ADJ-00027798

Complainant

Respondent

Parties

John (Sean)  Brilly

Scoil Mhuire Community School, Clane, Co Kildare.

Representatives

Kieran Falvey B.L. instructed by Burns Nowlan Solicitors

 Mason Hayes & Curran Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00035603-001

07/04/2020

The complainant was employed by the respondent as a teacher and also held a post of responsibility as ICT Co-ordinator until his dismissal in February 2020. The complaint was received by Workplace Relations Commission on 7th April 2020 and relates to an alleged unfair dismissal.

The complainant’s dismissal arose following a disciplinary process initiated against the complainant which resulted in a finding of gross misconduct and dismissal upon the expiry of 3 months’ notice. The disciplinary process against the complainant was initiated following an investigation into complaints that were made by the complainant against one individual in November 2016 and in relation to three other people who were mentioned in correspondence submitted by the complainant following the referral of his initial complaint.

The disciplinary process was paused in May 2017 as the complainant had referred other matters to the WRC at that time and recommenced in May 2019 following the conclusion of that process. The recommenced disciplinary process concluded in November 2019 when the complainants appeal of his dismissal was unsuccessful. The date of dismissal was 15th February 2020.

The complainant’s Solicitor submitted additional information post hearing in relation to the calculation of the complainant’s losses and his efforts to mitigate those losses. The additional information was received by the WRC on 20th January 2022. The respondent’s representatives submitted additional documentation on 29th April 2022. All additional information has been taken into account in finalising this decision.

The respondent’s representative contends that the dismissal of the complainant was not unfair. The respondent contends that the complainant was dismissed following a thorough investigation process that was held in compliance with the provisions of the statutory disciplinary procedures as set out in the Department of Education and Skills Circular Letter 49/2018.

The respondent stated that the complainant submitted complaints/allegations in relation to another individual in November 2016. These allegations were referred to an independent investigator and were found to be unsubstantiated. The investigators report, which issued on 4th April 2017 raised concerns in relation to the motivation of the complainant in submitting the complaint. The respondent stated that the school principal, having formed the view that the complainant was motivated by malice in making the complaint against the one individual and also in naming three other people in subsequent correspondence, compiled a report for the board of management and initiated stage 4 of the disciplinary procedures as provided for in Circular Letter 49/2018. The disciplinary process which commenced in 2017 was paused to allow for the completion of a separate process in the WRC and recommenced in May 2019. The board of management found that the complainant was guilty of gross misconduct and notified the complainant by letter of 8th June 2019 that he was to be dismissed from his position within the school. The respondent outlined in its correspondence to the complainant that he could appeal his dismissal to the Teacher’s Disciplinary Appeal Panel which he duly did. The appeal was unsuccessful, and the complainant was dismissed on the expiry of three months’ notice on 15th February 2020.

The respondent contends that the dismissal was fair, and that the complaint should not succeed.

Evidence and Cross Examination

The school principal gave evidence at the adjudication hearing. The principal stated that the complainant handed him a letter in November 2016 saying, “I need you to do something about this”. The principal confirmed that he was advised to seek clarification on the issues that led to the complaint. The principal stated that he sourced the independent investigator on the basis that he needed someone who “understood schools and I.T. issues”. The principal stated that he “felt a responsibility towards the innocent teachers” and initiated a disciplinary process after the conclusion of the other issue that was before the WRC at that time. The principal confirmed that there were no procedural objections raised by the complainant or his representatives at any time throughout the process. The principal confirmed that following the disciplinary process he was not part of the board’s deliberations and was not involved in the decision-making process that led to the complainant’s dismissal.

In cross examination, the principal confirmed that when he received the complaint in November 2016, he brought it to the attention of the board of management and subsequently sought advice from the ACCS. The principal stated that he then sought further clarification from the complainant in relation to the complaints and forwarded all paperwork to the investigator for the completion of the investigation process.

It was put to the witness by Counsel for the complainant that the complainant was acting in the best interest of students when he made the complaints but never expected that submitting the complaints out of genuine concern would lead to a flawed investigation and disciplinary process resulting in his dismissal.

In its written submissions to the WRC dated the 15th April 2021, the complainants representative outlines a number of failings on the part of the respondent throughout the process. Specifically, the complainant contends he was not provided with contracts of employment in relation to his employment or his appointment to the post of responsibility. The complainant also asserts that he was not provided with the policy in relation to the investigation of complaints against teachers.

In relation to the complainant’s correspondence of November 2016, the representative contends that it refers to “issues” and that there were no allegations of wrongdoing submitted against the named individual. The complainant contends that if the principal considered this as a valid complaint, he did not inform the board of management and did not provide clarity in relation to the complaints procedure within the school. The complainant contends that there was no requirement on the principal to seek “evidence” or further clarification as no allegations were being made.

The complainant also asserts that the principal did not inform him that he was conducting an investigation as opposed to simply seeking clarification on the issues raised or that there could be serious consequences for the complainant as a result. It is further contended by the complainant that the principal did not inform him that he had sought responses from the individual against whom the complaint was made or that a response would be sought from the other individuals named in subsequent correspondence.

The complainant further asserts that he was not informed of his right not to partake in the principal’s investigation or that he could withdraw the issues he raised and/or cease in the role of ICT Co-ordinator.

The complainant contends that the principal sent a reminder for further information to him in February 2017 but did not confirm if matters were with the board of management of if he (the principal) was acting on the instructions of the board of management or if the board had considered the concerns raised by the complainant.

In relation to the investigation report, the complainant’s representative stated that the report was critical of the school as it had failed to properly assess the role of ICT Co-ordinator, or to properly assess the person appointed into the role.

In relation to the report submitted to the board of management in May 2017, the complainant contends that the principal did not consider invoking any other stages of the disciplinary process or alternative sanctions and had not informed the complainant his investigation had concluded and had found that the complainant was guilty of gross misconduct.

The complainant also contends that this matter could have been resolved if the principal had discussed matters with him at the time but in making the decision to dismiss him following the principals report, the board had failed to have regard for his rights and entitlements and did not consider the impact that the dismissal would have on the complainant despite his long service in the school.

The complainant contends that he was unfairly dismissed and is seeking compensation in relation to his complaint.

Evidence and Cross Examination

The complainant gave evidence in relation to the complaint and stated that it was submitted to the principal due to legitimate concerns. The complainant stated that he wanted to co-operate with the investigator but was shocked at the contents of the investigation report and stated that the report was compiled without any input from him. The complainant stated that when he saw the report, it was clear to him that the complaints he submitted were now to be used against him in what turned out to be an unfair and flawed disciplinary process leading to his dismissal.

It was put to the complainant in cross examination that all issues raised by him had been addressed and the person in question was found to have done nothing outside of what was considered to be normal practice relating to online learning. It was also put to the complainant in cross examination that having raised his concerns to the principal and to TUSLA, the fact that no further action was taken by TUSLA was an indication of the complete lack of merit to any of the issues raised by him.

The complainant was dismissed from his employment on the basis of serious/gross misconduct and submitted a complaint of Unfair Dismissal to the WRC on 7th April 2020 in accordance with the provisions of the Unfair Dismissals Act, 1977.

The Applicable Law

Section 6(4) of the Act of 1977 states as follows:

(4) 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, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

I have given careful consideration to the submissions and evidence of the parties to this complaint. There is a long history to this complaint, beginning in November 2016 when the complainant raised concerns in relation to the ICT based activity of an individual who was described as “a third-party supplier of I.T. services” at the time and subsequently as “a fixed term employee engaged by the school to provide ICT related services”. An investigation into the original complaint (comprising of eight separate issues) found that the complaint was not substantiated and the actions of the person against whom the complaints were made were considered to be “normal and acceptable practice in the administration of the online learning environment”.

While there are no written terms of reference for the investigation, the investigator was tasked with investigating the complaint made in respect of the one individual who supplied the I.T. services to the school. The investigator in his report which issued in April 2017 concludes that the complaints were unsubstantiated. However, the investigator continues in the report to raise concerns in relation to the motivation behind the complaints and that if his concerns were proven to be correct then these actions would be “incompatible with the role of ICT systems administrator, a role which demands the highest level of trust and impartiality.”

On receipt of the investigator’s report, the school principal informed the other three individuals that they were named in additional correspondence from the complainant in respect of his first complaint. As a result of the responses, he received and in addition to the observations of the investigator in his report, the principal compiled a report to the board of management of the school and initiated stage 4 of the disciplinary procedures which resulted in the dismissal of the complainant.

In my view the complainant was denied fair procedures and natural justice when the complaints he made, were found to be unsubstantiated and essentially, he was disciplined, found guilty of gross misconduct and dismissed as a result. It is suggested that the complaint was submitted as a result of personal malice aimed at discrediting the person against whom the first complaint was made as well as the three other individuals however, this was an issue that should have been the subject of a separate and distinct investigation as opposed to a stage 4 disciplinary process against the complainant following the complaints he submitted. It is my view that for the purpose of transparency and fairness a new investigation process into the complainant’s actions should have been initiated at that point in time.

Band of reasonable responses.

As to whether there were substantial grounds for the Complainant’s dismissal, the applicable legal test is the “band of reasonable responses” test, as set out by Mr. Justice Noonan in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated:

 “It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM.”

The role of the Adjudication Officer is to decide whether the respondent’s decision to dismiss the complainant was within the range of reasonable responses of a reasonable employer. In my view, the immediate escalation of the issue to stage 4 prevented the complainant from partaking in an open, fair and impartial investigation/disciplinary process. While that process may well have resulted in the same outcome, it did not take place and the manner in which the process concluded leads me to find that the decision to dismiss was not within the range of reasonable responses of a reasonable employer. On that basis, I find that the complainant was unfairly dismissed on procedural grounds.

Mitigation of Loss and compensation

Additional submissions were received by the WRC on 20th January 2022 in relation to the complainant’s losses and in relation to his efforts to mitigate those losses. I note from the additional correspondence that the complainant’s losses (not including social welfare payments) amount to €50,403.57. In awarding compensation, I must also consider the efforts made by the complainant to mitigate his losses. The complainant’s Solicitor confirmed that approximately five applications were made following the complainant’s dismissal and that between March 2020 and September 2020, schools were mostly closed because of the covid pandemic and the summer holidays. I have considered these points in relation to mitigation. While I accept that the complainant was unemployed from February 2020 until September 2020 and that schools were closed for a lot of that time, I do not find that the five applications he submitted for employment are a sufficient effort to mitigate his losses. I am of the view that the complainant had a duty to attempt to mitigate his losses in seeking employment outside of his own profession for the period in question. Taking everything into account, I find it fair and reasonable that the complainant be paid €20,000.00 in compensation. The respondent is directed to pay the complainant compensation in that amount.

Having considered the submissions and evidence of the parties, I find that the complainant was unfairly dismissed on procedural grounds and that the complaint is well founded. The respondent is directed to pay the complainant the sum of €20,000.00 in compensation.

Cases cited:

Kelly v Board of Management of St Joseph’s National School, Valleymount Co Wicklow [2013], IEHC 392

Dillon v Board of Management of Catholic University School [2016], IEHC 674

Unfair Dismissal, disciplinary process, gross misconduct.