Complainant

Respondent

Anonymised Parties

School Secretary

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-00029415-001

02/07/2019

The complainant commenced employment as a school secretary with the respondents in October 1990.   She worked 27.5 hours per week and her gross pay was €401.78 per week. The employment ended on 30 June 2019. The complainant claims she was unfairly dismissed from her employment.   She submitted a complaint to the Workplace Relations Commission pursuant to Section 8 of the Unfair Dismissals Act, 1977.   This complaint was received by the Workplace Relations Commission 0n 02 July 2019.  

The respondents are the Boards of Management of a Girls National School and a Boys National School which are located on the same campus. The respondent disputes the fact of dismissal and claims the complainant resigned.

The complainant represented herself at the hearing and gave evidence. She was accompanied by her son.

The complainant commenced employment in October 1990. She was employed by the Board of Management of the Girls National School, but she worked for both the Girls and Boys National Schools which were located on the same campus. In her twenty-eight and a half years as school secretary she worked with eleven principals and had an excellent work record. She was absent for two weeks in total during her whole period of employment.

The events from which this complaint arises took place over two meetings in March 2019. The complainant provided a written account and gave evidence as to what took place at the two meetings.

15 March 2019 – The Principal of the Girls National School, Mr R, called the complainant to his office. Without preamble he said the Treasurer would be resigning at the end of June 2019. Someone would have to take over her duties and the Department of Education had issued a directive that all school secretaries must have an F.S.S.U. (Financial Services Support Unit) qualification. The Principal indicated that the Board of Management had said the complainant could leave now and she would be paid up to 30 June 2019.

The complainant refused to leave her position as she did not know what the Treasurers’ resignation had to do with her position as school secretary. She told the Principal that she would take any course necessary for the F.S.S.U. qualification.

The Principal stood up, indicating the end of the meeting and asked the complainant to think about it.   The complainant repeated that she would not leave her position.

The complainant returned to her office. She then rang the Principal and asked him to let her have everything in writing, including the details of the F.S.S.U. qualification. The complainant heard nothing further until 22 March 2019.

22 March 2019 – The Principal of the Boys National School, Mr K, came to the complainant’s office and said, “Mr R and I want to have a meeting with you at 2pm in Mr R’s office.” When the meeting started Mr K was not present. Mr R handed the complainant a sheet headed Job Specification on which was typed a bullet point list of the Treasurer’s duties. The complainant asked for details of the Board of Management’s request to her to leave and for details of the F.S.S.U. qualification.

At that point Mr K entered the office; he closed the door and was immediately hostile to the complainant. Mr K spoke about the Treasurer leaving at the end of June and pointing to the Job Specification sheet indicated that the school must have this thing up and running by then. He went on to say “The Board of Management has been very good to you. They will pay you to the end of June and you can leave now.”

The complainant objected to leaving her job. She asked if there was online help with the F.S.S.U. qualification that was required and was told no, she would have to do everything from scratch. She then asked Mr K if her job was gone. He raised his voice, replied “yes and we want to start fresh and have this up and running by the end of June”.

Mr K indicated that the complainant had no contract, he made a gesture with his hands indicating she had no contract and said “look, this is your contract and it finishes on 30th June”. He repeated that the Board of Management had been good to the complainant and she could go now.

The complainant objected to this behaviour, which she described as disgraceful, adding that she was there on her own, was very vulnerable, did not know her rights and had nothing in writing from them. The complainant states that she was intimidated and bullied by Mr K.

Mr R looked on and did not intervene. He spoke at the end of the meeting to say the complainant could leave now and she would be paid until the end of June.

The complainant states she was given no option to remain in her job. She did not want to leave.

23 March 2019 (Saturday) – The complainant sent an e-mail to the office of the Girls National School stating: “I understand I will be paid up to 30th June and I can leave now.” She went on to give information and instructions about things that needed to be done and the location of certain items in the office.

The complainant received no reply to her e-mail. She did not return to work at the school.

The complainant sent more e-mails asking to have in writing the reason for her dismissal.   Her third e-mail request for this information was sent to both Mr K and Mr R on 03 April 2019. She did not receive a reply.

The Principal of the Girls National School, Mr R, rang the complainant on either 01 or 03 April 2019.   The purpose of the call was to ask how the complainant was. She told him she was in shock at the treatment she had received, particularly at the way Mr K has spoken to her on 22 March 2019. She said she felt intimidated and bullied by Mr K. She asked Mr R would she go into work. He apologised and said not to come in and she would be paid until 30 June 2019. She said she had no problem doing extra qualifications, as she had in the past. She said believed she had been unfairly dismissed and she asked for the reason for her dismissal to be given to her in writing.

12 April 2019 – The Principal of the Girls National School responded by e-mail to the complainants request for the reason for her dismissal. He stated in the e-mail “I am still waiting on advice from our solicitor and cannot proceed until he advises me when and how. I apologise for the delay but it is out of our hands at present. I will be in touch with you over the coming week with any progress.”

01 May 2019 – The complainant received a letter dated 30 April 2019 signed by both Principals, Mr R and Mr K. The letter refers to the meeting of 22 March 2019 about proposed changes to her employment contract. It goes on to note her e-mail of 23 March 2019 and accepts her resignation.

05 May 2019 – The complainant wrote to the Boards of Management. She wished to tell the Boards that they had been misinformed by Mr K and Mr R. The letter states (1) she did not resign, (2) she was given notice on 22 March 2019, (3) the e-mail sent on 25 March 2019 was in relation to the notice, (4) the reason for giving her notice was because the Treasurer was resigning and they had to get someone to fill her role, (5) she was given no option to remain in her position, (6) she asked Mr K if her job was gone and he said “yes and the Board of Management had been very good to you. They will pay you up to the end of June and you can leave now”. The letter also stated that the complainant was bullied and intimidated. She ended the letter saying she was available anytime to meet with the Board at their convenience. In a P.S. the complainant described the interaction with Mr K at the meeting of 22 March 2019.

The Board of Management did not acknowledge the letter or send a reply.

The complainant’s case is that she did not resign, she was dismissed. She was bullied and intimidated at the meeting of 22 March 2019.   The e-mail sent on 23 March 2019 was not a resignation but rather stating her understanding of what she had been told at the meeting the previous day. She was not informed she could have a representative or another person with her at that meeting. She was not informed of her rights. She was forced to leave. She did not receive a reason for her dismissal. She is of the view that the only reason they had for dismissing her was because of her age, she is 74 years of age.

The respondent was represented by Mason, Hayes & Curran, Solicitors. The Principals of the two schools, Mr R (Girls School) and Mr K (Boys School) attended the hearing and gave evidence. Each Principal had sent a written account of the March meetings to the Workplace Relations Commission on 24 September 2019.

The respondent submits that the complainant was not dismissed but rather resigned prematurely at a time before she raised any employment grievance.

The submission, dealing with constructive dismissal, quotes part (b) of the definition of “dismissal” as contained in Section 1 of the Unfair Dismissals Act, 1977:

“dismissal”, in relation to an employee, means—

(a)…

(b) the termination by the employee of his contract of employment with his

employer, whether prior notice of the termination was or was not given to

the employer, in circumstances in which, because of the conduct of the

employer, the employee was or would have been entitled, or it was or would

have been reasonable for the employee, to terminate the contract of

employment without giving prior notice of the termination to the employer,

or

(c) …

The respondent submitted that this provision of the Act requires an objective assessment of the reasonableness of the behaviour of the employer and the response of the employee to that behaviour.  

In support of this submission the respondent relies on the judgement of Finnegan J in Berber v Dunnes Stores [2009] IESC 10 where he held:

“That being the history of the interaction between the appellant and the respondent and looking at each event individually and at the events cumulatively, I am satisfied that the conduct of the appellant judged objectively was not such as to amount to a repudiation of the contract of employment.   The conduct judged objectively did not evince an intention not to be bound by the contract of employment”.

In addition, the respondent relies on the following description of the reasonableness test by Lord Denning MR in Western Excavating (ECC)Ltd v Sharp [1978] 2 WLR 344 in posing the question of whether the employer “conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, [if so] the employee is justified in leaving”.

Relying on the above the respondent submits that there is a stringent onus of proof on the complainant to demonstrate that her employer behaved in a fashion which is objectively so unreasonable that no employee could reasonably expected to tolerate the conduct complained of any longer.

The respondent further submits that it is incumbent upon an employee to utilise any available grievance process to a conclusion before resorting to resignation. In support of this submission the respondent relies on the decision in Conway v Ulster Bank UD474/1981 a decision of the Employment Appeals Tribunal and the more recent decision of the Labour Court in Caci Non-Life Limited v Daniela Paone UDD1750 where it was held:

“It is well-settled law that a complainant who is advancing a claim of constructive unfair dismissal under the Act must demonstrate that his or her employer has acted so unreasonably and/or committed a fundamental breach of contract such that it was not possible for that person to remain in their employment any longer. Whether or not this test has been satisfied in any particular case has to be considered from an objective perspective. Furthermore, it is incumbent on an employee to avail himself/herself of the employer’s grievance procedure before resigning so as to put the employer on notice of the employee’s issues and to permit the employer an opportunity to address them”.

The submission then deals with the background and the events that took place in March 2019. The complainant was employed as secretary to the girls’ school however she carried out work for both the girls’ school and the boys’ school. Another secretary worked for the Infants’ School.  

The Treasurer of the girls’ school, who worked on a voluntary basis, informed the Board of Management that she would be retiring in June 2019. The Treasurer had carried out essential work for all three schools. Because of the resignation of the Treasurer the complainant would be required to take up additional responsibilities for which she would need training.

15 March 2019 – The Principal of the girls’ school, Mr R, met with the complainant to inform her of the resignation of the Treasurer. As the Treasurer was resigning the complainant’s job specification would be changing and there would be additional duties, including accounts, payroll etc. A list of these additional duties would be drawn up. The complainant was asked if she was willing to up-skill and she confirmed that she was. Mr R confirmed that the up-skilling would need to be done as soon as possible as the new duties would need to be in place for 30 June 2019.

The meeting lasted about five minutes. After the meeting the complainant rang Mr R to ask for the F.S.S.U. guidelines. He agreed to look into it and get information. He suggested she should look up their website and familiarise herself with it.

22 March 2019 – The two Principals met with the complainant. Mr K, Principal of the boys’ school explained the additional duties to the complainant. The complainant asked if she was being fired. Mr K responded clearly that nobody was being fired. The complainant said she was entitled to redundancy. The Principals replied that their advice was that this wasn’t the case. Mr R said he didn’t know what she was entitled to but, would she mind looking into this herself. She could do so in the office on Monday. The complainant was asked if she would be able to do the additional duties with training and she replied she would not.

The respondent’s submission states that the meeting on 22 March 2019 was amicable and calm throughout. There were no raised voices, hostility or animosity. Mr K denies he said, “you can leave now”. The respondent denies that the complainant asked about online help with the F.S.S.U. qualification and Mr K refutes the allegation that he stated, “no, there is no help”. The reference to being paid until 30 June 2019 was made in response to the complainant’s request about redundancy.

23 March 2019 – The complainant e-mailed Mr R to state she understood that she would be paid up to 30 June and could leave now. The complainant did not turn up for work on 25 March.   Mr R spoke to the complainant on 01 April 2019 in relation to her resignation and she informed him that she was taking legal proceedings against the respondents. On 30 April 2019 the respondent wrote to the complainant to accept her resignation.

05 May 2019 – The complainant wrote to the respondents stating that she had been given no option but to resign from her position and alleging that she was intimidated and bullied, in particular by Mr K.

It is submitted that the course of action taken by the complainant was neither reasonable nor appropriate in the circumstances. The complainant’s response to the event of 22 March 2019 was wholly disproportionate and unreasonable.

The complainant’s constructive dismissal claim is misconceived having regard to her premature resignation.

Further, and without prejudice to the foregoing, it is submitted that the reasons for the complainant’s resignation are not objectively reasonable and do not relate to any fundamental breach of contract on the part of the employer.

I have carefully considered all the documents, submissions and the evidence in this complaint.   The core question to be answered is, was the complainant dismissed from her employment or did she resign from her employment? The complainant claims she was dismissed at the meeting that took place on 22 March 2019 and the respondent claims she resigned by way of her e-mail of 23 March 2019 and not attending for work on 25 March 2019.

The documents, submissions and the evidence given by the complainant and by Mr R and Mr K conflict about what took place and what was said at the meeting of 22 March 2019.

The complainant worked for twenty-eight and a half years as the school secretary. She stated that she had an excellent work record; this was not disputed by the respondent. In March 2019 circumstances in the schools changed when the Boards of Management were advised that the Treasurer, who worked on a voluntary basis, would be leaving in June 2019. The work previously done by the Treasurer now would have to be done by someone else. In addition, the Department of Education and Skills had introduced the Financial Support Services Unit for all primary schools and that system of reporting had to be fully implemented in 2019.

It was decided that the job specification of the school secretary would change and would in future include additional duties such as accounts and payroll.

15 March 2019 - The Principal of the girls’ school, Mr R, met with the complainant about the proposed changes. The complainant’s account of this meeting and Mr R’s account agree on the following points:

The complainant was told (1) the Treasurer would be resigning at the end of June, (2) she would have extra duties, previously carried out by the Treasurer, (3) Department of Education & Skills required all primary schools to be compliant with F.S.S.U. regulations in 2019, (4) The complainant agreed to up-skill for the F.S.S.U.

The complainant and Mr R differ on the following:

The complainant stated in her submission and in evidence that Mr R told her that the Board of Management had said she could leave now, and she would be paid up to 30 June 2019.   She also stated that she had refused to leave her job as secretary.

Mr R in his evidence denied that he said anything about the Board and denied that the complainant had said she refused to leave her position.

Following that short meeting the complainant rang Mr R. She asked him to let her have everything in writing and details of the F.S.S.U. qualification. He agreed to look into it (F.S.S.U guidelines) and get the information to her as soon as he could.

The complainant did not receive anything in writing and heard nothing further until she was asked on 22 March 2019, by Mr K, to attend a meeting at 2pm in Mr R’s office.   Mr K had not attended the meeting of 15 March 2019.

22 March 2019 - The meeting of 22 March 2019 was by all accounts short. The complainant and Mr R and Mr K gave different accounts about what took place. When the meeting began Mr K was not present.   Mr R handed the complainant a single sheet of paper, headed Job Description. This was not a normal description of a job but a bullet point list e.g. “online banking”, “Microsoft Office Suite 2019” “Gas – 4 schools” “Petty Cash”.

The complainant stated she was looking at this list in puzzlement as after the meeting of 15 March 2019 she had asked for everything in writing; the Board of Management asking her to leave and details of the F.S.S.U. qualification required by the Department of Education. While she was looking at this sheet Mr K arrived and joined the meeting.

At this point the accounts of what took place differ considerably. Mr K’s account is that he explained that the person carrying out the new job specification would need to be able to understand accounting and payroll and that the complainant accepted she did not have these skills.   He agrees that the complainant suggested she could upskill accordingly. Mr K states the complainant asked him if he was sacking the secretary and he replied there was no one sacking anyone, but this work had to be done from July 1st. He asked would she be able to do it and she replied no. He then explained that the Boards of Management had offered to pay her up to June 30th, even if she was to go a bit before that date.  

The complainant’s account is that having offered to upskill she asked if her job was gone, to which Mr K replied “yes” and we want to start fresh and have this up and running by the end of June. The complainant then states that Mr K said she had no contract and made a gesture with his hands confirming there was no contract. The complainant stated she was completely intimidated and bullied by Mr K and that Mr R looked on and did not intervene. Both Mr K and Mr R described the meeting as calm.

The complainant in her submissions and evidence was consistent. She described in detail how Mr K told her she had no contract.   This she found very upsetting.   Mr K in his written account, dated 19/09/19, states “I made no reference whatsoever during the meeting to a contract”. However, at the hearing he stated that he did say the complainant had no written contract. I note that the letter of 30 April 2019 sent to the complainant by Mr K and Mr R begins, “We refer to our discussion on the 22nd day of March 2019 in relation to proposed changes to your Employment Contract in the event you wish to continue working for the school”.

I accept the complainant’s evidence that her contract was discussed at the meeting of 22 March 2019.   The purpose of the meetings of 15 and 22 March 2019 was to propose changes to the complainant’s job specification and changes to her employment contract.

It appears to be the case that the complainant’s contract ending on 30 June 2019 had been discussed with the Boards of Management before the meeting of 22 March 2019.   Mr K and Mr R were both in a position to tell the complainant that the Boards of Management had agreed to pay her up to 30 June 2019. This had been agreed before the complainant was given the opportunity to upgrade her skills to the required F.S.S.U. qualification. This indicates to me that the respondent intended to bring the complainant’s contract to an end on 30 June 2019.  

In Devaney v DNT Distribution Company Ltd UD412/1993 where the Tribunal held: “where words are genuinely ambiguous what needs to be decided is what the speaker intended. Did the employer mean to bring the contract to an end? In answering this question what needs to be considered is how a reasonable employee in all the circumstances would have understood the employer’s intention”. There is conflicting evidence about the words used by each party at the meeting of 22 March 2019. It was a short meeting and I do not accept it was as calm as described by Mr K and Mr R.   In the circumstances, given the discussion of changing duties, contract changes and the offer of payment to 30 June it was reasonable for the complainant to believe the Board intended to bring her employment to an end and she was being dismissed and could leave now.

The complainant sent an e-mail the following day, Saturday, 23 March 2019 expressing her understanding of what took place the previous day. She stated, “I understand I will be paid up to 30th June and I can leave now”. This was not a resignation letter. The e-mail goes on to give instructions about items to be attended to in the office.   She did not attend for work on Monday 25 March 2019.

Even though the complainant had worked for the schools for over twenty-eight years and had an excellent attendance record nobody contacted her when she did not attend for work. Mr R was away on sick leave. Mr K did not try to contact the complainant. I find it extraordinary that there was no attempt to contact the complainant, given her excellent attendance record, and if there had been no intention to bring her contract to an end. I note the decision of the Employment Appeals Tribunal in Mansour v Romanza LtdUD360/2004 where having concluded that there was a dismissal the Tribunal found support for its conclusion because “despite the claimant’s good attendance and good performance and the good working relationship that had existed between them, no effort was made by the manager to contact him to resolve their dispute”. If there was no intention to bring the complainant’s employment to an end it would be common sense to contact the complainant to resolve any misunderstanding that might have occurred at the meeting on 22 March 2019.

When Mr R returned from sick leave he did telephone the complainant. That was a week later, 01 April 2019. The complainant told him she was in shock at the treatment she had received. However, she asked if she would go into work and he said not to come in. The complainant asked to be given the reason for her dismissal. There was no attempt to resolve the matter or explain any possible misunderstanding.   The complainant sent another e-mail on 03 April 2019 requesting to have in writing the reason for her dismissal.   Mr R replied on 12 April 2019 that he was waiting advice from their solicitor and he could not proceed until he received that advice.

The complainant had no further contact from the respondent until she received a letter on 01 May 2019.   The letter, signed by Mr R and Mr K, confirms that the meeting of 22 March 2019 was in relation to proposed changes to her Employment Contract. It further confirms that they did propose that if the complainant chose not to stay on that she could stop working but would be paid until 30 June.   It also states that they note the e-mail of 23rd March and the Boards accept the complainant’ letter of resignation.

I find that the complainant did not resign, this was not a constructive dismissal.

The respondent in their submission refers to the fact that it is well established that it is incumbent upon an employee to utilise any available grievance process to a conclusion before resorting to resignation. Authority for this is found in Conway v Ulster Bank UD474/1981. I fully accept that it is correct that an employee must utilise the grievance procedure available to them before resigning. I have found that the complainant did not resign, and I note that she did write to the Boards of Management on 05 May 2019, a few days after she received the latter purporting to accept her resignation.   The Boards of Management did not acknowledge her letter or reply to her. At the hearing it was acknowledged that the complainant did not have a written contract and had not been given a copy of the grievance procedure.   The grievance procedure is now set out in written contracts for employees of the schools but as the complainant had worked there for over twenty-eight years she had not been given either a contract or a copy of the grievance procedure. This is quite different from the circumstances in Conway v Ulster Bank where the claimant had been notified of the grievance procedure.

The complainant did not present a claim of constructive dismissal and I find that she did not resign.   The complainant was dismissed and as there were no grounds to justify the dismissal I find that the dismissal was unfair.

The redress sought by the complainant is compensation.   I consider compensation to be the appropriate form of redress in this case.  

CA-00029415 – For the reasons set out above, I find the complaint made pursuant to the Unfair Dismissals Act is well founded and that the respondent unfairly dismissed the complainant from her employment.

Redress for unfair dismissal is provided for in Section 7 of the Act. In relation to compensation Section 7 (c) (i) provides: “if the employee incurred any financial loss attributable to the dismissal,

payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having

regard to all the circumstances”

Section 7 (3) states: “financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation;

In assessing the amount of compensation to award I note that the complainant was employed by the responded for twenty-eight and a half years. She is now seventy-four years old and if she is to obtain another post as school secretary she will need to acquire new skills to meet the F.S.S.U. requirements. Acquiring such skills would take many months. I note the complainant’s financial loss to date, the time it would take her to up-skill and given her long service the value of the loss of her rights under the Redundancy Payments Acts. I decide that redress of €22,500.00 payable by the respondent to the complainant in respect of the unfair dismissal is just and equitable.

Constructive Dismissal

Unfair Dismissal

Resignation