ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002148

Complaint for Resolution:

Date of Adjudication Hearing: 08/09/2016

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8(1B) of the Unfair Dismissals Act, 1977, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Attendance at Hearing:

Complainant’s Submission and Presentation:

The complainant commenced employment in the respondent School in September 2006.

In October 2008 felt that the behaviour of an immediate colleague changed towards her, (hereafter Teacher A). She was subject to personal attacks, blocked from access to resources, policies were changed without agreement, her classes and teaching were disrupted and there was poor communication and other issues.

Teacher A also criticised her manner, engaged in threatening behaviour in front of students and undermining behaviour and disrespectful behaviour in the course of her work. She reported this to the respondent but the then Principal dismissed her claims and implied that they were not true. In September 2011 a new Principal was appointed.

He approached her and asked how things were going in her Department. She explained that the working relationship with Teacher A was deteriorating and that the undermining and disrespectful behaviour continued on a daily basis.

The Principal suggested mediation as a way of sorting out the problems and said that the mediation process would commence shortly and would be chaired by the school guidance counsellor.

The complainant agreed to mediation and engaged fully with the process.

During this time, the Department meetings were chaired by Teacher A with the mediator in attendance. The complainant was deeply unhappy with the manner in which these meetings were conducted and it was during this time that Teacher A instructed the complainant not to speak to her outside subject department meetings.

This was never challenged or countermanded by the school. The process of mediation seemed to make the situation worse. Teacher A did not speak to the complainant and was ignored on a daily basis by her for over a year. In October 2011, the Principal began to attend Department Meetings. In April 2012, the complainant lodged the first complaint of bullying against Teacher A as the situation had not improved since the mediation finished. The Principal was advised orally that the complaint was being made in advance of the formal submission.

The process commenced, and the complainant was asked to submit details of the alleged incidents to the Principal. She did so promptly.

Teacher A was given a deadline of 15th of June 2012 to respond. She did not respond and was given a further deadline of June 29th 2012 following a request for further documentation. Teacher A did not respond to this deadline either and she was given another deadline of the October 12th 2012.

As a result of hostile behaviour directed towards the complainant by Teacher A at a Department Meeting on the September 27^th, 2012, she withdrew from those meetings the following day. Her solicitor wrote to the school on October 15th, 2012 confirming the decision to not attend Department Meetings until further notice.

On October 18th 2012, the complainant was advised in writing of another deadline given to Teacher A by the Principal of the 2nd of November 2012. Also on October 18^th 2012 she was told by the Principal that refusal to attend her Department meetings was a breach of her contract.

Teacher A was also told on October 18^th, 2012 by the Principal that she would face disciplinary proceedings if she failed to submit a response to the formal complaint of bullying in the workplace by the November 2nd 2012.

On December 17th 2012, due to concerns about the manner in which the complaint process was being dealt with by the Principal and the lengthy delays which were causing the complainant extreme stress, her solicitor wrote to the Chairman of the Board of the school to complain about the processes invoked by the school in dealing with the Bullying in the Workplace Complaint.

A response was received to this letter on the 7th of January 2013 which stated that all correspondence should be directed to the Principal. On March 1st 2013, the complainant submitted medical certification to the effect that she should not attend any Department Meetings due to the continuing levels of stress being experienced resulting from the delay in dealing with the complaint and the unacceptable conduct of Teacher A.  The school was also informed of her being under significant stress in work due to employment issues and lack of movement regarding my Bullying in the Workplace Complaint. Despite her GP’s advice the Principal persisted in trying to make her attend Department Meetings in the course of a meeting on the 20th of March 2013. The complainant requested that the Department Meetings be postponed and that a meeting on the complaint would be held with a solicitor present. The Principal suggested that she attend a therapist to discuss her workplace issues and the complainant agreed. She asked him to put this request in writing on March 20^th 2013.

Pressure continued from the Principal to attend Department Meetings by asking her to 'call in' to his office on the April 18^th, 2013. In a letter dated April 16^th, 2013, she confirmed that she would not attend the next Music Department Meeting on April 18^th 2013 for the reasons outlined by her doctor.

Despite this the Principal threatened disciplinary action and contended on the basis that she may be in breach of contract.

The complainant asked Mr. Forrest about the complaint of Bullying in the Workplace to be told that the complaint had not been upheld. This was one full year since the complaint had been submitted. His manner was hostile, aggressive and she felt he was harassing her. She again requested that Music Department Meetings be postponed until the appointment with an independent occupational health service had been completed. During the academic year 2013/2014 the complainant felt that the teaching and learning of her students was impacted on in a negative way by Teacher A as a result of a number of incidents in the practice rooms. Teacher A asked students to leave the practice rooms even though they were booked in and on the rota, she gave preferential use of the rooms to students of her own or students having private lessons, she told students under her care to ignore the rota and she removed students under the complainant’s care from the rooms in an aggressive manner. Due to the deterioration of her work conditions she lodged a second formal complaint of Bullying in the Workplace against Teacher A on May 21^st, 2013. She submitted detailed examples of the incidents complained of incidents to the Principal and asked him to ensure that the behaviour stopped immediately. She submitted a letter of no confidence in Teacher A in her position as subject co-ordinator on October 25^th 2013. On December 13^th 2013 the Principal confirmed in writing the outcome of the first formal complaint of Bullying in the Workplace and that it had not been upheld. This was one and a half years after the complaint was submitted. He suggested mediation again as a response.

On January 23^rd, 2014, she advised the Principal that she did not accept the decision because of the lack of procedures followed, favouritism shown to the alleged perpetrator by the postponement of four deadlines, the failure of the school to follow through and implement disciplinary procedures on foot of a deadline being missed by the Teacher A, the failure of the school to provide her with information pertaining to the complaint and the failure of the school to deal with the complaint in a timely manner which caused considerable stress and affected her health and well-being.

In the academic year 2014/2015 there was deterioration in her working relationships with other staff in the school which included staff refusing to speak to her or to allow her pass in corridors, making untrue comments about her etc.

On March 18^th 2014, there was an attempt to take away the role of organising the Leaving Certificate Practical Examinations which had been part of her role since her employment commenced in September 2006. On June 9^th 2014, she wrote to the Department of Education and Skills (The Inspectorate Secretariat) due to concerns about the health, safety and welfare of students who came into contact with Teacher A. On August 11^th, 2014, she sent the Department details of the Teacher A’s behaviour. On September 5^th 2014, she wrote to the Chairman of the Board of Governors, expressing her concerns and later also raised the matter with TUSLA. On October 4^th 2014, a discussion took place about the use of the practice rooms with the Principal and on October 9^th, 2014 she provided details of relevant incidents involving infringements of the rota for the practice rooms.

She said she could not allow students to go to an area where they may be subject to bullying behaviour by a colleague. This was never acknowledged by the Principal. At this meeting, he also demanded an explanation as to why she was not responding in writing to Teacher A about Department matters. She explained the reasons why, and at his request confirmed it this in writing on October 10^th 2014. There were forty two reasons given in the letter.

On October 15^th 2014, the Principal asked her to allow her students to use the practice rooms. No reassurance was provided of any action taken by the school to ensure that the complained of behaviour would not happen again.

She also raised concerns with the Health and Safety officer of the school on the 17th of October 2014. These concerns were dismissed. She was pressed to agree to engage in mediation in letter dated October 24^th 2014 with a deadline for acceptance of October 31st 2014, however the letter was sent only on October 30^th.

She saw her GP again who advised her not to attend work for the until she was fit to do so and she did not return until December 18^th 2014 following an independent medical review.

On December 2^nd 2014 she returned to work to find that the attitude of other staff to her was unacceptable and hostile. A request that her classes be moved on her return to work was refused on December 16^th 2014. Pressure continued to allow students to use the practice rooms, despite no action being taken to resolve the issues she raised.

Because of the effect on her health and well-being and the distress caused she request a career break which was granted on March 5^th 2015.

On March 20^th 2015, there was a renewed attempt to allow her students to use the practice rooms despite no action having been taken by the school to address Teacher A’s behaviour. She found the meeting extremely hostile towards her and the Principal insulted me and offended her. She had to argue with the Principal to allow another person to come into the meeting to support me.

She resigned her position on the September 3rd while still on her career break.

Respondent’s Submission and Presentation:

The respondent does not accept the claim of unfair dismissal made by the complainant. It had expected there to be mediation in the case but this had not materialised.

It maintains that the duty of care owed to her was exercised consistently; concerns and complaints raised by or about her were addressed; remedies and reasonable accommodations were offered and accepted by her; and policies and procedures were complied with in full throughout her employment.

The grievance procedure appended to the complainant’s contract of employment was not invoked at any point (details supplied).

The School did not conduct disciplinary meetings or hearings involving her during her employment and her resignation without warning or advance notice at the beginning of a career break granted by the school was wholly unanticipated and unexpected...    

The school responded to concerns raised by the complainant by offering her a series of opportunities to engage in mediation involving the Guidance Counsellor, Principal, and a representative of the Labour Relations Commission with the intention of moderating key relationships and monitoring the conduct of departmental meetings.

In addition, medical support was provided when concerns about her health were raised with school by her GP. The Principal and Deputy Principal made enquiries to establish her health, safety, and welfare following unexplained or unexpected absence from school as well as out of courtesy during periods of certified illness.

In addition, both the Principal and Deputy Principal extended professional support by responding to requests for references for Ms White made both before and after her resignation.

The School responded directly to expressions of concern together with a combination of formal and informal complaints both from and about the complainant in each instance.

The series of complaints made by her about difficulties involving a wide range of colleagues, allegations of bullying in the workplace, and child protection concerns were addressed by both Principals. In addition, she was offered support and encouragement when presented with a series of parental complaints about the standard of her teaching

The complaints of bullying in the workplace were addressed using the Code of Practice issued under Statutory Instrument No 17, 2002 in conformity with Section 42 of the Industrial Relations Act, 1990 (see attached for details). The child protection concerns were investigated using the Child Protection Procedures for Primary and Post-Primary Schools published by the Department of Education and Skills (DES) in 2011.

The school adheres to the Code of Practice detailing procedures for addressing bullying in the workplace under Statutory Instrument No 17, 2002 and Section 42 of the Industrial Relations Act, 1990. It adopted the DES Child Protection Procedures for Primary and Post-Primary Schools as a key policy in 2011.

The procedures are based on Children First: National Guidelines for the Protection and Welfare of Children which guide responses in the areas of neglect, emotional abuse, physical abuse, and sexual abuse of children. In line with the procedures, the Board has appointed the Principal as the Designated Liaison Person (DLP) and the Deputy Principal as the Deputy Designated Liaison Person (DDLP) for child protection.

The school implemented the relevant procedure in accordance with its agreed policies to engage with each and every set of circumstances involving the complainant as required. The Code of Practice detailing procedures for addressing bullying in the workplace under Statutory Instrument No 17, 2002 and Section 42 of the Industrial Relations Act, 1990; and the DES Child Protection Procedures for Primary and Post-Primary Schools were adhered to and applied throughout her employment at The High School.

In conclusion, the school does not accept the claim of unfair dismissal made by Ms Marianne White in her submission to the Workplace Relations Commission which it regards as being entirely without merit or foundation for the reasons outlined above.

Conclusions and Findings

There are several key components to the case. (There was a good deal of detail on the involvement of outside agencies in matters related to the case but they are only indirectly relevant here).

The first is the complaint made in April 2012 and how that was processed by the respondent.

While this will be considered further below she was advised on April 18^th 2013 that the complaint had not been upheld.

The second component relates to the second complaint of bullying lodged in May 21^st 2013. The outcome of this was communicated to her initially on December 13^th orally and in writing on January 23^rd 2014.

The third was the continuing pressure on the complainant to cooperate with meetings in the Music Department, despite the ongoing dispute with her immediate colleague, Teacher A, of which the respondent was fully aware.

Finally, there is the dispute over the use of the practice rooms, and the refusal by the complainant to allow her students to use them.

Regarding the first of these there are a number of preliminary observations.

It was accepted in evidence by the respondent that there had been no Terms of Reference for this investigation and that no interviews with any of the parties had taken place. It was also characterised by quite serious delays occasioned by Teacher A’s failure to respond to the allegations. (Some evidence of a bereavement was offered in mitigation of these delays, but they do not excuse it).

Teacher A was initially given a deadline of June 15^th, 2012 to respond.

She did not do so and was given a further deadline of June 29th 2012 following a request for further documentation. She did not respond to this deadline either and she was given another deadline of October 12th 2012.

Having failed to respond again on October 18^th, 2012 the Principal gave her yet another deadline of November 2^nd 2012. This latter one was accompanied by a threat that she would face disciplinary proceedings if she failed to submit a response to the formal complaint of bullying in the workplace by November 2nd 2012.

It is not known when Teacher A eventually responded but the complainant was never given sight of that response, nor invited to comment on it, apparently because Teacher A threatened legal proceedings if she was. The first she knew, in April 2013, almost exactly a full year after she made the complaint was that it had not been upheld.

It appears (from the respondent’s submission at the hearing) that in respect of the second complaint made in May, shortly after she learned of the rejection of the first, it was decided that nothing formally would be done about it and instead some further informal attempts at dispute resolution would be undertaken, involving initially the guidance counsellor and then the Principal himself.

While such attempts at informal dispute resolution are always to be preferred over more formal processes they are not tools that lend themselves to deployment in every situation.

They are voluntary and require the agreement of the parties to have any prospect of success. They must also take account of the nature of the conflict, the history of relations between the parties. So, there must be some regard for the potential efficacy of mediation and the prospects for a resolution.

By any view of it, it was a very optimistic enterprise in the circumstances of this case even if it had been properly set up. It is not just hindsight that suggests it was not suitable in this case.

More importantly, while the respondent made an extensive submission on the various procedures in force in the school the extent to which it actually followed any of those procedures requires scrutiny.

In its submission outlined above the following appears.

The school implemented the relevant procedure in accordance with its agreed policies to engage with each and every set of circumstances involving the complainant as required. The Code of Practice detailing procedures for addressing bullying in the workplace under Statutory Instrument No 17, 2002 and Section 42 of the Industrial Relations Act, 1990; and the DES Child Protection Procedures for Primary and Post-Primary Schoolswere adhered to and applied throughout her employment at [the school].

The procedures in question were submitted after the hearing and are in line with the Guidelines on Bullying and harassment generally operated in compliant employments. They contain the normal graduated process of informal procedure, initial complaint to immediate supervisor, and then the ‘formal complaint in writing’ (Paragraph 8 a).

The complainant had complied with this on April 2012. The procedures continue that the alleged perpetrator should be given notice of the allegation and ‘afforded a fair opportunity to respond’. This too was done although the length of time taken for her to respond had been outlined above.

The school’s procedures then require the matter to;

‘Be subject to an initial examination by a designated member of management, who can be considered impartial, with a view to determining an appropriate course of action. An appropriate course of action at this stage, for example, could be exploring a mediated solution or a view that the issue can be resolved informally. Should either of these approaches be deemed inappropriate or inconclusive, a formal investigation of the complaint should take place with a view to determining the facts and the credibility or otherwise of the allegation(s).’

The provisions for the investigation then follow.

1. The investigation should be conducted by either a designated member or members of management or, if deemed appropriate, an agreed third party. The investigation should be conducted thoroughly, objectively, with sensitivity, utmost confidentiality, and with due respect for the rights of both the complainant and the alleged perpetrator(s).
2. The investigation should be governed by terms of reference, preferably agreed between the parties in advance.
3. The investigator(s) should meet with the complainant and alleged perpetrator(s) and any witnesses or relevant persons on an individual confidential basis with a view to establishing the facts surrounding the allegation(s). Both the complainant and alleged perpetrator(s) may be accompanied by a work colleague or employee/trade union representative if so desired.
4. Every effort should be made to carry out and complete the investigation as quickly as possible and preferably within an agreed timeframe. On completion of the investigation, the investigator(s) should submit a written report to management containing the findings of the investigation.
5. Both parties should be given the opportunity to comment on the findings before any action is decided upon by management.
6. The complainant and the alleged perpetrator(s) should be informed in writing of the findings of the investigation.

It is quite clear that none of this happened. Practically every word and provision in this, the school’s own policy document was ignored or breached. The claim by the respondent that;

The school implemented the relevant procedure in accordance with its agreed policies to engage with each and every set of circumstances involving the complainant as required.

Is demonstrably untrue and at variance with the facts.

There was no investigation of the type required, no meeting with the parties, no establishment of the facts, no draft findings on which the parties might comment; in short it was an egregious departure from its own procedures in a matter of very great significance affecting the rights and health of the complainant.

Indeed, there is no evidence that any of the requirements of its procedures were followed in respect of either of the complaints; that made in April 2012 or the second one in May 2013. All that is known of the first complaint is the various attempts made to get Teacher A to respond. What became of the response is not known and it was never seen by the complainant.

The respondent stated that Teacher A did offer ‘an explanation’ which was accompanied by a threat of legal action if the information was shared with the complainant. It is highly improbable that there existed any legal basis for a valid challenge to the operation of the investigation procedure and the respondent appears to have wilted rather too easily at the suggestion of it. To have done so was a further aggravation of the breach of the complainant’s rights under the procedure.

In respect of the second complaint, the respondent stated at the hearing that he did suggest at the time that he did not think it would have been helpful to have a second investigation on the same issues.

If he did so he was yet again in the most serious breach of the procedures he claimed to have followed. And of course there had been no ‘first’ investigation worthy of the name.

In respect of the various attempts by the Principal to require the complainant to attend normal meetings in the department these are fully set out above in the complainant’s statement. She outlines there the first occasion when she with drew from a meeting with Teacher A in September 2013 because of what she describes as abusive behaviour. Bear in mind the complaint of bullying had been submitted the previous April.

In October, the Principal told her that her refusal to attend was in breach of her contract, again as if there was no context to this and given the ongoing refusal of Teacher A to cooperate with the ‘investigation’, such as it was.

The following March, 2013 the complainant’s GP wrote to the respondent indicating the impact possible attendance at Department meetings was having on her health. Undeterred by this, the Principal again insisted on her attending a meeting scheduled for April 18^th (coincidentally telling her on that date that her complaint, by that time over a year old, had not been successful.)

As noted above, when, a month later, she made another complaint; it was not processed in accordance with the school’s policy.

It is bad enough that the respondent ignored the complainant’s rights to have her issues investigated, but they were most seriously compounded by its continuing requirement that she work normally as if these complaints did not exist. Whether or not they were well founded is a matter that should have been addressed in an investigation and only following that should the issue of ‘normal’ working have come into play again.

The final issue concerns the dispute over the complainant refusing to allow her students to use the practice rooms. It appears that Teacher A asked two of the complainant’s students to leave the practice rooms in September 2014.

While the context outlined above must be factored to any assessment of the complainant’s actions it appears to have been a very serious over reaction on her part; involving external agencies and raising what appear to be rather exaggerated child protection issues.

Nonetheless, yet again the respondent appears paralysed in the face of this latest manifestation of a long running dispute which clearly had its roots in the relationship between the complainant and Teacher A and which the respondent had manifestly failed to manage to an acceptable standard of competence.

As late as October 2014 the Principal is demanding to know why the complainant is not cooperating with Teacher A, and when she explained he required her to put it in writing. The concerns insofar as they related to child safety were dismissed by the respondent and the complainant was given a deadline of October 31^st to accept mediation in respect of her continuing difficulty with Teacher A.

This is two and a half years after the complainant made her initial complaint which had never been properly addressed under the provisions of the relevant school policy, and her second complaint in May 13 lay dormant somewhere.

The insistence on mediation in the circumstances represents a serious misunderstanding of all known principles governing the practise of mediation. It is not a ‘magic wand’ to be waved at any problem regardless of its nature and it ought to have been clear that this dispute was well beyond its reach.

In due course, March 2015 the complainant sought a career break and this was granted. On December 3^rd she tendered her resignation.

The breach of a contract of employment is, like any other breach of contract a very serious matter. Most cases involve an examination of whether an employer acted fairly in doing so and the test is a demanding one involving a mix of both procedural and substantive issues. The onus falls on the employer in such cases to justify any termination.

So when ‘the shoe is on the other foot’, and when an employee breaks the contract, and then seeks to pursue the employer for constructive unfair dismissal the bar is set just as high. Likewise, the burden of proof, which now passes to the employee, is set at a high level.

In such cases the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. Generally this is taken to mean something that is so intolerable as to justify the complainant’s resignation and something that represents a repudiation of the contract of employment.

The Supreme Court has said that

‘The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.’

Per Finnegan J in Berber v Dunnes Stores [2009] E.L.R. 61

The complainant’s case which is fully set out above rested on continued inaction on the part of the employer over a period of some years in respect of a serious complaint of bullying. Its inaction was a flagrant breach of its own procedures which it compounded by continued pressure on her to act as if there were no complaint.

Put simply, the question is whether it was reasonable for the employee to terminate the contract on the basis of the employer’s behaviour.

Judged by the Berber test and the general principles applicable to a constructive dismissal her case fits comfortably within the principles which will successfully ground a case of constructive dismissal. The complainant’s behaviour over use of the music room and the issues arising might in other circumstances be considered to be unreasonable and dilute her claim.

However, I do not take this view in the particular circumstances of the case. It seems perfectly reasonable to conclude that her treatment up to that point substantially mitigates her behaviour in that she was driven to this pass by the inaction and general behaviour of her employer. This aspect of the matter would have been entirely avoidable had the respondent acted in a timely way and in compliance with its own policies and of established HR principles in the workplace.

I uphold the complaint of constructive dismissal and I make my award below on the basis that the facts of this case are on the outer limits of unacceptable conduct by the employer, whose actions and omissions were a considerable aggravating factor and I consider the award to be just and equitable having regard to those considerations.

Evidence was submitted that the complainant has made efforts to seek to mitigate her losses but nonetheless says that these losses will be about €40,000 per year. I take into account also the relative difficulty of securing another teaching post in the circumstances.

Decision:

Section 41(4) 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(1B) of the Unfair Dismissals Act, 1977 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.

I uphold complaint CA-00002905-001 and award the complainant €60,000 being approximately eighteen months salary less her estimated earnings in the meantime.

Dated:   25 November 2016