Worker

Employer

Anonymised Parties

A Special Needs Assistant

A Special School

Representatives

 Forsa Trade Union

Mason Hayes & Curran LLP

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00000371

14/06/2022

The Worker worked for the Employer which is a special school as both a bus escort and a special needs assistant (SNA). She worked for the Employer as a bus escort since 2013 and as an SNA since September 2021.

The Worker raised two grievances with the Employer which she says were not processed correctly or at all.

1.       The Worker submitted a grievance to the Board of Management (BoM) against the Principal in relation to a meeting in October 2021, which she submits she subsequently learned (in March 2022) had been a disciplinary meeting.

2.       The Worker submitted a grievance against a class teacher, through the Principal, in his capacity as Secretary to the Board of Management.

The Employer raised a preliminary point in relation to the WRC’s jurisdiction to hear this dispute, submitted under the Industrial Relations Act 1969. The Employer received notification of the IR complaint herein during the school holidays and therefore did not have sight of it until the school year began. It then responded immediately to object to the WRC investigating the complaint but was outside the time-limit for doing so prescribed in the legislation. It sought to rely upon the postal rule in this regard. The Adjudication Officer at the hearing adjourned briefly to consider that submission and determined that the section in the legislation is clear and that the time-line is a strict one, and therefore the matter is properly before the WRC.

In relation to the first grievance:

The Worker submits that the Employer, later through its Solicitor notified the Worker that it would not be proceeding with the grievance as lodged as the Worker was on sick leave. The grievance was submitted while the Worker was on sick leave. The Worker was assessed by Medmark as fit for work on May 9th, 2022, and was then placed on a period of administrative leave by the Board of Management, at the next Board of Management meeting. When this was queried, the school replied through its Solicitor that it would not be pursuing the Worker’s grievance as she was on administrative leave, and it could not have her on school grounds. The school did not attempt to convene proceedings outside of school hours or away from school grounds. The school did not engage with the Worker as to this grievance. The school, through its Solicitor, also refused to engage with the Worker on the matter of her grievance on the basis that she was outside the window for appeals as per Cl 72/2011. The school further refused to process the grievance on the basis that the Worker had not sought to informally resolve the issue directly with the Principal in line with the applicable circular – the applicable procedure in relation to this is disputed by the Worker, who submits that there is an informal mechanism available to her (a nominee of the BoM as the grievance is against the Principal) which she sought to utilise and the school failed to facilitate this; and on the basis that Cl 72/2011 does not allow for a grievance process to be taken for “matters arising from the implementation of the disciplinary procedures.”

In relation to the second grievance:

An allegation was made by a colleague against the Worker (SNA) in relation to her treatment of a child. That complaint was referred by the school to An Garda Siochána and to Tusla (State child protection agency), in line with the required procedure. The Worker then raised a grievance citing bullying by a class teacher. The Worker submits that the Employer, through its Solicitor, notified the Worker that it would not be proceeding with the grievance as lodged as the Worker was on sick leave. The grievance was lodged while the Worker was on sick leave. The Worker was assessed by Medmark as fit for work on May 9th, 2022, and was then placed on a period of administrative leave by the Board of Management, pending the criminal (and child protection) investigation, at the next Board of Management meeting. When this was queried, the school replied through its Solicitor that it would not be pursuing the Worker’s grievance as she was on administrative leave, and it could not have her on school grounds and that the school did not attempt to convene proceedings outside of school hours or away from school grounds. The school did not engage with the Worker as to this grievance.

The BoM did not return any correspondence to the Worker in relation to this grievance. The Worker submits that in the absence of the Worker being provided with a Dignity at Work Policy or indeed a Bullying Policy the appropriate policy under which the Worker could and should raise her complaint is Cl 72/2011. This is comprehended within Cl 72/2011 “The Grievance Procedure shall generally relate to breaches of school rules, policies, procedures or practices.”

In relation to the first grievance (lodged against the principal).

In October 2021, the Worker submits that she was instructed by a teacher to attend the school principal’s office. She submits that she was given no prior notice of the meeting and was not advised in advance as to the purpose of the meeting. She also submits that she was not advised as to the policy governing the meeting, was not provided with a copy of a document she was required to sign at this meeting and was not provided with any minutes of the meeting. The Worker submits that she was later led to believe (in March 2022) that the meeting was a disciplinary meeting and the document she was asked to sign was a notice of a verbal warning. The Worker submits that she was not provided with a copy of the verbal notice, nor was she advised of any right to appeal, and further submits that she had also not been provided with a copy of Circular 72/2011 the SNA Grievance and Disciplinary Policy, at that time. The Worker submits that when it came to her attention in March 2022 that this had been a disciplinary meeting, she submitted a grievance.

The Worker submits that the Employer, later through its Solicitor notified the Worker that it would not be proceeding with the grievance as lodged as the Worker was on sick leave. When this was queried, the school replied through its Solicitor that it would not be pursuing the Worker’s grievance as she was on administrative leave, and it could not have her on school grounds. The school did not attempt to convene proceedings outside of school hours or away from school grounds. The Worker was assessed by Medmark as fit to return to work on May 9th, 2022, and was then placed on a period of administrative leave by the Board of Management, at the next Board of Management meeting. The school did not engage with the Worker as to this grievance. The school, through its Solicitor, also refused to engage with the Worker on the matter of her grievance on the basis that she was outside the window for appeals as per Cl 72/2011. The Worker submits that this is despite the fact that the school did not provide the Worker with a copy of the Cl 72/2011 at the time of the disciplinary process nor did it notify her at the time of the appeals mechanism, nor did it provide her with a copy of the verbal warning. As the Worker was not provided with all of the pertinent information on which she should rely to guide her through a disciplinary process the Worker was within her rights to raise a grievance against the Principal regarding what she now understood to be a disciplinary process that was not convened in line with Cl 72/2011 and did not afford her fair procedure and natural justice. The school also refused to engage with the Worker in relation to this grievance on the basis that she did not comply with the process as set out in Cl 72/2011 and seek to informally resolve the issue directly with the Principal and that the Principal had not prior notice from the Worker as to her complaint. The Worker submits that it is her understanding of Cl 72/2011 that as the grievance related to the school principal, the Worker could request informal resolution with a nominee of the Board of Management. This was requested by the Worker yet not facilitated by the school. The school also refused to engage with the Worker on this grievance as Cl 72/2011 does not allow for a grievance process to be taken for “matters arising from the implementation of the disciplinary procedures.” The grievance was in relation to the school principal not administering the disciplinary procedures in accordance with Cl 72/2011. The Worker was not made aware at an earlier juncture that she was in a disciplinary meeting, not provided with the allegation against her, not provided with an opportunity to provide a defence and was issued a disciplinary sanction without the benefit of a copy being provided to her nor advised of her rights under Cl 72/2011 in relation to same. Therefore, the Worker had a well-founded grievance against the school principal. In March 2022, after the Worker submits that after she came to understand that this was a disciplinary sanction, she made a complaint to the Board of Management (BoM) of the school. This complaint was lodged under Cl 72/2011 and made through the school principal in his capacity as secretary to the BoM, as the Worker did not have knowledge as to who the Chairperson is. The Worker submits that the BoM did not return any correspondence to the Worker in relation to this grievance.

In relation to the second grievance (against a class teacher)

The Worker submits that the Employer through its Solicitor notified the Worker that it would not be proceeding with the grievance as lodged as the Worker was on sick leave. The grievance was lodged while the Worker was on sick leave. The Worker was assessed by Medmark as fit for work on May 9th, 2022, and was then placed on a period of administrative leave by the Board of Management (BoM), at the next Board of Management meeting. When this was queried, the school replied through its Solicitor that it would not be pursuing the Worker’s grievance as she was on administrative leave, and it could not have her on school grounds. The school did not attempt to convene proceedings outside of school hours or away from school grounds. The Worker submits that the school did not engage with the Worker as to this grievance. The Worker submits that the school contends that the Worker cannot lodge a grievance against another member of staff under Cl 72/2011 when the grievance relates to accusations of bullying, that the school advise that this can only be done through the school’s Anti Bullying Policy but that the school did not provide a copy of this to The Worker. Furthermore Cl 72/2011 clearly states it may be used in instances of breaches of school rules and policies, therefore the school’s assertion is incorrect and this grievance should have been heard.

The Worker submits that the school also states that it will not engage in any grievance investigation or process with the Worker as she is subject to a statutory investigation and to do so ‘may interfere with a criminal investigation.’ The Worker submits that matters were unrelated to the complaint under investigation by An Garda Siochana and Tusla and therefore could have been heard without prejudicing such investigations. 

The Employer submits, as follows:

On 12 September 2022 the Respondent objected to an Adjudication Officer investigating the complaint under section 13 of the Industrial Relations Act 1969. Section 13(3)(b) of the industrial Relations Act 1969 states:

(b) A rights commissioner shall not investigate a trade dispute— (i) if the Court has made a recommendation in relation to the dispute, or

(ii) if a party to the dispute notifies the commissioner in writing that he objects to the dispute being investigated by a rights commissioner

Without prejudice to its position outlined above, the Respondent also notes that the Worker has made a complaint under Section 13 of the Industrial Relations Act, 1969. While the same strict limitations in relation to time made under that Act do not apply, the Respondent’s position is that the matters complained of under this complaint also relate to matters outside of the normal time frame within which an employee would reasonably be expected to bring a complaint forward in relation to a trade dispute. Some of the contentions in the section 13 complaint relate to incidences which allegedly occurred in October 2021.

The proceedings brought by the Worker pursuant to Section 13 of the Industrial Relations Act 1969 is subject to the limitation contained at Section 13(2) of the 1969 Act. It provides as follows:

“Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner”.

The complaint advanced by the Worker relates to how the grievance procedure and disciplinary procedure is conducted during sick pay and administrative leave and also on how the procedure is run. It is respectfully submitted that the matters which the Worker seeks to complain of fall foul of the exclusion highlighted in bold above regarding disputes relating to a body of workers and therefore the WRC does not have jurisdiction to hear this matter. 

To highlight the collective nature of this claim, schools across the country deal with SNAs while on sick leave and administrative leave and that it is the standard that the applicable procedure would pause while an employee is on sick leave or administrative leave.

In support of this position, the Respondent enclosed a copy of the determination of the Labour Court in the National Museum of Ireland, Museum of Country Life v A Worker – Decision No. LCR2249.  It submits that this case involved the interpretation of a piece of statutory legislation in relation to pension entitlements.  While on the face of it the case concerned a singular issue, the recommendation itself would have had wider ramifications for all employees.  In this case, the Labour Court held that:

“The Court is satisfied that the issue in dispute would require an interpretation of the Public Service Superannuation (Miscellaneous Provisions) Act 2004. Therefore, it is clear that the effect of such an interpretation is not confined to one individual. Potentially at least, it impacts on others whose circumstances are similar. In these circumstances the Court is satisfied that any decision that it would make in this case would, actually or potentially, affect the pay of a group of workers.

Section 13(2) of the Industrial Relations Act 1969 precludes an Adjudication Officer from investigating a trade dispute that is connected with the rates of pay of body of workers. For the reasons referred to above the Court is satisfied that the subject matter of this dispute comes within that prohibition.”

It concluded its decision by stating that:-

“In those circumstances, the Court cannot but conclude, for the reasons given on two separate occasions in this employment as outlined above, that the within dispute was not properly before the Adjudication Officer and is therefore not properly before the Court”

While the Respondent is cognisant of the desirability of resolving industrial relations matters by way of appropriate dialogue and communication through the appropriate industrial relations channels, it is respectfully submitted that in order to make a recommendation pursuant to a complaint made under Section 13 of the Industrial Relations Act 1969, the WRC must be satisfied that it enjoys the necessary jurisdiction in the first instance.  It cannot be disputed by the Complainant that her claim involves the interpretation of a National Agreement. Equally it must be accepted that any recommendation has ramifications for a body of workers and not just the Complainant.  For this reason, this claim is not properly before this Adjudication Officer and therefore the claim must fail.

For completeness, the Principal largely disputes the Worker’s version of events in relation to the disciplinary meeting in October 2021.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

I conclude that I have the jurisdiction to hear the case and that the postal rule is not applicable to the time-line of the Employer’s objection, under the legislation.

In relation to the processing of the second grievance raised, I do not find for the Worker. I find that she was on sick leave until May 9th, 2022, and then at the next Board of Management meeting, she was placed on administrative leave by the Board, pending a criminal investigation, and an investigation by Tusla into a child protection matter. I find that the Principal and Board of Management acted appropriately in relation to this matter. For completeness, the Worker’s fixed-term contract with the Employer as an SNA ended shortly thereafter.

In relation to the first grievance raised, I find for the Worker. I find that the Board of Management cannot rely on the grievance ‘relating to the implementation of disciplinary measures’ as a basis for not hearing the grievance, in circumstances where the nature of the grievance raised is procedural and not substantive, and specifically where the (rebuttable) allegation by the Worker is that she was not on notice at the time that she was subject to a disciplinary procedure and therefore could not appeal within the prescribed time-frame under the disciplinary procedures as set out. The Board of Management as the Worker’s employer has an obligation to vindicate her rights to fair procedures and natural justice, in relation to any allegation against her which falls within the remit of discipline.

The grievance raised was in relation to the purported disciplinary meeting of October 2021 and its putative findings – the Worker alleges she was not on notice of either, properly or at all. In those circumstances, I conclude that the Board of Management cannot decline to investigate.

For clarity, an allegation may be rebutted, in the course of an investigation – and the Principal largely disputes the Worker’s allegations in relation to the October 2021 meeting. However, the approach adopted by the Board of Management would mean that a Worker unknowingly subject to disciplinary sanction would have no internal remedy available to him/her as the time limits pertaining to properly convened disciplinary meetings/measures had run in line with the applicable disciplinary circular – this is not consistent with the requirements of fair procedures and natural justice. Furthermore, the Worker has an obligation to exhaust internal remedies prior to referring a dispute to the WRC, which she sought to do. The complaint herein on foot of the failure/refusal of the Board of Management to process the Worker’s grievance once she became aware of the purported disciplinary meeting and its putative disciplinary findings, does not relate to the substance of any discipline or indeed the internal appeal time-limits in relation to a properly convened disciplinary procedure that has been set in motion, but instead (much more broadly) to fair procedures and natural justice, which properly come within the WRC’s remit.

I do not accept the argument advanced on behalf of the Employer that a WRC Adjudication Officer cannot make a finding in relation to the matter herein as it would have implications for ‘a body of workers.’ I note that the issue in the case cited on behalf of the Employer, National Museum of Ireland, Museum of Country Life v A Worker – Decision No. LCR2249, was that it had implications relating to the pay of a body of workers. That is clearly distinguishable from this case. The idea that the Worker is entitled to fair procedures and natural justice is not new law.

I conclude that as the Adjudication Officer assigned to investigate this case, I have the jurisdiction to make a recommendation, under the Industrial Relations Act 1969 which encompasses the requirement that:

1. The processes and procedures agreed between the parties (or, as in this instance, between the Department of Education and Skills in consultation with the unions and other stakeholders) are to be applied and

2. They are to be applied in line with the requirements of fair procedures and natural justice, and to fail to do so represents a breach.

I therefore conclude that, in such circumstances, the Board of Management was incorrect to fail and/or refuse to process the Worker’s grievance against the Principal.

IR - SC – 0000371 - I recommend that the Employer pay the Worker €500 compensation in full and final settlement of this matter.

Jurisdiction; Postal Rule; Objection; Processing of Grievances; Circular; Administrative Leave;