hope that the resolution of the harassment claim would ease that situation and allow those negotiations to be more productive.
5.27. Therefore, and in the exceptional circumstances arising in this claim in this respect, I am satisfied that the postponement of the settling of the matters relating to the complainant's special duties post pending the outcome of the harassment claim was not adverse treatment arising out of the harassment claim itself.
5.28. I would add that as the use of the title "Miss" in correspondence with the complainant was random and had no ulterior motive, it was not related to her claim to the Tribunal and was not victimisation in that context.
5.29. The complainant also claimed that the investigation and conclusions of Mr. C were victimisation. However, and in the first instance, it must be noted that the investigation was set up on foot of a complaint made by her. The complainant claimed that she never sought an investigation. However, no responsible employer could fail to carry out a thorough investigation of a claim of the type made by the complainant once the complaint was made. Additionally, it should be said that the complainant's claim of sexual harassment against Student X is not before me and it would be ultra vires for me to look behind the investigation of Mr. C in that respect unless the complainant can provide clear evidence that the investigation was, in and of itself, adverse treatment arising out of her complaint of discrimination.
5.30. In that context, and in all the circumstances of the present complaint, then, the complainant must show that the investigation itself was a reaction to her taking a complaint of discrimination, harassment and/or victimisation, either in the fact that it was initiated or in the procedure that was followed by it. She has failed to do so. I would add that, in that context, I do not consider that Mr. C's report could be considered to be harassment. It should also be noted that I am satisfied that Mr. C was independent in the carrying out of his investigation.
5.31. However, I note that the respondent detailed what it calls "matters listed for consideration" with respect to the disciplinary action being taken against the complainant. I note that number 8 of these "matters" states as follows: "that (the complainant) continuously makes unfounded complaints and publishes material that damages (the respondent's) good name and reputation" and then lists these "unfounded complaints". (These "matters" will, for ease of reference and in the interests of clarity, be referred to hereinafter in this decision as Reason No. x (x being the number, from 1 to 10, which is assigned in the Appendix attached to the relevant "matter")
5.32. Included in that list of "unfounded complaints" are the following entries:
"2009 (the complainant) lodged an equality complaint against (the respondent) based on gender grounds...case being heard at a formal Equality Tribunal 25th January, 2012
August 2010 Sexual Harassment complaint made by the Complainant against a student in her class.
2011 (the complainant) lodged a victimisation complaint against (the respondent) with Equality Tribunal"
(The entirety of these documents (anonymised and redacted where necessary) is attached to this decision as an Appendix, for reference purposes)
5.33. The question arises as to whether this element of the disciplinary action currently being taken by the respondent against the complainant is adverse treatment arising out of the taking by her of a protected act. The answer must be in the affirmative in circumstances where the taking of a complaint to the Tribunal by the complainant is clearly cited by the respondent as a reason for taking disciplinary action against her. More particularly, were the disciplinary action to continue in that manner, and were a sanction to be imposed upon the complainant as a consequence, that sanction would be a clear and direct result of the taking of that complaint.
5.34. In all the circumstances of the present complaint, then, the inclusion of Reason No. 8 in the Appendix attached as a reason for taking disciplinary action against the complainant meets tests (ii) and (iii) outlined above and the complainant has established a prima facie case of victimisation on that basis. In respect to this matter, the respondent made a number of submissions as outlined at pars. 4.14 to 4.17 above. I will now consider these in turn.
5.35. Firstly, the respondent submitted that the primary reason for taking the disciplinary action in question was not because the complainant had made a claim against Student X, but that the vexatious nature of that claim had serious consequences for Student X and the school. Thus, it took the disciplinary action because of the serious unjustified distress that was caused to Student X in that context and because of the legal liability to which the respondent considered it was exposed as a result. It also considered that the finding that her claim was vexatious implied that she had acted without any regard for the school or the student in question and without any justification for taking the action that she did. The respondent clearly considered that the manner in which the complainant behaved in this context called into question her integrity and professionalism.
5.36. Thus, the respondent essentially argued that it was the implications arising from the finding of Mr C that prompted the respondent's action in this respect, not the taking of the protected act itself (in this case, the claim of sexual harassment of the complainant by Student X).
5.37. Unfortunately, the respondent included the complainant's claims to the Tribunal in the disciplinary process. Had it not done so, it may well be that victimisation of the complainant would not have occurred. I say this as, in all the circumstances of the present complaint, on balance, and with the exception of Reason No. 8, I am not satisfied that any of the other disciplinary actions outlined in the Appendix attached have been initiated by the respondent as a reaction to the taking of a protected act by the complainant. In that context, the complainant has failed to establish a prima facie case of victimisation of her with respect to these matters (i.e. she has only established a prima facie case of victimisation with respect to Reason No. 8, as already outlined at paragraphs 5.33 and 5.34 above).
5.38. As it is, however, the complainant's claims to the Tribunal are clearly and definitively cited as a reason for initiating disciplinary action against her. Consequently, the reasons for the taking of disciplinary action by the respondent against the complainant in so far as they relate to the vexatious nature of her claim of sexual harassment against Student X are essentially irrelevant to the claim of victimisation that is before this Tribunal.
5.39. Secondly, I note the submissions of the respondent that it was acting in good faith, that it accepted the complainant's right to take a claim to the Tribunal, that it did not wish to interfere with that right and that it was not its intention to victimise. However, I note that the respondent also made a unilateral determination that the complainant's claim to the Tribunal was unfounded when the power to make a determination with respect to such claims is reserved for this Tribunal or, on appeal, the Labour Court.
5.40. I note the finding of Mr C in this respect. In that context, it is arguable as to whether the respondent was justified in stating that the claim of sexual harassment of the complainant by Student X (which, while not before this Tribunal, is a protected act) was unfounded (see further at par. 5.53 below). However, it had no justification whatsoever, or any authority, for stating that her claims to this Tribunal were unfounded.
5.41. I am also satisfied that the respondent made a deliberate decision to include the Tribunal complaint as a reason for taking disciplinary action against the complainant in order to strengthen its case against her. I accept that the respondent had no difficulty in coming to the Tribunal. I accept that it respected the Tribunal's right to carry out its investigation and fully cooperated with it. I am satisfied that it was not conscious of breaching or intending to breach the Acts in acting in the manner in which it did and that, had it been aware that it was doing so, it probably would have refrained from acting in that manner.
5.42. However, I am satisfied that, by including this complaint as a cause of action against the complainant in disciplinary proceedings, the respondent, by definition and irrespective of its intention, took a deliberate action that was to the complainant's detriment and was clearly and unambiguously related to her claim to the Tribunal. In all the circumstances of the present complaint, then, that it did not intend to breach the Acts in that respect cannot be considered to be a defence in the matter.
5.43. Thirdly, I fully accept the bona fides of the respondent with respect to the submissions outlined at par. 4.16 above. The complainant's complete disinterest in the consequences of her actions on Student X showed a distinct and considerable lack of sensitivity, particularly in the context that sexual harassment is a serious claim to make against anyone, not least a minor over whom you hold a position of authority. I also note that, even within the context of the investigation of the Tribunal into this complaint, the complainant has made serious accusations against almost every person involved in the matters before the Tribunal, often with little or no evidence to support these accusations, and without regard to the consequences of doing so.
5.44. In short, it is clear that the approach of the complainant to the rights of other parties with respect to defending the complaints she has made against them is highly problematic to say the least. However, I cannot see how disciplining the complainant with respect to her making a claim to the Tribunal would assist in addressing the issues arising in that respect. In that context, and in any event, I cannot see how these difficulties can justify the taking of disciplinary action against her for taking a complaint to the Tribunal.
5.45. Fourthly, it is also clear that the respondent has invested enormous resources in dealing with the complainant. The complainant is undoubtedly litigious and capable of robustly defending herself against anyone who seeks to take action against her, legitimate or not. I have every sympathy for the respondent with respect to the work, effort and difficult dealings that it has had to put in to addressing this matter. I also have no doubt whatsoever that she is extremely difficult to manage, as described by Mr. A. However, I have no jurisdiction to make any determination with respect to the validity of her approach in these respects. I can only consider matters relating to her claim to the Tribunal and my role is limited to making an assessment of whether the complainant has been adversely treated by the respondent within the meaning of the Acts.
5.46. Thus, in so far as the numerous claims she has made against the respondent is concerned, I do not consider that this fact can justify the victimisation of the complainant for making a claim to the Tribunal, not just within the confines of the jurisdiction afforded to the Tribunal under the Acts but also within the meaning of those Acts.
5.47. Fifthly, the respondent also contends that the complainant's own approach to the claim to the Tribunal was indicative of someone who sought only to use it as a threat to get her own way. In that respect, I note that Reason No. 5 in the attached Appendix reads as follows: "that (the complainant) through her correspondence has used...the Equality Tribunal as a threat or negotiating tool with or against (the respondent)."
5.48. In considering this matter, I have studied carefully the correspondence from the complainant to the respondent in which she refers to her claim to the Tribunal, and I have considered carefully the submission of both sides in this respect. The complainant is, of course, correct in stating that she was entitled to propose withdrawing her complaint to the Tribunal in negotiations, settlement talks and/or mediation with a view to satisfying the concerns that she wishes to have addressed in that context. However, I am satisfied that some of the language used by the complainant quite clearly crossed the line between negotiation and threat. Indeed, on more than one occasion, the complainant attempted to prevent the respondent from taking action that had nothing to do with the Acts or any breach thereof.
5.49. However, and while I have taken these matters into account in the redress I am awarding in this case, I am satisfied that the complainant's claim of victimisation to the Tribunal was made with the genuine belief on her part that she had been victimised. In that context, her approach to the matter does not nullify the victimisation of her by the respondent. (In the interests of clarity, it should be said that, as Reason No. 5 as referred to above relates to correspondence surrounding the taking of the complaint and does not suggest any adverse treatment arising from the taking of the complaint itself, its inclusion in the disciplinary action is not victimisation.)
5.50. Sixthly, and finally in this respect, while I appreciate that discussions with the complainant's representatives on the matter have yielded changes to the process that may (or may not) work to the complainant's advantage, the complaint to the Tribunal remains part of that disciplinary process. In that context, any discussions in this respect are irrelevant to the matter under consideration.
5.51. In short, I am not satisfied that the respondent has shown me any compelling reason as to why the protection that this Tribunal affords to persons who consider themselves to be genuine victims of harassment and/or discrimination should not be afforded to the complainant in the instant case, if such an argument can even be made. In that context, I consider that the inclusion of her complaint to the Tribunal as a reason for taking disciplinary action against her is adverse treatment arising out of her making a complaint to the Tribunal. It was, and remains, victimisation within the meaning of the Acts.
5.52. Let me be clear in stating that this finding does not affect the respondent's right to continue with its disciplinary action with respect to any of the other matters to which it has referred in its list of reasons for taking such action (as per Appendix). Provided it refrains from making any further reference to the complaint to the Tribunal as a reason for taking disciplinary action against the complainant, it is acting lawfully within the context of the Acts.
5.53. I note that the complainant's claim of Sexual Harassment of her by Student X, while not part of her complaint to the Tribunal, is also a protected act. I also consider that the matters arising from the impact of the vexatious nature of this claim are adequately covered by Reasons No. 1 and 2 and that the inclusion of a reference to this claim in Reason No. 8 is unnecessary. However, in all the circumstances of the present case, I am not satisfied that the complainant has established that the inclusion of this particular reference is a reaction to the relevant protected act itself, particularly given that the decision to include this reference was made as a consequence of the report of Mr C and was bona fides in that context.
5.54. While I consider that, consequently, it would be ultra vires for me to order the respondent to do so, I would strongly recommend that any reference in Reason 8 to the claim of sexual harassment of the complainant by Student X also be removed. It should also be noted that the order I am making herein is not intended to affect, nor can it affect, the inclusion of the making of any of the other complaints the complainant has made against the respondent as a reason for taking that disciplinary action.
5.55. Put simply, then, Reason 8 is the only reason (as outlined in the attached Appendix) that is affected by my decision herein, and it is only affected in so far as it refers to the complainant's claim to the Tribunal.
Final Matters
5.56. The complainant stated at the hearing that she had included her claim of sexual harassment of her by Student X in her claim to the Tribunal. There was no mention of or reference to sexual harassment either in her claim form or in her submissions received on 15th November, 2009. The first reference to the complainant against Student X came, in fact, from the respondent in its submissions received on 17th December, 2009 and was not referred to by the complainant until correspondence received in 2011. Therefore, there is no such claim before this Tribunal. The complainant also made a claim in relation to a collective agreement in that she claimed that the harassment policy of the respondent was a collective agreement. However, I am satisfied that the policy in question is not a collective agreement within the meaning of the Acts.
5.57. The complainant also stated that she considered she had not been provided with an opportunity to fully present her case. When I asked in what context she meant this, she stated that she had wished to provide further documentary evidence after the hearing to supplement the submissions she was making with respect to her complaint. She stated that she had not had sufficient time to organise herself enough to bring all the documents she needed to the hearing or before.
5.58. I informed her that she had almost three years to prepare for her complaint, and was aware of the first hearing almost three months before it took place and that this was ample time for her to prepare. I informed her that the hearing was her final opportunity to present her case and that it would be contrary to fair procedures and the principles of natural justice to allow any further documentary evidence to be presented by either party except for one item which I considered to be of particular importance and which related directly to material that had already been provided to the Tribunal.
5.59. Finally, it should be said that, at one point, the complainant stated that she wished to leave the hearing. I stated that if she chose to do so, and as the respondent had not at that point had an opportunity to test her evidence, I would proceed to issue a decision stating that her failure to continue to attend the hearing was unreasonable in the circumstances and find against her on that basis. She chose to remain at the hearing in that context.
6. Decision
6.1. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008:
6.2. I find that the complainant has failed to establish a prima facie case that the respondent discriminated against her on the gender ground pursuant to section 6(2)(a) of the Acts in terms of access to employment, contrary to s.8(1(a) of the Acts.
6.3. I find that the claim of discrimination with respect to conditions of employment, in terms of Section 8(1)(b) of the Acts, was not referred in time within the meaning of Section 77(5)(a) of the Acts.
6.4. I find that the complainant has failed to establish a prima facie case that the respondent discriminated against her on the gender ground pursuant to section 6(2)(a) of the Acts in terms of training, contrary to s.8(1)(c) of the Acts.
6.5. I find that the complainant has failed to establish a prima facie case that the respondent discriminated against her on the gender ground pursuant to section 6(2)(a) of the Acts in terms of promotion/re-grading, contrary to s.8(1)(d) of the Acts.
6.6. I find that the complainant has failed to establish a prima facie case that the respondent harassed her on the gender ground pursuant to section 6(2)(a) of the Acts and contrary to s.14A of the Acts.
6.7. I find that the respondent victimised the complainant in terms of section 74(2) of the Acts.
6.8. In accordance with Section 82(1)(c) of the Acts, I order the respondent to pay to the complainant the sum of €500 in respect of the victimisation. This award is made to compensate the complainant for the distress caused to her as a result of the victimisation by the respondent. In that context, it is not in the nature of pay and is, therefore, not subject to tax.
6.9. In accordance with Section 82(1)(e) of the Acts, I also order that, no later than 42 days after the date of this decision, the respondent cease to include the making of this complaint to the Equality Tribunal as a cause, reason and/or matter for consideration with respect to the disciplinary action currently being taken by it against her. For the avoidance of doubt, and without prejudice to the effect of this order in any other respect, it should be noted that this order includes the removal of any reference to the complainant's complaint to the Equality Tribunal in:
a) the document entitled "Matters listed for Consideration by Subcommittee of (the Respondent) established under (named circular)", and/or
b) any other documents of relevance to the disciplinary process currently being undertaken by the respondent against the complainant in that respect.
(In the interests of clarity, it should be noted that this order refers solely to the taking of complaints by the complainant to the Equality Tribunal and does not and cannot affect in any way the taking of disciplinary action by the respondent against the complainant with respect to any of the other matters which are being referred to by the respondent in that action, including the finding of Mr. C that the complainant's claim of sexual harassment against Student X was vexatious.)
_____________
Gary O'Doherty
Equality Officer
13th March, 2012
Appendix to Decision Ref.: DEC-S2012-027: Redacted version of document entitled "Matters listed for Consideration by Subcommittee of the Respondent established under (named circular)"
The Respondent and Section XXX of (named circular) Revised Procedures for Suspension and Dismissal of Teachers
The allegations for consideration by the Subcommittee, established under (named Circular) are:-
1.That the Complainant made unfounded, malicious and vexatious allegations of sexual harassment against a student in her art class in August 2010.
This allegation was made in a letter dated the 30th August 2010 from The Complainant to XXX of the Respondent, the letter was titled 'Sexual Harassment Complaint; School Z'. Following requests for information from XXX, the Complainant submitted a further document to XXX on 8th October 2010 titled 'Report of XXX of the Respondent on six points of information required by 12 noon 8 October 2010'
XXX of the Respondent appointed an independent investigator Mr. C to investigate this allegation of sexual harassment. Mr. C was issued and agreed with Terms of Reference for the conduct of this investigation. Mr C's report issued to XXX on the 10th December 2010. This report concluded that:-
-the allegations of sexual harassment as set out by the Complainant against the Complaint Subject are without foundation and this Investigator would so find even in the circumstances where the Complainant had let her allegations stand; and
-the allegations are vexatious and malicious and, on the balance of probability, were made to victimise the Complaint Subject as a means of vindicating the Complainants objections to his admission into her art class.
The full report of Mr. C titled 'Investigation of Allegations of Sexual Harassment of a Member of the Teaching Staff of School Z by a Student Enrolled in and Attending the Leaving Certificate Programme in School Z' and all documentation referenced above is contained in the folder titled: Report of Mr. C.
2. Through her actions in accusing this student she exposed the Respondent to legal action and vicarious liability charges.
3. That the Complainant inappropriately accessed and published material from Facebook accounts of Students in defending her position on this matter on no less than two occasions. The first occasion was in preparing her response to Mr. C and then second was supplied as back up a Notice of Complaint to a Rights Commissioner. This action breeched the expected and normal boundaries of a student-teacher relationship. Documents contained in Report of Mr. C and Appendix 1
In accessing and publishing material from student Facebook accounts, the Complainant breached the directions and ethos of the Respondent's Code of Practice for Teachers in particular section 7 of this Code. Appendix 1.
4. The Complainant wrote false statements in a Notice of Complaint Form to the Rights Commissioner Service under the Form 'Protections for Persons Reporting Child Abuse Act, 1998 claiming that:
A 'my employer applied sanction to me on the 2nd June 2010 partially or wholly because I reported Child Abuse observed by me in class and my employer refused the supports to teaching that are promised in the disciplinary code'
B 'My employer is treating me with contempt in my terms and conditions of employment as a teacher because I reported suspected and disclosed child rape by treating me as if I had less moral maturity and integrity than the students in the photos and DVD's attached. This treatment by VEC and School management impedes me in promoting sexual respect in my practice as normal and is very serious penalisation.
All suspected child abuse or sexual abuse situations should be reported under the Child First Guidelines. The Complainant has received training on Child First Guidelines http://www.dohc.ie/publications/childrenfirst.html. The Respondent and School Z did not receive any such reports as referenced in her Notice of Complaint Form.
Documents and CD download attached in Appendix 1
5. The Complainant through her correspondence has used State Industrial Relations Agencies, particularly the Equality Tribunal, as a threat or negotiating tool with or against the Respondent. Examples are given but are not limited to the following:
Letter 28/5/2007 From the Complainant to Mr. A
I do still think your management style is interfering, disruptive and very unhelpful and that it amounts to harassment under the employment equality acts 1998-2004. ....the (Trade Union) has confirmed to me in writing that the (Trade Union) would represent me in a Tribunal should I need tribunal assistance in addressing you on the things you do...
Letter 25/6/2008 From the Complainant to Mr. A, Principal
....I request you either withdraw this issue or furnish with me with a, b c above.
If you fail to do this before I teach my first class, I will have no choice other than refer your continuous discriminatory treatment of me to the Equality Tribunal.
Letter 4/11/2008 from the Complainant to XXX.
...I respectfully notify you with this warning; Should you continue to makes changes to the rules of conduct for Junior Cert Art assessment at the school without consulting me, I will;
.refer your actions to XXX for consultation with the centre report of (redacted date)
.notify XXX in accordance with circular XXX
.refer the matter to the Equality Tribunal for investigation.
Letter 27.8.2009 from the Complainant to XXX
I experience harassment like acts from the Respondent and School Z since the 10th December 2008 when I reported a neck injury to the deputy Principal. I am making a further claim to the equality tribunal in disability ground because you give me no grievance procedure
Letter 5/3/2010 from the Complainant to XXX
In conclusion the Leaving Cert Art practical examinations take place in a few weeks. For no apparent reason and without any provocation form me you have destroyed the facilitation of it, by means of materials provided to students
Letter 27/11/2010 from the Complainant to XXX negotiates that if she is reinstated in her post she will withdraw her complaint to the Equality Tribunal. <During this time the Complainant was off work pending the outcome of Mr. C investigation>
'I request to be urgently reinstated as a teacher and special duties post holder at School Z. Time is an important factor for a successful reinstatement and should the Respondent do this within seven days of receiving this request, then I will withdraw my complaint to the Equality Tribunal'
Addressing the Complainant
Letter 4/12/08 from XXX to the Complainant
Letter 5/3/2010 from XXX to the Complainant
Documents are provided in Appendix 2
6. That the Complainant consistently communicates with her employer in an undermining, inappropriate and disrespectful manner despite being advised on several occasions by XXX and XXX to desist from such communications: Examples are given but are not limited to the following (more evidence on personnel file)
Letter 10/7/2006 From the Complainant to XXX at his home address
I do not accept this action from a person. Many parents and colleagues have said to me for years that you are a fair and equitable person. I am sincerely offering you an opportunity to show these qualities to me.
18/11/2006 Letter the Complainant to XXX
....'destructive control that my principal and XXX exercise over me'
'you are both making decisions that are negatively impacting on my wellbeing'
'you toy with my emotions'
'you are being reckless with my wellbeing by pressurising me towards recommendations which are confusing and have been unhelpful, while in parallel.....'
1/12/2006 Letter the Complainant to XXX
'you are will fully hurting me further over this past....I intend resigning my post on Thursday if this psychological abuse continues'
21/12/06 Meeting re Post of Responsibility the Complainant and Mr A Principal, XXX, XXX
21.12.2006 meeting in the School with the Complainant and Principal, note taking and support by XXX, XXX. The Complainant brought a pineapple fruit to this meeting placed on the table and stated that it was her representative her Very Important Pineapple - VIP and that it would be her representative for the meeting. At the time the Complainant was a member of (Trade Union) and it was expected that they would represent her. The Principal did not engage with this behaviour and proceeded with meeting. At the meeting she was assigned duties and actions.
5/4/2007 Letter the Complainant to XXX
'when you make Decisions and I am not informed or am overlooked for consultation, I feel really put down...pushed away down in priority of your considerations on decisions that impact on me.'
28/5/2007 Letter the Complainant to XXX
You are operating in an educational autocracy where teachers have no voice
6/7/2007 Letter the Complainant to XXX
Your decisions effectively deduct marks from students ...you have not made informed considerations
3/11/2008 Letter the Complainant to XXX
you and XXX (over and above Mr A) are aware that you have inflicted terror on me and professionally marginalised and embarrassed me for years'.. 'you are aware that you have victimised my students and their opportunity for qualification and education for years.....what you did during mid term break is ethically reprehensible ..the esteem and patronage you show to XXX and his teacher disgusts and terrifies me because of the dirt, accusations, refuse and unfair examination procedures that you make my students endure'
6/8/2008 Letter the Complainant to XXX:
I am only able to feel safe with people who are earnest with me.
I am unsafe with people who offer promises, make agreements that they do not keep.....You set a new standard in School Z that night, on promise and agreement which Mr. A has followed since. It is destructive for a teacher to encounter this standard.
Email 28 & 29/1/2009 From the Complainant to XXX
Emails of a student wearing a mask emailed to XXX
email: danger, darkness, dirt, discipline, cold........
Full letters and copies in Appendix 3
7. That the Complainant fails to conduct herself appropriately as a post primary teacher. The key instances of this unacceptable conduct are:
1. Regularly refusing to attend meetings with school management. Formal verbal warning issued in 2010. Appendix 4
2. Inappropriately engaging with the School and XXX regarding the relocation of Art Room 1 to allow for a new school library 2007. Appendix 5
3. Effectively destroying the relocated art room as a response to the decision of the school and XXX September 2007. This resulted in a formal warning issued in 2008. Appendix 6
4. Abnormal attendance patterns; the schools main concern is that the Complainant regularly turns up for school and then leaves prior to the commencement of class. These absences are communicated to management inappropriately putting management in invidious positions with regards to class supervision and organisation of management time. Appendix 7
5. Failure to agree post of Responsibility Duties through the normal and appropriate channels. Constantly introduces barriers to the completion of these duties. Appendix 8
6. Failure to follow guidance and direction from school management
8. That the Complainant continuously makes unfounded complaints and publishes material that damages the respondent's good name and reputation
2005/2006: Formal Bullying & Harassment Complaint raised by the Complainant against her Principal Mr.A Appendix 9
2009 The Complainant lodged an equality complaint against XXX of the Respondent based on gender grounds - XXXXX. Case being heard at a Formal Equality Tribunal 25th January 2012. Appendix 10
2009/2010 Formal Bullying & Harassment Complaint raised by the Complainant against her Deputy Principal XXX - mediation arranged Appendix 11
Jul 2010/Feb2011Stage 4 Grievance lodged against XXX in the LRC under Grievance Procedure - claiming no access to a grievance procedure. Appendix 12
August 2010 Sexual Harassment complaint made by the Complainant against a student in her class.
April 2011 Complaint of penalisation lodged against XXX under the Health, Safety and Welfare at Work Act 2005. Report of Mr. C
September 2011 LRC decision appealed to the Labour Court - hearing 3rd January 2012. Appendix 13
2011 The Complainant lodged a victimisation complaint against the Respondent with Equality Tribunal being heard at a Formal Equality Tribunal hearing on the 25th January 2012 Appendix 10
2011 Notice of Complaint to the LRC under the Protections of Persons Reporting Child Abuse Act 1998. Appendix 1
9. That the Complainant through her actions has cost the Respondent inordinate amount of monies and management time to maintain her employment.
As at August 2011 the Respondent made a conservative estimate that the cost of the Complainant's employment since 2005 extended to at least €100,000. It is calculated that in any one year at least 150 hours of (employee) time is spent dealing with correspondence alone, both to and from the Complainant dealing with various matters of complaint, grievance, points of clarifications and disciplinary matters. This does not include time spent on major matters such as the more formal process of local management's time spent dealing with local operational matters that regularly arise with The Complainant.
10. As a result of all the above Management of the Respondent contend that the Complainant, as a result of her actions has misconducted herself to such an extent as to now be deemed unfit for office as a teacher (in School Z).