ADJUDICATION OFFICER RECOMMENDATIONS

Adjudication Reference: ADJ-00010462

Parties:

	Complainant	Respondent
Anonymised Parties	A Teacher	A Secondary School

Representatives

Bernard Moynihan ASTI

Patrick Mullins BDM Boylan Solicitors

Complaints:

Act	Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00013869-001	12/09/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00013869-002	12/09/2017

Date of Adjudication Hearing: 23/01/2018

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 13 of the Industrial Relations Acts 1969 following the referral of the disputes to me by the Director General, I inquired into disputes and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the disputes.

Background:

The Claimant in this case has been a Guidance Counsellor Teacher with her Employer, a Secondary School from 2000.She has attained seniority in that regard. She had worked as a sole practitioner, since the death of a colleague several years ago, until she was joined by a newly appointed colleague in 2015. The Claimant has experienced significant interpersonal conflict at the school Firstly with the Principal of the School and in latter day from her Departmental colleague. She has participated in several conflict resolution exercises at the school but remains dissatisfied. She has also submitted some complaints against her former Principal and Departmental colleague. The Claimant is currently on sick leave and is apprehensive about her future at the school . She has approached the WRC for recommendations in both Disputes raised.

The Employer is a large Secondary School which operates in the Dies category. It relies heavily on the Guidance Counselling Department for the successful integration of the student population. The School via the Board of Management is keen to assist in a resolution of the issues presented but has expressed serious reservations about the viability of a suggested mediation process. The Board of Management holds the Claimant in high regard but they are obliged to process complaints when raised.

The Board of Management has committed to launching a re-energised forum for the Guidance Counselling Department at the school. The School is now under new leadership and the School is keen to integrate this leadership into a strengthening of collaboration and effectiveness for the Guidance Counselling Department.

On the first day of hearing, the parties made significant progress on a proposed resolution to the second leg of the complaint and requested that I facilitate a three-week adjournment to facilitate the planned meeting with the Board of Management in relation to the first complaint. As I was very concerned about the clear tensions between the parties, I agreed to allow the time for local resolution. Both representatives gave an undertaking to engage with their respective parties at this meeting. The Claimants representative submitted that a legal presence at this meeting was imperative and the Employer agreed to this.

It is important for me to outline that a certain equilibrium between both Teachers was viewed by the parties as a pre-requisite to securing a successful outcome in the second leg of the complaint and the local discussions were to be aimed at achieving this .At the commencement of the resumed hearing some three weeks later, I was informed that the parties had not engaged locally and the Claimant now “ saw no potential for resolution” and she had commenced on sick leave . I continued with my investigation of the first complaint.

Summary of Claimant’s Case:

CA-00013869-001

The Claimant relied on written and oral submissions to make her case. The Union outlined her level of dissatisfaction following the outcome of a workplace Investigation. She sought that the Investigation Report be expunged and a fresh Investigation commenced. The Claimant has an 18-year employment history at the school and is a dedicated and diligent teacher.

The claimant received a formal complaint of bullying from a Colleague dated February 29, 2016. Prior to this, the claimant had participated in a localised Mediation process at the school. The matter subsequently went to Investigation by an agreed external Investigator. The Report issued on 8 February, 2017. The complaint was upheld in part. This has been rejected by the claimant.

On 27 March, 2017, the claimant was invited to address the Board of Management to make submissions in relation to the report. The Claimant prepared a written submission which submitted that there were significant failings in the way the investigation was conducted and fair procedures had been denied to her. A copy of this document formed an integral part of the claimant’s submission and was quoted extensively at the hearing.

The submission centred on:

1 Delay

2 Terms of Reference

3 Lack of Opportunity to comment on Witness Statements

4 Witness evidence omitted and received some 12 weeks’ post reception of report.

5 Imbalance of weighting on witness evidence

6 Inappropriate Investigation and submissions made by the Claimant were not heard.

The Claimant submitted that three witness statements from 17/19 and 23 January 2017 were not attached to the Report and were only received later in May. She had not been permitted to appeal the report. She had not yet addressed the Board of Management on the Report.

In March 2017, she had raised concerns that the Board had agreed to permit the Principal to attend the meeting. She was not able to attend the June Meeting and referred her claims to the WRC on September, 12,2017. The Union sought legal advice for her and correspondence was exchanged between the Board of Management.

The Claimant then submitted a complaint under Dignity at Work against her colleague in October ,2017 and it was accepted that this matter was not before the Commission now. The Claimant outlined that her career was at a certain juncture where there were no clear roles in her Department.

The Claimant sought a recommendation that the Investigation report be quashed She submitted that she was prepared to enter a process of Mediation with her colleague. She submitted that she had suffered a lot of distress in relation to her experience of the Investigation but could see a herself working with her colleague again.

The Claimants Representative outlined that the Union had pronounced Industrial relations challenges at the school and the prospect of utilisation of the Grievance procedure was ruled out as ineffective.

CA-00013869-002

The Union outlined that the Claimant had experience difficulties in her working relationship with the Principal. The Claimant was involved in a protracted attempt to resolve these difficulties and this culminated in the implementation of a Friendly agreement dated March 4, 2016.This made provision for drawing a line in the sand for past issues and constructed a floor plan for improvements. Critical to this was a twostep review after 90 school days and in March 2017

The Claimant pointed to three breaches of the Agreement and submitted that nothing had changed between her and the Principal. She sought inclusion in Guidance and Counselling matters.

Summary of Employer’s Case:

CA-00013869-001

The Employer relied on written and oral submissions. The Employers Solicitor submitted that the School had acted reasonably and in accordance with the School Policy on Dignity at Work and opposed any proposal to re-investigate the complaints. He contended that no issues had been raised during the investigation where Terms of Reference had been agreed and no objections were raised. The Claimant was represented from the start and had legal back up and was not therefore disadvantaged. The Board of Management was keen to resolve the issues.

The Employer outlined several impediments in the case to date. The backdrop of conflict between the Principal and the Claimant which had culminated in the “Friendly Agreement” incorporated in the second leg of the complaint. The Principal has now retired. In addition, there were periods where both Guidance Counsellors were on sick leave for a time.

The Deputy Principal at the School had endeavoured to run a Mediation process between both Guidance Counsellors in January 2016.

“The Meeting was arranged to highlight concerns of both Guidance and counselling participants with respect to each other “

21 Action points were identified. The process was unsuccessful and overtaken by the formal complaint of lodged by the Complainants colleague on February 29, 2016.

Thereafter, the Chairman of the Board made several attempts to seek an informal resolution to the complaint by meeting separately with the parties. On May 18,2016, the Claimants colleague submitted correspondence that she was prepared to mediate. The Chairman sought to engage the claimant only to be informed some days later that she was not prepared to meet. The Claimant sought collateral for the complaint and indicated that she was prepared to accept an apology in the event of her colleague withdrawing her complaint. The Employer described this as a major setback for the Board of Management. The matter later progressed to formal investigation.

The Board received a copy of the Investigation report and received a confirmation from the original complainant that she accepted the findings and wished to move forward. The Board had some tentative discussions on the Report and were awaiting feedback from the claimant in this case. They submitted documentation which demonstrated considerable conflict in a March 2017 meeting but there had been no further engagement. When invited to the September 2017 meeting of the Board of Management, the claimant confirmed that she had referred her claims to the WRC. The Employer submitted that this was a precipitative action and merely obstructed the proposal to exhaust local proceedings.

The Board contended that they wished to engage with the claimant on the report but was now concerned that she had not accepted the Findings of the Report, and did not appear to be willing to acknowledge the finding.

The employer contended that the claimant had been allowed a fair investigation without bias They were obliged to seek an investigation when local efforts to resolve the issues were unsuccessful. They denied that there was undue delay and all procedures utilised were fair. The Board were keen to avoid a re-investigation of the complaint and were conscious that two careers were at risk at the school. They concluded by offering the opinion that Mediation had no prospect of success and would not support the proposal made by the claimant in that regard.

CA-00013869-002

The Boards Solicitor confirmed the existence of the Friendly Agreement from March 2016.Neither the Principal nor the Board had received any correspondence on the reported breaches of the Agreement.

The Agreement was negotiated by the Union and the Joint Management Board and no attempts had been made to re-activate this forum.

The Schools Representative outlined that a new Principal had commenced at the school and the Board wished to reach out to the claimant to build on the Friendly Agreement through Facilitation.

Findings and Conclusions:

CA-00013869-001

I have considered the claim advanced in this case. I have listened carefully to the parties involved and have given time for the parties to explore a local resolution. The matter has now returned seeking a Recommendation to quash an Investigation Report from February 2017.

There is clearly a Dispute present in this case. The issue has caused the claimant distress and this is shared by the Employer. Both parties are concerned for the welfare of the students at the school and neither party has a clear concept of how this matter can be resolved. The matter is compounded by the Claimants sick leave, which now places her some distance away from a potential resolution. Furthermore, there is a series of live complaints at the school which seem to have had an overwhelming effect on the parties.

The Board of Management have a responsibility and duty of care towards both complainant and respondent in any complaint of Bullying. In a recent case of Hurley V a Post, Mc Dermott J in the High Court gave an inciteful insight into the responsibilities of an Employer faced with a complaint of Bullying, where damages were awarded when the employer was found to have failed to take adequate steps to support an individual who had made allegations.

To balance this, the Supreme Court in Ruffley V Board of Management of St Anne’s School [2017] IESC 33 has set down a far-reaching analysis of the components of bullying and has established a definitive test in this complex area. The commentary of Charleton J is pragmatic in this regard. I have made these comments to acknowledge a profound and extensive jurisprudence in the world of complaints of Bullying. This, however, is an Industrial Relations Claim, presented as a Dispute between a long-standing employee and her employer, which in my opinion if left unresolved has the potential to jeopardise the claimants career.

In considering both submissions, I have noted the protracted period spent by both parties on this issue. I have considered the chronology in this case. While I can appreciate that the localised attempt at mediation was a genuine effort on behalf of the participants. It was not heralded or framed as a first step on the road to a Dignity at Work Complaint. I have found that while an active participant, the claimant in this case had not apprehended the consequences of an unsuccessful mediation. She did not foresee that the issues presented at mediation could crystallise into a formal complaint.

I note that the School Policy provides that the Principal is the identified recipient for complaints under the Policy. The complaint when raised on 29 February, 2016 was addressed to the Chairman of the Board. This miss direction should have been intercepted. The Board is a Voluntary Grouping but is a separate and distinct grouping to the Managers of the school.

I acknowledge that The Chairman of the School Board took a hands-on approach from February -September 2016 to affect a mutually agreeable resolution. In listening to the parties on the second day of hearing, I noted that the Employer was disappointed when the Claimant did not make herself available to hear him on the preparedness of the complainant to embrace a third-party Mediation in May 2016. Perhaps this could have been communicated in writing to the claimant? However, I accept that the Chairman was met by a firm stand by the claimant which was not conducive to further conversation at the time. It is impossible to know whether a Mediation by an external person could have succeeded but it is vital that all parties involved in a complaint of bullying be open to trying mediation as a first step. I did not find that Mediation was introduced an emphasised to a significant extent in the School Policy.

I did ask both parties to explain the delay played by the Summer Holidays in both 2016 and 2017 in this case. I appreciate that the School closes but I found that the vacuum in any dialogue in this case from April 2017 to the time of the complaint dated 12 September 2017 to have been a significant impediment to progress. This matter was worthy of prioritisation and the evolution of time has merely served to polarise the parties.

I have been asked to examine the Investigation Process for adherence to fair procedures and compliance with the School Policy on Dignity at Work dated 2015. I note that the claimant filed an extensive written submission to the Investigation in November 2016.

I have found that the Claimant agreed Terms of Reference with the School. The Investigation process was a fact-finding investigation, a concluding report to be presented to the Board and both central parties.

I am satisfied that the claimant was armed with the nature of the allegations, had established familiarity with the procedural framework and she knew the potential implications for the outcome. The Investigation was invested to be able to make adverse findings but not sanctions. I am satisfied that the claimant was permitted to have representation at the Oral Hearing. The Claimant was permitted to ask questions and raise issues within the life time of the Investigation.

There is no doubt that there were major issues at the school at the time of this Investigation, however as stated to the parties, I became concerned that the claimant may have got caught up in the “politics” and this may have caused her to be overwhelmed during the management of the complaint. While representation was permitted for both parties, the Investigator clarified the role was in accompanying and in support. I did not find submissions made at Oral hearing for or on behalf of the parties. It is paramount in a fact-finding Investigation that parties are heard. Given that the Claimant did not submit supplementary documents to the Investigation, I must assume that she was satisfied with her performance at Investigation and it is the outcome that now troubles her.

I found that the claimant has been deeply affected by the Investigation findings and has a very evident difficulty in seeing the procedure through to the end. The impasse regarding the planned engagement with the Board of Management stands adjourned on this topic since March 2017.

I found the claimant’s communication of June 8 to be central to the reflection of the impasse.

In this communique, the claimant refrained from attending the Board of Management Meeting in June 2017 and stated that she may request to meet them in September. Before that meeting took place, she referred her case to the WRC.

I have consulted the School Policy in this regard:

Both parties should be given an opportunity to comment on the findings before any action is decided on by the Board. The method of communicating the commentary may be in writing and/ or by Individuals presenting at the Board Meeting.

This is followed by:

Should the Board find the complaint is well founded, the alleged perpetrator should be given a formal interview to determine an appropriate course of action

In this case, the Investigation Report has been accepted by the Complainant in the case. The key parties are the claimant in this case and the complainant in the initial complaint. It is not for the Board to establish that a complaint is well founded.

This means that there is a twostep process remaining in accordance with the Policy. It is arguable that by submitting the written response to the school, the claimant has satisfied the first step and the ball is now in the Board of Management hands in terms of the formal interview. I appreciate, however that the claimant wishes to address the Board.

I have a difficulty with the sequence of the referral to the WRC in September 2017 as it served to impede the final two step process in the outcome of the Investigation. During my investigation, I found several inconsistent approaches adopted by the claimant that now seem to have resulted in a “rear guard action “on her behalf. This may not have been intentional, but on an objective analysis of the circumstances of the case, I have found that the claimant has remained stationary in her approach rather than trying at least to move forward.

She has been shocked and disappointed by the outcome of the investigation. There were times during the hearing, where I felt that she may not have accepted that the complaint framed an experience of Interpersonal interaction rather than a Departmental liaison with the school

She had a stated desire to address the Board in March,2017 notwithstanding the “glitch “regarding the Principals short term presence at the meeting. Notwithstanding the correspondence which has been exchanged by the School and the claimant’s legal advisors, I find that the claimant should have engaged with the Board long before now. I am satisfied that the Board has confirmed a determined adherence to the School Policy. They want to hear from the claimant, this should have happened before now.

I have reviewed all the documents submitted and during the hearing, the Claimants representative clarified that the Terms of Reference were agreed in this case.

I have found that the delay referred to was predicated on the School attempting to resolve the matter informally. When this was ruled out, the matter moved to investigation without delay.

The Claimant did not demonstrate her difficulties with witness statements. I note that the Investigation was open to addressing any further evidence or information. There is no trail of this opportunity being availed of by the Union on her behalf.

The Claimant has disputed the 7 findings made against her.

I have found that the Management of the Complaint dated February 29, 2016 to have been undertaken in accordance with the School Policy, outside the misdirection of the complaint. I have found that the claimant was afforded fair procedures during the Investigation. I accept she is dissatisfied with the outcome and I attribute some of this dissatisfaction to her feelings of low trust at the school and the concurrent presence of live complaints against other parties. It is not lost on me that she was engaged in a parallel claimant’s procedure with the Principal.

I have tried to make a recommendation to address this in the second leg of the Recommendation. I am mindful that the Claimant worked as a single-handed Guidance Counsellor for an extended period. The School now requires two Guidance Counsellor to guide the student population.

I have found some merit in the Dispute, however, I see no grounds for an application to quash the Report. If issues arise on the conclusion of the process, the claimant should exercise her right of appeal in accordance with the grievance procedure. However, it is far too early to consider this.

I was particularly alarmed to hear that the Union did not rate the grievance procedure as a modicum for Disputes Resolution at the school. This needs immediate attention by the parties.

CA-00013869-002

I have considered both submissions in this case. I have considered the terms of the Friendly Agreement and the presence of the Four Co Signees. These signatures translate to me as the Guardians of the agreement. The promised review never took place. This is a cardinal omission and that cannot be attributed solely to the School or the claimant. An Agreement is more than set of words committed to a folder. It requires courage, integrity and ingenuity on occasion to implement such an ambitious document.

It was not right or proper that perceived breaches were stored up for presentation at the WRC rather than addressed in the workplace. Given the long history to this issue, I find that the parties missed an opportunity to act on an ambitiously worded Agreement and this has been detrimental to the claimant.

The parties presented as keen to have the new Principal involved in the resolution of this issue.

I have been greatly encouraged by the commitment from both parties to rectify the issue. I am grateful to both the School and the Claimant that they have demonstrated generosity of spirit in this regard and I wish them every success.

I have found merit in this Dispute.

Recommendations:

Section 13 of the Industrial Relations Acts, 1969 requires that I make two recommendations in relation to the disputes.

CA-00013869-001 Dignity at Work Complaint

I have concluded my investigation into the Dispute. I have found that the Claimant made a premature application for Adjudication to the WRC without exhausting the internal procedures. I have found this action to have evolved from a “rear guard “action and to permit time for new leadership at the school to become established. This procedural framework must be exhausted in the first instance and I would strongly urge the Board of Management to adopt a pragmatic approach by implementing the following approach.

1 Facilitate the Claimant in addressing a Board sitting established to conclude the outcome of the Investigation within 4 weeks of this Recommendation. Every effort should be made facilitate this.

2 The Claimant should reflect on her preparatory document for the Board and redraft and revise to take account of what the Policy requires for the outcome of the Investigation, giving special attention to trying to move forward in the case in her own best interests and those of her students.

3 Finally, I would recommend that the Board appoints a trained Facilitator to harness the key parties in a collegiate Interpersonal working relationship going forward in the best interests of the Counsellors and the students who rely on them. Facilitation requires a shared energy centred on a common goal and I believe that the claimant in this case would benefit from moving forward with support in this direction. Her skills and experience are clearly needed at the school during this academic year.

4 I would strongly advise the Board to revise and redraft the Bullying Policy in time for its September 2018 review to delineate an expansion to the reference to first stage approach of Mediation and an emphasis on nominated Managers responsibilities at every stage of the process.

5 I would also recommend that claimant attends at a Grievance Procedure work shop with special emphasis on the distinction between a grievance and a complaint.

CA-00013869-002 Guidance Counselling Interface

I have concluded my Investigation into this Dispute. Both parties have agreed to abide by and act on the following Agreement to replace the previous “Friendly Settlement” dated March 4,2016.

The Board of Management wishes to prioritise a harmonisation in the Career Guidance Dept. at the school under the auspices of the newly appointed Principal.

The Claimant in the case wishes to secure an immediate improvement in working relationship at the school, where she has committed a large part of her working life and where she has been successful and effective in her role of Guidance Counsellor.

The parties agree to the appointment of an external expert in Career Guidance Counselling to act as a Facilitator who would work with the parties to oversee a successor to the “Friendly Agreement” and devise a routeway for the Career Guidance Department to function in an enhanced and supported way in harnessing the skills and talents of both Career Guidance Teachers in the best interests of the pupils at the school, whose future is reliant on this department. Identification of a mutually agreeable disputes resolution framework should be paramount in this process.

The Facilitator is to be jointly agreed and nominated by:

General Secretary, ASTI and General Secretary Joint Management Board and will be governed by agreed Terms of Reference and defined review periods which should be honoured.

This process should be underway within 6 weeks of this recommendation and overseen by the Board of Management.

Dated: 03/04/18

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Key Words:

Interpersonal Conflict, Establishment of enhanced Departmental role and function.