Complainant

Respondent

Anonymised Parties

A special Needs Assistant

A Secondary School

Representatives

Mary Seery Kearney BL                      Law Library

Liam Riordan Solicitor                                  Mason Hayes & Curran

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00018736-001

25/04/2018

The Complaint herein issued on the 25th of April 2018. The Plaintiff is adamant that she has been the victim of systematic, sustained and continuous   bullying by the Principal and Vice-Principal of the school wherein she is employed. In attempting to address this matter, the Complainant triggered a Grievance procedure to be dealt with by the Board of Directors.

Ultimately, the Board of Directors engaged a third party to conduct an investigation. The outcome of this investigation was not favourable to the Complainant who challenged the impartiality of the Investigator and the limited nature of the investigation.

The matter has come before this Adjudicator on three separate occasions and I appreciate that real efforts have been made by legal and other representatives to try and agree a way forward. Indeed, as part of the process of engagement I was shown a proposed agreement at the hearing in January of 2019. Ultimately and for reasons unknown to me, this process has not met with success.

The Complainant wants the investigation into her complaint/ grievance re-opened and re-investigated. This time by somebody that she knows to be truly independent.

The Respondent does not want this matter re-investigated as it feels that the Complainant cannot have a second bite of the cherry and must accept the outcome in the ordinary way.

The Respondent provided me with a comprehensive factual and legal submission dated the 21st of August 2018, which includes a preliminary issue concerning my jurisdiction to explore this employment relationship where the Complainant is in fact the employee of the Department of Education and not the school – per the Respondent.

It must be further noted that the Respondent on the last day of hearing (November 2019) withdrew from the process in circumstances where it was happy to rely on its written submission and did not want to take the opportunity to challenge the Complainant’s oral evidence save insofar as it is already contradicted in the submission provided in August 2018.

In withdrawing, the Respondent fully understood that I intended hearing from the Complainant and making a final recommendation.

I have carefully considered this matter. The Respondent has challenged my jurisdiction to deal with this dispute in circumstances where the Complainant is not, per the Respondent, a “worker” as identified in the Industrial Relations legislation.

I find I must disagree with the Respondent in this submission.

There can be no doubt that the intention of all the stakeholders that a Special Needs Assistant is intended to be an Employee of the School wherein he or she is employed. I note, for example, that in Government advice sheet titled “Payroll Information for Special Needs assistants” there is a clear and unequivocal direction that the SNA’s :

“Contract of employment is with the managerial authority of the school in which you are employed”

The Respondent seeks to rely on the specific exclusion of secondary school teachers as being applicable to SNAs by extension. I reject this argument as mere assertion and having no basis in fact. The Respondent further seeks to rely on the SNA being excluded as a worker employed “by or under the state”. Again, I would reject this argument and would state that a clear distinction must be drawn between the worker employed by or under the state and the employee funded by the state in circumstances where the employer becomes entitled to or qualified to engage somebody on that basis.

So, to be clear, having regard to this preliminary issue raised I find I have the necessary jurisdiction to hear the facts around this dispute.

I have heard the Complainant give a harrowing account of being undermined, challenged and belittled in the workplace. If this is a subjective perception it must be remembered that the Respondent opted not to stay at the hearing to challenge that case.

It is an unfortunate fact that this behaviour has been cumulative over a number of years so that any proposed investigation is unwieldy.

However, I am satisfied that the clock needs to be set at nought, and that a truly and transparently independent person should conduct an investigation into the Complainant’s Grievances. In reaching this decision, I make no judgement in respect of the investigation previously conducted. The individual in question undoubtedly performed his function to the utmost standard, but the merest hint of coming from one camp (and the individual in question is on other Boards run by the religious order) causes any investigation conducted by him to appear to be tainted.

I have been provided with the names of three excellent and proposed potential investigators. It would be inappropriate to name them in the body of this recommendation and I will instead communicate those names and the relevant information under separate cover.

I am recommending that the Respondent select one of the three names to be provided and engage that person to conduct an investigation into the Complaints made by the Complainant. It will be the Respondent’s obligation to pay for the said workplace investigation. I Recommend that the proposed investigator be contacted and secured within four weeks of the issuing of this decision.

It will be for any proposed Investigator to work out the proposed Terms of Reference based on submissions made by both parties and I have advised the Complainant that she needs to limit her complaints, as far as is practicable to those nearest in time. That said, I understand that the Complainant still feels very aggrieved by certain past events which need to be aired. As a starting point, the Complainant’s Grievances are set out in paragraph 3.2 of her submission before me and the WRC.

I recommend that any Investigation be given the objective of making recommendations of its own on how the parties might conduct themselves moving forward as every interaction needs (it seems to me) to be micro-managed. Consideration will need to given to the Croke Park obligations, Hours of work, how to communicate, the Complainant’s staff file etc etc

I note that it will be very important that the proposed Investigator would be allowed to interview parties prepared to give evidence on behalf of the Complainant and in support of her case. This was something that she felt had not previously happened.

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

CA-00018736-001 – I recommend that the Employer herein will allow for a workplace investigation into the Complainant’s Grievances be conducted as soon as may be practicable with an Investigator to be selected from three names being put forward within four weeks of the date of this decision.