ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00017717

Parties:

Complaints:

Date of Adjudication Hearing:  09/05/2023

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The complainant submitted a complaint of unfair dismissal by way of constructive dismissal which was received on 26th October 2018.  She submitted complaints under the Employment Equality Acts which were received on 10th March 2019.  Her employment with the respondent ended on 3rd May 2018.   The complaints under the Employment Equality Acts would be deemed to be out of time unless there is reasonable cause to extend the time.  This is dealt with below.  On 14th August 2022, the complainant attempted to introduce a new complaint under the Protected Disclosures Act.                        As this would be submitted over 4 years post the end date of the complainant’s employment, it cannot be entertained as it is time barred.

Summary of Complainant’s Case:

The complainant outlined in detail her experience in the workplace over a period being the time she contends her employment conditions were such that she had to resign at the end of that period.  This, she contends was due to the actions of the principal of the school in which she was employed, and the alleged adverse treatment of the complainant by the Principal.                        

The complainant submitted a statement containing some 34 points and gave sworn evidence at the hearing.  The general headings of her 34 points are as follows:

1. First meeting with the SNAs, the Principal introduced herself as a team player but clarified that no trouble or grief would be tolerated. She stated she would take any misbehaviour very seriously and a campaign against SNAs began almost immediately. This happened in several different ways.
2. On the Staff email system all emails went to ALLSTAFF@emailaddress. Suddenly without consultation or notice the SNAs were removed from the ‘allstaff’ address. The office and administration, teaching and all other staff were still a part of this group. I am very upset about this and feel like we are not respected or even considered equal to the other staff. 
3. Other instances of division were the splitting of breaks the SNAs took so they wouldn’t all be together. The seating layout in the staffroom was changed so that the SNAs couldn’t all sit together. When staff moved the seating back to its original setting it was moved again, and the table arrangement made even smaller.
4. We had 72 extra hours to work in other the school year which provided for out of school hours activities, SEN related work and training. These hours became a stick to be beaten with. The was the start of a negative atmosphere and working environment. From this time on NRE made it her business to make sure all SNAs were following their contract to the letter. The familiar mantra of “Jobs would be lost” was now joined by “your contracts are your contracts” or “It’s in your contract girls.” She meddled with our terms and conditions constantly. Contractual duties were interpreted in an authoritarian manner and my colleagues and I felt that we were being micro-managed.
5. We had longer working days to teachers but shorter breaks. SNAs were timetabled to do yard duty and break duty, although we were employed to care solely for SEN students. Breaks given in lieu were dependent on our students not requiring us. This was brought to NREs attention and to be fair she did state that every SNA should be taking their break however over time as the work demands on the SNAs increased the opportunity to take the breaks at the correct time became more difficult and SNAs were frequently called off their break prematurely if there was an issue and, as SNAs were constantly questions by NRE if they were present without a student at any time it became easier to not try to recoup the shortened break at another time rather than try to defend your position or explain yourself as was demanded by NRE at all times.
6. Sometimes I would be on my way to or from the bathroom and would be asked “where is your student?” and I would have to explain. These explanations were accepted mostly however I felt harassed on a continuous basis, and I do not recall any teacher ever being asked the same. If two or more SNAs were talking to each other on the corridor in any capacity even passing information in relation to a student NRE suddenly appeared creating the impression that we were constantly being watched. I often wondered if we were being watched on the camera at times. I recorded this on numerous occasions in my diary. This, having to explain your presence on the corridor spread to other staffs’ attitudes towards SNAs, and some Teachers started asking where our student was if an SNA was walking on the corridor at any time despite having a valid reason. Apart from the fact that SNAs shouldn’t have had to explain themselves seeing as the only way from A to B in the school was by walking there, the fact that this micromanagement exclusive treatment of SNAs was now being accepted as normal and was being used as a tool of exclusion freely across the board.
7. Incidents outlined during 2016 which included not being allowed write reports during class, not being allowed to read, or scribe for students, despite this being part of the job NRE states she couldn’t trust us, not to cheat. Also, double jobbing. Yet teachers allowed do it. Teachers that get paid for the summer.
8. 24/06/16 SNAs hen night out organised by SNAs. NRE let E go off during the day to get her hair done for the night out. But not the SNA getting married. Special treatment for special people.
9. 04/07/16 Have noted in diary.. care plans, blaming the SNAs for, discipline, were called messers.
10. Sarcastic comments made by NRE staring sternly at my student then me and then said “I think we need to get you a watch” to my student. NRE was implying that we were late. We were not. My student is a clever young man and knew what NRE meant and said so to me. Also, it is not possible for my student to wear a watch as a) he couldn’t see it to read it b) he only has the motor function of 2 digits, a finger and a thumb on the same arm. The other arm is in a constant state of spasm rendering it useless. This was a completely inappropriate, unnecessary thing to say to him and insensitive and he was quite upset about it. 28/09/16 Was outside class waiting for 2nd period when saw that my students chair had dog poo on it. I ran out to L9 for tissue to clean it up as it was nearest. NRE was there. I explained what I was doing as she asked where was my student? Clearly, she didn’t believe me as she followed me back to the wheelchair and watched me cleaning the wheel. Was this necessary? I feel like I’m being stalked or can’t be trusted to do my job by NRE.
11. 30/09/16 Inservice for New Junior cert for teachers. SNAs made sit at the back of the library for the day with nothing to do. Several staff members commented on it and brought it to NREs attention. Nothing to do with special educational needs was done on that day. The SNAs and some teaching staff stated that it was degrading to the SNAs having to just sit there all day. 03/10/16 Feel like I am constantly being watched. NRE outside my classroom today on 2 occasions.
12. 20/10/16 My friend TH was being buried. Id asked NRE if I could attend. She said send her an email. MOK said she would email on my behalf as I would be accused of doing it during class time and be scolded for same. I left at 11.50am to attend the funeral and returned immediately afterwards. On return MOK told me NRE had been asking her the time I left at and the time I returned and then went to the SNA who has been covering me to ask her the same. Once again, I felt singled out.
13. 19/12/16 An SNA suddenly took ill during lunch time. We rang her mother as she asked us to and then NRE came out to her and sent us away. And took over. The SNA had begged us not to tell NRE as the last thing she wanted was NRE with her and said so. She believed NRE would call her an ambulance as she would normally do and was very distressed at the thought. NRE mentioned it to the SNA that she really should call an ambulance, but the SNA kept saying “No my mother is coming”.
14. 11/10/16 NRE called all SNAs to reception during class time. My student was having a French test and I was supposed to be scribing for him. NRE told the SNAs that there would be no discussion and no questions about what she was going to say but that she felt morally obliged to inform us that 72hrs and June was being standardised across the schools. And that some people would have already done about 20hours at this stage. I asked for work for the SNAs to which she replied I said I am not discussing this. We took minutes. No one commented then. Not allowed talk. The conversation after the meeting was that it had been pointless and unnecessary to leave SEN children during class time especially as no one was allowed speak and it was felt she could have emailed us instead. We decided to email her in response to this meeting and cc appropriate people. As advised by the Union. ACTION TAKEN 12/10/16 Quick SNA meeting after work to write up email. It was agreed that a different SNA would send the email each time to avoid the same SNAs bring singled out. 12/12/16 8.40am NRE came into staffroom and came over to the SNAs. She started shouting at them Go out and get kids off the corridors and I don’t want any SNAs with SEN child late for class. This was directed at the SNAs only and she marched out of the room. It was 8.40 the workday had not even stayed and some SNAs weren’t even after arriving yet. A couple of SNAs were having a cup of tea as were the teachers present. The teachers faces reflected their shock at the tone and behaviour. ACTION TAKEN Rang IMPACT AGS.
15. Write up email with SNA3. 13/12/16 Email sent to NRE making her aware that her treatment of SNAs on 12/12/16 was not acceptable under the dignity and respect in the workplace policy.
16. Setting unachievable tasks. 18/01/17 NRE is in the staffroom drinking Tea and staring at the SNAs and the clock repeatedly as if trying to intimidate them into leaving the staffroom. This is a common occurrence 09/02/17 Seno visited school. NRE called the SNAs out of class to the parents’ room but I couldn’t go until after Id looked after my student as was scribing for him. I caught the end of the meeting where NRE said that we were just to be where we were supposed to be. I heard SNA L say, “To be fair N we always are” and NRE replied scolding her “We’ll have no arguments today L
17. 15/02/17 NRE stopped me on the corridor and gave out to me in relation to ringing the office instead of her phone and about it being policy and she is going to email everyone in relation to this because there seems to be a lack of clarity etc. girls in the office don’t start until 9am etc. I had no idea why she was ranting at me because I hadn’t been late that day. But I just answered that’s no problem, N. There is no point in responding. It just makes her worse.
18. 28/02/17 I’m in the locker area observing my student engage socially from afar. I have a mug with a small drop of tea in it in my hand. NRE walks directly to where I am, approaches me at the locker area and says in a scolding manner “Id prefer if you didn’t have Tea/coffee in this area where there are children and especially a child in a wheelchair”. I said “Ok no problem”, and she says “I believe M has had to say this to you before”. She had not, and I stated as much. She stared at me as if she didn’t believe me and walked off. She passed 3 teaching staff all holding cup/mugs in their hands on the way out but said nothing to them. I later asked M if something had been said to her and she said it was the first she heard and to keep my head down. Again, I feel as If I have been singled out and as if everyone is afraid to say something.
19. 28/02/17 Meeting of IMPACT and WWETB SNA members in Wexford Talbot. WWETB have come up with list of duties. Some are inappropriate. 03/03/17 WWETB meeting with IMPACT cancelled b WWETB. Rescheduled to 08/03/17. 08/03/17 WWETB cancel meeting with IMPACT again. Despite several complaints of WWETB SNAs and instructions to IMPACT to act on their behalf. WWETB does not seem to be interested in engaging in their employees best interests.
20. 10/03/17 An SNA has another anxiety attack in school. Another SNA drives her to the Doctor. She does not want NRE anywhere near her.
21. 06/04/17 IMPACT AGS informs me he is meeting with the ETBI CEO next week. NRE finally provides a list of SEN appropriate work for 48hours. This has been asked for repeatedly since last September 2016. 24/04/17 I got a cert for a few weeks. I’m suffering from stress and anxiety. 23/05/17 Returned to work. NRE asked to speak to me. SNA V covered me so I could go to her but was sent back to class. 20mins later VP called me. Both were in office. The VP took minutes. I asked him for minutes of that meeting later that day. 29/05/17 VP called me from class to go to NRE. I asked an SNA to stay nearby in case I need a witness and because I feel quite anxious. NRE went through every single hour I had done of the 72. I felt like I was on trial. Which I probably was. She decided she wasn’t going to sanction about 6 of them meaning I would have to work in an extra day but I had done extra training during the year which had been sanctioned for another SNA Esther which I pointed out so it balanced out. Strangely enough she didn’t seem very happy that I had completed my hours. 01/06/17 NRE calls meeting with SNAs and states the school is doing July provision in June and SNAs are going to do it. I ask if it’s the July provision where SNAs get paid and she says no, SNA won’t get paid and have to be there in June anyway so may as well do the work. However, the teachers will be paid for this. I explain that the July provision is a separate provision by the Dept. of ED and that SNAs that do it do get paid by the department. I asked for time to check it out she refused. I asked for 24hours to allow the SNAs time to think about it. She refused. She cut me down in the meeting and wouldn’t allow me to speak. I emailed her afterwards. 02/06/17 NRE calls another meeting with SNAs and ASD teaching staff. She gets the ASD teachers to spin the July provision as a summer camp. They neglect to mention that they will be paid for 40 hours for each child participating and the SNAs will not. They coerce and cajole the SNAs and emotionally appeal to them to work with the ‘poor special needs children’. It is put in such a way to the SNAs that if they don’t do it, they would be the worst in the world for not helping the ASD children and NRE questions why they are SNAs if they won’t work with them. And how are they going to tell the children’s parents that the SNAs who look after them wont now? No one answers and NRE concedes saying the SNAs can come and tell her themselves if they do, or don’t want to do it, intimidating them further. Any time I try to speak up I am shut down. I feel utterly bullied and helpless.
22. ACTION TAKEN 07/06/17 JC and LC start. I spend the next 2 weeks trying to contact IMPACT and Dept. of education and requesting dept circulars. IMPACT contact the Dep. Of Education and they confirm that SPs hasn’t been sanctioned for any special scheme. They also say that the SNAs should be paid for July provision. They also say that NRE will not be allowed to run this in the school ever again. During this time 1 SNA receives a black eye from having an object thrown at her by a student. Several others are punched or hit. Clearly the Camp isn’t working as the needs and varying degrees of ability ranging from high functioning is quite far apart making group activities difficult and not always suitable for all of the ASD kids involved. Also there are not enough teachers present leaving the SNAs to pick up the slack . The SNAs are now in a vulnerable situation as this camp is being funded by an external body and their contracts say they are employees of the WWETB and cannot work for anyone else without permission from the WWETB. There is also the question of insurance. What insurance is covering the SNAs if any? Not to mention the blatant disgusting treatment and lack of dignity and respect afforded the SNAs. The SNAs were never paid for this work even though the teachers were and even though the teachers left the ASD students unsupervised with the SNAs on many occasions. The ratio is 1:4 but there was 1:8 or more at times but the ASD teacher was still getting paid to be there even though they weren’t. I believe that the parents of these children were unaware of the circumstances that this was being organized around and would have been upset with what was happening. Then to add insult to injury the SNAs were asked to complete a survey on how they thought the camp went at the end of it. This camp did not happen again. 19/06/17 Training for SNAs started in the Teacher Centre. S WWETB employee and trainer told SNAs they should quit IMPACT and form their own committee and that SNAs wouldn’t be around for much longer. A new scheme was coming out and SNAs would be more like teacher assistants and lower paid. This upset most SNAs present as it was felt as if every department within the WWETB seemed to be discussing this except the SNAs. They were being excluded from talks about their own job by their employers and the training provided by the WWETB for their SNAs had appeared to have taken on its own agenda and not for the welfare of the SNAs. July/August 2017
23. Myself and 5 other SNAs from SP apply for SNA jobs in other schools. Some of us attend interviews but because of the Panel scheme were unable to secure positions in other schools. But no one wants to work in SPs anymore
24. Returning from maternity leave an SNA requested a room to express milk for her premature twins. The Principal did not acquiesce to this and denied the SNA 5 days in lieu of training due to her having been on maternity. The principal demanded that the additional 72 hours be assigned although there was plenty of scope later in the year for these, when the SNA had more time. She explained to NRE that she was willing to work these hours at weekends or holidays if necessary but that at this moment she was not available before or after school hours as she was breastfeeding and asked NRE for her support with this. She was coldly denied it. This had a negative impact on the SNAs health and her ability to care for her premature infants, as her milk dried up due to being unable to express. This SNA was to go on and experience a number of anxiety attacks in the school. A formal grievance was invoked by this SNA on 25/04/16. The grievance followed the procedure set out in Circular Letter 72/11 issued by the Department of Education and Skills for SNAs. I was the union representative and aided the member in this grievance. A letter was sent to the chair of the Board of Management. We were rebuked for sending this letter to a public representative’s address. This was the appropriate point of contact as per the grievance procedure. “How dare we” was the answer. The WWETB refused to accept the Circular Letter 72/11 grievance procedure and while we were trying to lodge this both the Principal NRE and HR ER kept trying to convince the SNA to withdraw her complaint. We were informed by HR that we should use the WWETB grievance procedure. Neither procedure was made available although the grievance had been given to management. WWETB failed to follow procedure. The eventual outcome was that she received the 5 days back. Unfortunately, she did not get her milk supply back or an apology.
25. Ice skating – December 2013 On 5th December 2013, I was told by senior members of staff that I wasn’t needed for an iceskating trip. The Principal rang the school asking specifically where I was and instructed the Vice Principal to tell me to be there at once. I was accused of insubordination, not wanting to take part and not doing my job. This was delivered in the form of a loud public rebuke by the Principal, in front of staff, students and the public. She told me that she would deal with me on Monday. I stated that we would deal with it then at that moment and I told her that I was sorry that she believed me to me insubordinate as I wasn’t. I also told her I was sorry that she felt that I didn’t want to take part or do my job as that also was not the case. I explained I had been told by the year head not to go and she looked at me and shouted “I don’t think you are sorry at all” and as she didn’t think my humiliation was complete yet, she then got me to hold her coffee and coat as she went ice-skating, to the disbelief of others. Several staff who witnessed this not to mention the public, asked me if I was ok.
26. I sent the Principal an email regarding my absence on 12th February 2014as my child was being confirmed. I was called into her office and once again reprimanded. The Principal did not like the ‘tone’ of my email. She read it out to me in a negative manner and I explained that was not how I wrote it or intended it and I read it out differently. She asked if I was asking her or telling her I was talking the time off. She made me rewrite it as a request and to also provide a letter. She asked me what kind of person I thought she was that she would deny me time off for the confirmation. I told her I hadn’t thought that deeply about the situation and just wanted to have a record so that students could be covered. She seemed to take this as a personal afront. I have no doubt that I was singled out for special attention as I was seen as a troublemaker. Previous union reps had also received special attention. At the start of term in 2016 the previous rep had been told that there was to be no union issues this term or her job share would be revoked. She stood down as rep. Fear was embedded in staff not to speak up or they would be singled out.
27. 12/12/16 8.40am NRE came into staffroom and came over to the SNAs. She started shouting at them Go out and get kids off the corridors and I don’t want any SNAs with SEN child late for class. This was directed at the SNAs only and she marched out of the room. It was 8.40 the workday had not even stayed and some SNAs weren’t even after arriving yet. A couple of SNAs were having a cup of tea as were the teachers present. The teachers faces reflected their shock at the tone and behaviour. ACTION TAKEN Rang IMPACT AGS. Write up email with SNA3. 13/12/16 Email sent to NRE making her aware that her treatment of SNAs on 12/12/16 was not acceptable under the dignity and respect in the workplace policy. We CCd HR and AGS as instructed as ETB had been informing IMPACT at recent meetings that they were not aware of any poor treatment or complaints from SNAs. 21/12/16  Lunchtime meeting re SENO. NRE told us to read circular 30 and if have any issues tell her. Care needs and Care Journal. This is so frustrating because the SNA s constantly refer to circular 30 and work from it but no one else does. Teachers don’t write IEPs of which care plans are part of and SNAs are only supposed to write the care plans once they’ve been decided on by the whole care team. Teachers have been told IEPs are not compulsory or legal so its ok not to do them. So, the SNAs are unable to their job according to the circular. This has been explained to NRE a few times but she just says do your job. Setting unachievable tasks. 18/01/17 NRE is in the staffroom drinking Tea and staring at the SNAs and the clock repeatedly as if trying to intimidate them into leaving the staffroom. This is a common occurrence 09/02/17 Seno visited school. NRE called the SNAs out of class to the parents room but I couldn’t go until after Id looked after my student as was scribing for him. I caught the end of the meeting where NRE said that we were just to be where we were supposed to be. I heard SNA L say, “To be fair N we always are” and NRE replied scolding her “We’ll have no arguments today L 15/02/17 NRE stopped me on the corridor and gave out to me in relation to ringing the office instead of her phone and about it being policy and she is going to email everyone in relation to this because there seems to be a lack of clarity etc. girls in the office don’t start until 9am etc. I had no idea why she was ranting at me because I hadn’t been late that day. But I just answered that’s no problem N. There is no point in responding. It just makes her worse. 28/02/17 I’m in the locker area observing my student engage socially from afar. I have a mug with a small drop of tea in it in my hand. NRE walks directly to where I am, approaches me at the locker area and says in a scolding manner “Id prefer if you didn’t have Tea/coffee in this area where there are children and especially a child in a wheelchair”. I said “Ok no problem”, and she says “I believe M has had to say this to you before”. She had not, and I stated as much. She stared at me as if she didn’t believe me and walked off. She passed 3 teaching staff all holding cup/mugs in their hands on the way out but said nothing to them. I later asked M if something had been said to her and she said it was the first she heard and to keep my head down. Again, I feel as If I have been singled out and as if everyone is afraid to say something. 28/02/17 Meeting of IMPACT and WWETB SNA members in Wexford Talbot. WWETB have come up with list of duties. Some are inappropriate. 03/03/17 WWETB meeting with IMPACT cancelled b WWETB. Rescheduled to 08/03/17. 08/03/17 WWETB cancel meeting with IMPACT again. Despite several complaints of WWETB SNAs and instructions to IMPACT to act on their behalf. WWETB does not seem to be interested in engaging in their employees best interests.
28. 10/03/17 An SNA has another anxiety attack in school. Another SNA drives her to the Doctor. She does not want NRE anywhere near her.
29. 06/04/17 IMPACT AGS informs me he is meeting with the ETBI CEO next week. NRE finally provides a list of SEN appropriate work for 48hours. This has been asked for repeatedly since last September 2016. 24/04/17 I got a cert for a few weeks. Im suffering from stress and anxiety. 23/05/17 Returned to work. NRE asked to speak to me. SNA V covered me so I could go to her but was sent back to class. 20mins later VP called me. Both were in office. The VP took minutes. I asked him for minutes of that meeting later that day. 29/05/17 VP JKE called me from class to go to NRE. I asked an SNA to stay nearby in case I need a witness and because I feel quite anxious. NRE went through every single hour I had done of the 72. I felt like I was on trial. Which I probably was. She decided she wasn’t going to sanction about 6 of them meaning I would have to work in an extra day but I had done extra training during the year which had been sanctioned for another SNA E which I pointed out so it balanced out. Strangely enough she didn’t seem very happy that I had completed my hours.
30. 01/06/17 NRE calls meeting with SNAs and states the school is doing July provision in June and SNAs are going to do it. I ask if it’s the July provision where SNAs get paid and she says no, SNA won’t get paid and have to be there in June anyway so may as well do the work. However, the teachers will be paid for this. I explain that the July provision is a separate provision by the Dept. of ED and that SNAs that do it do get paid by the department. I asked for time to check it out she refused. I asked for 24hours to allow the SNAs time to think about it. She refused. She cut me down in the meeting and wouldn’t allow me to speak. I emailed her afterwards. 02/06/17 NRE calls another meeting with SNAs and ASD teaching staff. She gets the ASD teachers to spin the July provision as a summer camp. They neglect to mention that they will be paid for 40 hours for each child participating and the SNAs will not. They coerce and cajole the SNAs and emotionally appeal to them to work with the ‘poor special needs children’. It is put in such a way to the SNAs that if they don’t do it, they would be the worst in the world for not helping the ASD children and NRE questions why they are SNAs if they won’t work with them. And how are they going to tell the childrens parents that the SNAs who look after them wont now? No one answers and NRE concedes saying the SNAs can come and tell her themselves if they do, or don’t want to do it, intimidating them further. Any time I try to speak up I am shut down. I feel utterly bullied and helpless. ACTION TAKEN 07/06/17 JC and LC start. I spend the next 2 weeks trying to contact IMPACT and Dept. of education and requesting dept circulars. IMPACT contact the Dep. Of Education and they confirm that SP hasn’t been sanctioned for any special scheme. They also say that the SNAs should be paid for July provision. They also say that NRE will not be allowed to run this in the school ever again. During this time 1 SNA receives a black eye from having an object thrown at her by a student. Several others are punched or hit. Clearly the Camp isn’t working as the needs and varying degrees of ability ranging from high functioning is quite far apart making group activities difficult and not always suitable for all of the ASD kids involved. Also there are not enough teachers present leaving the SNAs to pick up the slack . The SNAs are now in a vulnerable situation as this camp is being funded by an external body and their contracts say they are employees of the WWETB and cannot work for anyone else without permission from the WWETB. There is also the question of insurance. What insurance is covering the SNAs if any? Not to mention the blatant disgusting treatment and lack of dignity and respect afforded the SNAs. The SNAs were never paid for this work even though the teachers were and even though the teachers left the ASD students unsupervised with the SNAs on many occasions. The ratio is 1:4 but there was 1:8 or more at times but the ASD teacher was still getting paid to be there even though they weren’t. I believe that the parents of these children were unaware of the circumstances that this was being organized around and would have been upset with what was happening. Then to add insult to injury the SNAs were asked to complete a survey on how they thought the camp went at the end of it. This camp did not happen again.
31. 19/06/17 Training for SNAs started in the Teacher Centre. S WWETB employee and trainer told SNAs they should quit IMPACT and form their own committee and that SNAs wouldn’t be around for much longer. A new scheme was coming out and SNAs would be more like teacher assistants and lower paid. This upset most SNAs present as it was felt as if every department within the WWETB seemed to be discussing this except the SNAs. They were being excluded from talks about their own job by their employers and the training provided by the WWETB for their SNAs had appeared to have taken on its own agenda and not for the welfare of the SNAs.
32. I felt that my space and professional autonomy was constantly under attack. I was shouted at and followed into the toilet in the Sports Hall by the principal ahead of a school walk, asked what I was doing in December 2013. There appeared to be no privacy anywhere. There was always a perception of being watched or followed. There were no regular team meetings which we frequently requested in order to feed into IEPs and Care plans. No meetings were permitted without the Principal. My ability to do my job was constantly compromised. I approached the principal on many occasions outlining my work concerns as well as personal ones. I felt that in place of support my vulnerabilities were exploited. I had a constant battle with the Principal to ensure that best practice and well-established SNA interventions were followed in St Paul’s. No progress was being made but it was a constant fight to maintain my terms and conditions. I felt that I was working under a dictatorship and had no level of professional autonomy. An example was the recommendations by SENO or Educational psychologists to remove SEN students and to encourage movement breaks, to move them early from class to avoid the business of corridors between classes. This was also a health and safety issue. The Principal would query any such actions either by questioning me or by shouting at the student for being late, intimating I was not doing my job. Regarding one student a medical assessment was made regarding the toilet aid required which went against the instructions of the parent. This was twisted into a drama which suggested that I would not do my job. I was uncomfortable with the request from the Principal which went against my training. I said that I would not carry out any duties until we had a toileting policy in place. The student did not need the suggested help, this was confirmed by the parent. I felt that I was constantly being given unreasonable requests and had obstacles put in my way all the time. Simple tasks became impossible. My expertise was constantly in question, I was over-qualified to do my job as an SNA but felt I was the Principal’s dogsbody and that the role of the SNA depended entirely on the Principal. In September 2017 the Principal was very helpful when I requested time off for an interview for alternative employment. I had a few meetings regarding my lack of contentment in my position. The principal was very accommodating in my search for alternative employment. She offered advice regarding my hair, clothes and offered the help of other staff along with her own expertise on PowerPoint. However, she never addressed my reasons for leaving a permanent position. 
33. Accident 7th December 2017 While transferring a student to another class in a busy corridor I was distracted by correcting a student with a can of coke, I turned and hit into a concrete pillar. I hit this with my head and fell back hitting the back of my head on the wall behind me. I could hear voices but was disorientated. My colleague G was there when I came to and reassured me. My forehead was a source of pain, I had a huge lump and thought I was bleeding but tears were streaming down my face. I was unaware of my surroundings. Students were sent to class. My colleagues got an ice pack and I remained where I had fallen on the floor. Somehow a full class had passed, and I moved before the bell went. I was not fully lucid. I do recall a senior staff asking me if I would be much longer. I was helped to the staff room with a colleague on each arm. No medic or ambulance was called for me which is contrary to usual practice. It was left to my partner to leave work and attend to my needs. He brought me to hospital I was 8weeks pregnant so could not have an MRI or Xray. I had concussion and a contusion and was left home under observation, told to return if I deteriorated in any way. Two days later on Saturday I started cramping, I later miscarried and was in the early pregnancy unit on Saturday evening. I was told to return on Monday for further tests. On Monday it was confirmed that I was no longer pregnant and that it was very likely that the trauma caused the miscarriage. I was then given a CT scan on 14/12/17 which was clear but I was badly bruised with 2 black eyes, and bruised nose and got a medical certificate for two weeks. I went to SPs to drop in my cert, the Principal called me into her office. I told her I felt physically and mentally battered, she told me I was. She said the miscarriage was probably for the better as my kids were grown, I would have been starting over. I clarified that this was a much-wanted pregnancy. She suggested that I had fainted ahead of hitting the pillar. I left and returned briefly ahead of the Christmas break. There was always an over stepping of professional boundaries as if the Principal had authority over all aspects of the lives of staff, this made me extremely uncomfortable. I had been worried that she would turn up in the hospital but thankfully this did not occur. In January 2018 I returned to work. School life continued without incident as far as I was concerned. The handling of a serious health issue regarding a teacher had many staff questioning the role of the Principal regarding private matters. She attended the hospital when family only were permitted, due to the seriousness of the situation. In March 2018 I felt under additional pressure due to the serious illness of my sister I was experiencing anxiety but was not alone on staff experiencing such afflictions. I felt that the Principal used people’s vulnerabilities against them rather than helping them. I had been successful in an interview and had a promise of work when a company eventually expanded. I was never leaving due to wanting to move on in a promotional capacity but due to my unhappiness and inability to carry out my duties due to the environment in which I was placed. I was constantly asked for my leaving date/start date. I was called to her office to answer to gossip from a parent saying I was leaving. For three days in a row in March I was summoned to the Principals office on trivialities, I was being called up on everything. On each occasion I made the principal aware that I was struggling with stress and grief. I asked for a career break on health grounds, I knew that I was out of time in the calendar year to do so but requested that the Principal would email a late application under special circumstances. She agreed to do this. I had requested help on personal and mental health grounds.
34. I went on a school trip to Wexford at the request of a senior member of staff on 21/03/2018. The Principal made a deal of this, she had not approved it and my daughter had taken a lift on the bus as her school were also attending. Despite my best efforts to inform her and my explanation of same NRE and continued to berate me in her office. This was based on me not having permission to go on this trip as an SNA and took issue with the fact that my daughter had gone. During the Easter holidays I then received a letter I perceived as a threat from the Principal. I was extremely distressed by this and was very upset for several days. Finally, I realised I had reached my tolerance limit. I was exhausted and could no longer fight the bullying and oppression I was subjected to. I decided to work my notice but on the advice of my doctor did not. I received medical certs and never returned. There was no further correspondence.

Conclusion I had worked in the College for 13 years. The last 4/5 years of those 13 have been pure hell. I have done everything in my power to find a way to work with, and under NRE. I have called in the Union, I have joined at Branch level, attended conferences, workshops, tried mindfulness, alternative therapies, exercise, attended counselling, conflict resolution training, engaged with HR, made phone calls and emails that were ignored, tried to file grievances which continuously were downgraded or went missing, then attended the ETBI Head office, formed an action group for SNAs, been the SNA Rep., attended a CBT therapist for a year, attended a psychiatrist, watched a colleague almost kill himself, watched other colleagues mental health decline and be bullied, had my physical and mental health deteriorate. I have and still do take medication for anxiety and depression.  I believe I was constructively dismissed.  

Re Time limits EEA

I believe that this was due to a reasonable cause being that I wasn’t able to make this complaint fully as I was physically and mentally unwell which my GP can verify. When I finally felt well enough to contact the WRC to get some closure on my first submission CA-00022886 which was within the timeline I was informed by your good selves in customer service that I was incorrect in my previous submission and should actually have logged my complaints separately and categorised. I explained I had not understood that or the process itself and that to be perfectly honest I was not in a state of mind at the time of processing the complaint to take anything in. Just writing the complaint set me back into the old trauma and anxiety which took some time to claw back from. Your staff were very supportive and told me to get any extra complaints in asap and to ask if I could possibly have all complaints heard at the same time.

The complainant gave sworn evidence in which she outlined that she left her employment as she could no longer work there. She stated that the SNAs were disappointed with the new Principal and the way she treated them from the first meeting in 2013.  They had a disagreement with her on the hours and there were a number of complaints about this and distribution of duties.  She said the Principal shouted at the SNAs, followed her to the bathroom and admonished her if she was chatting in the corridor.  The break times of SNAs were changed and split and the furniture moved around in the canteen so they could not sit together.  She outlined a number of incidents, such as having to reword a request for time off to attend her daughter’s confirmation, an incident in an ice rink when she felt belittled, an accident she had at school when an ambulance was not called, changing of emails to exclude SNAs and an incident in March 2018 when she was threatened by the Principal for bringing her daughter on a school trip even though she had permission from a senior staff member.              She stated that she could no longer work in the school and that she was advised by her family and GP to resign.     She stated that she did initiate grievances but they were not accepted.                       She stated that she was on illness benefit from May 2018 until September 2018 and then she secured a better paid job.  

Summary of Respondent’s Case:

The Respondent submits that the Complainant has wholly neglected and failed to put any structure and/or to particularise her complaints before the WRC despite directions to that effect.

In the absence of being able to make out a claim on her own behalf, the Complainant has instanced alleged matters involving other employees which are wholly irrelevant, contain incorrect information and are confidential to those employees. For the avoidance of doubt, any assertions of alleged wrongdoing on the part of the Respondent and/or its employees in this regard are fully disputed.

The Respondent respectfully requests that documentation, confidential and personal information, matters pertaining to other persons’ employment with the Respondent and assertions concerning other employees/former employees are withdrawn by the Complainant and disregarded by the WRC. In this regard, it is submitted that the Complainant’s complaints before the WRC are complaints personal to her and it is a misuse of the WRC process to refer to others in the Respondent’s employment without any effort to indicate the relevance of same to the Complainant’s complaints before the WRC. The Respondent submits that the Complainant’s assertions and references in this regard are misconceived.

At no time during the Complainant’s employment did she initiate the grievance procedure nor has she produced any evidence in her second statement of any attempt to do so.

The Complainant has failed to comply with the directions of the Adjudicator and has not substantiated her claims in any way.

The Complainant has not provided any details or evidence of any alleged loss.

The Complainant submits that the documentation provided to the WRC by the Complainant on 2 December 2019 does not further and/or support her complaints before the WRC.

The Complainant has not particularised her claim of alleged discrimination nor has she provided any instance of alleged discrimination under the EEA on the grounds of family status, gender, training, other matters or at all. In addition, she has not substantiated a claim for harassment within the meaning of Section 14A of the EEA nor a claim of victimisation within the meaning of Section 74(2) of the Acts, or at all. It is noted that in her complaint form, the Complainant alleged the discrimination took place on 10 September 2018, some 4 months after she resigned her position. It is submitted that the Complainant is now trying to ‘mend her hand’ further to the Respondent’s First Submission which noted that she had failed to particularise her claim and that none of the matters she alleged are contrary to the EEA Act. Furthermore, it is noted that the Complainant has not submitted any documentation in support of the application for an extension of the time limits in Section 77(5) of the EEA, which is both statute and time barred.

In its written submission, the respondent disputed each and every element of the complainant’s complaints. 

Sworn evidence was given by the Principal Ms R.  She stated that since she commenced in 2013, there had been an ongoing issue with the SNAs regarding the 72 hours.  She said she never denied the SNAs breaks or split their breaks or forced them to sit apart in the canteen.  The changing of the furniture was simply because a piece of furniture had been donated and this meant the tables had to be moved.  She believed it to be legitimate to ask the SNAs to be engaged with their students and it would not be appropriate for them to congregate in corridors without them. She categorically denies following staff around.   She absolutely refutes the complainant’s evidence in relation to the issue of her miscarriage.  She showed complete sympathy to her as evidence of texts exchanged shows.         She had to ask the complainant to change the wording of the email requesting time off for a confirmation as the complainant had stated wording like ‘not available for work’.  She denies the complainant’s allegations in relation to the ice rink incident.  The complainant stated that she told her to hold her coat and coffee.  The Principal said she does not drink coffee.  In relation to the complainant’s accident in the school, the Principal was not present but as far as she was informed, the complainant wanted the staff member in charge to call her partner not an ambulance.  Regarding the school bus issue, she said there was no message from the secretary that the complainant was looking for her, and that she was obliged to write to the complainant about the matter but it was not a disciplinary issue.  The complainant did tell her that she was looking for another job.

Findings and Conclusions:

CA-00026920-001 - Employment Equality Acts 1998-2015

Time limit issue

Section 41 (6) of the Workplace Relations Act 2015 provides:

“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

As the complainant’s employment ended on 3rd May 2018, her complaints were received on 10th March 2019, and the most recent date of alleged discrimination as contained in her complaint form was cited as 10th September 2018, the complaint is clearly out of time as per Section 41 (6) unless saved by Section 41 (8).

Section 41 (8) provides:

“an adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause”.

The issue to be decided is whether the failure to present the complaint within the period was due to reasonable cause. 

In support of her application for time to be extended, the complainant stated reasonable cause being that she was not able to make this complaint fully as she was physically and mentally unwell which could be verified by her GP.  She did not understand that her complaint was not covered by her original complaint under Unfair Dismissal or that she had to separately lodge such complaint.

I note that the complaint reference number CA-00022886-001 under the Unfair Dismissals Act 1977 contained many of the substantive issues referred to in the complaint under the Employment Equality Acts and that complaint was submitted in time.   The complainant has failed to provide any actual evidence that would discharge the burden of proof that the failure to present her complaint under the Employment Equality Acts within time was due to reasonable cause.  The complaint is out of time. 

CA-00022886-001   Unfair Dismissals Act 1977

The definition of constructive dismissal as contained in the Act is:

“the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”.

In a claim of constructive dismissal, the onus of proof rests with the Complainant to prove that the conduct of the employer was so unreasonable that that the employee cannot fairly be expected to put up with it any longer, and the employee is justified in leaving the employment.

In such cases the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered.   It is well established that, just as an employer is obliged to utilise fair procedures and due process when considering disciplinary action potentially leading to dismissal, so also must an employee give the opportunity to the employer to remedy matters. 

In this instant case, from a perusal of the 34 points in the complainant’s submission above, it is clear that many of the issues relate to the treatment of SNAs and their conditions of employment.  It seems that there was a history of disputes between the Special Needs Assistants and the Principal of the school, especially in relation to extra hours and working conditions. This is an industrial relations issue, which is a matter for the ETB and the DES and the relevant unions.    

Regarding the specific complaints the complainant outlines as they relate to her, cogent evidence was given by the Principal refuting many of the complainant’s contentions.  No evidence has been given to show that a specific grievance was raised as provided for in the nationally agreed document “Grievance Procedure for Staff employed by Education and Training Boards (ETBs)”.    I note the reference to a letter from the complainant to the Principal dated 1st June 2017.  However, that letter refers to a potential referral of a grievance, not an actual submission of a grievance.  

Generally, the criterion regarding the behaviour of the employer is taken to mean something that is so intolerable as to justify the complainant’s resignation, and something that represents a repudiation of the contract of employment.  In effect the question is whether it was reasonable for the employee to terminate the contract on the basis of the employer’s behaviour.

In this regard The Supreme Court has said that:

‘The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.’ (Finnegan J in Berber v Dunne’s Stores [2009] E.L.R. 61).

The conduct of the employer complained of must be unreasonable and without proper cause.  The complainant paints a picture which casts the Principal as someone who was impossible to work with.  However, the evidence shows a different side and it is worth examining the lead up to the complainant’s resignation and to specifically examine whether it was due to the conduct of the Principal.

I note the number of affidavits and sworn statements sent in by the complainant in support of her case.  I have not accepted any statements which do not reference specific first-hand experience relating to the complainant.  The complainant at one point was the SNA Rep and she had cause to complain to the Principal about issues.  I note the matter of 72 hours and the Croke Park Agreement was an issue which exercised both parties.  I find from the evidence that the Principal appears to have been very exercised about the hours and monitored the situation closely, and this was her right and obligation as a manager in the system.   I note that in his introduction, the complainant’s representative stated that this whole matter is about how the Principal treated SNAs. However, the issue at hand here is to decide whether the complainant had no choice but to resign in circumstances where the conduct of the employer was such that it was reasonable for her to do so.   In order to focus on the complainant’s situation, I find it appropriate to examine the specific issues leading up to the resignation.  While some of the issues outlined by the complainant prior to 2017 show a deep rooted animosity towards the Principal, some of which was openly displayed and some of which was not, the relationship as portrayed by the complainant is not always borne out by the evidence, as the following examples illustrate:

8th September 2017, text messages submitted by the respondent show that the Principal helped the complainant with an interview and the complainant thanked her stating  “I just wanted to wish you a lovely weekend and thank you again for your help and thoughtfulness yesterday with my interview” and “Thank you so much for everything, I really appreciate your kindness x”

Regarding the complainant’s accident on 7th December 2017, when she walked into a pole in the school.  I note that the Principal was not on the premises on the day.  Text messages provided show that the Principal showed concern and sympathy for the complainant and the complainant’s appreciation of the concern shown. 

The minutes of staff meeting on 22nd December 2017 show that the complainant was congratulated on securing a new job and thanked for all her hard work in the college.

On 21st March 2018 the complainant attended a school event held outside the school and she brought her daughter who was not a pupil on the school bus.   The Principal reprimanded her in a letter dated 26th March 2018.   This letter advised her that she was being marked absent without approval and hours would not be counted.  The letter pointed out that had the complainant sought approval from the Principal there would have been no issue.  The letter also pointed out that the complainant’s daughter who was not a student at the school was not insured to travel on the bus.

On 28th March 2018 at 16:14 the complainant wrote to the Principal excusing some of the actions she took on 21st March stating that she thought she was helping a colleague and that she had permission from a senior staff member.  She also extended her apologies.   At 16:20 the same day,  the complainant submitted a late application for a career break and the Principal agreed to process it although it was out of time.  In her application, the complainant stated that she had a few difficulties since early the year before with a family member’s chronic illness and her own accident at the school.  She said she had been unhappy in the school for some time and had looked elsewhere for employment, which had not “transpired to date.”

On 5th April 2018, the complainant resigned.

I find that the evidence shows that the Principal was robust in managing the staff and the complainant took exception to her managerial style.  However, aside from a threat of bringing a grievance on 1st June 2017 when the complainant stated in correspondence to the Principal that she may have to invoke a grievance against her and expressed the hope that “it won’t come to that”, I find no evidence of a grievance being submitted by the complainant.  I find it significant that the complainant was candid in her application to the Principal when submitting her late application for a career break when she outlined her personal difficulties.  I find from the evidence, that the complainant resigned of her own volition and was not forced to by the actions or conduct of the Principal.  Further, as she was an experienced representative, she had full knowledge of the grievance procedure and did not utilise it.

I find her complaint that she was unfairly dismissed by way of constructive dismissal to be not well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

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.

I have decided that the complaint is not well founded.

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

I have decided that the complaint is out of time and is not well founded.

Dated:   10th August 2023

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Key Words: