Complainant

Respondent

Anonymised Parties

A Special Needs Assistant

A National School

Representatives

Forsa

AJP McDonald Solicitors

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-00021210-001

17/08/2018

The Worker claims that the Employer failed to adhere to the appropriate circular in relation to an agreed grievance procedure and failed to make a determination on her grievance.

The Employer claims that as the grievance was made against a member of staff that has since left, it cannot continue as the question of resolving the grievance is now moot.

The Worker is a Special Needs Assistant (SNA) since September 2006 and employed with the Employer since August 2015.

The Worker claims that she invoked a grievance procedure against the Principal of the School and she claims that the school has not followed the provisions of the grievance procedure as outlined in the Department of Education Circular 72/2011. She further claims that the school has not complied with the provisions of SI 146 of 2000 [Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000], which had denied her to have a determination made. The Worker said that the protected manner in which this matter has been handled has had an impact on her accordingly.

The Worker claims that she was unexpectedly and without notice invited to attend a meeting by the school principal, where a number of allegations were made against her. She accepts that this was not a formal disciplinary meeting, but she was ‘sanctioned’, in that she in the future shall be addressed by her first name and not by Ms. (surname). She claims that although she addressed the issues raised against her, as she was not involved in a disciplinary proceeding she was unable to record formally her version of events. Accordingly, she invoked Stage 1 of the Grievance Procedure on 18 November 2017. The nominee from the Board of Management investigated the matter and wrote to the Worker in March 2018 stating that “I have come to the decision that your grievance is not resolved”. The Worker said as the grievance was not resolved and, in line with the Formal Grievance Procedure, she invoked Stage 2 of the procedure on 6 April 2018.

The nominee from the Board of Management for Stage 2 of the process met with the Worker on 10 May and having concluded his investigation and said while there was an issue he did not feel able to complete the investigation procedure. This was verbally presented to both the Worker and the Employer. Nothing more has happened on her grievance and the matter remains unresolved.

The Worker said under S.I. 146 of 2000 Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000, she is entitled to have a fair and impartial determination of the issues concerned. She had thus far been denied the right to a determination. She also states that thus far she has not been afforded the opportunity to have her grievance resolved. The relief sought by the Worker in the dispute before the WRC, is that "the school be instructed to conclude this matter forthwith and reach a determination, so that the Worker can begin to plan her return to work”.

The Employer said the Worker that has been working in the school as a SNA and in mid-June2017 the parent of a child made a number of complaints to the Principal regarding the manner in which the Worker discharged her duties. Despite there being no formal written complaint, the Principal felt it would be appropriate to advise the Worker of the concerns mentioned to him. No further action was taken by the Principal and there was no disciplinary action.

In August 2017 the Principal received a telephone call from the same parents enquiring as to what was happening about the Worker for the forthcoming school year. The Principal notified the Chairperson of the Board of Management of this telephone call and the Chairperson decided it would be prudent to speak to all of the parties involved. The Chairperson spoke to the mother concerned and subsequently spoke to the Worker. The Worker was concerned that she had not been given any chance to refute/explain the allegations that had been mentioned to her by the Principal.

Within a few days of returning to school a further complaint was made by the mother concerned regarding a toileting issue. The Principal mentioned this to the Worker who then went out on sick leave and has been on sick leave ever since.

The Worker wrote to the Chairperson on 2 October 2017 stating that she would like any complaints against her to be put in writing or withdrawn by 6 October 2017. The Chairperson felt that a meeting between the Principal and Worker would be appropriate and would help in clearing the air so that this matter could be resolved. The Worker wrote to the Chairperson again on 11 October 2017 advising once more that she wished the complaints to be put in writing or withdrawn. At that time the Principal was not prepared to meet with the Worker as he felt he was being blamed for something that was not of his making.

The Board of Management arranged to have the Worker medically assessed by the company doctor on 23 October 2017, as it was obliged to do. A report was subsequently received, and the report noted that the Worker was ‘not currently medically fit for work'. It went on to state that it was important that any workplace concerns be addressed as a priority and that the Worker was medically fit to participate in any such procedures.

On 21 November 2017, the Chairperson wrote to the Worker following receipt of the medical report and noted that there were two issues to be addressed: (1.) the manner in which the Principal dealt with the alleged verbal complaints made by the parent concerned, and, (2.) the alleged complaints made by the parent against the Worker. It was suggested in this letter that the Worker could avail of the agreed Grievance Procedure (Circular 72/2011) and suggested that same be commenced at Stage 1. The letter also noted that there was no written complaint ever received from the parents concerned. It did confirm that recent correspondence had been obtained but that no specific allegation had been made which it was accepted was unsatisfactory. The Chairperson confirmed that she would write to the parents indicating that if they wished to make a formal complaint they must do so in writing. She also made it clear to the Worker that as there was no formal complaint made to date, the Board of Management considered the Worker 's professional reputation to remain unblemished. The parents indicated that they did not wish to put their complaints in writing and accordingly, the Chairperson advised them that she was considering the matter closed.

The Chairperson subsequently wrote to the Worker advising her that the parents did not wish to put any complaints in writing. She advised her that she had told the parents that she was not in a position to investigate the issue any further and that she considered the matter closed. She assured the Worker once again that as far as the Board of Management is concerned her professional reputation remains unblemished and that there is no disciplinary procedure or action whatsoever warranted against her.

The Worker did invoke the Grievance Procedure by letter dated 23 November 2017. A member of the Board of Management, Mr. A, was appointed to deal with the issue pursuant to Stage 1 of the agreed Grievance Procedure. Following meetings with the Worker, and separately with the Principal, he felt that a meeting between the two parties, facilitated by him, may assist in an agreed resolution being found. The Worker stated her understanding of the procedure as being "to decide whether the Principal treated me with fair procedures and afforded me access to natural justice". Mr A responded by letter dated 19 February 2018 indicating that his role in the procedure is to assist the parties in reaching a resolution. He pointed out that if such a resolution was not achieved the matter could proceed to Stage 2 and if a resolution was not achieved at that stage the dispute could be referred to the appropriate independent body that would ultimately make a decision as to whether to uphold the grievance or not. The Worker said she did not wish to participate in a meeting with the Principal, and Mr A subsequently wrote on 12 March 2018 to advise that he had reached the decision that the grievance was not resolved and advised the Worker that she could proceed to Stage 2.

The grievance did ultimately proceed to Stage 2 and another member of the Board of Management, Fr. B, was appointed to deal with it at this stage. Following meetings with the parties concerned Fr. B was of the view that he would not be able to assist the parties in reaching a resolution. He notified the parties verbally that he could not continue further with the matter. It is conceded by the Board of Management that Fr. B should have notified the parties in writing of this fact but that due to an oversight he omitted to do so. The Worker does note however in her submission that Fr. B did notify her that he did not feel able to complete the Grievance Procedure. She also notes that both Stage 1 and Stage 2 were exhausted "without a clear finding".

Pursuant to Circular 72/2011" if the grievance remains unresolved after Stage 2 of the grievance procedure the SNA may refer the grievance to [the WRC]."

The Employer said that in light of the fact that the grievance was not capable of being resolved at Stage 1 or Stage 2 of the agreed procedures then the appropriate remedy is for the Worker to refer the matter to the WRC for a decision to be made as to whether to uphold or dismiss the grievance. It is respectfully submitted that it is not appropriate for the matter to be referred back to the Board of Management "to conclude this matter forthwith and reach a determination".

It is denied by the Board of Management that it did not follow the agreed grievance procedure as set out in Circular 72/2011. Indeed, it was the Chairperson of the Board of Management who suggested to the Worker that she invoke the said procedure. A nominee of the Board of Management was appointed pursuant to Stage 1 and following his meeting with the parties he concluded that he was not able to assist the parties in reaching a resolution. Accordingly, he advised the Worker that she could invoke Stage 2. It is respectfully submitted that the role of the Board member under the procedures is to meet her to discuss the grievance with the view to resolving the grievance and to take such steps as he considers appropriate to have the grievance resolved informally. His role is not to make a decision on the merits of the grievance.

The role of the Board member pursuant to Stage 2 is similar to that at Stage 1. Fr. B was satisfied that he was not going to be able to assist the parties in reaching a resolution and accordingly he notified them that he could not continue with the procedure. As stated above it is conceded that he should have done so in writing. It is clear however that his role is to discuss the grievance with the view to resolving same and to take such steps as he considers appropriate to have the grievance resolved informally. His role is not to make a decision on the merits of the grievance. If the matter is not resolved at Stage 2 the SNA may refer her grievance to the WRC.

The Board of Management does not accept that it has not complied with the provisions of S.I. 146/2000. In particular the Board notes that the main purpose of S.I.146/2000 "is to provide guidance to employers, employees and their representative on the general principles that apply in the operation of grievance and disciplinary procedures". It also notes that the principles and procedures of S.I. 146/2000 "should apply unless alternative agreed procedures exist in the workplace which conform to its general provisions for dealing with grievance and disciplinary issues". With respect there is an alternative agreed procedure in existence (circular 72/2011) and it is submitted that that procedure was followed in this case. With regard to the allegation that the Worker has been denied the right to a determination of her case, the Board of Management does not accept this allegation.

The Employer also suggested that as the Principal has since resigned his position that the crux of the grievance is now moot as it is impossible to resolve.

I have heard both sides and their respective interpretation of the event regarding the substance of the grievance and the possible difficulties that arise to find a suitable outcome. Notwithstanding, the Employer has a grievance procedure setting out in clear concise language how that is to be progressed.

The requirement for the nominee of the Board of Management at stage 2 of the grievance procedure is to arrange a meeting within seven days; discuss the matters with a view to resolving the matter informally; take such steps s/he considers appropriate to the resolving the matter informally, and having investigated the grievance will convey his/her decision in writing.

These steps have not been followed through to a conclusion. The decision needs to be conveyed in writing to complete Stage 2 of the process. I note that the Employers said that the case is now moot as the Principal has resigned. Notwithstanding, the Worker brought a formal grievance through the formal grievance procedure and a written decision is required, be whatever that decision is, for Stage 2 of formal grievance procedure to be brought to a conclusion.    

I find that the dispute is well founded.

I recommend that the Employer conclude this matter with the issuing of a written decision of the investigator’s findings following his deliberations.

I further recommend that since the Principal, who was at the centre of the Worker’s grievance, has since moved on and is no longer employed by the Employer and since the Board of Management have considered the Worker's professional reputation as unblemished that the parties engage in discussions about a possible return to work once the Worker is certified fit to return to work.

Industrial Relations Acts - formal grievance – no determination - well founded.