Complainant

Respondent

Anonymised Parties

A National School Teacher

A National School

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00010042-001

05/03/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00010042-002

05/03/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 4 of the Protection of Persons Reporting Child Abuse Act, 1998

CA-00010042-003

05/03/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00010042-004

05/03/2017

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00010042-005

05/03/2017

The Complainant is a National School teacher of some years standing. The Respondent is a girls National School situated in Dublin. The Complainant joined the staff at this National School in September 2010. In June of 2016 the Complainant’s employment was terminated (with Notice) by reason of her Employer’s belief that the Complainant demonstrated a continued and systematic failure to follow what the Employer says were legitimate and reasonable instructions. Whereas Section 6(1) positively expresses that any dismissal shall be deemed an Unfair Dismissal that assumption may be rebutted if it can be demonstrated that there were substantial grounds justifying the dismissal. The Respondent proposes relying on the express provision where a dismissal may be deemed to be not unfair if it has resulted mainly wholly as a result of the conduct of the Employee (Section 6(4)(1)(a) of the Unfair Dismissals Act of 1977).

The Complainant has brought five complaints to the attention of the WRC as detailed in her Workplace Relations Complaint form dated the 5th of March 2017

The Complainant claims she was unfairly dismissed by letter dated the 16th of June 2016 with date of termination being the 16th of September 2016.

In addition to bringing this matter to the attention of the Adjudication process, the Complainant has brought two issues before the Adjudication process for consideration under the Industrial relations legislation. Firstly, the Complainant states that she takes issue with the Disciplinary sanctions which were applied and secondly the Complainant takes issue the sustained bullying and harassment she says she received during her employment.

The Complainant has additionally made a claim that she has been penalised arising out of a protected disclosure she made concerning an incident in the playground and this complaint seems to be further particularised in the context of the Complainant saying she was penalised for having highlighted a breach of the Protection of Persons Reporting Child Abuse Act 1998.

The Complainant makes the case that there was a campaign to get the Complainant out of the workplace since 2014 at which time the Complainant had raised certain grievances against members of staff.

The Complainant says that the school failed in it’s duty of care to the children of the school by not following up on a schoolyard game that was inappropriate and humiliating to the children and that the school knew or ought to have known that she had raised this issue and was entitled not to be penalised as a result of raising this issue.

The Respondent states that that the Complainant was dismissed in accordance with a well known utilised and recognised Disciplinary Process(as endorsed by the Department of Education) and which was fully adopted by the Respondent in th4 Disciplinary processes.. The Respondent insists that the Dismissal was procedurally fair and substantively fair. The Respondent states that the Complainant’s own conduct led to her to being dismissed.

The Respondent submits that the claim under Section 4 of the Protection of Persons reporting Child Abuse is misconceived and unsubstantiated on the grounds that the Complainant has failed to disclose any evidence to the effect that she has reported concerns to an appropriate person and that she was actively penalised as a result of same.

The Respondent submits that there has been no Protected Disclosure of a wrongdoing made by the Complainant as envisaged by the Protected Disclosures Act of 2014. There is no evidence of a penalisation.

I have carefully considered the evidence presented over the last three days. Primarily this hearing concerned the Complainant’s allegation that she had been Unfairly Dismissed. Whilst other Complaints were detailed in the Complaint Form (Penalisation for Reporting child Abuse and for making a Protected Disclosure and complaints under the Industrial Relations) these were not actively pursued in the course of evidence and for reasons which I will detail anon, these Complainants have gained no traction.

This was I would have to say a very robust challenge made by the Complainant to her Dismissal under the Unfair Dismissals legislation. The fact of Dismissal was not in contention and the Respondent accepted that the burden of proof rested with it to establish it had acted fairly and reasonably in all the circumstances. Evidence was provided by the School Principal and by two of the presiding Chairpersons on the school’s Board of Management. The Respondent’s case was presented to me on the first day of evidence and was vociferously challenged by the Complainant. The Complainant herself presented her position on the second day of evidence and was cross examined on the last day on which day I also heard the closing submissions of the parties.

In hearing this case, my attention was directed to numerous documents, and in reaching this decision I have given due attention and weight to certain key documents including:

The Parental Complaints Procedure.

The Disciplinary Procedure for Teachers (as provided for under agreement with the Department of Education).

The Grievance Procedure.

The Teacher’s Disciplinary Appeal Process.

Responsibilities and Duties of Principal Teachers and teachers   in charge of National Schools Circular.

The voluminous and detailed correspondence between the parties.

Third party correspondence provided by parents in the school - the authors of these documents did not provide evidence concerning the content of these letters. I am satisfied that the fact of these letters was not in contention.

Documents concerning the Complainant’s 15 workplace Grievances dating back to 2010 and which was dealt with in May and June of 2014 (including the Board of Management findings dated the 17th June 2014).

Two Documents prepared by the Complainant detailing the sequence of events leading to dismissal.

The Respondent’s Submissions.

The Complainant became a permanent member of staff at the Respondent National School in 2010. The Complainant was anxious that the pre-history to the termination of employment herein would include a consideration, by me, of the employment since 2010. There can be no doubt that the Complainant was unhappy with certain aspects of this workplace from the very start of her employment. The Complainant did not appear to have a particularly good relationship with the previous headmistress. The Complainant seemed to have confrontations with colleagues and the Complainant was clearly concerned at a lack of supervision and attention as well as a failure to recognise what she perceived to be inappropriate behaviour.

Things came to a head in the course of the academic year 2013/2014 when the Complainant initiated a Grievance process detailing all the Grievances and complaints she had accumulated since the start of her employment. A number of these complaints need to be referenced as they have a bearing on the Complainants before the Adjudication process:

It came to the Complainants attention that the children (all girls) in her 6th class had become involved in the possibly cruel practise of pulling one another’s tracksuit bottoms down. This was happening in the school yard which was meant to be supervised. This could be upsetting for more sensitive children. This was the inappropriate behaviour that was of concern to the Complainant. The School believed, once it had been notified of the practise, that it moved swiftly and appropriately by forbidding such behaviour through the school assembly. The School believed the children were “messing without intent” (per the then headmistress). The practise stopped.

In her Workplace Relations Complaint Form dated the 5th of March 2017, the Complainant makes allegations of having been penalised for making a protected disclosure under the Protected Disclosure Act 2014 as well as a Report under the Protection of Persons Reporting Child Abuse Act 1998. These allegations appear to relate to the Complainant having highlighted with the then Principal of what the children were doing. It should be noted that this was something that the Complainant had brought to the Headmistress’ attention in 2010 and which only subsequently formed part of the Grievance process in 2014. The Complainant says she has been penalised for having highlighted this issue though does not detail this penalisation other than in the most general way.

In any event the School’s Board of Management dealt with and made findings in respect of all of those Grievances raised by the Complainant back in 2014 and the findings are detailed in a final document dated the 17th of June 2014. I am satisfied that the appropriate procedures had been implemented to process these Grievances. The Complainant indicated that she was not happy with the outcome especially in circumstances where so many of her Grievances were deemed unfounded.

It is the Complainant’s case that in the course of the Grievance process, that the Board of Management turned the tables on her. It is alleged by the Complainant that her Bona Fides and her reasonableness were called into question. The Complainant believed that she came out of that process with a target on her back. The Complainant has asked me to bear this proposition in mind in considering the events that led up to her Dismissal.

The Complainant started her fifth academic year in September of 2014 at which time she was assigned one of the 5th classes. That was also the year that saw GC become the new Principal in the school. GC had been a person against whom the Complainant had previously brought a Grievance, though the two ladies had not had much interaction since 2010. I have heard both GC and the Complainant give evidence in relation to their interaction from the start of September 2014, for the next eighteen months, and there can be no doubt that their professional relationship quickly deteriorated into one of hostility. The blame for this deterioration rests with both parties.

It is clear from the evidence that the Complainant did not believe herself to be under any obligation to take direction from CG. The Complainant clearly challenged CG’s authority, suggesting she was in fact only answerable to the Board and/or the Patron. The Complainant did not see the Principal as her “line manager” as it were, and instead appeared to believe that she could operate within the school without reference to how the school needs to be managed as a whole.

There can be no doubt (per the circular) that the Principal Teacher of a National School is:

“responsible.. for the discipline of the school generally, the control of other members of the teaching staff including the co-ordination and effective supervision of their work, the organisation of the school and the keeping of records…”

Why the Complainant was so determined to resist the new Principal’s authority has not been made clear to me. In September of 2014 CG asked two things of the Complainant both of which she point blank refused to do. The first was the paired reading initiative and the second was the Enterprise Ireland initiative which successive 5th classes had fruitfully engaged in in previous years. The Complainant stated she was too busy (having already committed to a Science Fair) and that such projects were not curriculum based or required. The Complainant appeared to be operating her own work-to-rule stance. CG did not pursue the paired reading issue but was anxious that the school would partake in the usual way in the prestigious Enterprise Ireland initiative.

Both parties describe difficult meetings on the issue with the Principal asserting her right to give reasonable instruction and the Complainant describing herself as being threatened and antagonised. The Principal tended to pull rank on the Complainant and/or override her points - which was a factor that led to the ongoing deterioration of their relationship.

Ultimately, the Stand-off resulted in the Complainant getting a verbal warning as was allowed for at stage 1 of the Revised procedures for the Suspension and Dismissal of Teachers circular 60/09. The Complainant was given appropriate notice to attend a Disciplinary meeting on the 8th of January 2015 and the verbal warning was given on the 15th of January as a result of :

A failure to comply with the Principal’s reasonable and legitimate requests

A disregard for the role and responsibilities of the Principal

The Complainant was advised that there would need to be an early, visible and ongoing improvement in this matter and an immediate agreement to engage in the Enterprise project.

It is noted that the Complainant did not avail of a right to representation nor did she opt to Appeal this 6 month sanction.

To her credit, the Complainant did proceed with the Enterprise project and I accept that she was stretched thin doing that project, the Science Fair project and a musical – all in the one year.

From early 2015 the Principal started to get complaints from parents concerning their childrens’ experiences in the Complainant’s classroom. It is difficult to know why this plethora of complaints were being made in this sustained way. I do not accept that the Principal in any way solicited these complaints as was covertly being suggested by the Complainant. I would however surmise that parents might have acted in unison on the understanding that there is strength in a multiplicity of concerns being raised. In any event, the Principal was in the unenviable position of having up to nine sets of parents detailing difficulties their children were having in the Complainant’s classrooms.

I note that the Complaints have never been substantiated and may well have been little more than the exaggerations of over protective parents. However, the fact of Complaints having been made (as against their content) is accepted by me.

The complaints ranged from the usual problems with Maths and English to the more unusual complaints of children being ignored or singled out for criticism. Parents complained of their children being fearful, stressed and upset going into school. Parents found the Complainant to be “sharp”. One child was called out on acting like a “toddler” in front of her classmates (the Complainant conceded this happened).

Perhaps the most telling incident and one which was accepted as having happened by the Complainant was her statement to one set of parents (who were concerned that she did not like their daughter) that she:

“..is not being paid to like your daughter “ but rather “ is getting paid to teach your daughter”.

I accept that no parent would be happy to hear such a sentiment from a person to whom they entrust their child every day.

Given the volume and breadth of complaints that the Principal was receiving, the Principal was bound to take steps to address the problem. The meetings she had with the Complainant regarding these parents complaints were difficult with the Complainant particularly resenting the fact that parents had opted to by-pass the stage 1 of the Parental Complaints Procedure where parents “should.. approach the class teacher with a view to resolving the complaint” in the first instance. I fully accept that there is no mandatory obligation on parents to approach the class teacher in the first instance, such that an approach to the Principal Teacher as is provided for under Stage 1.2 is in some way invalidated because the classroom teacher has not had the first opportunity to hear the complaint.

Parents are not party to the CPSMA/INTO agreed Parental Complaints Procedure and if a prent opts to go straight to the Principal there is nothing a class teacher or the Principal can do about that.

The Complainant tied herself up in insisting that she would not address problems that had not come to her in the first instance. The Complainant refused to accept that the representations being made to the Principal were lawfully made or legitimate. The Complainant had in fact already said to one set of parents that they had been rude and disrespectful to her. I completely accept that the principal had as a matter of course directed parents back to the Complainant and that they had opted not to go down that route. The Complainant saw the cumulative effect of these complaints as a personal attack on her and her competence as a teacher. The Principal could not persuade the Complainant to address these issues and present a plan to the Principal from which she could derive some comfort that the Complainant was going to follow up on these complaints. In the circumstances, the Principal declared her intention to assess the situation herself. On a number of occasions in the course of May and June 2015 the Principal entered into the Complainant’s classroom for the express purpose of observing and assessing the atmosphere in that classroom.

There can be no doubt that the Complainant saw this action as provocative and inflammatory. In fact, the Complainant refused to work under these circumstances and opted instead to repeatedly leave the classroom saying she was unwell.

The Principal was in a difficult situation. She had conflicting duties of care to her staff, the children and the parents. On the one hand she had a series of complaints from concerned parents which she was bound to address. On the other hand she had a teacher feeling undermined and resisting being micro-managed in any way. I accept that no employee would welcome the presence of a superior at the place of work in the manner being proposed by the Principal. However, the Principal couldn’t ignore the parents’ concerns and was not being given any sensible, alternative option by the Complainant. The Complainant sought instead to be disruptive and insubordinate. This ineveitably led to a stage 2 Disciplinary process as set out in the Principal’s letter of the 13th of May 2015 whereupon, a meeting having been held, a sanction of a written warning was imposed on the 4th of June 2015. It is noted that this meeting was conducted in the presence of the Chairperson of the Board of Management and that the meeting ended abruptly when the Complainant left the room. The written warning was to remain active for 9 months and the Complainant was advised:

“For the avoidance of doubt the required improvement is that you engage with management to resolve any concerns held regarding your conduct at work. You are expected to meet the Princiapl if she requests a meeting . You are to allow the Principal to enter into your classroom.””

I note that the Complainant opted to have no representation and that she did not Appeal this sanction and thus knew that it was still operative when she returned to school for the academic year, starting in September 2015.

The Complainant was assigned 3rd class in circumstances where the previous 5th class parents had requested that the Complainant not be allowed carry through to their children’s final year in the National School as was the school custom. It is therefore a fact that the failure of the parties to resolve the issues raised in the previous year had left the Principal vulnerable to being dictated to by the parent body on the issue of where the Complainant was not to be placed.

There were some ongoing issues between September and December 2015 wherein parents sporadically expressed concerns about their children’s interaction with their teacher. The Complainant resisted having these matters addressed in any meaningful way. The Complainant often refused to attend meetings citing unavailability. The Complainant’s evidence was that such meetings were often stressful and intimidatory. A particular complaint from a Ms. M triggered a more heightened interaction. In demanding that the Complainant make herself available for a one to one meeting between Principal and teacher, the Complainant by letter dated the 8th of December stated that she would not have any meeting with the Principal without there being a third party present. The same letter re-iterated that she would not be meeting with the Complainant regarding a “parental complaint” until she had first met with the parent concerned to address the concerns being raised. This letter of the 8th of December also detailed some Grievances which the complainant had against the Principal.

By early January 2016 a couple - Mr and Mrs N - had requested that the Principal set up a meeting with the Complainant and the Principal to discuss concerns they had with their little girl’s performance in school. As it happens, the Ns had already addressed this matter with the Complainant at the parent teacher meeting in November but were not satisfied that things had been resolved. This proposed meeting was therefore in line with the Parental Complaints Procedure. A meeting time was fixed for the 15th of January and the Complainant simply did not turn up. This was very embarrassing for the Principal. Mr and Mrs N wanted their concerns addresses and opted to involve the Chairperson in accordance with the procedure. A meeting was set up for the 29th of January which the Complainant refused to attend. By way of explanation, the Complainant states that she had by now looked for some sort of mediator intervention to deal with the Grievances she had raised in her letter of the 8th of December.

The Respondent’s attitude to this is that the Complainant could not be allowed to exempt herself from the day to day obligations of her position simply by reason of having raised a Grievance against the Principal. There is always an expectation (even when it is sometimes difficult) on employees to carry out all expected and reasonable functions even against a backdrop of something like an ongoing Grievance process being implemented. The School – now including the Chairperson- saw the Complainant’s wilful refusal to meet parents as required in the course of her employment as being a very serious breach of the requirements of her job. This was embarrassing for the school. The Parents Complaints Procedure is a standardised National programme for the optimum potential to reach a resolution. The non-participation of the Complainant   was seen by her Employer as a serious disciplinary breach. The Complainant had a 12 month final written warning imposed on her on the 3rd of March 2016. The Complainant did not attend the disciplinary meeting which proceeded in her absence. The Complainant preferred instead to write to the Chairperson on the 29th of February 2016 to describe the process as unfair and to be the victim of harassment. The Complainant did not accept or recognise that any obligation attached   to herself under the Parents Complaint Procedure and categorically stated a refusal to engage until mediation had been set up. I also note that in this letter of February 29th 2016 the Complainant asserts that the circumstances that had arisen are part of a campaign that she has been subjected to since her Grievances of 2014 had been raised.

In the letter imposing the final written warning it is stated that

“For the avoidance of any doubt, the improvement expected of you is that you engage with all procedures as required, including the Parent Complaints Procedure”.

Again, the Complainant did not Appeal this decision and Disciplinary sanction.

So, when the Complainant was invited by her Employer to re-engage with the Parental Complaints Procedure (to deal with a relatively minor complaint initiated by Mr and Mrs N. – which had initially been deemed to be capable of being resolved informally), her failure to re-engage was destined to have disastrous consequences. As the Complainant had refused to respond at the initial two stages of the Parental Complaints Procedure she was now faced with the prospect of the entire Board of Management considering the Complaint made. This was because Mr and Mrs N had opted to escalate their complaint and drew up a nine page document which was presented to the Board. The Complainant appears to have remained resolute in her belief that she should not become part of this particular Parental Complaints Process. In circumstances where she did not attend or in any other way engage in the process the Board had no option other than to uphold the complaints of Mr and Mrs N.

In her evidence the Complainant kept on stating and re-stating that she had no confidence in the process and that she believed that there was a campaign of animosity directed at her and that she was targeted from 2014 to be dismissed. I cannot agree with the Complainant as such a campaign could never have forseen how comprehensively the Complainant herself would be willing to orchestrate the termination of her own employment. It is my understanding of the facts that it was the Complainant’s own unwavering refusal to deal with the relatively commonplace complaints raised by Mr and Mrs N and others which catapulted the complainant into a line of action from which she would not deviate and which inevitably led to her own dismissal.

And so it was that in failing to partake in the stage 3 of the Parental Complaints Process that the Complainant left herself open to being disciplined knowing that she was already on a final written warning. The Complainant was dismissed on the 16th of June 2016 following a meeting scheduled on the 14th of June which the Complainant did not attend.

On balance, I find that the Complainant’s dismissal was not unfair. I accept the Board of Management’s position that it could not continue to engage an individual who refused to take directions, instructions or even suggestions from the person to whom the Board had delegated this function. The Complainant’s concept of the workplace was blinkered insofar as she could not see beyond her own concerns to how her actions might effect persons beyond her classroom. The Complainant did not, in her evidence, see herself as being disruptive or difficult, but objectively that is exactly what she was being.

I do not accept or believe that there was any sustained campaign against the complainant running since 2014. The Complainant could at any stage from September 2014 to June 2016 halted all Disciplinary and other Processes simply by taking direction and instruction from the Principal instead of resisting her at every opportunity. The Complainant’s own refusal to meet the school principal even half way was what ultimately brought about her own dismissal. The Respondent Employer is entitled relying on the express provision where a dismissal may be deemed to be not unfair if it has resulted mainly wholly as a result of the conduct of the Employee (Section 6(4)(1)(a) of the Unfair Dismissals Act of 1977).

This Adjudication hearing was not a particularly easy one. I believe the Complainant was afforded every opportunity and latitude to present her case.

I make no recommendations under the Industrial Relations Acts. These Complaints were not detailed in any way and simply formed part of the narrative was heard in respect of the Unfair Dismissals case.

The Complainant’s complaint that she has been penalised for having reported a breach of the Protection of Persons Reporting Child Abuse Act 1998 is misconceived and unsubstantiated. I make no finding under this legislation.

The Complainant’s allegation that she has been penalised for having made a protected disclosure of a wrongdoing under the Protected Disclosures Act 2014 is misconceived and unsubstantiated and I make no finding.

The Complainant’s claim under the Unfair Dismissals legislation fails. The Complainant was not unfairly dismissed as alleged.