ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00024262

Parties:

	Complainant	Respondent
Anonymised Parties	A Special Needs Assistant	A National School

Representatives

Seán Carabini Fórsa

Liam Riordan Mason Hayes & Curran

Complaint:

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-00030905-001	13/09/2019

Date of Adjudication Hearing: 11/02/2020

Workplace Relations Commission Adjudication Officer: Emer O'Shea

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The complainant commenced employment as an SNA with the respondent in June 2002 and was dismissed from her position on the 31st.August 2019. It was submitted that the claimant’s dismissal was unfair and constituted a breach of Dept. of Education Circular 0072/2011 – Disciplinary and Grievance Procedures for SNAs and a breach of SI146/2000.

Summary of Respondent’s Case:

The respondent’s representative presented the following submission on behalf of the school.

1. Dismissal

The Respondent accepts that the Complainant was dismissed from her position as a Special Needs Assistant with effect from 31 August 2019. The Respondent submits that the dismissal was fair and reasonable in the circumstances. The Complainant was initially notified of the decision of the Respondent to dismiss her by letter dated 20 March 2019. The decision on the part of the respondent to dismiss the Complainant followed a disciplinary process in compliance with the disciplinary procedures for SNAs as set out in DES circular letter 72/2011, a copy of which is attached in our booklet. In compliance with the disciplinary procedures, the complainant, was advised on her right to appeal the decision of the Board of Management to dismiss pursuant to the appeal procedures set out in DES CL 72/2011. The complainant duly availed of her right to appeal. She was represented throughout the disciplinary process by her solicitors initially and latterly by her union Forsa. The Board ultimately considered the outcome of the appeal process and decided to terminate her employment with effect from 31 August 2019. The complainant was notified of the Board’s decision to terminate her employment by letter dated 18 June 2019. A copy of the letters from the board of management to the complainant dated 20 March 2019 and 18 June 2019 are included in the folder.

2. The Facts of the Case

The Complainant worked as a Special Needs Assistant. In that capacity she was assigned by the Principal to work with a particular student, Student A for the 2017/18 school year. The student suffers from a rare debilitating condition. He has complex physical disabilities and requires full time SNA support in school.

The student was in the class taught by the Principal during the 2017/18 school year.

In November 2017 the Principal initiated the emergency protocol in the school’s child protection procedures to place the complainant on administrative leave following a series of events which began on Tuesday 7 November 2017 culminating on Friday 10 November 2017 which concerned the interaction between the complainant and the student. As the Principal’s concerns gave rise to child protection issues, he prepared a referral to TUSLA/Child and Family Agency. As part of the TUSLA referral the Principal drafted a statement for inclusion with the standard report form. The Principal also received a complaint from the parents of Student A in which they alleged that their son had been bullied, harassed and manipulated by the complainant.

The issue of on-going administrative leave was referred by the Principal to the Board of Management/Respondent. The complainant was provided with a copy of the Principal’s report to TUSLA together with a copy of the letter of complaint from Mr and Mrs A dated 12 November 2017. The Board of Management met on 7 December 2017 and the Board confirmed the complainant on administrative leave pending the outcome of the investigation of the concerns the Principal had referred to TUSLA.

There ensued subsequent correspondence between TUSLA and the Principal in relation to the investigation by TUSLA of the concerns referred to that body by the Principal. Contrary to what the Principal had been told when he initially made the referral by a social work team leader, TUSLA found that the allegations referred to them did not meet the threshold for their conducting an investigation. The Principal took issue with that decision and appealed the matter to the Principal social worker in TUSLA. She responded to the submission from the Principal on 8 June 2018 in which she made it clear that TUSLA was not going to address the concerns the Principal had referred to them under the child protection procedures.

3. The Disciplinary Procedure

Following the decision of TUSLA that it was not going to conduct an investigation of the concerns referred to it by the Principal, the Principal prepared a report for the Board of Management arising from his investigation of the issues as required under Section 63 of the SNA disciplinary procedures (DES CL 72/2011). Following completion of his report the Principal referred the report to the board of management in November 2018. A copy of the Principal’s comprehensive report to the board of management is attached herewith. The Principal’s report contained the following appendices:

· Appendix 1: the referral form to TUSLA, letter of complaint from Mr and Mrs A and all correspondence between the board of management and TUSLA.

· Appendix 2: contemporaneous notes of the Principal, November 2017.

· Appendix 3: all correspondence between Mr and Mrs A and the board of management to include solicitors’ correspondence.

· Appendix 4: report of the Principal’s meeting with Mr.& Mrs.A, 7 November 2018.

· Appendix 5: all correspondence between the board’s solicitors and solicitors for the complainant.

4. The Alleged Misconduct

In his report to the Board of Management the Principal set out the concerns he had in relation to the complainant’s treatment of Student A as set out in his report to TUSLA and also as fully set out in the lengthy contemporaneous notes that he kept in relation to this matter which were also included with the report. In addition, the Principal stated as follows:

“My own concerns in this matter as Principal are mirrored by those of student A’s’ parents who have filed a complaint with the Board of Management dated 12 November 2017. They have also engaged solicitors on their behalf who have written to the Board of Management stating, amongst other things, that Student A is still terrified that the complainant will return to the school. They also point out that the incident that occurred in October/November 2017 has traumatised and stressed out Student A and his family.

I am concerned at the behaviour I witnessed, and the behaviour as reported to me by Student A’ parents gives rise to a breach of the child protection procedures for schools. I am also concerned that the complainant’s actions amounted to a misuse of confidential information, and serious inappropriate behaviour and a breach of trust. These are listed as examples of serious misconduct in the disciplinary procedures”.

5. In his statement for inclusion with the standard report form to TUSLA the Principal outlined the factual basis for his concerns as follows:

“I attended to Student A last Tuesday 7 November 2017 at approximately 1.00pm. I had concerns with regard to how his SNA, was responding during his treatment. I confidentially addressed these concerns in a thorough well thought out professional manner at the first opportunity the following day, Wednesday. She gave assurances in a very confidential discussion that she understood my concerns about her negative interaction. She agreed a plan which we would adopt to build Student A ’s self-confidence, self-esteem and happiness which I felt at the time were impacted. I suspected the cause might be her rather negative bad attitude towards him. I had prior to Halloween made some informal interventions towards this end.

I was shocked to find that without my knowledge and at complete variance to my perception of her actually implementing our plan, she had on Thursday used the fact that I had a confidential discussion with her the previous day to try and emotionally browbeat, or as I have now condensed, continued to bully Student A. I only became aware of it to my complete horror and surprise on Friday morning at 9.00am from a verbal disclosure by his father.”

6. Also attached in appendix 1 to the Principal’s report was a comprehensive letter from the parents of Student A dated 12 November 2017 in which they set out their concerns arising from the interaction between their son and the complainant on Tuesday 7 November 2017.

7. Following receipt of the Principal’s report the Board decided that a disciplinary hearing in line with Stage 3 of the disciplinary procedures should be held. The Chairperson of the Board wrote to the Complainant informing her that the matter was at Stage 3 and advising her of her rights including the right to representation. The letter requested her to advise if she wished to have Mr & Mrs A present at the disciplinary hearing. There followed subsequent correspondence between the parties including solicitors on behalf of the Complainant and the Respondent. The Board wished to hear from Mr & Mrs A as complainants (alongside the Principal) and to give the complainant the opportunity to challenge their evidence by way of cross examination in the presence of her employer the Board of Management. The Complainant, through her union Forsa, strongly and explicitly objected to Mr and Mrs A attending the disciplinary meeting. A copy of all of the correspondence referred to in this paragraph is attached. Ultimately a disciplinary hearing took place on Thursday 7 March 2019 which the complainant attended accompanied by her trade union representatives, from FORSA.

8. Following the disciplinary hearing the Board wrote to the complainant on 20 March 2019 informing her of its decision to dismiss her for serious misconduct. In the same letter the Board notified the complainant of her right to appeal the decision of the board of management pursuant to the appeal provisions in the disciplinary procedures (DES CL 72/2011). The complainant duly availed of her right to appeal.

9. In compliance with the requirements of the disciplinary procedures the Board of Management appointed Ms B the independent person to conduct the appeal. Ms B is a former primary school Principal who continues to work in the education sector.

10. Both parties participated in the appeal process. A copy of the appeal submissions is attached. The appeal hearing took place in April 2019 and the independent person, conducting the appeal, communicated the outcome of her appeal to the Board of Management in her report dated 7 May 2020, a copy of which is attached.

11. In her report Ms B found that the Complainant had not established a case on three of the four grounds on which she had based her appeal. In relation to the fourth ground of appeal which related to the severity of the penalty Ms B recommended that the Board of Management/ Respondent reconsider the severity of the sanction imposed given the Complainant’s previous satisfactory record of employment before a final decision was made in accordance with Section 75 of DES CL 72/2011.

12. The Board of Management duly reconsidered the severity of the sanction imposed as recommended by Ms B. The Board wrote to the complainant on 18 June 2019 setting out its final decision in the matter. That letter is attached. The letter informed the complainant that the Board of Management stood over the decision to dismiss and the reasons for the dismissal as set out in the Board’s letter to her dated 19 March 2019. The latter went on to state: “ In coming to its decision in this matter the Board has taken into account the fact that you have failed to take any responsibility for your behaviour towards Student A . The Board has noted the apparent lack of concern over the impact of your behaviour on Student A. It is clear from what has been said by Mr & Mrs A and by their solicitors on their behalf and from the psychological report provided to the school that Student A has been negatively affected by your behaviour towards him. The Board also noted that the breach of confidentiality was initially denied in writing but was acknowledged at the disciplinary meeting. The fact that the breach of confidentiality happened the day after the relevant conversation with the Principal suggests a degree of premeditation on your part in this regard.

For all of these reasons the Board of Management remains of the view as set out in its letter of of 19 March last that your serious misconduct has irreparably damaged the trust and confidence which underpins the employment relationship between you and the Board of Management.

13. There is one area where the Board of Management/Respondent did breach the provisions of DES CL 72/2011 and that is in relation to the giving of notice of dismissal. S.76 of the procedures provides that where a decision to dismiss is appealed and the original decision is upheld, the date of termination of employment will be the original date of dismissal and not the date of the outcome of the appeal. The complainant was originally notified of the decision to dismiss by letter dated 19 March 2019. That letter informed the complainant that the procedures provide that in cases of serious misconduct dismissal will be without notice. However, in its letter of 18 June 2019 the Board of Management decided that given her length of service in the school the complainant should be dismissed with notice and the Plaintiff was dismissed with 10 weeks’ notice with effect from 31 August 2019.

The Respondent will now respond in a separate submission to the submission filed by the Complainant with the WRC setting out her contention that her dismissal was unfair.

1 The Respondent takes serious issue with the submission filed by the complainant with

the Workplace Relations Commission in this case in September 2019. In that

submission the Complainant contends that her dismissal was a breach of the both the

Governing Circular (DES Circular 72/2011 – disciplinary procedures for SNAs) and

Statutory Instrument 146/2000. It is the Respondent's case that there was no

Substantial breach of either DES CL 72/2011 or of SI 146/2000 for the reasons set out

hereunder.

2 The Principal initiated the disciplinary procedures at Section 63 which provides that "in

all cases of alleged serious misconduct, a full investigation will be carried out by the

school Principal to establish the facts". The section goes on to provide that "the

following principles apply:

 The SNA may be placed on the administrative leave with pay pending the

outcome of such an investigation. Administrative Leave with pay is a

precautionary measure and not a disciplinary sanction.

 On completion of the investigation the school Principal will submit a written

report of the investigation to the board of management."

3 The Complainant alleges that she was not invited to participate in the investigation

stage of the case. She was not given the opportunity to respond fully to any such

issues; she was not given the opportunity to be represented during the investigation

process.

4 This point was also made in the course of the Complainant's appeal where she alleged

that there was a breach in the procedure that had resulted in a fundamental flaw in the

outcome. This was found not to be the case by the independent person conducting the

appeal on behalf of the board of management.

5 The investigation at S.63 of the disciplinary procedures was conducted by the Principal

who was also a witness in the process. The disciplinary procedures clearly envisage

that it is the Principal who conducts the investigation. The Complainant alleges at

paragraph 17 of her submission that the investigation was undertaken by a person

"who not only showed bias but was also a witness against the complainant. This violates the very

basic tenants of SI 149/2000 in addition to the requirement for fair procedure and

impartiality enshrined in the Governing Circular."

6 The engagement of the Principal in the investigation of the matter was not a breach of

the procedure, it was a requirement of the disciplinary procedure. It did not undermine

the right to a fair and impartial determination of the matter as alleged by the complainant.

The Principal as the investigator did not participate in the Board's decision making in

the matter, he was not a party to the Board's decision to dismiss the complainant. It is

inevitable and clearly envisaged by the disciplinary procedure that the Principal as the

person responsible for the day-to-day management of the school will conduct the

necessary investigation on the disciplinary procedures. No evidence has been put

forward by the Complainant to support the allegation that the Principal as investigator

was biased. Even if that was the case (which is not accepted) it would not have been a

relevant factor in that the Principal as already stated did not participate in the Board's

decision making.

7 The Complainant alleges that the disciplinary process was never formally invoked and

that it was not clear at what stage of the disciplinary procedures the process began

(paragraph 9). That is simply not the case. As already stated, the Principal referred his

report to the Board of Management at S.63 of the procedures. Following that the Board

considered the report received from the Principal. The Chairperson of the board wrote

to the complainant on 30 November 2018. This letter is included with other relevant

correspondence at Appendix 4 of the Respondents main submission. In that letter

the Chairperson informed the Complainant that the Board had decided that a

disciplinary hearing in line with stage 3 of the procedures should be held. She was

informed of the date of the disciplinary meeting and requested to attend it. She was

informed that the purpose of the meeting was to give her the opportunity to respond to

the allegations set out in the report of the Principal, a copy of which she was given.

She was advised of her right to be accompanied by her trade union representative

and/or a work colleague.

8 The Complainant alleges that there was no investigation and that she did not formally

learn of the investigation until after it had concluded and a copy of the report of the

board of management was made known to her (paragraph 11). A similar point was

made by the complainant in her appeal. The point was not accepted by the

independent person conducting the appeal. One of the principles applying to the

investigation stage is the principle of natural justice and fair procedures. If the

Complainant had been interviewed by the Principal during the course of the

investigation stage that would have been a fundamental breach of procedures in that

as already pointed out the Principal is also a Complainant in the matter. One of the

major principles of fair procedures is that "one cannot be a judge in one’s own cause".

It has already been alleged by the Complainant that the Principal was biased and

should not have conducted the investigation in the first place (paragraph 17). If the

Principal had interviewed the complainant as part of the investigation and if the Board of

Management had relied on the conclusions reached by the Principal having

interviewed the Complainant, that in itself would have amounted to a

fundamental breach of natural justice in that it would have involved the Principal as a

complainant/witness participating in the decision-making process.

9 The points made by the complainant in her submission to the WRC about the alleged

breaches of the requirements of procedural fairness are seriously misleading. The

Respondent offered the complainant the opportunity of responding directly to the

Board of Management as her employer. Most importantly the Board of Management

also offered the complainant and her union representative the opportunity to

cross-examine both the Principal and the parents of Student A at the disciplinary

meeting with the board of management.

10 For obvious reasons given that the Principal was a complainant it would not have been

appropriate for the complainant to have been given the full panoply of her natural justice

rights at the investigation stage at S.63. Instead, she was offered the opportunity to

confront her accusers, the Principal and Mr and Mrs A in the presence of her

employer, (the Board of Management) at the disciplinary hearing in March 2019. It is

the Respondent’s submission that the Complainant was given her natural justice rights

during the course of the disciplinary process and the Respondent relies on NM –v-

Limerick and Clare Education and Training Board, High Court 2015/308 JR in support

of its contention that the Complainant received her rights to natural justice in the

overall context of the disciplinary procedures.

11 The Respondent makes the point that at the disciplinary hearing in March 2019 the

complainant declined to avail of her right to challenge the Principal by way of

cross-examination on his evidence to the Board of Management. The Complainant

explicitly objected to Mr and Mrs A as complainants attending and giving oral

evidence to the board of management in relation to their allegations against her. The

reason why Mr and Mrs A were invited to the disciplinary hearing was explained to

Forsa in correspondence with the board solicitors, to

Forsa Assistant General Secretary, in a letter dated

20 February 2019 in which it was explained that the parents were invited "so that the

board and the complainant could have a clear understanding of exactly what gave rise to

their complaint".

12 The Complainant alleges that the Complainant was never aware that dismissal would

be an option. That is not correct. The letter from the Chairperson made it clear that the

report received from the Principal was at s. 63 of the procedures which refers to

serious misconduct. The Complainant was also notified in the same letter that the

disciplinary meeting would be at Stage 3 of the procedures which deals with serious

misconduct and provides for dismissal as an option.

13 The Complainant also asserts in her submission to the WRC that the exact nature of

the charges were never formally put to her (paragraph 14). This matter was addressed

by the board's solicitors in correspondence with the complainant’s solicitors by letter dated

1 February 2019 in which it was stated that "the nature of the allegations against your

client which are relational and must be considered in the context of the personal

relationship between your client as a special needs assistant and the child who was entrusted to her care. We are of the view that the allegations on the

part of Mr and Mrs A and on the part of the Principal have been sufficiently clarified

as allegations of bullying, harassment, manipulation, serious inappropriate behaviour,

misuse of confidential information and breach of trust in the context of the relationship

between your client and Student A ".

14 As already stated the Complainant was provided with a full copy of the Principal’s

comprehensive report which included all of the relevant documentation available to the

Respondent.

15 The complainant also alleges that as Tusla have refused to accept the referral that

should have been the end of the matter (paragraph 12). The complainant maintains

that as Tusla declined to investigate the matter there was no case to answer. This

issue was addressed in correspondence as between Mason Hayes & Curran and

Forsa dated 20 February 2019. The letter from Mason Hayes & Curran stated amongst

other things the following: "it is not in dispute that this matter was first referred to Tusla

under the Child Protection Procedures in operation in primary and post-primary

schools. Initial referral to Tusla was made on the advice of Tusla and on the

understanding that Tusla would have conducted an investigation into the matter as you

are aware Tusla ultimately refused to proceed with an investigation and refer the

matter back to the board of management, if Tusla had proceeded with its investigation

and it ultimately found that the complaints against the complainant were substantiated the

matter would have been referred back to the board of management to be addressed

under agreed procedures. Therefore, there was always that possibility that if the

complaint was substantiated by Tusla that the matter would be referred back to the

board of management that is provided for in the Child Protection Procedures".

16 The Respondent also submits in relation to the refusal on the part of Tusla to deal with

this matter that Tusla is constrained by the provisions of the Children First Act 2015

which does not provide a statutory definition of emotional abuse. In any event the

Board's Principal point remains that this was an issue which was always going to come

back to the board of management for ultimate investigation. The fact that Tusla did not

carry out an investigation into the allegations against the complainant as it originally said it

would does not in any sense mean that there was no case to answer as alleged by the

Complainant. The report referred by the Principal to the board of management sets out

concerns about the complainant's behaviour which if substantiated amounted to serious

misconduct as set out in S.61 of DES CL 72/2011, that section sets out examples of

serious misconduct. The very first example is "any offence that breaches the terms of

the Child Protection Procedures for schools".

17 The Board also relies on the judgement of Mr Justice Barr in the High Court case of

CD-v- The Board of Management of a National School High Court 2018 No.627 JR

delivered on 4th December 2019 in which Mr Justice Barr stated, inter alia, as follows:

“In relation to the submission that the Respondent ought to have scaled down the

disciplinary process upon receipt of the Tusla report, the Court is of the view that the

submissions made on behalf of the Respondent in this regard are correct. The

Respondent could not outsource its own moral and legal responsibility to investigate

allegations to Tusla. While the fact that Tusla had carried out an investigation and had

found nothing that merited further involvement by them was undoubtedly a significant

fact, it did not absolve the Respondent from its own responsibility to investigate the

allegations which had been raised by the SNA. The procedure provided for under the

Stage 4 disciplinary process was a comprehensive and fair procedure. The Court does

not criticise the Respondent for continuing to follow that procedure in this case”.

18. In summary it is clear that:

 The Complainant was fully aware of the allegations made against her by the

Principal and the parents of Student A

 The Complainant was fully on notice that the disciplinary hearing was at Stage

3 of the procedures

 The complainant was at all relevant stages advised of her right to

representation and was represented throughout by her solicitors and her union

 The complainant was given the opportunity to confront her accusers by way of

cross examination in the presence of her employer before any decision was

made by the Board of Management in the matter.

 The Complainant was given the right of appeal which she availed of.

Evidence was given by student A’s mother about the extent of her son’s disability – she said she wrote to the Board of Management on the 12th.Nov. 2017 expressing her concerns about the claimant’s behaviour towards her son. She reported that her son fell on the 7thNovember that his splint had cut his skin and it was noticed by the Principal .She asserted that her son perceived that the complainant was mad with him as he had not called her about the incident. She asserted that the child was distressed and worried as the Principal had torn strips off the complainant. She asserted that her son told her that the complainant had said that she only wanted to make him feel bad. The witness stated that she made up her mind that the complainant would no longer make her child feel bad and she would not let the complainant back. She and her husband decided to contact the Principal first thing the following morning. She asserted that the incident continued to affect her child and this was evident from the report of the psychologist who interviewed him.

The Principal gave evidence of his recollection of the incident and stated that he noticed student’s A’s downcast demeanour – he approached the student about his sore leg and dressed the cut – at this time he asserted the complainant approached the student and kept saying to him “I told you to come to me” .He said that he indicated his disapproval of these comments to the complainant. The Principal asserted that he had spoken to the complainant on a couple of occasions about her negative attitude , that she needed to be positive and build up the child’s self-esteem. He asserted that on these occasions the complainant would divert the conversation to digress from the topic of a positive attitude. He asserted that he told the complainant that the child needed to feel good about himself and that she needed to promote his use of the computer; but that it was like dealing with a brick wall. He stated the student was an inspirational child and that the relationship between the student and the complainant needed to change. He asserted the child’s whole spark had gone. He planned to address this in a confidential exchange with the claimant. He asserted that he told the complainant that the exchange was completely confidential; that the complainant thanked him for letting her know.

When he came to work on the following Thursday the Principal observed the complainant interacting with student A and she was happy that she was doing what he had asked her to do. In an ensuing exchange with the student’s parent he learned that the student had told his mother that the Principal had torn strips off the complainant in class and that the complainant had made out to the student that she had got in trouble as he hadn’t come to her .He asserted that when he learned that the boy said to his mother that the complainant had said “I only did that to make you feel bad “ the Principal concluded “ this was a disclosure” .He concluded he was being misled and that the wool was being pulled over his eyes. He spoke to the complainant about resolving the matter informally – possibly through mediation with the assistance of the Senior SNA but this was not acceptable to the claimant. The complainant undertook to call to the family and to apologise and grovel to them .The call time was not suitable to the family and the Principal asserted that he discovered in a later conversation with the claimant’s mother that “ things were 100 times worse – a litany of abuse “ about which he had no idea .He asserted that the student told his mother that the SNA would not make him a cup of tea and that the complainant was constantly on his case. The Principal said “This was completely new to me – the child was being abused and I needed to report this to Tusla. ” The Principal said Tusla refused to investigate his complaint and were unwilling to do anything. The Principal decided to report this to the Board of Management and his referral was submitted into evidence. The Principal asserted that he reported to the Board on the evidence he had and he asserted that he had no hand act or part in the disciplinary action taken against the claimant. The Principal denied the claimant’s allegation that he indicated he would juggle the SNAs and sort out the problem – he said “ I would never have stated that”.He stated that initially he was looking to resolve the matter but concluded the complainant could not be trusted – he said he bore no ill feeling towards the complainant it was not personal and he was not biased.

Mr.C gave evidence on behalf of the Board of Management. He advised that the Board of Management took the matter very seriously and considered the report from the Principal – they reviewed all data, they were satisfied that the complainant had broken confidentiality, that the complainant had made Student A feel bad and that on the balance of probabilities the claims had been substantiated – there was bullying and harassment and the relationship of trust and confidence was broken. The witness asserted that the parents had lost confidence in the complainant , the employment relationship had been undermined and the witness had concluded that the complainant was not in a position to fulfil her duties towards the complainant .When the dismissal was appealed the independent investigator had concluded that 3 of the 4 claims were upheld and recommended that the Board reconsider the severity of the dismissal .The witness said this was reviewed at two Board meetings but ultimately they were happy to proceed with the decision to dismiss and took the claimant’s years of service into account in determining the effective date of this dismissal as the 31st August 2019.

The witness asserted that the Board took alternative sanctions into consideration but concluded the claimant’s behaviour was wrong, that there had been bullying and harassment and that this was serious misconduct. The witness said they had 2 meetings and on the basis of the evidence of the student and the Principal – they decided dismissal was the appropriate decision to take.

Under cross examination Mr.C was asked if the Board noted that the complainant was given no opportunity to give her side of the story and replied that this was considered by the Board but the appeal was not overturned. He was asked about the discrepancies in the notification of dismissal to the complainant whereby differing grounds were advanced for the dismissal and were changed the witness replied that the kernel of the matter was the breakdown in relationship. He further stated that the Board was influenced by the psychological report on the child – the Board did not see the report but the contents of it were conveyed to them by the Principal at a meeting in early March. The parents had also conveyed their views to the Board via the Principal. The witness stated that the complainant’s rep was present at the board meeting where these exchanges took place. The witness said they had considered alternative sanctions and different options but it came down to a matter of trust.

Student A’s father gave evidence of his exchanges with his son on the night before he made the compliant to the Principal and stated that his son told him that when he – student A - discussed the issue with the complainant she said to him “I only wanted to make you feel bad”.

At the end of the second hearing the WRC sought further documentation in relation to the deliberations of the Board of Management with respect to the investigation carried out by the respondent and the deliberations and decisions of the Board of the Board of Management with respect to the initiation of disciplinary action, the dismissal and the appeal against the dismissal.

The following documentation was furnished:

Notes taken of a meeting with the complainant on the 12th.Nov. 2017 “of claimant’s response “to allegations on the night she was put on administrative leave.

Minutes of “decision to put complainant on admin. Leave – 7.12.17 and “note in relation to duration of time complainant was present at the meeting”.

Board of Management Minutes in relation to disciplinary hearing:

8.11.2018

21.11.2018

15.02.2019

7.03.2019

12.03.2019

15.03.2019

Minutes of Board o Management Meetings re appeal

02.04.2019

16.05.2019

An undated document and duplicate apparently from the Principal alleging 5 performance deficits on the part of the claimant

A Psychological Report on the child dated 15.03.2019

Summary of Complainant’s Case:

Forsa presented the following submission on behalf of the complainant:

1. This is a claim of unfair dismissal taken under the 1977 Unfair Dismissal Act.

2.The complainant was dismissed from her position as an SNA on 31st August 2019, following a disciplinary process.

3. Despite an appeal, the outcome of which urged the school to reconsider its decision to dismiss

the complainant, the school nonetheless confirmed the dismissal.

4. The reasons for the dismissal were contained in a letter of 19th March 2019.

The letter stated that the reason for the dismissal was:

"The Board is satisfied thot there was a breach of confidentiality on your part in disclosing

details of a highly confidential conversation the Principal had with you on 9th November 2017

to Student A, a student with special needs in your core.

The Board is satisfied on the balance of probability thot the complaints from the parents of

Student A and from the Principal have been substantiated. lt appears to the Board from the

evidence available to it from Mr and Mrs. A and from the Principal that student A

experienced a level of treatment from you as his Special Needs Assistant thot caused him

considerable distress as described in the letters from his parents, from their solicitor and as set

out in the report of the Principal to the Board of Management. According to his parents Student A

experienced this negative interaction in the relationship as bullying. lt is clear from the

evidence of Mr & Mrs A (which was not challenged at the disciplinary hearing) thot both

they and student A have lost confidence in you as his ' SNA arising from your negative

interactions with him as described in their correspondence with the Board. The Board has

concluded thot these negative interactions amount to serious inappropriate behaviour on your

part which taken together with the breach of confidentiality gives rise to a serious breach of

trust and amounts to serious misconduct on your part. The Board is on the view thot the trust

and confidence which underpins the employment relationship between you and the Board has

been irreparably damaged as of result of your actions."

5. lt is contended that the complainant’s 's dismissal is a breach of both the governing circular (Department of Education Circular @72|2OLL - Disciplinary and Grievance procedures for SNAs) and Statutory instrument 146 of 2000 (see Appendices 4 and 5 respectively)

Breach of governing circular

6. Section 11 of the circular notes the following:

"The following principles apply:

Natural Justice and Fair Procedures:

o details of any issues are put to the SNA concerned;

o the SNA concerned is given the opportunity to respond fully to any such issues;

o the SNA concerned is given the opportunity to avail of the right to be represented

during the procedure;

o the SNA concerned has the right to a fair and impartial determination of the issues

concerned, taking into account any representations made by, or on behalf ol the SNA

and any other relevant or appropriate evidence, factors, or circumstances.

7. lt is a simple fact that none of this happened in the complainant’s case and, indeed, she was not formally made aware of the case not invited to participate in the investigation stage of the

case. This fundamental flaw means that she was not given the opportunity to respond fully

to the issues during the investigations stage, did not have an opportunity to be represented,

was not made aware of the details of the case (and, indeed, this is still a matter of some

concern) and was absolutely denied the right to a fair and impartial determination of the

issues. Furthermore, the issue being investigated was never properly determined and appears

to be at variance with the matter for which the complainant was dismissed.

8. lt should also be noted that a written statement of the complaint was never received by the complainant and she , therefore, never had a chance to respond to it. Neither was there a written

complaint received in relation to the Breach of Confidentiality.

The subject of the investigation

9. As the disciplinary process was never formally invoked and as the complainant was never given a copy of the disciplinary procedure at the investigation stage, it is not clear at what stage of the

disciplinary code the process began, we assume that it was at Stage 3 since it resulted in a

termination.

10. ln cases where Stage 3 is invoked because of serious misconduct, Section 53 reiterates that

the principles of natural justice and fair procedures apply. lt also notes that a full investigation

will be carried out to establish the facts.

11. There was, however, no investigation, and the complainant did not formally learn of the investigation until after it had concluded and a copy of the report to the board of management was made known to her.

!2. ln the investigation report to the Board of Management from the Principal,

the complaint appears to centre on reports lodged by the school with Tusla. However, on three

occasions, Tusla investigated the matter and decided there was no case to answer. lt is therefore difficult to understand why the school decided to ignore Tusla's

expertise and undertake its own investigation. That Tusla found there was no case to answer

should be significant given that in the investigation report prepared by the Principal there is

no deviation from the accusation being the same accusation that was lodged with Tusla.

lndeed, it specifically references the reports to Tusla as being the primary reason for the

investigation.

13. Yet in the letter of dismissal, different reasons are given for the dismissal - namely a complaint

made by the parents and a breach of confidentiality matter, neither of which are explicitly

stated in the report to the Board.

14. The reason for the investigation remains, at best, confused and unclear. lt is, again, a serious

breach of both the SNA Disciplinary Procedure and of Statutory lnstrument 146 of 2000 to

have such disclarity in the matter under investigation. A clear statement of the matter being

investigated must be put to the accused person. ln this case, the statement appeared to be

linked to the Tusla referral. That Tusla, on three occasions, found that there was nothing to

answer for should have been the end of the matter. Yet this does not appear to have been

considered, at all, or referred to by the Board in their deliberations. Again, the lack of clarity

in the matter under investigation should, in itself, be more than sufficient to overturn the

dismissal recommendation.

15. As best as we can understand, the complaint made by the parents appears to centre on

whether or not the complainant should have carried the schoolbag of the child to whom she had been assigned. lf, indeed, this was the central matter, then it seems most surprising that the remedy should be dismissal rather than an informal staff meeting.

Penalty

15. At no stage, until the letter of dismissal was received, did the school make known to the complainant that dismissal would be an option. This came as a major surprise to her. lt is fair and prudent that, if dismissal is a potential outcome, that it should be flagged to the accused person well in advance. lt is unfair to impose a penalty when it was not anticipated in advance.

Unfair Procedures

17. ln addition to the fact that the complainant was not part of the investigation into her and that she was not made aware of it until the investigation stage had been completed, there is another

difficulty in that the investigation was undertaken by a person who not only showed bias, but

was also a witness against her. This violates the very basic tenets of Sl 146 of 2000 in

addition to the requirement for fair procedure and impartiality enshrined in the governing

circular.

18. This is underscored by the fact that, in his report to the Board, the Principal himself states that

"l am concerned that the behaviour I witnessed and the behaviour as reported to me by the parents gives rise to a breach of the child protection procedures for schools."

19. lt is, in short, impossible for an employee to have a fair deliberation of an issue if a witness

against the accused is also serving as the investigator. ln this case, the investigator was clearly

biased against the accused and fair deliberation was impossible.

Appeal

20. The complainant utilised the appeal mechanism outlined in the SNA grievance circular and, indeed, her appeal was partially successful. Specifically, in relation to the severity of the penalty, the appeal outcome noted:

"Termination of employment by reason of serious misconduct is a disciplinary sanction

that is open to the Board of Management under the provisions of Circular OO72l2O11.The

independent assessor recommends that the Board of Management reconsider the

severity of the sanction imposed, given the appellant's previous satisfactory record of

employment, before a final decision is made in accordance with Section 75 of Circular

0072/2011."

21. However, the Board of Management rejected this and proceeded to confirm her dismissal.

Summary

22. We submit that the complainant was unfairly dismissed due to breaches of the governing

Circular and breaches of S.I 146/2000. Specifically, the list of issues that resulted in this unfair

Dismissal were:

a. lnvestigation did not call the complainant as a contributant

b. Tusla had dismissed the matter three times

c. The matter that lead to the dismissal was not defined

d. The matter for which she was dismissed was at variance with the initial reason

contained in the report to the Board of Management

e. The matter was not put to the complainant in writing during the investigation phase and there

was no right of response.

f. As there was no investigation phase, the complainant was denied the right to representation

g. The complainant was denied the right to use the agreed procedures contained in the circular

h. The person leading the'investigation' was not impartial and acted as a witness against

the complainant

23. We ask that the matter be considered as an unfair dismissal and that the complainant is awarded corresponding compensation.

The union made the following supplementary submission on behalf of the complainant:

1. This supplementary submission has been written to deal with the following two issues:

a. The issue of the breach of confidentiality

b. The status of the meeting of 7th December 2017

Breach of Confidentiality

2. It should be noted that at no point in the process was the breach of confidentiality matter put

to the complainant.

3. However, there is a reference in the letter of termination to a breach of confidentiality issue

on 9th November 2019.

4. Although this has never been formally put to the complainant, the complainant assumes that it relates to a conversation that took place between her and her Principal.

5. This was an informal meeting that took place inside a classroom at which the Principal was

having a general conversation with the complainant about a number of issues. As part of the

conversation, he noted that the child with whom she was working had a sore leg.

6. The complainant subsequently mentioned it to the child in question and said that if he was in pain, he needed to let her know.

7. We assume this is the breach of confidentiality referred to but we are unsure.

The status of the meeting of 7th December 2017

8. It had been suggested that the meeting held with the complainant on 7th December 2017 somehow

formed part of the disciplinary process and was the complainant’s opportunity to put her side of the

events on record as part of the formal investigation.

9. The letter inviting the complainant to this meeting can be viewed at Appendix 1.

10. A number of things are immediately clear from a reading of this letter, including:

a. It referred only to a suspension and not to a disciplinary hearing.

b. The only reference to a disciplinary process states that the suspension is not a

disciplinary matter.

c. It is not part of an investigation as such an investigation, if needed, would only begin

following a Tusla recommendation.

11. It is therefore clear that this meeting cannot be relied upon as evidence of an invitation to

participate in a disciplinary investigation.

In her direct evidence the complainant stated that she was called to meet with the Chair of the Board of Management and a nominee of the Board of Management on the 12th.Nov. 2017 to be told that she was being relieved of her duties as SNA and was advised that she was facing allegations of mental and physical abuse towards the pupil, that she was a risk to children ad that she should take advice from a reputable source. The complainant stated that she was physically ill when she was presented with the complaints. She stated that she was unaware of the pupil’s swallow problem and had she been made aware of this she would have had no difficulty in making tea for him. The complainant said she contacted a solicitor and was aggrieved that the complaints were hanging over her for 2 years and were not formally put to her. She stated that there had been no contact with her from the school for a prolonged period after she had gone on administrative leave. The complainant recounted the first incident when the pupil complained of a sore leg – she said she had been in the yard herself and would have noticed if the child had fallen. She stated that she said to the student “You never told me you had a sore leg”. The complainant said that the following day the Principal nodded at her to come into another room – the complainant said that when she had previously worked with the student he was much younger and did everything you asked of him. She was unaware of the sore leg because the pupil had not told her about it. She said that people were going in and out of the room where she was meeting the Principal who was getting agitated about the interruptions. The complainant stated that on the following day when she was talking to the pupil he asked her did he get her into trouble with the Principal and that she replied that he should have told her his leg was sore and unless he told her she could not help him. The complainant stated that the student refused to sit at a high table for using his lap top and said the student was reluctant to use it. The complainant asserted that she used to carry the school bag for Student A – he used to load it with books he did not need and she told him the bag was too heavy. She would remove the books but he would return them to the bag. The complainant was adamant that student A would not allow her carry the bag – he wanted to carry it himself. The complainant said that the first she learned of the bag being an issue was when she learned of the referral to TUSLA. She said that she offered to carry the bag for the student and walk behind him but he did not want an SNA. The complainant stated that she had no idea she was facing dismissal and assumed the Principal would simply reassign the SNA’s as this had been done before. She asked the Principal about the bag issue and he told her to put the bag on the bus. The complainant said that the first she knew about the Tusla referral was when her solicitor sought a copy of the referral .The complainant advised that SNA’s had previously been reassigned when there was an issue about doing exercises with a student .The complainant confirmed that she had received the letters exchanged between her solicitor and the Board of Management and confirmed that FORSA came on board on the 19th.February 2019.She advised that when she left school on the Friday evening she was assured by the Principal not to worry and that “we will juggle SNA’s about” – she got a phone call on the Sunday night to advise her that she was being relieved of her duties. The complainant stated that she spoke to the Principal on several occasions advising him of the difficulties she was having with Student A in relation to the table and the use of the lap top but he did nothing.

Findings and Conclusions:

I have reviewed the evidence presented at the hearing as well as the voluminous documentation between the parties. The claimant was initially represented by solicitors up until the beginning of 2019 and was laterally represented by her trade union FORSA. While the respondent has consistently argued that the complainant’s dismissal was justified, that fair procedures were followed and that the sanction of dismissal was proportionate, the union has argued that the process embarked upon by the school breached the Dept. of Education Circular 0072/2011 and failed to afford the claimant the principles of natural justice. It was argued that no proper investigation took place, and that the issue being investigated was never properly determined. It was further submitted that the person leading the investigation was not impartial and acted as a witness against the claimant.

The requirements of an employer in relation to the matter of giving adequate consideration to an employee’s defence are set out in UD367/88 Gearon v Dunnes Stores Ltd. The Tribunal found that “The right to defend herself and have her arguments and submissions listened to and evaluated by the respondent in relation to the threat of her employment is a right of the claimant and is not in the gift of the respondent or this Tribunal…. the right is a fundamental one under natural and constitutional justice , it is not open to this Tribunal to forgive its breach”.

These principles are consistent with the findings of the Labour Court in UDD1739 where it was determined as follows:

“The Court therefore finds that the investigation undertaken by the respondent was not comprehensive to the degree that the outcome could be assured to provide a basis for conclusions to be drawn on the balance of probabilities following the conduct of the Respondent’s disciplinary process…………………………The Court has found that the investigation was not comprehensive …….Consequently the Court must conclude that it was not reasonable for the Respondent to reach a decision to dismiss the Appellant in the absence of a comprehensive investigation of relevant facts and events”.

The respondent in defending the investigative/disciplinary invoked the provisions of JR N.M.-v- Limerick and Clare Education and Training Board. I do not accept that this authority is on all fours with the instant case – the respondent in the former case contracted an external party to investigate the complaints while the respondent in this case relied upon an investigation carried out by the Principal. Additionally, while the Court found no substance to the allegations of bias on the part of the CEO in that Review, in the instant case, the respondent’s own documents indicate potential significant bias on the part of the Principal. No clarification – which was sought by the WRC - has been forthcoming from the respondent with respect to whether or not any document was furnished by him to TUSLA setting out the claimant’s response to the allegations. The report by the Principal to the Board of Management “Dated Tuesday Nov.7th.(written on Sat.11th.Nov.)” - prior to his commencement of the investigation -contains the following references to the claimant:

“I recalled her very vindictive comments about hoping I’d notice he hadn’t homework completed and about how cute he was in answering correctly”

“Z’s difficulties dealing with her negativity and sour moods which she had to endure and sought my advice and guidance on come to mind also”

“knowing her ability to divert and create smoke screens…”

“I could hear in my head her waffling on about not mollycoddling him, Mrs.A said this that etc.”

“I recalled my last conversation with Mrs.A with regard to her son going to Mr.D during Irish and how affronted she had been by the claimant twisting what she had said to suggest she had a problem with Mr.D”

“I couldn’t believe she still didn’t understand how wrong it was to do what she did to Student A which made me annoyed …”

“The claimant never even glanced over, I noted this but decided not to try and eat the elephant in one bite”

“That I wasn’t running a drop-in centre either crossed my mind and the unintended, unnoticed disclosure of her total disrespect for me did not elude me”.

“The B.O.M. as employer will have to be informed of breach of contract because of the breach of confidentiality, neglect of duty and god knows what else”

“He needed to be protected regardless of whether she managed to bamboozle her way out or not!”.

In the circumstances I must conclude on the basis of the foregoing statements made by the Principal to the BOM that the union’s allegations of bias on the part of the Principal was well founded. I must also take account of the fact that these opinions were conveyed to the decision-making body who decided to initiate Stage 3 proceedings without the claimant been given any opportunity to challenge these negative opinions.

Forsa has contended that by virtue of the decision of Tusla not to investigate the referral from the Principal, that this should have been the end of the matter. I have considered the submissions of both parties on the matter and accept the respondent’s contention that while the allegations did not meet the TUSLA threshold for warranting an investigation, it was not unreasonable for the respondent to undertake their own investigation and I accept that this was consistent with the finding in C.D. and the Board of Management of A National School [2018 No.627 J.R.]– the authority invoked by the respondent.

I find no merit in the respondent’s contention that the claimant should have been excluded from the investigation – it was submitted that “For obvious reasons given that the Principal was a complainant, it would not have been appropriate for the claimant to be given the full panoply of her natural justice rights at the investigation stage. ”To exclude the claimant from the so called fact finding process which ultimately resulted in the unanimous decision of the Board of Management to proceed with a Stage 3 Disciplinary Process (Administrative Leave , Dismissal or other appropriate disciplinary Measures )on the 21.11.2018 was unfair to the claimant .While I acknowledge that the procedure provides that the Principal should undertake the investigation in this case approval from the Dept. to digress from the procedure should have been sought and obtained in circumstances where the primary complainant / witness was the Principal himself. An alternative objective investigation process which included the complainant’s response to the allegations should have been put in place .The failure to do so was unfair to the claimant.

The records of the meetings and exchanges between the parties from the time of the initial event on the 7th.Nov. 2017 indicate the following chronology:

The claimant was relieved of her duties on the 12th.Nov. 2017 at a meeting with 2 members of the BoM.

The matter was referred to TUSLA on the 15th/Nov. with a copy of a statement from The Principal – referring to the claimant’s bad attitude to the student , her emotional browbeating and bullying of the student and the reaching of the threshold of significant harm. The referral also contained a statement from the student’s parent and referenced “ C-Response of SNA to alleged concerns. Despite requests , document C has not been furnished to the WRC indicating that the referral to Tusla included no reference to the claimant’s response to the allegations.

The BOM met with the claimant on the 7th.Dec. 2017 – at this meeting the BOM decided to continue the claimant on administrative leave. The claimant was advised in the notification of the meeting that it was being convened to consider the claimant’s administrative leave and it was emphasised that “ this is not a disciplinary measure against you and should not be construed as such”. I accept in full the union’s assertion that this meeting cannot be relied upon as evidence of an invitation to participate in the disciplinary process. In any event the decision to initiate disciplinary proceedings was not taken until almost a year later on the 21.11.2018

On the 21.11.2018 , the BOM met and decided to proceed with Stage 3 Disciplinary hearing – the reasoning for this decision is not set out in the record of the meeting.

The BOM met on the 15.02.2019 to discuss the format for the forthcoming disciplinary meeting on the 7th.March 2019

The BoM met on the 7.03.2018 with the claimant, her union representatives and the Principal – this constituted the disciplinary hearing.

The Board met on the 12.03.2019 “ as decisions had to be taken with regard to the disciplinary hearing “.The records indicate that the Board “ unanimously agreed the allegations in totality had been substantiated “.No reasons for reaching this finding are documented .Reference was made to “ Each allegation was thoroughly investigated by the Board Members by detailed examination and consideration of the documentation at their disposal. After a lengthy examination, discussion and deliberation on each allegation , it was unanimously agreed that the allegations in totality had been substantiated. ”It is unclear what if any consideration was given either to the claimant’s defence of her actions at the meeting , the 4 page written defence furnished by her at the hearing , the considerations of Tusla on the matter or the shortcomings in the process identified by the union .

The failure by a Board of Management to set out the reasoning for their conclusions was addressed in” 2018 No.627 J.R. C.C. & the Board of Management of a National School”. The Court determined that “there is an obligation under Irish law for decision makers to set out adequately the reasons for reaching a decision , when such decision will have a far reaching and profound effect on the life and earning capacity of the person concerned …..”Where serious allegations had been made against the applicant and where she had led cogent evidence in response to those allegations , she was entitled to know which allegations were found by the decision maker to have been proven against her. It was simply not good enough to tell the applicant “ we did not believe you , therefore you are being dismissed”, which was effectively what she was told in the letter of 16th.March , 2018………..”Unless the applicant was told which specific allegations had been proven against her , she would not be in a position to know whether she had any valid appeal or arguable challenge by way of a judicial review against those findings , or whether the sanction of dismissal was proportionate to the allegations found against her …………………….the Board of Management “ had to engage with the evidence tendered in respect of each and every allegation and make a decision as to which of those allegations , if any , were proven against the applicant .They had to engage with all of the evidence in a rational and fair manner .It could only be demonstrated that they had done that , by giving reasons for that decision .They did not do that .I am satisfied that on this ground , the decision of the Board to dismiss the applicant must be set aside “.This Board of Management’s own record of the meeting highlights that the Board failed to set out cogent reasons for arriving at the conclusion that the allegations “in totality had been substantiated “.

In the respondent’s record of the outcome of the meeting it is stated “In relation to the complainant’s ill treatment of the child, the Board accepts the veracity of the evidence of the parents and Principal.” The respondent’s records indicate that the parents did not attend or give evidence at the disciplinary hearing; the records indicate that the Board did not at any point question the claimant’s written or verbal defence or evaluate it in the context of the evidence of the Principal. It is clear from the written submission made to the Board by the complainant that she understood that she was responding to the allegations set out in the parent’s letter of complaint dated the 12th.Nov. 2017.Despite numerous requests by the claimant’s previous legal representative and Forsa for clarity on the allegations against the claimant, it is evident that the claimant remained unclear about what she was being accused of. This was unfair to the claimant and a fundamental flaw in the procedure.

It appears that the Board then proceeded to consider the degree of misconduct “and reference is made to evidence apparently submitted at some point by the Principal in which he sets out alleged past negative behaviours by the claimant towards the pupil. As the origin and the author of the document was unclear , the WRC sought clarification on it from the respondent’s representative. He responded as follows on the 7.05.2021 :

The relevant document begins “During the September October period of 2017…….” And it sets out and comments on five identified alleged negative behaviours.

In their letter to MHC dated 22 January 2019 the complainant’s solicitors, specifically requested information in relation to the “informal interventions” the Principal stated he made in his report to the Board of Management. They also requested that the Principal outline the basis on which he believed that “abusive behaviour had become typical of the relationship between Student A and the complainant. In response to that request, we wrote to the complainant’s Solicitors on 1 February 2019 enclosing the memorandum prepared by the Principal setting out the information requested by the solicitors on behalf of the complainant. The document to which you referred is the memorandum referred to in our letter to the solicitors dated 1 February 2019”.

The documentation furnished by the respondent include the letter of the 1st.Feb. 2019 to the claimant’s solicitors and I accept the respondent’s representative’s assertion that it was sent to that party. However, Forsa, as is evident from their submissions to the WRC never saw this document and the complainant is adamant that it was never furnished to her by her solicitors. In light of the fact that the claimant’s documented defence to the disciplinary hearing does not address the 5 listed negative behaviours , I find on the balance of probabilities that the claimant was not furnished with the document .

While it is clear from the respondent’s records of the post disciplinary hearing meetings that one of the Board members cautioned against considering these negative behaviours, it is clear that the document was taken into account. The minutes of the 12th.March 2019 record:

“The negative interactions dealt with informally prior to the break which the complainant’s solicitors sought were also examined and the Board informed the view that at the very least since the beginning of the year on five occasions her performance of her duties had been such as to require the Principal teacher’s intervention”. The failure by the respondent to put the claimant on notice that the Board would be considering these negative interactions in the context of the disciplinary hearing and the failure by them to raise the matter at the disciplinary hearing and allow the claimant an opportunity to respond to same was grossly unfair to the claimant and a denial of her rights to natural justice.

No reasoning was advanced for the Board’s finding that” the Principal’s and Parent’s versions corroborated each other while the complainant’s version of events had differing and contradictory narratives”

At a further BOM meeting on the 15th.March 2019, the “Chairperson said that if a decision to dismiss the claimant was what the Board wanted to make, they must be clear on what grounds they are making that decision.” She asked were members satisfied that confidentiality had been breached. Had the complaints of the parents and Principal been found to have been fact and authentic…The Board then voted on the issue to dismiss or to issue a warning and redeploy within the school. The decision of the Board was to dismiss. ”No reason for opting for the ultimate sanction of dismissal was advanced. No evidence has been presented by the respondent to demonstrate that this allegation of a breach of confidentiality was formally put to the claimant at any point in the earlier proceedings.

The record of the final Board of Management meeting on the 16th.May 2019 states that the Board. ”Reconsidered the severity of the penalty as requested by the Independent Chairperson hearing the appeal…..the Board decided unanimously to uphold its decision “.It is recorded that “ No new evidence or reasons were proffered which would justify any change by the Board in its original decision”. The meeting record proceeds to explore in detail the alleged previous 5 unsatisfactory performance behaviours documented by the Principal - It would appear from the employer’s own record of this meeting that these alleged performance deficits convinced the Board “that dismissal is the appropriate and essential sanction”. The failure to afford the claimant an opportunity to challenge these allegations was grossly unfair to the claimant.

In the final letter to the claimant following the appeal hearing dated the 18th.June 2019, the following statement is made “The Board also noted that the breach of confidentiality was initially denied in writing but was acknowledged at the disciplinary hearing”. Neither the respondent’s written record of the disciplinary hearing nor the claimant’s written submission to the hearing support this contention. The letter also asserts that the Board has taken into account the fact that you have failed to take any responsibility for your behaviour towards Student A .I note that the claimant’s written defence submitted at the hearing refers to the several apologies made by her to the Principal and the apology she made to Student A’s mother on Friday 10th.Nov. 2017.The evidence of witness C at the WRC hearing refers to the Board having been influenced by the Psychologists Report on Student A – details of which were conveyed to them by the Principal. Neither the claimant nor her union were afforded an opportunity to respond to the Psychologists report. This was unfair to the claimant.

The foregoing litany of deficits in the procedure adopted by the Board of Management falls far short of the principles set out by the Labour Court in UDD 1739 and LCR 21798 and I accept the union’s contention that the respondent failed to comply with the provisions of SI 146/2000.The claimant was understandably confused about what case she had to answer , she was not put on clear unequivocal notice that her job was in jeopardy , she was excluded from the investigative process, denied her rights under natural justice and was belatedly presented with a series of records of Board of Managements meetings that were inconsistent with the documents written to her by the Board of Management. In light of the foregoing, I am satisfied that the claimant was unfairly dismissed and uphold her complaint.

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

In deciding upon the quantum of award for the claimant I am taking account of her acknowledgement in her submission to the WRC that she did engage with Student A on the 9th.November about the discussion she had with the Principal the previous day.

While acknowledging that it was a matter of dispute between the claimant and the Principal as to the confidential nature of the meeting, I find the actions of the claimant in engaging with the student on the matter were inappropriate and contributed significantly to her dismissal. I require the respondent to pay the claimant €55,000 compensation within 42 days of the date of this decision.

Dated: 19th May 2021

Workplace Relations Commission Adjudication Officer: Emer O'Shea

Key Words:

Fair Procedures Natural Justice SI146/2000