Complainant

Respondent

Anonymised Parties

Special Needs Assistant

School

Representatives

Self

Liam Riordan Mason Hayes & Curran Solicitors

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-00031775-001

23/10/2019

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

CA-00031775-002

23/10/2019

The Complainant commenced employment with the Respondent on 06/02/2017. The rate of pay was €978 per fortnight gross-working 32 hours per week at the time of termination together with pension and sick pay schemes as approved by the Department of Education. The date of notice of dismissal was 14/06/2019 and the employment was terminated on 31/08/2019.

The hearing of the case took place over two days and the parties provided written and verbal submissions together with several documents. Two witnesses were put into evidence by the Respondent-the Principal and the Chairman of the Board. The Complainant had the opportunity to question both witnesses which he declined.

Dismissal as a fact was not in dispute. The application of Section 4 of the Protections of Persons   Reporting Child Abuse Act 1998 was disputed by the Respondent on the basis that the Complainant had not exercised the provisions of Section 3 of that Act.

Reinstatement was sought by way of remedy as the Complainant wished to continue in the same type of employment and he had not succeeded in obtaining alternative employment as a special needs assistant since his dismissal. The Respondents position was that   neither reinstatement or reengagement   would appropriate as trust had broken down between the parties.

It is the position of the complainant that the difficulties he experienced with the School Principal and then the Board of Management stemmed from and were directly linked to his making complaints about the treatment of children at the school. He had made complaints in writing to the Principal in 2018 and 2019 and said he received no feedback. In January 2019 he was disciplined and received a final written warning. He contends that the Principal started following him when he went to the toilet. He was put on a PIP in March 2019 in which it said, “ In so far as possible keep absences fromthe unit to designated break times “ and “ Ensure supervision of the child is in place, while on toilet break notify the teacher in the unit and arrange cover if it is an emergency situation”. As far as he was concerned this together with issues with the Principal about using the toilets meant he could not use the toilets during class times and the facilities were also inadequate. There were three dates when he maintains he was prevented from using the toilet or questioned by the Principal in relation to toilet/bathroom use: February 18th;March 8th(twice.) He found the situation was making him anxious and he asked to meet with the Chairman of the Board after receiving the PIP. On the day he was due to meet the Chairman, March 20th, he had an accident at work which he subsequently described to Medmark as being ‘caught short’ when he could not get to the toilet on time and he also related his difficulties at work to the Principal which were causing him anxiety. Following the incident, he went to the Principals Office where she wanted to call his doctor and his parents and then an ambulance was called. The whole situation was made very dramatic by the Principal and then described by the Chairman of the Board as a’ major incident’. He disputed the Principals version of the events in her office. Following this incident, he was suspended. The Principal conducted an investigation, but he was not interviewed although she took statements from other members of staff. She then made a report to the Board and he was called to a meeting where she was present and spoke at one stage at the meeting. He was very anxious at the meeting. He tried to explain his concerns about the treatment of children at the school. After the meeting he was informed he was dismissed. There was an appeal to a person whom he did not think was an independent person as she had been a Principal herself at one time and a member of the School Management Association. He saw the members of the Board in the meeting room and he felt this meant they were discussing the case, which was unfair to him.

In relation to the complaint under the Protection of Persons reporting Child Abuse, he understood he was supposed to make any complaints to the school and this is what he had done.

The following summary is drawn from the oral and written submissions of the Respondent including documentation and the testimony of the witnesses at the hearing.

In response to the complaint under to Act of 1998, the Respondent contended that Section 4 of the Act did not apply. Section 3 of the Act required that the person making such a complaint and claiming the protection of the Act make a complaint to an appropriate person as defined. For the purposes of the Act, an appropriate person under Section 3 is a member of An Garda Siochana or Tusla. There is no evidence that the Complainant made a complaint to either Body while in the employment.

In response to the claim of unfair dismissal, accepting that a dismissal had occurred, the Respondent stated that the dismissal was due solely to the conduct of the Complainant, not connected in any way with complaints he had made about matters in the school. All procedures set by the Department of Education Circular DES 72/2011 were followed by the Respondent. The complainant had the opportunity to have representation which he declined. He received a copy of the disciplinary procedure before the stage 3 meeting, so he knew he could be dismissed after that meeting. While he was dismissed at Stage 3 of the Disciplinary procedure, he received pay in lieu of notice to the commencement of the next school year.

At different points in the chronology ,the employer sought independent medical advice. That advice provided no evidence of a medical condition which could explain the behaviour of the Respondent including on March 20th, 2019 when the incident which led to his dismissal occurred.

On 7 September 2018,the Principal responded to correspondence from the Complainant of July 28th, 2018 addressing issues he had raised and advising him of the procedures   which he could follow.

On September 14th the Complainant received a verbal warning. The subject of the warning was the sending of two texts to a parent’s phone against the instruction of the Principal.

On January 16th, 2019 the Chairman of the Board wrote to the Complainant expressing concern about performance and conduct issues on the part of the Complainant. He was called to a meeting on January 21st, 2019 at which he was to be informed of the concerns in detail. In a letter dated January 22nd the Chairman of the Board set out the issues discussed at the meeting the previous day, affording the opportunity to respond within five working days. On January 25th the Complainant wrote two letters to the Board. One of these rejected the 30 issues he says were raised at the meeting and saying that the two hours did not allow for all the issues to be discussed, that it would have saved time if he had been informed of the issues before the meeting. The second note raised issues regarding he state of the building-cleaning etc; he asked that letters addressed to him not be opened by the Principal and detention of children be banned.

On January 29th the Principal issued a final written warning regarding performance and conduct, warning of possible dismissal in the event of no improvement.

A PIP meeting was held by the Principal on March 11th. The Complainant refused to sign the plan until he met with the Chair of the Board and this was arranged for March 20th. The Complainant was placed on administrative leave following the report by the Principal of an incident on March 20th described by the Chairman as “ following the major incident which occurred on March 20th leading toconcerns by the Board of Management for the safety of the pupils and staff in the school.”

In accordance with Section 65 of DES 0072/2011, the Principal was asked to prepare a report. She submitted a report to a Board meeting on 15/05/2019 in which she gave her own account and that of eight witnesses. She made a referral to Medmark in which she gave an account of the incident asking if some or all of the Complainants behaviour was linked to IR/HR issues and to ask the Complainant what they are and why he had not raised these issues through agreed procedures.

In her report to the Board, the Principal concluded: ‘I am very concerned that this incident occurred particularly in the absence of any medical condition which would explain [named] otherwise bizarre and inexplicable behaviour. I am also concerned that this incident occurred following presentation of an improvement plan to [named] which requested that he keep his toilet breaks until the normal school breaks as is the case with the rest of the adult staff. I am concerned that [named] behaviour on the day was a considered reaction on his part to the improvement plan. His behaviour caused upset to students, concern to staff and seriously disrupted the school day.’

The Board wrote to the Complainant inviting him to a meeting on June 10th, 2019. He was informed that the meeting was a Stage 3 meeting under the Disciplinary Procedure and offered him opportunity to bring a representative to the meeting which would give him the opportunity to respond to ‘the allegations set out in the report from the Principal’. The Complainants behaviour at the meeting was described as ‘bizarre’. He asked to go to the toilet and when this was agreed, did not do so, wanting only to see what the response would be. The note of the meeting recorded him walking around the room and at one stage singing the Fields of Athenry; refusing to answer questions; standing up and doing exercises together with other behaviours which the Respondent said in the letter of dismissal, could not be ignored.

The Principal was in attendance at the meeting as the secretary and to take notes. When the Complainant left the meeting, she also left and was not involved in the Board deliberations.

The Complainant submitted a document on June 12th,following the disciplinary meeting.

On June 14th the Board wrote to the Complainant stating : ‘the board shares the Principals concernsthat an incident of self-wetting or soiling involving an adult who is employed to care for children of special needs would take place in a school where there are perfectly adequate toilet facilities.’

And

‘ The Board is of the view that on the balance of probability there is justification for the Principal’s concerns and that your behaviour on the day in question was a considered reaction on your part to the improvement plan put in place by the Principal.’

Reference was made to the behaviour of the Complainant at the disciplinary meeting and concluded that ‘the trust and confidence which underpins the employment relationship between you and theBoard has been irreparably destroyed by your actions.’

The Appeal hearing took place and the parties submitted written submissions. There was no separate meeting between the school representatives and the appeal hearer-the school representatives were in the room before the Complainant arrived, waiting for him-there was no discussion about the case without the Complainant present. The appeal hearer rejected the Complainants appeal on each ground set out in the appeal decision.

In relation to the allegations of abuse of children at the school, any complaints made by the Complainant were referred to Tusla by the Principal between 2018 and 2020. The Complainant had contacted individuals and Tusla following his dismissal. In all responses, Tusla concluded that the complaints were not of a child protection nature, but rather that they were issues of concern to the Complainant personally including his relationships with other members of staff. The position of Tusla was set out in an email of 13 February 2020 which refers to issues raised by the Complainant in the summer of 2018,a letter of July 2019 and again in October 2019. The Complainant was always informed of the position of Tusla while employed at the school.

The dismissal was not unfair on grounds of process or substance.

Complaint-Safeguarding of Persons Reporting Child Abuse Act 1998.

Unlike the Protection of Employees Act 2014 which provides for both internal and in some circumstances external reporting of alleged abuse, this older legislation, while an important development in its time, is very specific in the provisions of Section 3 detailing an appropriate person for the purposes of a complaint i.e. an Garda Siochana or HSE/ Tusla. These terms have not been amended in the meantime to take account the provisions of the later generalised protective disclosure legislation of 2014 and the related amendment to the Unfair Dismissal Act wherein the internal reporting of issues may be protected under the Act of 2014. The complainant did make complaints, to the school as his employer and therefore, under the Act of 1998 cannot claim the protections of the legislation under which this complaint was made. I am satisfied that the complainant knew that the complaints were a matter for Tusla and that Tusla did receive his complaints, on each occasion. It was therefore open to him to make a complaint directly to Tusla or An Garda Siochana as appropriate persons which he has in fact done as I understand it since leaving the employment.

The issue of reporting concerns and whether they formed a substantial reason for his dismissal fall for consideration under the complaint of unfair dismissal.

Complaint Unfair Dismissals Act 1977 as amended.

At the appeal stage of the process, the hearer concluded:

‘The Independent person found that there was no substantive breach of procedure that resulted a fundamental flaw in the outcome of the disciplinary procedure. In relation to the recording of the minutes of the Disciplinary Meeting (10 June 2019),it was noted that the School Principal recorded the minutes of the meeting in her capacity as Secretary to the Board, deliberations in respect of whether or not disciplinary sanction was warranted, the minutes of that section of the meeting were recorded by another member.’

Contrary to the conclusion of the Independent Person, this case has raised not inconsiderable issues of due process, generally by reference to the procedure set out in the DES Circular relied upon by the Respondent and also particularly in the adherence or otherwise to an important provision of that policy. One feature of the procedures found wanting in their application by the Respondent at the dismissal stage, replicates an earlier occurrence in the same vein at the final written warning stage in January 2019.

The first procedural issue to be addressed is the role of the Principal, also referenced in part in the Decision of the Independent Person.

Section 65 of the DES Procedure is the one relied upon by the Respondent. That section states:

‘In all cases of misconduct, a full investigation will be carried out by the school principal to establish the facts.’ Based on this provision the Principal was charged by the Board to conduct an investigation into the conduct f the Complainant on March 20th, 2019. The problem with this approach, however, and this is a difficulty posed by the procedure as well as the decision of the Board, is that neither the procedure or the Board provided for a situation where the person central to the charge of misconduct on the day in question was the school principal herself. In appointing her to investigate her own report of misconduct, the Board appointed her to, in effect find evidence in support of her own report which led to the Complainant being placed on administrative leave and being the subject of the investigation. The construction of the investigation was flawed from the outset through the appointment of the school principal to conduct the investigation.

Section 65 continues:

‘The following principles apply(to any investigation):

The principles of natural justice and fair procedures……

On completion of the investigation, the school principal   will submit a written report of the investigation to the board of management.’

Even allowing for the fact that the Board of Management were following the procedure as written down in appointing the school principal to investigate the events which led to her investigation-the Complainant quite rightly pointed to the fact that he was not interviewed as part of the investigation. Neither did he have any opportunity to comment on the signed statements taken by the Principal from eight members of staff before she submitted her report and her conclusions. This was not an investigation of an event where the person investigating would be impartial and both sides of the equation would be heard, it was an exercise in compiling information in support of the concerns of the school principal which had led to the investigation of alleged serious misconduct in the first instance. This led to a report by the same person setting out her opinions on the conduct of the Complainant which ultimately led to his dismissal. It was her opinions as set out in that report which formed the basis of the decision to dismiss the Complainant as set out in the letter of dismissal where the Board concluded ‘that the complaint from the Principal has been substantiated.’

The process of the investigation conducted by the   Principal, even allowing for the fact that she was appointed to do so by reference to the DES Circular, was fundamentally flawed.

In relation to issue covered by the Independent Person, the attendance of the School Principal at the Board meeting, even if good judgment would have suggested that the accuser would not be present at the meeting to take the minutes, allowing that it proved perfectly possible to have another person take the minutes after the Principal left the meeting, it is a matter of fact ,accepted at the WRC hearing that the Principal did not confine herself to taking minutes at the meeting-she interjected at one stage to correct the Complainant on an issue of substance, his access or otherwise to toilet facilities during the working day.

Contrary to the conclusion implied by the Independent Person at the appeal stage, the role of the Principal at the Board Disciplinary meeting was neither appropriate or neutral.

In conclusion, the procedure followed by the Board in investigating the alleged misconduct of the Complainant could not, by any reasonable measure, be regarded as meeting the tests of ‘natural justice and fairprocedures’

The procedure at stage 3 states:

The notice should state the purpose of the meeting and a precise statement of the area(s) where his work, conduct, performance, attendance or other issue is unsatisfactory,’

The Respondent failed to follow this very strict requirement in terms not only of this policy but in any disciplinary process for which the requirement to provide the charge in precise terms is particularly onerous on an employer at the stage in a procedure which may result in a final written warning, or a suspension without pay and it is to be set at the highest bar when the potential   sanction is a one of dismissal.In the previous final written stage in January 2019 , the Respondent had written to the Complainant saying that they wished to discuss issues of concern around performance and conduct. That letter contained no statement that it was a disciplinary meeting. Neither did it set out any details of the issues to be discussed and instead the Complainant received a detailed document following the meeting. While the notice of the Stage 3 hearing did include the Principals Report and a statement that the meeting was to be held within the terms of Stage3, he was left to interpret this to mean that he could be dismissed from reading the policy. The charge against the Complainant was ‘to respond to the allegations set out in the report from thePrincipal’-no charge at all it could be said but merely ‘allegations’ and nothing precise as specified in the DES Circular. Indeed, from the conclusions of the Principals report set out earlier, it is difficult to discern what the ‘allegations’ were.

The lack of preciseness is not an academic point, in this or any other disciplinary hearing, where a persons reputation and livelihood are at stake. In this case, when asked at the hearing why the Complainant was dismissed i.e. which ground, that he had soiled himself at school or that he had deliberately acted to give that impression by pouring water on himself, the Chairman replied-both-neither was acceptable. The letter of dismissal also cited the Principals opinion, that his behaviour was a considered reaction on the part of the complainant to the improvement plan put in place. In essence the Complainant was dismissed for whatever happened on the day in question, he was ascribed a motivation of creating situation if it was one thing and if that was not the case, he was dismissed for the other option, that he was indeed caught short and had an accident. The conclusion is that the lack of preciseness and the offering of a meeting to respond to ‘allegations’ without specifying the charge, favoured the Board of Management as no matter which option the Complainant set out-and he did say he soiled himself, with the Principals conclusion regarding motivation for one of the options, the Board could decide in his absence which option they chose as the basis of his dismissal. In the event, according to the evidence of the Chairman and the letter of dismissal, they chose all three options and then rolled in his behaviour at the disciplinary meeting. In summary, the Respondent failed to follow the provisions of Stage 3 of the procedures in setting out precisely the charge against the Complainant and they had failed in the same way when he received a final written warning following a meeting earlier in the year, thus showing a consistency of failing to afford the Complainant fair notice of the details of the precise charge against him in advance of a disciplinary hearing or in the case of the earlier meeting in January 2019, that it was in fact potentially a disciplinary meeting.

The Complainant in this case was never notified of a charge when called to the Stage 3 Hearing-he was sent a report and asked to respond to unspecified allegations compounding the flaws in the earlier misconceived investigation process in the appointment of the Principal to conduct that investigation and then in the manner she went about her investigation.

As can be seen, the conclusions of this hearing regarding the application of procedures in this case differ considerably from those of the Independent Hearer largely because the procedure in its entirity is examined in this process and set against the terms of the DES Circular together with the basic standards of fair procedure expected by statutory third parties when examining a claim that a dismissal was not unfair.

Once the procedure followed by an employer is found to be fundamentally flawed in failing to meet the standards of its own policy and fair procedures generally and specifically as in this case ,a dismissal   is unfair. This is all the Complainant is required to establish and he has done so in this instance. Once the dismissal is found to be unfair, the questions of the Complainants own behaviour or contribution to the decision to dismiss falls to be considered and may be a factor in determining the remedy. Finally, there is the requirement that the Complainant is obliged to make demonstrable efforts to offset his losses if there is an award of compensation. However serious the issues of conduct raised against an employee, one cannot simply jump over the procedural layers and standards to be applied to get to the substance as though the first principles do not count for much.

In considering the remedy to be applied, having reviewed all of the communications between the parties, it is clear that the Complainant was someone who frequently confused issues concerning his own obligation to take reasonable instruction from the Principal and/or to use internal procedures to pursue his own grievances, with a tendency to criticise others frequently regarding their performance while not taking heed about concerns on the part of management about his own conduct and performance. When, as in January 2019, he was called to a meeting about his performance, one of his responses was to set out a list of criticisms of everything from cleaning to detention. If the Principal endeavoured to correct his performance, he could not seem to take on board her concerns and instead sought to appeal to the Chairman of the Board. On the day of the incident in March he could have defused the situation himself by leaving but instead went to the Principal’s office making the problem if anything more serious. When there, he could have apologised for what had occurred and explained himself, but he did not do so. In fact, it is notable that at no stage did he apologise for the events of that day including the evident upheaval he caused in the school. There is no doubt that he had not asked anyone to cover the care of the children for him when he left the classroom that morning and this was a very specific instruction in his PIP. The Complainant displayed some difficulty in distinguishing between his own responsibilities and obligations to school management and his concerns about children at the school and especially at serious meetings affecting himself and insisted in talking about what others, including the Principal, had done. Nowhere was this more evident than at the disciplinary hearing which resulted in his dismissal. At the WRC Hearing, he acknowledged that he could see why the Board might view his behaviour at that meeting as ‘bizarre’ but stressed that his concern was about the children. Even allowing for the levels of anxiety exhibited by the Complainant in work situations and referenced in Medmark reports-one could only agree that the behaviour of the Complainant at the Board meeting was indeed bizarre. His response in a subsequent written statement to the Board was to use the same term used by the Chairman ‘bizarre in the extreme’, to criticise the running of the school and the meeting. If there was any chance that he could have escaped the sanction of dismissal at that meeting, it is easy to see why his behaviour that night and his subsequent written statement removed that possibility entirely in the eyes of his employer. In summary, in his dealings with the School Principal commencing in 2018 and escalating in 2019, procedural flaws notwithstanding, the Complainant contributed to the decision of the Board of Management to discipline him including in the decision to dismiss him. It is because of these conclusions that I do not share the Complainants opinion that his difficulties including his dismissal stemmed from making complaints which he contends were complaints of abuse of children. Where they may have been a factor was in his persisting with complaints as safeguarding issues when he knew that Tusla did not classify the complaints as such and responding to criticism of him with counter criticism of others which he classified as safeguarding issues.

Protection of Persons Reporting Child Abuse,1998

The complaint brought by the Complainant under this Act is not well founded.

Unfair Dismissals Act 1997-2016

The complaint that the complainant was unfairly dismissed is well founded. Regarding a remedy, objectively, this employment relationship is irretrievably broken, and it is accepted that the bond of trust between the Respondent and the Complainant will not be restored to the extent of there being any prospect of a reasonable working relationship into the future. The appropriate remedy is therefore compensation. The Complainant is to receive €10000 compensation for his unfair dismissal and most probably his career as an SNA together with the loss of pension entitlements into the future. This award takes account of the Complainants contribution to the decision of the Respondent and his insistence on seeking only work as an SNA since his dismissal.

Penalisation-reporting alleged child abuse; Dismissal