ADJ-00004802

ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00004802

Parties:

Complaint(s):

Date of Adjudication Hearing: 07/04/2017

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance Section 8 of the Unfair Dismissals Acts, 1977-2015, 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.

Background:

The complaint has been made by a School Secretary against the Chairperson of the Board of Management of a National School for an alleged unfair dismissal contrary to Section 6 of the Unfair Dismissals Act 1977.

The Complainant was employed with the Respondent from October 2005 until 22 July 2016. Her rate of pay was €225 net for a 30-hour week.

The Complainant is seeking compensation for they alleged unfair dismissal.

Summary of Respondent’s Case:

The Respondent did not accept that the Complainant was unfairly dismissed from her position. The Respondent submitted that the Complainant was dismissed where the decision to dismiss her was justified on substantial grounds, and was conducted in accordance with fair procedures.

The Respondent maintained that on 21^st April 2016, the Principal of the school wrote to the Complainant concerning her sick leave absence from 11^th April 2016, setting out his concerns regarding the Complainant's failure to provide medical certificates, and a lack of communication or updates on her absence or likely return to work date. The letter also set out the necessity for the Complainant to provide medical certificates in advance of her return to work, and further addressed concerns regarding the Complainant's attendance record in recent months.

The Respondent also acknowledged there had been some informal contact by the Complainant with a member of the Board of Management regarding her absences and where this communication was primarily by way of text messaging. It was submitted there appeared to be some conflicting information as to the reasons provided from the Complainant regarding previous absences.

The Respondent advised that during the Complainant's absence from the school, school management had become aware of a number of serious issues relating to secretarial duties involving important school related matters which should have been completed (prior to the Complainant's absence on sick on sick leave) which were not in fact done. A further serious issue which was brought to the attention of the Principal during this time was a Facebook posting by the Complainant which was considered to be damaging to the school.

The Respondent suggested a meeting with the Complainant, the Principal and a Board member on the Complainant's return to work to explore and discuss “any issues or difficulties, medical or otherwise…performance, attendance, communication and standards, and any supports or guidance that the Complainant may require. you may require". The letter was returned to the school marked "Gone Away" but was subsequently re­sent and confirmed as having been delivered to the Complainant on 27^th April 2016.

Meanwhile, on 25^th April 2016, the Complainant had advised a Board member that she would return to work on the 27^th April 2016 where the Complainant had submitted a medical certificate stating that she was fit to return to work on that date.

However, on 28^th April 2016, the Complainant emailed the school to confirm that she received the letter to attend a return to work interview and that she was seeking advice regarding the meeting. Accordingly she advised that she would be unable to attend the proposed meeting without a representative. The Complainant further stated that she was certified to return to work on 3^rd May 2016. At that point the Respondent advised the Complainant that a meeting was necessary in advance of her return to work, to address "the contradictions in communications during your absence", to address concerns regarding work and "to satisfy ourselves that you are in a fit state to return safely to work". On 4^th May 2016, the Complainant sent a What's App message to the Principal stating that she would deliver a medical certificate to the school; however the Respondent maintained no medical certificate was furnished.

A return to work meeting was held on 5^th May 2016 where an agenda for the meeting was provided to the Complainant and her representative in advance. The Respondent intended to discuss the issues on the agenda with the Complainant at the meeting to ascertain her responses. In addition, the Respondent also wished to discuss with the Complainant an adjustment of her working hours to accommodate her in her duties.

At the commencement of the meeting the matter regarding sick leave and provision of no medical certificates, late submission of certificates, and incorrectly dated medical certificates were discussed. The Respondent maintained there was much confusion on the issue of certification, and uncertainty as to the Complainant's capacity to return to work. At the meeting the Complainant’s representative advised that the Complainant had been absent from work due to stress. It was therefore agreed that a medical appointment would be arranged for the Complainant to certify her as being fit to return to work, and also to gain some clarity on the Complainant's situation. The Complainant remained off work on paid leave pending receipt of the medical report.

The Respondent denied that the meeting was a disciplinary meeting. It was explained that while there were certain issues regarding the Complainant's employment there was no intention to impose a disciplinary sanction. In any event, as a result of representations made by the Complainant the performance issues were not fully explored during the meeting. The Respondent maintained that it was however made clear to the Complainant that there would be a separate meeting in advance of her return to work to address concerns regarding her performance, and that the matters of concern could potentially give rise to the initiation of the disciplinary process.

The Complainant attended a medical assessment on 20^th May 2016, and a subsequent medical report advised that the Complainant was certified as being "physically quite well", and fit to resume her duties.

In light of the performance matters and a Facebook posting that the Respondent became aware of during the Complainant’s absence, a letter was issued to the Complainant on 24^th May 2016 advising her that a disciplinary process would be initiated and that a hearing was to take place on 7^th June 2016. This letter outlined the details of the concerns held by the Respondent and documentation relating to the matters to be addressed under the disciplinary process. The letter stated that "there is a potential for sanctions up to and including dismissal depending on the outcome of this hearing." The letter further advised the Complainant that she would be suspended on paid leave pending the outcome of the process.

The Respondent contended that the matters addressed under the disciplinary process included a list of serious acts, omissions and failings in the Complainant's duties where the Respondent maintained these failings had potential for significant negative impacts on the school, its students, parents of the students, and the employment of staff. The Respondent advised these concerns included:

1. A Social Media Post: where the Respondent submitted that a Facebook post contained a reference to "work", and offensive language used in post made by the Complainant was damaging to the reputation of the school. The Respondent argued that the school secretary is often the "face" of the school amongst the wider community. It therefore considered that this social media posting was a most serious matter.
2. A failure to return to the National Council for Special Education application for student resources within the deadline, and where despite being instructed to submit the return she failed to do so. It was only by way of a phone call received by the Principal that the Respondent learned the return had not been submitted. Failure to have the form submitted would have had serious implications on the resources for the school.
3. Incorrect school annual returns that were submitted to the Department of Education and Skills The Respondent maintained that "Over-claiming" from the DES in respect of annual returns is a most serious matter which may be referred to the Gardai. The Respondent argued that the return submitted by the Complainant contained numerous errors, placement of children in incorrect classes and typographical all of which could have resulted in serious implications for the school. This form had been submitted in September 2015
4. A failure by the Complainant to submit to the DES, a completed appointment form for a shared post in respect of the school year 2015/2016Thr Respondent maintained that failure to return this completed appointment form could have led to difficulties in the       recognition of service for the staff members in question with significant impact on those staff members' employment rights.
5. A failure to submit to the DES, the appointment form of a teacher who commenced employment with the school.
6. A contract of indefinite duration of a member of staff had been placed in the school diary rather than being properly filed. This raised concerns for the Respondent about the strong likelihood of the contract being misplaced, and concerns that confidential information could have been reviewed by third parties.
7. Negligent financial administration and handling of a significant amount of school monies (cash amounting to €100). The Respondent argued that this failure to lodge or safety store a significant amount of cash taken from school students was a serious matter. The cash was left in the school diary which could have led to it being stolen.
8. A failure to file a significant amount of school documentation and important correspondence since early 2015. These untiled documents were discovered in an un-labelled box. Highly sensitive documentation containing the personal data of students and staff were either not filed or misfiled. This included a student medical report and as the Principal was unable to locate the report, the parents of the student in question were advised that the school had mislaid he report. On learning of this, the parents of the student were deeply upset however, the report was subsequently discovered in the Complainant's desk drawer.
9. Prolonged levels of absences by the Complainant without adequate notification to the Principal, insufficient or contradictory reasons provided for absences, and either no medical certification or insufficient medical certification provided for absences. In addition, members of staff advised the Principal that the Complainant was posting Facebook pictures during her absences which seemed to be at odds with the reasons provided for her absences (i.e. advising Principal that she had chronic back pain, whilst she was abroad when she was absent from work on leave).

It was submitted that at the disciplinary hearing the Respondent argued that not only was the comment on the Facebook posting so plainly offensive and clearly stated "work" that any reasonable review of such a posting would clearly determine it as a reference to the Respondent’s school. It contended that as the school secretary is a "front-facing" public position it was deemed that such a Facebook post was unacceptable. Moreover it advised there is a school "Internet Acceptable Use Policy" for students, which was signed up to by the Complainant in respect of her own children. It was argued that at the disciplinary hearing the Complainant ultimately agreed the Facebook posting was inappropriate, and regretted having the post on her Facebook page; however she claimed that it was a "private closed Facebook page" and that it could not be linked to any individual.

The Respondent also submitted that in response to the dereliction of duties at the disciplinary hearing the Complainant maintained that she was too busy, that she was interrupted while trying to undertake her duties, and was simply "just not getting around to (the work)”.

The respondent also concluded that no reasonable explanation was provided by the Complainant for the dereliction of her duties and most importantly the Complainant expressed no appreciation or remorse for the potential consequences of her actions and potential impact of same for the school community. The Respondent held the view that the school secretarial role is one which requires a high level of trust and confidence given the responsibilities involved. In this case, the Respondent deemed that the concerns for the reputation of the school, the welfare of the children and staff arising from the matters of complaint were such serious breaches as to completely undermine the relationship of trust and confidence and on that basis, it was decided that a dismissal was warranted.

The Respondent argued that the decision to dismiss, and the reasons for the dismissal were communicated to the Complainant by way of letter dated 10^th June 2016 and the Complainant was paid in lieu in respect of her six-week notice entitlement. The Complainant was afforded a right of Appeal which she exercised on the basis of "unfair procedures and the severity of the sanction". The Respondent advised the Complainant that the entire Board sat and considered the Appeal and the appeal was not granted as no new substantive information had been provide to cause the Board to change its mind regarding the decision to dismiss the Complainant.

Summary of Complainant’s Case:

The Complainant had been on sick leave from 11^th April 2016, and on 21^st April 2016 the Complainant was written to by the Respondent advising that a return to work interview was to be arranged and where this meeting was to 'explore any issues or difficulties, medical or otherwise, you may have which are or will impact on your ability to fulfil your role satisfactorily should you return. In this letter the Complainant was also advised that the Respondent wished to explore the demands of the role and expectations of the Board, vis-s-vis, performance, attendance, communication and standards, and any supports or guidance you may require'.

The Complainant sought the advice of her Trade Union where she was advised not to attend a meeting without representation. A meeting was subsequently scheduled for 5^th May 2016 where the following issues were discussed: absences, communication, medical certification, relevant associated issues, Medmark, contract queries and performance.

The Complainant maintained that on 24^th May 2016 she was issued with a letter inviting her to attend a disciplinary meeting on 7^th June 2016 where an agenda for the meeting included record keeping, data protection, punctuality, office management, financial administration, and social media. The Complainant alleged that at the disciplinary meeting a Facebook post that was on the Complainant’s Facebook page was discussed. The Facebook post contained a Despicable Me image with the words “Every day at work I wonder if this is going to be the day that I scream: “F*** O** You C***” out loud instead of just in my head”.

The Complainant maintained that this post was on her personal Facebook page and in no way linked her to the School. The Complainant submitted to the Respondent at this meeting that the School did not have a Social Media policy in place and that no training in relation to Social Media had ever been provided. The Complainant acknowledged at the meeting that while there are other work related issues under discussion the fundamental issue that was raised at the meeting was in relation to the Respondent’s Social Media concerns.

The Complainant submitted that Section 6(1) of the Unfair Dismissals Act requires that substantial grounds need to exist to justify the decision to dismiss; and under the circumstances such grounds were not applicable in this case, however the Respondent had decided to dismiss the Complainant.

The Complainant appealed the decision to terminate her employment on 20th June 2016 citing unfair procedures and severity of sanction and where there is a lack of a Social Media policy in the School. In her appeal the Complainant referred to juris prudence set in Kiernan v A Wear UD643/2007 (the claimant in this case posted a number of very disrespectful comments about her manager on the public social networking using similar language to the Complainant’s post, and where a concerned member of the public who read the comment reported the matter. In this case the Tribunal carefully considered the matter and concluded that the remarks should have been the subject of strong censure and possibly disciplinary action but that dismissal was a disproportionate sanction).

The Complainant argued that despite her appeal, on 15^th July 2016 the Respondent upheld its decision to dismiss the Complainant. The Complainant further contended that she had a good working relationship with the Principal of the school and no issue had been raised about her performance until her back to work interview. In support of this assertion the Complainant submitted three separate reference letters from the school in November 2009, June 2013and September 2014 that were praiseworthy of the Complainant.

In mitigating her loss, the Complainant presented evidence of her attempts to seek employment, and where she gained employment on 10^th February 2017. In this regard the Complainant was seeking compensation for loss of earnings due to the alleged unfair dismissal for some 29 weeks.

In conclusion, the Complainant submitted that for a dismissal to be deemed fair, an  employer must have substantial grounds for dismissing an employee, and in doing so the employer must apply fair procedures to the process. The Complainant argued that in this case the Respondent has not met the standard of proof required when consideration is being given to dismiss as they have failed in their obligation to provide the Complainant with a fair hearing, and that the sanction handed down was disproportionate.

Findings and Conclusions:

In accordance with Section 6(1) the Unfair Dismissals Act, 1977 “the dismissal of an employee should be deemed, for the purpose of this Act, to be an unfair dismissal unless having regard to all circumstances, the were substantial grounds for justifying the dismissal”.

S6(4) of the Act states the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal if, inter alia, it results wholly or mainly from one or more of the following: (a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) the conduct of the employee, (d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

In relation to a complaint of unfair dismissal arising from an employee’s conduct, the relevant legal provisions and the factors to be considered are contained in Section 6 of the Unfair Dismissals Act 1977 including: “(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in S6(4) of this section or that there were other substantial grounds justifying the dismissal.

In addition S6(7) requires that in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer considers it appropriate to do so- (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.

I must therefore consider both the substantive issues leading to the dismissal and the fairness of the procedures adopted.

As to whether there were substantial grounds for the Complainant’s dismissal on the ground of gross misconduct, the applicable legal test is the “band of reasonable responses” test, as comprehensively set out by Mr Justice Noonan in the context of Section 6 of the Unfair Dismissals Act 1977 in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated: “It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM.”

In the case within the Complainant has argued that the response of the Respondent to dismiss her was disproportionate and as such deemed the dismissal to be unfair under the circumstances. The Complainant has also maintained that the procedures used by the Respondent to decide upon her dismissal were unfair.

In relation to procedural fairness, I am guided by the requirement in S.I. No. 146/2000 - Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) which provides that the procedures for dealing with disciplinary issues (reflecting the varying circumstances of enterprises/organisations), must comply with the general principles of natural justice and fair procedures. The contractual and constitutional rights to fair procedures are also well established (In Re: Haughey [1971] IR 217). In weighing up the substantive issues leading to the dismissal, and the fairness of the procedures adopted, the correct approach is to consider both together as per Iceland Frozen Foods -v- Jones (1983) 1 ICR 17.

Applying the aforesaid legal principles and statutory provisions to the facts adduced, I find as follows:

Having reviewed the evidence presented I am satisfied that the Complaint had periods of prolonged absence, and on occasion unexplained absence. Evidence presented indicates that the Complainant had taken some 35 sick days since January 2016, and that a minimum number of certificates had been provided to account for these absences. The most recent period of unexplained sick leave was from 11^th April 2016 until circa 27^th April 2016. I also acknowledge that the Complainant’s return to work at that stage was prolonged due to the fact that the Complainant was invited to attend a return to work interview which subsequently developed into a disciplinary hearing in relation to concerns identified by the Respondent when the Complainant was on sick leave.

The evidence presented supports that on 21^st April 2017 the Respondent wrote to the Complainant regarding her recent and ongoing prolonged absence from work and concerns about her punctuality, and where it referred to a need for the Complainant to attend a return to work interview to explore any issues or difficulties the Complainant may have been experiencing. It is clear in this correspondence that the Respondent was becoming frustrated with a lack of information regarding sick certs, and was also seeking information on when the Complainant was likely to be fit to return to work. At this point I find the Respondent was reasonable in seeking such information and in setting up a return to work interview.

The evidence also identifies that the Complainant was concerned about this interview and advised the Respondent on 28^th April 2016, when she received the letter to attend a return to work interview, that she could not attend without representation. She further advised she was certified to return to work on 3^rd May 2016. Reviewing this part of the evidence I find that the Complainant was reasonable in advising her employer that she wished to have representation at the return to work interview. As her representative was not immediately available for the initial return to work interview, a return to work meeting was re-organised for 5^th May 2016.

However, the evidence supports that on 28^th April 2016 when scheduling the return to work meeting the Respondent wrote back to the Complainant advising her that in addition to discussing her fitness to return to work they also wanted to discuss her performance prior to her absences. The subsequent agenda for the return to work meeting that was planned for 5^th May 2016 referred to absences, communication, medical certification, relevant associated issues, a medical report, contract queries and a performance appraisal. It is not clear at this stage that the Respondent was considering disciplinary issues, nor is there an indication provided to the Complainant at this stage of the nature of potential disciplinary issues that the Respondent wished to discuss with the Complainant.

At the return to work interview the Complainant indicated the reason for her absence was work related stress. As a consequence, the Respondent decided to seek an independent medical assessment of the Complainant before she returned to work. This assessment was organised for 20^th May 2016. I find that under the circumstances it was reasonable for the Respondent to seek this assessment. The evidence further supports that the outcome of this assessment advised that the Complainant was fit to return to work.

The evidence further supports that at the return to work meeting on 5^th May 2016 the Respondent also attempted to raise performance issues, and due to the nature of these issues the Complainant’s representative raised concerns that the process appeared to be dealing with disciplinary matters, and where he objected to the process on that basis. There is a conflict of evidence of what was actually raised at this meeting. No detailed notes were provided of the meeting (summary notes were provided by the Respondent but on the face of it these notes appear to be more preliminary notes rather than details of what was actually discussed, and they do not appear to have been shared with the Complainant at the time). Notwithstanding, I am satisfied that the Respondent did raise performance issues at this meeting and where the Complainant’s representative, an experienced Trade Union Official, was sufficiently concerned about what was happening to have objected to the meeting progressing.

Having considered the evidence presented I am satisfied that the performance matters were of concern for the Respondent and where the Respondent was entitled to investigate such matters. However, the manner the issues were dealt with at the return to work meeting was not adhering to good procedures.   In this regard the Complainant was entitled to procedural fairness which includes a right to know what allegations are being made against her, a right to respond to those allegations, and to be aware of the possible outcomes from an investigation of her alleged misconduct. I therefore find that the procedures being offered to the Complainant at this stage were not fair. The Respondent did however agree to an adjournment of matters and accordingly no adverse decisions were made at this stage. Following the meeting the Complainant attended a medical examination on the understanding that her return to work arrangements would be considered after the results of the medical assessment became known. As stated this assessment certified her fit to return to work.

Following the meeting of 5^th May 2016 the Respondent maintained that it then identified other concerns. However, it is not clear whether some of these concerns were known to the Respondent prior to the meeting on 5^th May 2016 as the respondent submitted to the hearing within that it discovered some of its concerns during the absence of the Complainant, and in particular an offensive Facebook post.   These concerns are outlined in the summaries above.

On 24^th May 2016 the Respondent advised the Complainant that it was now considering these concerns as a disciplinary issue, and where they invited the Complainant to a disciplinary meeting on 7^th June 2016. The letter referred specifically to the inappropriate Facebook post and a list of performance related issues. An agenda of issues was attached to the letter and was subsequently expanded at the meeting.

I find the Respondent is entitled to conduct an investigation and disciplinary hearing of matters of concern, and certainly some if not all of the issues of concern it raised may well be subject to disciplinary sanction if upheld. However, I am not satisfied the evidence presented demonstrated the Respondent conducted a fair investigation of matters before it issued its disciplinary sanction. In the course of the hearing within, conflicts of evidence emerged between the parties regarding the disciplinary issues. For example, the significant sum of money referred to amounted €100, and where disputes existed regarding the actual practice of dealing with school funds, returns to the Department, and procedures for informing the school of taking sick leave. Similarly, the parties disagreed about other evidence related to both the personal and professional supports provided to the Complainant over the years.   In cross examination, the school Principal acknowledged that he was at a loss in how to deal with the issues under investigation, and was at sea on the basis he was a Primary School Teacher and where he had depended on a high level of trust and confidence in the School Secretary, inferring this no longer existed.

It is not for this hearing to decide on such matters or to reinvestigate the case, but I am required to consider the fairness of the procedures applied. Based on the evidence I am not satisfied a proper investigation process was applied. Clearly issues were presented by both parties the hearing within that indicated not all the facts related to the concerns were sufficiently examined to convince this hearing that reliable conclusions could be drawn. Notwithstanding, the findings from the disciplinary hearing was communicated to the Complainant by way of a letter dated 10^th June 2016, and where she was informed by a member of the Board of Management that she was to be dismissed.

The Complainant appealed these findings, and significantly maintained that she was being dismissed for use of social media, yet no social media policy applied to her contract of employment, and where the social media post in question did not refer to the school or any person therein. Whilst the Facebook post contained offensive words it is noted that the post had been on the Complainant’s personal Facebook account for over one year without any apparent reputational damage to the school. The Complainant also contended that with regard to the general performance issues she was now being dismissed for, she had never been spoken to before, nor was there ever any performance related concerns raised with her prior to her period of sick leave in April 2016. The Complainant also contended that over the duration of an eleven-year career with the school, the school management has never had an occasion to speak with her in relation to her performance. This matter was contested by Respondent, but no evidence was provided to support the assertion or to specifically demonstrate that the Respondent was on a current disciplinary warning prior to the events subject to the hearing on 7^th June 2016. The Complainant’s appeal also referred to her absences for which she had been dismissed and maintained that she had been on certified sick leave, and also maintained that she was advised by a member of the Board how to report her absence, and how she did report her absence was common practice. It is noted this is contested by the Respondent.

Significantly the Respondent advised the Complainant in a letter dated 1^st July 2016 that the Board in its entirety met on the night of 29^th June 2016 to consider the appeal, and advised the Complainant that it was upholding the decision of the disciplinary hearing to dismiss the complainant. I find this appeal process to be flawed as the entire Board met to discuss the appeal, where some of the Board members were referred to in the Complainant evidence, and where one of the Board of Management had been party to the earlier disciplinary procedures, and had informed the Complainant on 10^th June 2016 that she was to be dismissed.   I am therefore not satisfied the appeal procedure was impartial and as such I find that the conduct of appeal procedure by including those involved in the earlier process has breached a fundament right of the Complainant to natural justice and fair procedures.

In addition, in relation to the substantive issues, I find the sanction to dismiss was disproportionate in light of the absence of a social media policy in the school; where the offending Facebook positing was a generic Despicable Me image on a private page and where the school was not mentioned with the posting. Similarly, the Respondent presented no evidence in the hearing within that it had formally engaged with the Complainant regarding concerns it held relating to her performance. On that basis, the decision to dismiss appears disproportionate in light of her eleven years of service and lack of any evidence to prove it was part of a reasonable escalation of the schools disciplinary procedures.

Based on careful consideration of the evidence presented I therefore uphold the complaint to be well founded.

Decision:

Section 8 of the Unfair Dismissals Acts, 1977–2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act. For the aforesaid reasons, I find this complaint to be well-founded pursuant to Section 8 of the Unfair Dismissals Act 1977 and conclude that the Complainant was unfairly dismissed by the Respondent.

Section 7 of the Unfair Dismissals Act 1977 sets out the various forms of redress including reinstatement, re-engagement and financial compensation which may be awarded. Relevant to the case within, where compensation only is sought, Section 7(1)(c)(i) of the Act provides: “…if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances,…”

Section 7(2) sets out the factors which should be considered when determining the amount of compensation and of relevance to this case is the extent (if any) to which the conduct of the employee contributed to his losses and measures adopted to mitigate same.

In the circumstances, I am satisfied that the Complainant had been involved in conduct meriting an investigation of matters to be conducted by the Respondent. However, I am not satisfied that the decision to dismiss her was within the range of reasonable response in light of the evidence to be considered. I also find that the appeal hearing was flawed and where the attendance of the Board members associated with the disciplinary hearing at the appeal hearing has impacted on the likelihood   that the Complainant was going to have a fair hearing of her appeal.

I also found her evidence in relation to his mitigation of losses is credible where she provided documentation indicating her efforts to gain new employment. The Complainant found alternative work after 29 weeks.

Therefore, I consider it just and equitable in all the circumstances to award the Complainant €6,525, reflecting her actual loss. The Respondent is therefore ordered to pay the Complainant a total of €6,525 net of any lawful deductions in compensation.

Dated:   29^th August 2017

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Key Words: