UD477/2015

EMPLOYMENT APPEALS TRIBUNAL

CASE NO.

UD477/2015

CLAIM OF:                                                                                                  

Francis McGlynn                 

against

Louth and Meath Education Training Board                          

Under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:        Mr. C. Corcoran B.L.

Members:        Mr. J. Horan

                        Mr. S. O'Donnell

heard this claim at Dublin on 7^th, 8^th, 9th June and 22^nd, 23rd August 2016

Representation:

Claimant: Ms Kiwana Ennis B L instructed by MacGuill & Company, Solicitors, 5 Seatown, Dundalk, Co Louth

Respondent: Mr. William Egan, William Egan & Associates, Solicitors, Malt House Square, Bow Street, Smithfield, Dublin 7

Respondent’s case:

The Tribunal heard evidence from PK who was the chief executive of the Respondent. He explained that the VECs and that the training part in the Respondent title which refers to what were FAS training centres, were amalgamated by statute. He is accountable to the Board of management, (BOM). His background was as a primary school teacher. He outlined more of his functions to the Tribunal. He outlined the historical situation.

He met with the staff in 2014 to try and build trust. He felt that it was a good engagement.

The witness explained that he acted as an appellate body, that is part of his remit was to hear appeals. In this particular case regarding the claimant, the complaints against him were investigated by MO’S.

The Tribunal heard evidence from the witness for more than one day and a copious amount of documentation was opened to the Tribunal. Ultimately the witness upheld the decision and rejected the claimant’s appeal.

The Tribunal heard evidence from MO’S, who is a HR consultant and is self-employed. He was asked to investigate the complaints of the apprentices. He found that the claimant indicated to him clearly that he was not in a position to deliver the course. When asked why the claimant told him that he had been out of the work force for ten months and that the time period to prepare for fourteen apprentices was quite short. He had already met with the apprentices.

He was impressed by the claimant making reference to his unreadiness. The apprentices were concerned that they had not received the instruction needed.

The claimant was cordial professional and co-operative. The claimant went through his work in detail. He met all of the apprentices individually.

The apprentice’s complaints comprised of the following. Some felt there was little or no instruction on machines, most that they were given little or no notes, that they were referred to the internet, another was that the claimant was on the phone quite regularly. If they approached the claimant regarding matters he told them that he would get back to them. However he did not get back to them. Only two tests had been completed and there was only a number of weeks left of the course. The apprentices were left to their own devices, or with more experienced apprentices because the claimant was on the phone or unavailable. The apprentices were not supervised or properly supervised.

He met with the claimant and with the claimant representative. He told them that it was his job to make a finding and recommendations. After the meeting he sent them a copy of the report of the meeting. The claimant did not disagree with the minutes.

The Tribunal heard evidence from CD, who is the chief executive of SOLAS / further education and training authority. Normally the disciplinary procedure would be moved up the line to the director of HR but he had no director of HR so he himself stepped down to that role.

He wrote to the claimant. The claimant accepted what was in the report, the claimant was contrite. He did not disagree with the report. He agreed that he brought the class off-site.   All matters were admitted and there was no dispute.

The witness explained that his main concern was that the apprentices were brought off-site. They had no “safe passes” no scaffolding training. The apprentices were paid by the State. He felt that it was an act of gross misconduct

The Tribunal heard evidence from ET, an apprentice.

Another apprentice from the claimant’s toolmaking class said he contributed to a handwritten letter containing complaints about the claimant’s teaching methods. This witness expressed further dissatisfaction about him when he met the external human resource manager in late August 2014.  

As assistant manager who was familiar with the claimant repeated the comments he made about him at a meeting on 4 September 2013. This witness labelled the claimant as hard working, flexible, efficient, productive, and a very good instructor. Apart from his input into the issuing of a verbal warning to the claimant this witness had no other involvement in the disciplinary process against him. He still did not know “where it all went wrong” and how it had reached this stage.

GOB a barrister, accepted a role of convenor and adjudicator for a disciplinary hearing into the claimant’s case. This witness told the Tribunal that his starting point was a report issued in September 2014 by a previous external human resource consultant. That report stated that the claimant was to face a disciplinary process following complaints against him by students attending his toolmaking course. He was also aware that the claimant was still subjected to a final written warning issued by a chief executive in September 2013. That warning was to apply for two years commencing in April 2014. Prior to this disciplinary hearing on 12 December 2014 the he had informed the claimant of his role in this scenario. The claimant engaged a solicitor to represent him at this meeting. During the course of that meeting this convenor refused an adjournment to the claimant that resulted in him and his representative leaving the meeting. The hearing proceeded in the presence of a manager from Dundalk together with a note taker.

He signed off on his final report on the19 December 2014. Point 21 of that report found that the claimant had misconducted himself in a manner and to such an extent as to warrant his dismissal from his employment and I so recommend. According to the witness this was his only option in the case as the final written warning was still valid at that time. He added that he claimant’s non co-operative stance and attitude in dealing with this process was wilful.

Claimant’s Case

The claimant commenced full time employment with the respondent in June 2003 as an engineering/toolmaking instructor. His employment with this training board was without blemish or reprimand up to early 2013. At the end of February of that year the claimant was informed he would be issued with a verbal warning due to his earlier inappropriate and unprofessional behaviour. That behaviour related to a suspension of an apprentice and engaging some of those apprentices for work on his residence. The witness told the Tribunal that this practice was part of the culture of this institution at the time.

Based on a letter of complaint from an apprentice attending the claimant’s classes an investigation by the area training manager took place. That investigation included interviewing the complainant, other students, the assistant manager and the claimant. With the exception of the complainant and one or two other apprentices all praised the input and professionalism of the claimant. The assistant manager described the claimant as an efficient, helpful, productive, flexible, hardworking and very good instructor. The investigation report was forwarded to the claimant and the human resource unit on 1 October 2013.

Following a disciplinary hearing later that month the assistant director general of the respondent informed the claimant I can reach no other decision but to dismiss you …forthwith. That director concluded that the claimant’s actions to bringing the apprentices off-site and subjecting them to breaches of health and safety amounted to gross misconduct. In denying this was the case the claimant also maintained that his earlier verbal warning related to this same event.

The claimant’s appeal against this sanction was heard by the chief executive in November. The claimant received a letter from him dated 5 December informing him that this sanction was to be “reduced” following submissions from him. Those submissions included the claimant’s non-acceptance that he knowingly put apprentices at risk and that he already had been sanctioned for this. That reduction included inter alia suspension for four months without pay, a downgrading of his status and salary, a requirement he undertake coaching, and a clause that this revised sanction be valid for two years commencing when his suspension expires.

The claimant returned to work in the latter half of April 2014 and engaged in the coaching process. Within a few weeks he was back instructing a class of apprentices. In August he reprimanded a student over a clocking –in issue. The next day that student along with another made verbal complaints against him and this was soon followed by a handwritten complaint signed by all students in that class. This sparked another investigation consisting of interviews with the claimant among others. During that investigation the claimant made certain admissions regarding his behaviour. He also expressed the opinion to the Tribunal that he was not equal to the task of dealing adequately with that investigator and indicated he was somewhat ill-equipped for it and found this situation intimidating.  

This investigator who was an outside human resource consultant issued a report on 19 September 2014. That report recommended that the claimant face disciplinary action due to his failure to deliver the Toolmaking programme in line with the accepted standards and his failure to follow the instruction … to have no contact with the class as outlined on 19 August and his failure to not fully engaging in the supports provided through one to one coaching….

The claimant commented that he felt uncomfortable and indeed unable to undertake that class so soon after his lengthy absence from the work place. He disagreed with the complaints saying he had not misconducted himself as described, and added that this was the first time in his teaching career he had to contend with such criticism.   Upon his return he co-operated with a coaching programme. The claimant insisted he followed an instruction to refrain from contact with the class on receipt of receiving that instruction.

A disciplinary hearing took place chaired by an external legal practitioner and he issued his report on 19 December 2014. Both the claimant and his representative felt compelled to leave that meeting when their adjournment application was refused. In a letter dated 6 January 2015 and signed by an adult education organiser the claimant was notified of his dismissal effective from 8 February 2015. That letter writer stated…I now believe I have no other option but to dismiss you….  

Determination

The Tribunal heard detailed evidence from both parties. This was an unusual case in that it involved two dismissals, an extended suspension, several investigations and reports.

It is clear that up to early 2013 the claimant performed his duties in a professional and competent manner. The reasons and timing of the claimant’s verbal warning were in dispute and this unresolved issue resulted in the respondent and claimant interpreting subsequent events differently. The respondent believed it conducted a thorough and fair procedure in ultimately terminating the claimant’s employment. The claimant who accepted that warning felt he was being punished twice and excessively for his wrongdoing. The Tribunal views this scenario as the starting point of this case.

In making its decision the Tribunal notes the following points i.e.

1/His employment with the respondent from June 2003 to early 2013 was without blemish or reprimand.

2/There was a level of confusion over the interpretation of the verbal warning and its implications.

3/The assistant-manager spoke very highly of the claimant regarding his competence as an instructor and he referred to him as hard working, flexible, efficient, productive and a very good instructor. This Tribunal was impressed by the candour and sincerity of his evidence.

4/It would appear to this Tribunal that the claimant was exposed to the principle of “double jeopardy” in the investigation of this case.

5/ In relation to the written complaint signed by the class, it is note-worthy that the student at the fore-front of this event was reprimanded and reported by the claimant on the previous day for “clocking –out” early from his class/group.

6/ Throughout his whole career there was no evidence adduced to this Tribunal of any other class or group making such a written complaint, against the claimant.

7/ While GOB, barrister, and appointed convenor and adjudicator submitted a very comprehensive and competent report and tendered evidence on foot of that report to this tribunal, nevertheless the reality of the situation was that as the claimant and his representative left the proceedings, over which he presided he could only hear one side, and so he would have little or no option but to find for the party that was present, namely the respondent. This was not by any means his fault.

8/ With regard to the submission from the respondent to the effect that following hearings and appeals already properly conducted and heard in the work-place, that this Tribunal was not or should not be empowered to hear this matter or it was not necessary for the Tribunal to hear this matter. It is a well-established statutory and legal principle that regardless of the number of disciplinary hearings within the work-place (conducted by internal or external personnel) that it is the claimant’s right (subject to time-limits and other relevant matters) in employment matters such as these, to bring his case to this Tribunal, if he so wishes. This submission is rejected.

However despite the above-mentioned sentiments as expressed, the claimant contributed to quite an extent, to his own misfortune. He was too casual and easy-going and did not engage or properly engage with the various personnel who were trying to help him. He did make certain admissions as to his incompetence but he did state that as he had just returned from a career break that the time-span was too short in order to organise himself properly to carry out his duties. While this may not be acceptable in relation to teachers/instructors of theory subjects it could be relevant in relation to practical subjects which may involve the ordering of goods and equipment for the coming year and it should have been examined more carefully. At the time the respondent personnel were hampered by certain administrative and logistical difficulties relating to the amalgamation of the different constituent parties which later formed the respondent party, namely the E.T.B. and this did not help matters for the respondent and its personnel, in the investigation of this case.

The respondent personnel were very concerned for the welfare of their students and were making every effort to ensure that proper standards were maintained and that their futures were not jeopardised. They are to be lauded for this. However given the circumstances of this case and especially having regard to the claimant’s previous clear record before these unfortunate incidents, we feel that the action taken by the respondent while it may have been in good faith was nevertheless disproportionate.  

This Tribunal finds that the dismissal of the claimant was unfair under the Unfair Dismissals Acts, 1977 to 2007. Accordingly, the claim under those Acts succeeds and the Tribunal awards the claimant €20,000.00 as compensation under those Acts.      

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)