Complainant

Respondent

Anonymised Parties

A Retired Teacher

An Educational and Training Board

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00027781-001

15/04/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 81E of the Pensions Act, 1990 as amended by the Social Welfare (Miscellaneous Provisions) Act 2004

CA-00027781-002

15/04/2019

The complainant joined the ETB (formerly the Vocational and Education Committee) as a teacher in September 2000. On June 15th 2015, following a disciplinary enquiry that commenced in 2011, she was removed from office by the Minister for Education. The complainant submitted a letter to this effect in her book of documents at the hearing. The complainant said that she disagrees that she was dismissed. She claims that she was not an office-holder and that the Minister could not therefore remove her from office.  

The complainant described herself as “retired,” and she said that she has been very sick for the last few years. She said that she was a good teacher and that her plan is to get better and to return to teaching when she is well.

In November 2018, the complainant submitted four complaints against this respondent to the WRC and, on March 19th 2019, following a hearing on February 12th, a decision was issued by my colleague, Marian Duffy, (ADJ-00017934). In her submission at this hearing on July 1st, the complainant said, “if my dismissal has occurred, then it can only have happened on February 10th (sic) 2019 at Lansdowne House under the Employment Equality Acts in reaction to my complaints against my employer.” (The hearing took place on February 12th 2019). It appears therefore, that arising from decision ADJ-00017934, the complainant’s position is that she was dismissed on February 10th 2019. The complainant’s case is that since she received this decision, she has suffered from distress and that this distress is caused by her dismissal.

Under the heading of the Pensions Act, the complainant claims that she has been prevented from accessing an “injury gratuity” that may be available to her as a member of the Education and Training Board Teachers’ Superannuation Scheme.

At the hearing, the complainant disagreed that she had been dismissed and she claims that she first heard that she was dismissed at the WRC in February 2019. She claims that the termination of her employment is penalisation for having made complaints against the ETB.

It is the respondent’s case that these complaints have already been determined by the WRC and the Labour Court as follows:

ADJ-00005703, June 14th 2017

The decision of the adjudicator, John Tierney, that the complainant’s complaints were out of time was appealed to the Labour Court and upheld.

ADJ-00017934, March 19th 2019

The adjudicator, Marian Duffy, decided that the complainant’s complaints were out of time.   This decision is under appeal to the Labour Court.

In addition to complaints at the WRC and the Labour Court, the complainant brought complaints to the former Equality Tribunal. Following two days of hearings in January and February 2012, a decision was issued in March 2012, under the reference number EE/2009/170.

As these matters have been considered by and decided upon by the WRC and the Labour Court, the respondent submitted that the principle of “res judicata” applies.

It is the respondent’s case that, as a teacher in a former Vocational Education Committee (VEC), the complainant was an officer of the VEC and that she was removed from office by the Minister for Education on June 15th 2015. A P45 was issued on June 30th 2015.   The representatives for the ETB said that the Minister’s decision was reached at the end of a disciplinary investigation at which the complainant was represented by her union, the Association of Secondary Teachers of Ireland and by her solicitor. In respect of this complaint of discrimination, the ETB argued that, having been dismissed in June 2015, this complaint is now out of time.

Aside from the time-limit issue, the representatives for the respondent said that the complainant has not set out any basic facts that show that she has been discriminated against on any of the nine grounds set out at section 6 of the Employment Equality Act 1998.

I have examined the documents submitted in evidence by the complainant and I am satisfied that, in removing her from office on July 15th 2015, the Minister acted in accordance with the provisions of section 8 of the Vocational Education Act 1944, which provides as follows:

(1) For the purposes of this section, the following shall be the statutory grounds for the removal of the holder of an office from such office, that is to say:—

(a) unfitness of such holder for such office,

(b) the fact that such holder has refused to obey or carry into effect any order lawfully given to him as the holder of such office, or has otherwise misconducted himself in such office,

and, in this section, the expression “statutory grounds for removal from office” shall be construed accordingly.

(2) Where the Minister is satisfied as a result of a local inquiry that any of the statutory grounds for removal from office exists as regards the holder of an office, the Minister may by order remove such holder from such office.

(3) Where the Minister is satisfied that the holder of an office has failed to perform satisfactorily the duties of such office and is of opinion that he is unfit to hold such office, the Minister may—

(a) send by registered post to such holder at the principal office of the vocational education committee under which he holds such office a notice stating the said opinion, and

(b) on the day on which he sends the notice, send by registered post a copy thereof to the said vocational education committee,

and if the Minister, after the expiration of fourteen days from the day on which he sends the notice and the copy thereof and after consideration of the representations (if any) made to him by such holder or the vocational education committee, remains of the said opinion, he may by order remove such holder from such office.

(4) Not relevant to this complaint.

I am satisfied that, in removing her from office, the Minister’s intention was to dismiss the complainant from her job as a teacher with the ETB and that this is what occurred on June 15th 2015. I find that there is no substance to the complainant’s contention that she was dismissed on February 10th 2019 at a hearing at the WRC, or, that this was the first occasion on which she was informed that she was dismissed. The complainant was professionally represented by her trade union and legally represented by her solicitor at the enquiry that resulted in her dismissal and I do not accept that she is not aware that her employment with the ETB was terminated in June 2015.

Having been dismissed in June 2015, in September 2016, the complainant submitted a complaint to the WRC against this respondent on the ground of discrimination. The adjudication officer decided that her complaint was out of time. In November 2018, she submitted similar complaints against the same respondent and I have already referred to the outcome, under ADJ-00017934, in which the adjudication officer decided that these complaints were also out of time.   During the period that complaints were submitted against the ETB, the complainant brought complaints against the Department of Education, grounded on the same facts.

Under the principle known as “res judicata,” the parties to litigation are required to bring all the aspects of their case to the court or the forum considering their case so that all matters can be decided. In the absence of special circumstances, the parties are not entitled to return to court to advance arguments, claims or defences which have not been raised at the first hearing. The purpose of this rule is to ensure that defendants are not exposed to successive attempts at litigation.

The principle of res judicata was firmly established in 1843 in England in the Court of Chancery when Elizabeth Henderson brought an action against her brother-in-law, Bethel, for failing to pay to her children their entitlements from their grandfather’s will.   The outcome in this case set the standard for litigants seeking to add to or embellish their claims in the aftermath of an initial outing in the courts. In the Henderson case, the Vice-Chancellor, Sir James Wigram formulated the principle as follows:

“In trying this question, I believe I state the rule of the Court correctly, when I say, that where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”

In the case under consideration here, I find that the complainant has brought forward no new information, but rather has sought to construe what occurred on June 15th 2015 as something other than a dismissal. I accept that, for any person, a decision by their employer to dismiss them is very painful and even traumatic. However, it is my view that the complainant’s position in respect of her dismissal as set out at this hearing does not stand up.

I have concluded that the complainant was dismissed on June 15th 2015 and not on February 10th 2019. I have also concluded that the complainant’s allegation of discriminatory dismissal has been adjudicated upon already by the WRC and the Labour Court.   As the matters have already been heard, considered and decided upon, the principle of res judicata applies and I decide therefore, that this complaint is dismissed.

The complainant alleges that she has been prevented from getting a gratuity payment that may be due to her from the pension scheme. She is currently in receipt of an ill health early retirement pension, which she said she does not want and which she is placing into an account in the event that she has to return the money to the pension scheme.

In August 2017, the complainant applied for a pension under section 23 of Statutory Instrument 292 2015, the Educational and Training Board Teachers’ Superannuation Scheme. On the advice of the ETB, the complainant applied for and was granted an ill health early retirement pension and a lump sum payment with effect from June 6th 2018. However, the complainant claims that she is entitled to a different pension benefit, known as an “injury gratuity.” At the hearing, the Pensions Officer said that they have made enquiries to the Department of Education and Skills to seek confirmation that the way the ETB has treated the complainant in respect of her pension entitlement is correct.   The ETB’s position is that there has been no breach of the Pensions Act in respect of their treatment of the complainant’s application for a pension.

I have considered the complainant’s complaint that she has been prevented from accessing an injury gratuity that may be available to her under the ETB’s Teachers’ Pension Scheme.   The complainant is currently in receipt of an ill-health retirement pension and I am satisfied therefore that she is in receipt of a benefit that will provide a regular income for her future.   I note that the ETB has made enquiries with the Department of Education and Skills to determine if this ill health early retirement pension is the appropriate benefit for her and I expect a response will be issued to the complainant about this reasonably soon.

At the hearing, the complainant made no allegation of discrimination or victimisation in respect of her pension benefit.

I have found no evidence that the complainant has been discriminated against, penalised or victimised in respect of her entitlements under the ETB Teachers’ Superannuation Scheme. I decide therefore, that her complaint under the Pensions Act 1990 – 2015 is not upheld.

Discrimination, dismissal, res judicata