UD2199/2011, MN2238/2011, WT905/2011

EMPLOYMENT APPEALS TRIBUNAL

UNFAIR DISMISSALS ACTS, 1977 TO 2007

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005

ORGANISATION OF WORKING TIME ACT, 1997                                                                                        

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr J. Lucey

Members:     Mr D. Hegarty

                    Ms H. Henry

heard these claims in Limerick on 28 August 2013

and 21 January 2014

Representation:

Claimant:

             Mr Richard Liston BL instructed by Mr Gerry Twomey,

            Frances Twomey & Co, Solicitors, 80 O'Connell Street, Limerick

Respondent:

             Ms Mairéad McKenna BL instructed by Ms Christine West,

            Mason Hayes & Curran, Solicitors,

            South Bank House, Barrow Street, Dublin 4

The determination of the Tribunal was as follows:-

This being a claim of constructive dismissal it fell to the claimant to make her case

In August 2005 the claimant was appointed principal of the National School (the school) operated by the respondent, having worked in the school from 1979. Following the visit of the District Inspector of Schools in November 2005 issues arose in regard to the evaluation of the work of a particular teacher (PT) in respect of PT’s competence to teach.

This matter was, and indeed remains, ongoing throughout the remainder of the claimant’s employment and up to the conclusion of the hearing of this case. It is not necessary to canvass those issues involving PT except to say that the relationship between the claimant and PT appears to have completely broken down.

On 6 March 2009 the chairman of the respondent wrote to the Diocesan Bishop as patron of the school seeking the patron’s approval for the dismissal of PT. On 21 December 2009 an officer of the Primary Teachers Probation Section of the Department of Education and Science wrote to the chairman to point out that, as the Minister no longer had power or function in relation to withdrawal of recognition/registration, the process that had been operated by the respondent in regard to PT could not lawfully proceed further. This letter further pointed out that Section 24 (3) of the Education Act, 1998 provided for the suspension and dismissal of teachers by boards of management. In effect this meant that the respondent would have to start again.

The process invoked by the chairman’s letter of 6 March 2009 resulted in an appeal being lodged by PT under the Maynooth Statute 264/2, a mechanism involving Canon Law, to determine the issue.

On 5 April 2011 the result of the Maynooth Statute process was announced at a meeting in the diocesan office between the claimant, the chairman, the diocesan administrator, another clerical member of the diocesan officeand the Director of the Education Office (the director), this office is an organisation set up by three dioceses in order to provide advice to some 440 Boards of Management on Health & Safety, Industrial Relations, Conflict and Planning matters.

The result of the petition under the statutes was to uphold the appeal and deny permission to dismiss. The Statutes committee found in favour of PT on procedural fairness grounds under both Canon Law and under SI 146/2000.

Whilst there is a dispute between the parties about exactly what was said at this meeting it is common case that the claimant indicated an unwillingness to again work with PT. The director suggested the use of an external mentor to facilitate PT’s return to the school. The director further referred to Section 24 (3) of the Education Act, 1998 as the way to proceed with any issues which arose in the future.

The claimant’s position was that after the result of the Maynooth Statute was announced the chairman told her that if PT were to return to the school it would be necessary for her to stay in the classroom with PT in order for her to monitor the situation in PT’s class. The claimant felt unable to do this as she could not perform her duties as principal if required to be in PT’s class at all times.

On 12 April 2011 the claimant wrote a letter notifying the board of her intention to retire from her position on 31 August 2011. This letter was given to the chairman at the board meeting on 13 April 2011 but not accepted until the board meeting on 18 May 2011. During this time the board were attempting to find ways to appeal/challenge the decision under the Maynooth Statutes.

At a board meeting on 28 June 2011 following the rejection of a proposal to seek judicial review of the decision under the Maynooth Statutes the board decided to resign. This resignation was communicated to the patron by letter of 30 June 2011. The parish priest (PP) then became single member manager of the school in place of the board. PP asked the claimant to reconsider her decision to retire but she determined to leave the employment and PP then set in train the process to find a new principal for the school. The claimant retired from the school as of 31 August 2011.

On 11 October 2011 the claimant’s representatives wrote to PP asserting that the claimant had been constructively dismissed from her position as principal having been forced into retirement by being compelled to engage in extensive monitoring of PT. This letter asserted that the new principal did not have to engage in the extensive and impossible mentoring. It stated that the claimant wished to withdraw her retirement and resume her position as principal and that failure to do so would result in the within proceedings. PP did not reply to this letter.

Determination:

This is an unusual claim of constructive dismissal in that the claimant felt able to remain in the employment having submitted her notice of resignation/retirement at the board meeting of 13 April and it being accepted on 18 May 2011 until it became effective on 31 August 2011. However in this case the Tribunal notes that PT was on administrative leave from 2009 when the respondent sought the patron’s approval for PT’s dismissal. It was the question of the return of PT to the school for the new school year in September 2011 which the claimant felt unable to cope with. The fact that the claimant was able to work her notice period disposes of the claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005. It does not arise.

Whilst it is clear to the Tribunal that there were profound and fundamental problems in the school on an ongoing basis. The Tribunal accepts that the respondent required the claimant to be in class with PT at all times. This was not rational and it put the claimant in an impossible position. The Tribunal is satisfied that this requirement was indicative of an intention on the part of the respondent to undermine the employment relationship between the respondent and the claimant.

While the Tribunal accepts that the claimant never raised a formal grievance until the letter from her representative to PP on 11 October the Tribunal notes that at a significant number of board meetings the claimant had to leave the meeting while issues surrounding PT were being discussed. The Tribunal is satisfied that the respondent was well aware of the claimant’s level of dissatisfaction with the whole situation surrounding the management of PT and her involvement in that.

PP, who stepped into the shoes of the respondent when the board resigned at the end of June 2011, told the Tribunal that he was only looking to future and therefore took the decision to not appraise himself of the issues existing before he took over. The Tribunal cannot accept that PP had no knowledge of events leading up to the board resigning and his taking over their function. It further notes that there was no reply to the letter of 11 October 2011 in which it was asserted that the new principal did not have to engage in the extensive and impossible mentoring. Whilst this was an unsupported assertion the Tribunal notes that it has never been denied.

For all these reasons the Tribunal is satisfied that the claim of constructive dismissal is entitled to succeed. The Tribunal awards €50,000-00 under the Unfair Dismissals Acts, 1977 to 2007 as being just and equitable in all the circumstances.

No evidence having been adduced in this regard the claim under the Organisation of Working Time Act, 1997, fails for want of prosecution.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)