Complainant

Respondent

Anonymised Parties

A teacher

A school

Representatives

Padraic Lyons BL instructed by Emmet Whelan, Byrne Wallace

Tom Mallon BL instructed by Ian O ‘Herlihy, Mason Hayes & Curran

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-00012268-001

04/07/2017

The Complainant is a secondary school teacher, with 35 years’ experience, teaching Science and Physical Education. The Complainant was employed by the Respondent school for over 24 years, from August 1992 to February 2017

At the time of his resignation the Complainant earned €65,000 per year and worked 22 hours per week.

The hearing of this complaint commenced on 10th September 2020 (face to face) and continued by virtual hearing on 25th March 2021.

The Complainant is a secondary school teacher, with 35 years’ experience, teaching Science and Physical Education. The Complainant was employed by the Respondent school for over 24 years, from August 1992 to February 2017. He was one of the longest serving teachers in the school, held a post of responsibility, and was also an examiner in Science for the Department of

Education at senior level. The Complainant had a positive relationship with students, and with teaching colleagues. The Complainant was an active union member and was unanimously elected as ASTI school steward for the Respondent school in 2006.

The Complainant experienced no difficulties with management in the Respondent school from 1992 until 2006. This changed in 2006 as a result of a dispute related to the school’s treatment of his son, who was a student of the school, and the school’s reaction to the Complainant’s appointment as ASTI school steward. The treatment of the Complainant’s son was so problematic that the Complainant removed his son from the school. The Principal refused to meet with the Complainant in his position as school steward from 2006 up until 2009, when the Complainant resigned from that role. 

The period from 2006 to 2010 was a very difficult time for the Complainant in his working life. A number of processes were ongoing during this time, including a complaint of bullying lodged by the Complainant against the Principal and Deputy Principal, and the progression of disciplinary charges by the Principal against the Complainant. The Complainant was given a final written warning in June 2010 as a result of those disciplinary charges. The Complainant was not involved in any other disciplinary process between 2010 and 2015 and believed that he had drawn a line under his issues with management. 

In May 2014, a complaint was made by a parent of a student in the school.  The parent alleged that the Complainant had called the student an offensive name.  The Complainant attended a process with the parents to resolve the complaint. The Complainant denied the allegation as part of that process, and the complaint was not resolved. On 24 February 2015, the Board concluded at a meeting that the Complainant had engaged in “inappropriate behaviour and language” in relation to the student. On 27 March 2015, a further meeting took place with the Principal and a Nominee of the Board. By letter of 21 April 2015, the Complainant was given a final written warning.

The Complainant did not engage in inappropriate behaviour or language and should not have been given a final written warning. In fact, the process undertaken by the Respondent was fundamentally flawed. The Complainant made his objections to the process clear to the Respondent during the process. The Complainant did not attend the meeting on 24 February due to his concerns in respect of the process. The Complainant attended the meeting on 27 March under protest. 

The disciplinary outcome letter of 21 April 2015 informed the Complainant that he had a right to appeal. The relevant Disciplinary Circular (Department of Education and Science Circular 60/2009) also provides for a right of appeal.  By letter of 10 May 2015, The Complainant lodged his appeal. The Board waited until 17 September 2015 to write to the Complainant to confirm that it was refusing him the right to appeal.

 The approach of the Board was fundamentally flawed. It was in breach of the Complainant’s rights under Disciplinary Circular 60/2009, in breach of established industrial relations practice in the education sector and in breach of his Constitutional right to fair procedures. Byrne Wallace solicitors wrote to the Respondent, on behalf of the Complainant, and highlighted these obvious deficiencies. The Respondent refused to change its decision or allow the appeal he was legally entitled to. It is submitted that the approach taken by the Respondent Board was objectively unreasonable.

Given the intransigence of the Board, the Complainant was forced to take legal action to overturn the disciplinary outcome. The Complainant commenced an application for judicial review in the High Court in December 2015. That application resulted in a High Court judgment (of Mr Justice Twomey) dated 23 November 2016. That judgment did not engage in a substantive assessment of the Complainant’s application, but instead declined to adjudicate upon it based on a conclusion that “the matters complained of are not amenable to judicial review”. The wholly unreasonable stance adopted by the Respondent school before the High Court was that the Complainant’s case was so minor and inconsequential that it should not be entertained by the Court at all. 

The Complainant appealed the judgment of Mr Justice Twomey, and it was overturned by the Court of Appeal on 27 August 2018. In his judgment, Mr Justice Hogan recognised the seriousness of a warning of this kind for the Complainant stating:

“One does not, I think, need to have any great knowledge of the educational system or the labour market for secondary teachers to appreciate that a final warning of this kind, referring as it does to inappropriate contact with a pupil, is likely to have the gravest implications for the good name, reputation and employment prospects of the appellant [The Complainant]. By virtue of Article 40.3.2 and Article 40.3.1 respectively these are constitutionally protected rights and the courts are obliged in particular to ensure that the constitutional right to good name in both a professional and employment context is adequately vindicated …”.

At this juncture the Respondent school had the opportunity to recognise the seriousness of the issue for the Complainant and to address its mishandling of the process. It declined to do so. The case was remitted to the High Court for a new hearing. The judicial review case concluded on 8 October 2019, when Ms Justice Murphy concluded that the Board overstepped the mark in making a finding of inappropriate behaviour and language against the Complainant under a complaint’s procedure (before the disciplinary procedure had even commenced) and then attempting to “shoehorn” that upheld complaint into the disciplinary process. Ms Justice Murphy was also very critical of the Board’s refusal to afford the Complainant the appeal that he was entitled to under Disciplinary Circular 60/2009.

This flawed disciplinary process has caused the Complainant great reputational damage and personal distress. The negative effect ultimately resulted in the Complainant being unable to fulfil his duties in the Respondent school. The Complainant was placed on certified sick leave from December 2015 onwards and was unable to return to work thereafter. The first certificate stated that the Complainant’s absence was due to a shoulder injury and the remaining certificates certified that his absence was due to stress.  This certification that the Complainant was unfit for work was also supported by the Respondent school's occupational health practitioner, to whom the Complainant was referred by the Principal. 

During the course of 2016 the stress and anxiety from which the Complainant suffered did not improve. On the contrary, the fact that a finding of inappropriate behaviour had not been removed from his personnel file continued to be a source of acute and increasing distress for him. By the end of 2016, the disciplinary finding and warning had been in existence for over a year and eight months. The legal process to challenge that warning had been ongoing for a year and one month and the Respondent school continued to refuse to confirm that the warning had ceased to have effect. The situation had become intolerable for the Complainant.

Over the course of 2016, the Complainant had discussed and reviewed the situation with his General Practitioner, and his counsellor. His GP advised the Complainant that his continued employment within the Respondent school was a source of ongoing stress and that his

medical symptoms would be likely to improve if he was to resign from his employment. This was not a course of action which the Complainant was prepared to undertake lightly. It took months of deliberation. However, the combined effect of the un-expunged finding of inappropriate behaviour and the stress emanating from the Complainant’s ongoing employment with the Respondent school was such that he ultimately concluded that resignation was essential to his health and well-being. Accordingly, by letter dated 31 January 2017, the Complainant resigned his employment with the Respondent with effect from 1 February 2017. 

Since the date of the Complainant’s resignation, he has been without employment or any source of income save for payments that he has been able to access from his pension, which amount to a payment of €1,149 gross each fortnight.

 Following the conclusion of his judicial review proceedings, the Complainant sought a reference from the Respondent school in order that he could move on with his life and obtain alternative employment. As he has worked for the Respondent school since 1992 the only available source of a professional reference for him is the Respondent school, something which is essential if he is to obtain alternative employment. Correspondence has been exchanged between the parties in relation to this issue on 25 November 2019, 23 January 2020, 23 April 2020 and 15 July 2020. The position taken by the Respondent school in its letter of 23 January 2020 has been to refuse a reference but to provide a bare statement of service. The stated reason for this is that the provision of a reference is a task delegated to the Principal and, due to the change in Principal it would not now be possible to provide a reference to him. It is submitted that this stance on the crucial issue of a reference is wholly unreasonable. As a result, it has proven impossible for the Complainant to even obtain a job interview, much less a job offer, from any of the numerous schools (twenty-two) to which he applied in the last academic year. 

SUMMARY OF LEGAL ARGUMENTS

Section 1(1)(b) of the Unfair Dismissals Act, 1977, defines “constructive dismissal” as:

“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”.

As endorsed by the Labour Court in Paris Bakery & Pastry Limited v Mrzljak DWT1468, the classic formulation of the legal test in respect of constructive dismissal was set out by the UK Court of Appeal in Western Excavating (ECC) Ltd v Sharp [1978] 1 All E.R. 713. It comprises of two limbs, referred to as the “contract” and the “reasonableness” tests. 

The UK Court of Appeal summarised the “contract” test as follows: 

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.” 

The UK Court of Appeal found that the reasonableness test assesses the conduct of the employer and 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.”

In BAC v Austin [1978] IRLR 332 the UK EAT held that conduct justifying resignation on the part of an employee may include a serious departure from “good industrial practice”.

 In Caci Non-Life Limited v Daniela Paone [Determination UDD1750] the Labour Court observed the existence of the contract test and the alternative reasonableness test and noted that:

“Whether or not this test has been satisfied on any particular case has to be considered from an objective perspective.”

Recently, in TE Laboratories v Mikolajczyk [2019] 30 ELR 198 the Labour Court has confirmed that the failure by an employer to adhere to its own procedures may justify an employee in treating himself as having been constructively dismissed.

In this case it is submitted that the Complainant objectively satisfies both the contract test and the reasonableness test.

The Respondent school made findings against the Complainant that were likely to have the gravest implications for his good name, reputation and employment prospects. The Respondent school did so in a manner that was fundamentally flawed, in breach of the Complainant’s rights under Disciplinary Circular 60/2009, in breach of his Constitutional right to fair procedures and contrary to Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000 (S.I.  No. 146 of 2000). In doing so it objectively acted in a manner which was contrary to good industrial practice in the education section. When these obvious deficiencies were highlighted to the Respondent, the Respondent refused to change its decision, and refused to allow the Complainant the appeal he was legally entitled to. The Complainant was forced to take legal action to overturn the disciplinary outcome and vindicate his good name. 

The Respondent school is guilty of conduct which is a significant breach going to the root of the contract of employment. The unreasonable approach of the Respondent school demonstrated that it no longer intended to be bound by one or more of the essential terms of the contract: the right to have disciplinary matters progressed in accordance with Disciplinary Circular 60/2009 and Constitutionally fair procedures. The conduct of the school was, in totality, so unreasonable that he could not fairly be expected to put up with it. In that context, he was entitled to treat himself as discharged from any other performance of his contract and it was reasonable for him to resign from his employment. The Complainant was constructively dismissed.

Regrettably the unreasonable behaviour of the Respondent school has continued to cast a shadow over the Complainant even after his resignation. By refusing to provide a teaching reference to him the Respondent school has effectively rendered him unemployable in the second level education sector, causing great financial, professional and personal suffering for him. 

CONCLUSION

The Complainant was constructively dismissed from his employment with the Respondent and seeks a determination to that effect and appropriate compensation.

On or about 5th July 2017 the Claimant instituted proceedings pursuant to the provisions of the Unfair Dismissals Act alleging that he had been constructively dismissed from his employment with the Respondent on or about the 31st day of January 2017. 

In his claim form he sets out his claim as follows: - 

“My employment position as a permanent teacher of 35 years’ experience became damaged on 31/1/2017 due to my employer’s findings under an Educational Sector National Agreement procedure on 24/2/2015. 

“I suffered serious stress as a result of this fundamentally flawed process. 

A further effect of the finding by my employer of inappropriate behaviour (a charge which was never put to me in the process) in an all boys school left me seriously damaged both professionally and personally. This damage perpetuates, and my employer refused to rectify and withdraw the finding. 

All of the above left me reputationally damaged leaving me with no option other than to tender my resignation.”

The Respondent joins issue with the Claimant’s claim and pleads that he was not dismissed, constructively or otherwise. 

 There is a considerable history to this matter and it’s necessary to briefly set that out. 

In May 2014 a complaint was made by the parents of a student. It should be noted that there was in existence at that time two separate processes, one dealing with complaints from parents and one being the nationally agreed disciplinary procedure. 

In the instant case the complaint from the parents was processed in accordance with the complaint’s procedure. 

Ultimately a decision was made in or about February 2015 that in relation to his interaction with that pupil the Claimant had engaged in “inappropriate behaviour and language”. 

Ultimately a sanction of a final written warning was imposed on the Claimant.  The life of that final written warning was one year. 

Arising from those relatively simple facts the Claimant initiated proceedings by way of judicial review in the High Court. 

Judgment was delivered by Twomey J on 23rd November 2016 and he held that the matters complained of were not amenable to judicial review and the relief was refused. The Claimant appealed against that judgement and the Court of Appeal allowed the appeal and ordered that the matter be remitted to the High Court for a fresh determination on the merits of the arguments advanced by the Claimant in relation to alleged procedural unfairness and alleged failure to adhere to the relevant agreed disciplinary procedures. 

 In the principal judgment of the Court of Appeal Hogan J, at paragraph 28, dealt with the matter as follows: - 

It will be seen from the foregoing that Twomey J. in effect ruled against the applicant in limine on the ground that the matters raised were not appropriate for judicial review. He did not, however, rule in any sense on the merits of the various procedural arguments advanced by the applicant regarding the extent to which the Respondent properly followed the agreed procedures contained in DES circular 60/2009. Given that this court has reversed the finding of Twomey J. that the matter was moot or that it was not properly justiciable or that it involved matters which were de minimis, it seems inevitable that the matter must now be remitted to the High Court for a determination of the merits of the various arguments regarding, for example, the application of the DES circular. Nothing in this judgment should be taken as expressing any view on the merits of these particular arguments.” 

The President of the Court of Appeal, Bermingham P, also delivered a written judgment the opening paragraph of which is in the following terms: - 

“I have had an opportunity of reading in draft the judgment of Hogan J. I agree with that judgment and with the order he proposes. I agree, however, only with extreme reluctance and because I feel compelled to do so. I feel so compelled because I cannot go along fully with the trial judge in the views he formed in relation to the issue of mootness. In my view, it is a step too far to suggest that because the period during which the warning was to remain live on the file had expired, assuming that was the case, that the issue became moot.” 

He went on at paragraph 3 to make the following observations: - 

“My general dislike for resorting to the courts in cases such as this is reinforced in the circumstances of the present case. In this case, the applicant and his representatives were invited to attend a meeting convened in accordance with stage 3 of the complaints procedure. They declined to do so despite a deferral of the meeting in order to facilitate attendance. Thereafter, matters were dealt with under stage 3 of the disciplinary procedure. A meeting was convened between the applicant and the respondent's Principal and a nominee of the respondent, which meeting took place on 27 March 2015. The decision was to issue a final written warning.” 

Having dealt with the matter further he then went on at paragraph 5 to make the following strong criticism of the Claimant when he said: - 

“In my view, there was an element here of playing fast and loose with the procedures and a failure to engage in the way one would expect of a long-term professional employee. While I will wait to hear what the parties have to say in relation to costs and other ancillary matters, I think it only right that I should indicate at this stage that I will have to consider carefully whether this is a case for departing from the usual rule in relation to costs.” 

Ultimately the Court of Appeal determined that the Claimant should recover the costs in that court but not for the preceding High Court hearing. 

The matter was returned to the High Court and Murphy J delivered a judgment on 8th October 2015.

 In those proceedings the Claimant in effect sought to quash two decisions of the Respondent. Firstly, the decision that the Claimant engaged inappropriate behaviour and language in relation to the student and secondly in relation to the issuing of the final warning letter. 

The Court refused to grant the first order and accordingly the finding of the Respondent that the Claimant had engaged in inappropriate behaviour and language remains valid. The Court did order the quashing of the final written warning letter. The judge was quite critical of the applicant in relation to the manner in which he dealt with the issues so that at paragraph 229 she made the following observation: - 

“The applicant was contractually obliged to engage with the complaints procedure. He did so at stage 1 and 2, but when it moved to stage 3 he engaged in extensive legalistic arguments as to why in his view the process was flawed. He threatened judicial review but did nothing.  Instead of attending with his union representative or a colleague and denying the substance of the complaint before the Board, he absented himself from the process. Those who do not participate in agreed procedures for the resolution of issues cannot later come crying to the courts because they do not like the outcome of the process. Even if the concerns expressed by the applicant were genuinely held, that was no bar to him attending at the Board of Management meeting to put his case which was apparently a denial that he had called AB “a little bitch”.  When the outcome of the complaints process became known, he took no action despite his repeated threats of having recourse to law to protect his employment. He allowed the findings of the Board to be processed through the disciplinary procedure without objection, merely reserving his rights in the situation. In those circumstances, even if it were a matter which were amenable to judicial review (which the court holds it is not) the court would hold that the applicant by his behaviour had disentitled himself to such relief.” 

The Court made no order for costs having regard to the nature of its order. 

What the foregoing brief review of the history of this matter shows is that the Claimant is a person who is well capable of defending his own position and it is against that background that his conduct which led up to his resignation must be viewed. 

Noting that that student complaint related to June 2014 and that thereafter the Claimant was engaged in extensive legal proceedings which ultimately did not conclude until October 2019, the timing of his resignation must be carefully considered. 

The Claimant was present in school in the normal course up until on or about the 9th December 2015 when he was absent on sick leave relating to a shoulder injury. His medical cert was effective from 9th December until 16th December 2015. At the end of November 2015 two further complaints were made against the Claimant in relation to his conduct and behaviour towards students (in those cases special needs students), a copy of which were furnished to the Claimant on 7th December 2015. The Claimant’s medical certs changed after the 16th December 2015 to “stress” and he never returned to the school until his resignation thirteen and a half months later. 

This matter must now be considered carefully from a number of points of view. Firstly, that on receipt of further complaints (during a period when the final written warning was still in force) he immediately absented himself never to return and thereby avoid having those matters dealt with. They remain unresolved. He then was absent from school for substantially more than a year and then, out of the blue so to speak, he resigned, and he claims in his claim form before the WRC that his employment position became “damaged” on 31st January 2017. With respect, nothing further happened on 31st January 2017. His employment position was not damaged on that date. The Claimant had fought his corner vigorously for a number of years but when informed of accusations of inappropriate behaviour towards special needs students on 7th December 2015, he absented himself never to return and he now comes before the WRC seeking to convert that behaviour into a constructive dismissal. It is submitted with respect that on no measure can the resignation which took place on that day be regarded as a constructive dismissal. 

OUTLINE LEGAL SUBMISSIONS

 It is submitted that the law is well clear that the onus of proof lies on the Claimant in a constructive dismissal and he must meet either the reasonableness or contractual tests developed by the Courts. The tests are as follows: - 

(a) Is the employer guilty of conduct which is a significant breach going to the root of the contract of employment or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract. 

(b) The employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with same. 

Against these two tests the Claimant must fail. What conduct was the employer guilty of which was a significant breach going to the root? The Claimant’s complaints have been adjudicated upon by the High Court and the Court of Appeal, a total of five judges of the Superior Courts. And the ultimate determination was that there was an error on the part of the employer in relation to the use of the disciplinary process but there was no setting aside of the fundamental finding of wrongdoing on the part of the employee. Secondly, the WRC cannot ignore the criticisms levelled by the courts at the behaviour of the Claimant and his allegations against the school must be measured and considered against his behaviour. It would be wholly wrong to suggest that the Respondent conducted itself or its affairs so unreasonably that no alternative was available to the employee. The employee went on sick leave for thirteen and a half months before he decided to resign, and subsequently claim to be constructively dismissed. Nothing changed at that point in time. He continued to be an employee and when fit was free to return to work. The decision to resign was entirely of his own making. 

 If the Claimant wishes to rely on medical advice in relation to his continued employment, then he must call a medical witness to give that evidence and his own subjective view and/or hearsay in relation to what a medical practitioner might have said to him is unacceptable in all of the circumstances.

As per the complaint form received by the Workplace Relations Commission on 4th July 2017 the Complainant contends that:

“My employment position as a permanent teacher of 35 years’ experience became damaged on 31/1/2017 due to my employer’s findings under an Educational Sector National Agreement procedure on 24/2/2015. 

“I suffered serious stress as a result of this fundamentally flawed process. 

A further effect of the finding by my employer of inappropriate behaviour (a charge which was never put to me in the process) in an all-boys school left me seriously damaged both professionally and personally. This damage perpetuates, and my employer refused to rectify and withdraw the finding. 

All of the above left me reputationally damaged leaving me with no option other than to tender my resignation.”

When questioned by the representative for the Respondent as to what exactly took place on 31st January 2017 the Complainant struggled to answer, it was then established by the representative for the Respondent that it was at a time when the Complainant had exhausted his sick pay entitlements and had reached an age where he could avail of an early retirement pension. It was also only a matter of weeks after a second and new complaint had been received by the school in relation to the Complainant’s conduct.

It would appear that an incident between the Complainant and a school pupil took place on 8th May 2014 and the parents of the pupil, after having attempted to deal with the matter informally, wrote an official letter of complaint to the school on 8th June 2014. On 9th June 2014 the school Principal wrote to the Complainant informing him that a serious complaint had been made. A lengthy period of letter exchanges ensued between the Complainant and the Respondent, it appears that the Complainant fully participated in Stages one and two of the process but refused to participate at stage three.

By letter dated 1st October 2014 the Complainant wrote to the Chairperson of the Board of Management. In this letter he states the following:

“At this juncture and before the matter is processed any further I want to put it on record that to date this complaint has not been dealt with or processed as per the procedure laid down under the Complaints procedure 2000 or in accordance with the rules of natural justice.

The whole process to date is fundamentally flawed and bias in that I was not furnished with a copy of the signed and written complaint against me until 3rd September 2014 when a true copy was handed to me as Stage 2 Hearing.

Further, the document given to me as the complaint at the hearing was different to documents to the one dated 08/06/2014 and which was furnished to me by the school Principal dated 10/06/14. This document of 10/06/2014 comprised of an unsigned 2-page document while the document handed to me at the hearing was a signed 3-page document.

In these circumstances I therefore requested at the hearing an attested copy of the complaint and to date this has not been furnished.

There would appear to be two complaints against me in existence. This is not acceptable.

The entire basis of the Complaints Procedure is built around a signed and written copy of the true complaint being furnished to the teacher as quickly as possible. This did not happen here”.

This letter goes onto state:

“Accordingly, the complaint made out against me has not been ever pit to me and frankly I am concerned that with the existence of two versions of the complaint I will not know what it is I have to answer. I have not been given a fair hearing here and so my position as far as answering the complaint is concerned has been seriously prejudiced”.

By letter dated 17th November the Chairperson of the Board of Management replies:

“Your statement that you do not know what complaint it is you have to answer is puzzling in the light of the fact that the complaint was put to you both under Stage 1 and Stage 2. As far as I am concerned, the Complaints Procedure has been followed completely in accordance with Stage 1 and Stage 2. I do not accept your objections to it”.

As the Adjudication Officer assigned to the investigation of this complaint I struggle to accept that the Complainant was unsure of the exact nature of the complaint.

The process culminated with the issue of a Final Written Warning being issued to the Complainant and he was informed of this fact by letter dated 21st April 2015. This letter also states that:

“You are entitled to appeal this decision. A decision to appeal should be communicated to the Secretary of the Board within ten working days of receipt of this letter”.

The Complainant informed the Chairperson of the Board by letter dated 10th May 2015 that he had decided that he would appeal the decision to issue him with a Final Written Warning.

The next letter is dated 17th September 2015 and was signed by the Secretary of the Board of Management. This letter informed the Complainant that:

“In accordance with Stage 3.4 of the Complaints Procedure the decision of the Board of Management is final”.

No opportunity to appeal the decision to issue a Final Written Warning was granted to the Complainant. The Representative for the Complainant contends:

“The approach of the Board was fundamentally flawed. It was in breach of the Complainant’s rights under Disciplinary Circular 60/2009, in breach of established industrial relations practice in the education sector and in breach of his Constitutional right to fair procedures. Byrne Wallace solicitors wrote to the Respondent, on behalf of the Complainant, and highlighted these obvious deficiencies. The Respondent refused to change its decision or allow the appeal he was legally entitled to. It is submitted that the approach taken by the Respondent Board was objectively unreasonable”.

Refusing the request for the appeal was a mistake and I feel that I have no alternative but to deem the complaint submitted under section 8 of the Unfair Dismissals Act to be well-founded.

The Complainant was unfit for work from 9th December 2015 until he resigned on 31st January 2017.When asked when he became fit for work he replied that it was not until after the High Court Judgement dated 8th October 2019, some 32 months after his resignation.

During this 32 month period the Complainant contends that he applied for 10 positions in the period from 2017 to 2019 (3 in Raheny, 2 in Baldoyle, 2 in Sutton,1 in Clontarf, 1 in Killester and 1 in Donaghmede). None of these applications are documented. I note that the geographic area in which these positions arose is a small section of Dublin City North East.

During 2020 the Complainant applied for a total of 22 positions, a copy of these job advertisements was included in the Complainant’s booklet of papers. These applications cover a wider geographic spread, with two exception they were all in the Dublin area. There were no job applications made in the first four months of 2020, 17 applications made in May 2020, 4 were made in June 2020 and one in July 2020.

In Sheehan v Continental Administration Co Ltd (UD858 / 1999) the EAT endorsed the position that ‘[a] claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work….. The time that a claimant finds on his hands is not his own, unless he chooses it to be but rather [is] to be profitably employed in seeking to mitigate his loss (Redmond, Dismissal Law in Ireland (2nd edition, Tottel Publishing, 2007), [23.71].

The Complainant’s efforts to mitigate his losses are not impressive.

By not allowing the Complainant to appeal the decision to issue a Final Written Warning I decide the complaint as presented under section 8 of the Unfair Dismissals Act, 1977 is well founded and now order the Respondent to pay compensation to the Complainant of €5,000 representing four weeks pay.

In relation to his poor effort to  mitigate his losses and being mindful of the fact that the Complainant was on sick leave for approximately two and a half years after his resignation I award zero for loss of earnings.

The sum awarded to the Complainant should be paid within 42 days from the date of this decision.

Unfair Dismissals Act, 1977.