Complainant

Respondent

Parties

John J  Sullivan

Stepaside Educate Together Secondary School

Representatives

Dave Sexton Forsa Trade Union

Paul McDonald AJP McDonald Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00046254-001

15/09/2021

The Complainant commenced employment as a Special Needs Assistant on or about the 30th of November 2020. The contract was subject to a 6-month probationary clause.

It is alleged that an exchange took place in the school yard about being represented by a Union official, involving him and Ms. Mulhall (School Principal) and Mr. Doyle (Deputy Principal).

 The Complainant believed that the meeting was about a disciplinary matter and wished to be accompanied by a Union Official. The Complainant believed that a letter he subsequently received on or about the 30th of April 2021 confirming that he would be dismissed on the 7th of May 2021 was related to his request to have Union representation and being a Union member. In other words, he was dismissed arising from his insistence to be represented by a Union official as he was a Union member.

The Respondent Employer deny that the dismissal had anything whatsoever to do with a disciplinary matter or Union membership. They state that the ethos of the school proactively encourages Union representation and membership.

The Complainant does not have 12 months continuous service and brings this complaint under the Unfair Dismissals Act 1977 as amended claiming that his dismissal is brought under the ground of Trade Union Membership.

The Complainant stated that he had never received any formal performance review during his probationary period. Up until the point of his dismissal he had never been made aware of any performance issues. He alleged that he wasn’t asked to address any issues concerning performance improvement. There never was any documentation provided to him which indicated that his work was below standard.

It is alleged that in the absence of any formal performance review, it must follow that the heated exchanges that occurred in the school yard about being represented by his Union official was the main reason for this dismissal. The speed at which the decision to dismiss was made and without waiting for a week so that a Union official could attend clearly corroborates that assertion. That behaviour was unreasonable and unfair.

The Complainant in fact had gone out his way to help the school and was very flexible. He had no problem doing some day-to-day maintenance jobs. It is true that the Complainant had difficulties with online technology and required training so that he could access online platforms. He had no induction when he joined the school.

If the Complainant is being dismissed for issues around supervision, those matters should be addressed with him, and he should be given the right to defend himself. None of that has occurred in this case.

The Respondent employer had in fact engaged on several occasions with the Complainant on areas regarding performance. The school was at the forefront of embracing digital technology in the delivery of education and library resources. It became evident that the Complainant was not attending the right on-line classes for his student, so that the required support could be provided to the pupil that he was assigned to help. It also became evident that the Complainant was not attending staff meetings online. These areas were raised with the Complainant, and it was explained how he could connect to the class and online meetings. Despite these discussions and briefings to address any knowledge/access skill deficit, the Complainant failed to consistently login to these meetings and classes. The student that the Complainant was assisting was absent for a period and returned to school in January 2021.

The student returned to physically be present at the school premises on or about 12th of April 2021. The Principal, Deputy Principal and Special Needs Coordinator met weekly. At these meetings the under performance of the Complainant was discussed and it was decided that his contract should be ended during the probationary period.

On or about the 29th of April 2021 an incident occurred where the student assigned to the Complainant was unsupervised for 17 minutes before the Complainant had contacted him. During a meeting to discuss this incident the Complainant stated that in the previous week, the student had in fact gone missing for a much longer period. That incident had never been reported.

Based on this event and the previous discussions, the Principal, Deputy Principal and Special Needs Coordinator decided on the 29th of April 2021 that the Complainant was not performing his role adequately, did not appreciate the importance and significance of the role and allowing for his continuing unsatisfactory performance, his contract should be terminated with one week’s notice provided for in clause 2.2 of his contract.

This complaint is brought under the following section of the Unfair Dismissals Act:

6.— (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

(2) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following:

(a) the employee’s membership, or proposal that he or another person become a member, of, or his engaging in activities on behalf of, a trade union or excepted body under the Trade Union Acts, 1941 and 1971, where the times at which he engages in such activities are outside his hours of work or are times during his hours of work in which he is permitted pursuant to the contract of employment between him and his employer so to engage,

In cross examination the Complainant was challenged to explain a chain of emails commencing on the 6th of January 2021 concerning access to Teams and expectations during online delivery. During cross examination the Complainant accepted that he had service issues with his internet provider and that explained why he didn’t attend certain online meetings. Due to Covid restrictions these technical issues could not have been addressed as quickly as he would have liked.

During cross examination the Complainant accepted that on or about the 1st of February 2021 access issues to Teams had been resolved. The Complainant couldn’t explain why he didn’t attend several meetings when he did have service. In an email dated 27th March 2021 he accepted that based on a misunderstanding on his part he didn’t attend an online meeting.

It is clear from the email exchange opened and shared with the Complainant at the hearing, that on or about the 11th of February 2021 the principal was signalling unhappiness with the Complainant and wanted all issues concerning passwords and access to emails and online meetings resolved. It is also clear from that email thread that matters were discussed with the Complainant about checking his email daily, completing progress reports, attend all live classes, support his student in class and to attend all staff meetings.

The Complainant under cross examination accepted that these discussions did take place.

The Principal, Deputy Principal and Special Needs Co-ordinator under oath all gave evidence that the decision was made to terminate the Complainant’s contract before he was spoken to on the 30th of April 2021 and that all three had arrived at a shared view that he had not met expectations.

Under cross examination all three maintained that position. The principal explained that any confusion that may have arisen about representation occurred because another staff member was assumed to be a shop steward. That employee had attended union workshops. Later it became clear that employee was not a shop steward.

The employee representative stated that the fact was his member was denied Union representation. It is also a fact that the procedures followed by the principal were seriously deficient. There was no performance improvement programme. Their member was not told that his position was at risk. The school breached the statutory code regarding disciplinary processes.

It was convenient to state that the decision was made before to dismiss their member; however, the facts are a heated exchange took place about Union representation and on the same day it was confirmed that the member would be terminated. That meets the test as set out under the Act.

The burden is on the Complainant to show that he was dismissed wholly or mainly because he was a Union member.

In this case there are several facts that on the balance of probabilities have been established:

1.       The decision to terminate the contract was made in advance of the conversations that took place in the school yard on or about the 30th of April 2021.

2.       That decision was made based on concern about supervision of a vulnerable student that appears to have been inadequate.

3.       There were concerns discussed with the Complainant about attending online classes to support his student and staff online meetings.

4.       The school management decided to terminate the contract on the 30th of April 2021 and did not wait until a representative of the Complainant’s choice would be in attendance.

5.       The Board of the school after the event ratified the decision.

The Complainant does state that he was denied fair procedures; however, the complaint is about being dismissed mainly for being a Union member. On the evidence before me I can’t find for the Complainant on that assertion, as the decision to dismiss was made before the conversations that occurred in the school yard on the 30th of April 2021 about Union representation.

The Act is clear that to succeed the dismissal must have occurred wholly or mainly from Union membership and that has not occurred in this case.

The Respondent employer also opened Donal O’Donovan v Over-C-Technology Limited and Over-C Limited [2021`]IECA 37as authority for the right to dismiss based on poor performance during the probationary period. At paragraph 69 the judgement states:

In my view, Orr and Carroll remain good law. The principle established was specifically endorsed in Maha Lingham were Fennelly J. confirmed that a dismissal by reason of an allegation of improper conduct attracts the right of fair procedures, whereas a dismissal in the absence of an allegation of improper conduct does not attract such a right.

The school stated that there was no question of raising an issue of improper conduct. This was simply a matter of exercising the right to termination of the contract during probation as the school assessed that the Complainant’s performance in the role was not satisfactory.

The Union representative stated that the Labour Court has affirmed the statutory code should apply to a performance assessment:

To refute the respondent’s assertion that an employee’s right to fair procedures do not apply during the probationary period, there is precedent here. In Beechside Company Limited t/a Park Hotel Kenmare v A Worker, LCR21798 (Appendix 7) the Labour Courts recommendation “Where an employee is considered unsuitable for permanent employment, the Court accepts that an employer has the right, during a probationary period, to decide not to retain that employee in employment. However, the Court takes the view that this can only be carried out where the employer adheres strictly to fair procedures”. The Labour Court’s ruling did not absolve the respondent’s responsibility in this case in affording fair procedures to our member.

However, this case must be distinguished from both Donal O’Donovan and Beechside Company Limited as it relies on a statutory remedy under the Unfair Dismissals Acts that a dismissal will be deemed unfair if it arises wholly or mainly from being a member of Trade Union. That has not been made out in this case and therefore the dismissal is not unfair. The decision to dismiss was made prior to any conversation about being represented by a Union Official. It is also the case that evidence has been presented that shows that there were performance issues both relating to attendance at online meetings and supervision. It cannot be said in this case that the dismissal is unfair as it did not wholly or mainly arise because he was a member of a Trade Union. I determine that the Complainant was not unfairly dismissed.

The Act is clear that to succeed the dismissal must have occurred wholly or mainly from Union membership and that has not occurred in this case.

The Respondent employer also opened Donal O’Donovan v Over-C-Technology Limited and Over-C Limited [2021`] IECA 37as authority for the right to dismiss based on poor performance during the probationary period. At paragraph 69 the judgement states:

In my view, Orr and Carroll remain good law. The principle established was specifically endorsed in Maha Lingham were Fennelly J. confirmed that a dismissal by reason of an allegation of improper conduct attracts the right of fair procedures, whereas a dismissal in the absence of an allegation of improper conduct does not attract such a right.

The school stated that there was no question of raising an issue of improper conduct. This was simply a matter of exercising the right to termination the contract during probation as the school assessed that the Complainant’s performance in the role was satisfactory.

The Union representative stated that the Labour Court has affirmed the statutory code should apply to a performance assessment:

To refute the respondent’s assertion that an employee’s right to fair procedures do not apply during the probationary period, there is precedent here. In Beechside Company Limited t/a Park Hotel Kenmare v A Worker, LCR21798 (Appendix 7) the Labour Courts recommendation “Where an employee is considered unsuitable for permanent employment, the Court accepts that an employer has the right, during a probationary period, to decide not to retain that employee in employment. However, the Court takes the view that this can only be carried out where the employer adheres strictly to fair procedures”. The Labour Court’s ruling did not absolve the respondent’s responsibility in this case in affording fair procedures to our member.

However, this case must be distinguished from both Donal O’Donovan and Beechside Company Limited as it relies on a statutory remedy under the Unfair Dismissals Acts that a dismissal will be deemed unfair if it arises wholly or mainly from being a member of Trade Union. That has not been made out in this case and therefore the dismissal is not unfair. The decision to dismiss was made prior to any conversation about being represented by a Union Official. It is also the case that evidence has been presented that shows that there were performance issues both relating to attendance at online meetings and supervision. It cannot be said in this case that the dismissal is unfair as it did not wholly or mainly arise because he was a member of a Trade Union. I determine that the Complainant was not unfairly dismissed.

Dismissal-Union Membership