FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES: SCOIL AINE NAOFA (REPRESENTED BY MS. CHRISTONA O'BYRNE B.L. INSTRUCTED BY MASON, HAYES & CURRAN) - AND - MR MICHAEL HUGHES DIVISION:
SUBJECT: 1.Appeal of Adjudication Officer Decision No(s) ADJ-00025023 CA-00031775-001. DETERMINATION: Mr. Hughes, ‘the Complainant’, was employed by Scoil Aine Naofa, ‘the Respondent’, as a Special Needs Assistant, ‘SNA’, and was dismissed on 14 June 2019. The Complainant lodged a complaint with the Workplace Relations Commission, ‘WRC’ under the Unfair Dismissals Act 1977, ‘the Act’. An Adjudication Officer, ‘AO’ decided that the dismissal was unfair and awarded compensation of €10,000. The Complainant appealed to this Court and sought re-instatement to his job. The Respondent also appealed the AO Decision. Summary of Respondent arguments. The Complainant was dismissed subsequent to a disciplinary investigation that followed the statutory procedure set out by the Dept. of Education and Skills,’DES’, in circular letter 72/2011. He was dismissed having been found to have committed serious misconduct on 20 March 2019, where it was held that an incident of self-wetting was a considered reaction to the improvement plan put in place for him. The dismissal was upheld by an independent person who heard an appeal. Following some issues, which were not part of the decision to dismiss, the Complainant was issued with a Performance Improvement Plan, ‘PIP’, by the Principal on 11 March 2019. Under ‘Being vigilant and encouraging integration’ it was requested that the Complainant utilise designated break times to take his toilet breaks, as do other staff. The Complainant requested a meeting with the Chair. of the Board of Management, ‘BOM’, to discuss the PIP. On the day he was due to have this meeting, 20 March 2019, the Complainant presented himself in the Principal’s office. The front and crotch of his trousers were wet as if he had wet himself. He was holding a bottle of water, with only a small amount of water in the bottle. The Principal noticed that there was no smell of urine. He pointed to his trousers and said ‘Look what happened’. He then presented as if he was having a panic attack. A number of staff witnessed this. An ambulance was summoned. The Complainant left the Principal’s office and behaved in an unusual manner. He sat beside the door to the infant classroom and a number of teachers required the children to stay in their classrooms rather than take their breaks. The ambulance arrived, the Complainant had recovered and did not need to go to hospital. The Principal sought a medical report from Medmark who advised that the Complainant was not suffering from any disability requiring accommodation and that he was fit to work. The Complainant was placed on administrative leave following the incident. In the letter to him, he was advised also that, as per the DES circular, the BOM had requested a written report of an investigation into the incident from the school Principal. This was submitted to the BOM at a meeting on 15 May 2019. In her report, the Principal noted her concern that this behaviour had occurred in the absence of any medical condition which would explain it. She expressed her concern that the behaviour was a considered reaction to the improvement plan, which caused upset to students and disrupted the school day. The Board decided at this meeting that a disciplinary meeting should be held. The Complainant was informed by letter. He was advised that the purpose of the meeting was to give him the opportunity to respond to the Board regarding allegations made by the Principal. He was advised of his right to bring a union rep. or colleague. He was advised also that the Principal would not participate in the Board’s deliberations, though she would be present for the disciplinary meeting. The meeting took place on 10 June 2019. The Complainant attended alone. His behaviour at the meeting was bizarre. He refused numerous requests to give a response to the report, refused to answer questions or to co-operate. The Complainant requested to go to the toilet, which was agreed, but instead of doing so he walked around the room, found a bag of sweets which he began to eat and when asked if he wanted to go to the toilet replied that he did not but wanted to see if he was allowed. He then began doing exercises and singing ‘The Fields of Athenry’. The Chair. terminated the meeting, at which point the Complainant became agitated, ripped up documents and stated ‘I can’t even p**s around here’. He then shook a bottle of Cidona and opened it, which caused it to spill on the table. The Principal and the Complainant left the meeting and the Board deliberated. Having considered the evidence, the Board wrote to the Complainant on 14 June 2019 and indicated that it had decided that dismissal was warranted due to serious misconduct, the dismissal to take effect from the end of the school year on 31 August 2019. He was advised of his right to appeal. The Complainant submitted an appeal on 21 June 2019 and was informed on 22 July 2019 that his appeal would be heard by an independent person, Ms. Noreen Lawlor. The appeal was arranged for 28 July 2019. The BOM submitted its response in writing. The appeal upheld the decision to dismiss. The Board then came to a final decision, in accordance with the DES circular letter and terminated the Complainant’s employment from 31 August 2019. The procedure that led to the decision to dismiss was in accordance with the procedures in the Department’s circular letter. This providesinter aliathat in all cases of alleged serious misconduct, a full investigation will be carried out by the school principal to establish the facts. The Board letter of 12 June 2019 outlined that the Board was satisfied that the complaint from the Principal was substantiated. The decision to dismiss was reasonable and consistent with s.6(7) of the Act. As perAllied Irish Banks v Purcell (2012) 23 E.L.R.and consistent with the observations inBritish Leyland UK Ltd. v. Swift (1981) IRLR 91,the appropriate test for the Court is whether or not it was reasonably open to the employer to make the decision to dismiss, see alsoReilly v. Bank of Ireland (2015) IEHC 241. If the decision was within a band of reasonableness then it was fair. The BOM in this case had substantial grounds for dismissal based on the evidence of the Complainant’s serious misconduct and the breach of trust and confidence. The decision was upheld by the independent person on appeal. The dismissal was fair. If the Court does not agree, reinstatement and/or re-engagement are not appropriate or suitable remedies as the relationship of trust and confidence has broken down. Summary of Complainant arguments. The Complainant began working as a part-time SNA in February 2017 and from the beginning it was clear that children were exposed to aggression and shouting. In the summer of 2018, the Complainant was offered a full-time position and he wrote to the school about his concerns, which were conveyed to Tusla. Two months later he received a verbal warning for having sent two texts to a parent in the previous April. He accepted the warning but felt that it was an attempt to penalise him for having raised concerns. On 21 January 2019, the Complainant received a blank verbal response that ‘Tusla had no concerns’. Five minutes later, he attended a meeting with the Principal, the Chair. of the Board of Management, ‘BOM’ and a rep. on the Board, at which 31 complaints were read to him. This seemed like clear penalisation as all complaints related to when he worked in the ASD unit, where neither the teacher nor the other SNA made any complaints about him. The teacher did say that he could be ‘slow to react when a child lashes out’ but that she had not raised this with him as ‘it wasn’t a big deal’ While responding to the complaints, the Complainant also raised concerns regarding the Principal’s behaviour and followed up with a letter two days later. He waited several months for a response. While minor incidents were being recorded, major incidents were not. In constructing complaints and writing to Medmark about the Complainant, the Principal noted incidents similar to those of concern to the Complainant with children fleeing, or seeking to flee, the school. The Court is provided with a list of incidents, none of which were recorded in incident reports. Complaints from parents about the school were not investigated. The record of the second disciplinary meeting was written by the Principal and a similar mistake was made at the final disciplinary meeting, as noted by the WRC. There was no mention of the very serious allegations raised by the Complainant. The Principal introduced new toileting rules for him that were problematic for the Complainant. In March 2019, the Complainant was presented with a Performance Improvement Plan. He had no input into the design of this PIP. He needed a plan that would help him to remain calm and to speak out openly. Some other staff needed a similar plan. This was stressful. Tusla, the National Council for Special Education and the Department were responsible as SNAs were not allowed to attend basic child safe-guarding training. Three months passed and the Complainant received no feed-back regarding the matters raised by him. In March 2019, the Complainant experienced a toilet wetting incident, which was very stressful for the school and for him. The Complainant received verbal feed-back that Tusla had no concerns. The WRC process revealed that this was received on 8 July 2019, so the concerns were probably not notified until June 2019, a five-month delay. All correspondence with Tusla was conducted by the Principal, the person accused in the complaints. Occupational Health identified issues of an industrial relations nature in this case but put all responsibility back on the school to sort it out. When the Complainant first arrived in the school the then Principal utilised the Complainant’s practical skills to assist in caretaking tasks. He did extensive caretaking work for the school and was of great help to the then Principal. This impacted on his work as an SNA. However, much of the work was done outside school hours and when the new Principal arrived the physical environment was changed very much for the better. This work, Tusla feedback and exclusion from basic training was the background to the Complainant’s behaviour at the disciplinary meeting. The Principal writing non-stop at the meeting as BOM secretary caused significant stress. The Complainant and the Principal did not have a good relationship. The staff in the school suffered from stress and the Complainant lacked the skills to change this. Other services did not help. A psychologist’s instruction resulted in the psychologist and a teacher wrestling with a student and getting spat at. On another occasion a female psychologist was kicked. These incidents should have been recorded. An incident arose with a non-verbal child where the Complainant backed off and the Principal was clearly upset with the Complainant. Another child was hurt when being pinned down and her painful experiences were not recorded. SNAs were instructed to provide written feedback. In one such form another SNA identified the Complainant as ‘stupid and spaced out’. There was a culture of silence and not knowing what to do in the school and the Complainant was being blamed for having raised concerns. The Complainant loves his work and intends to continue in it. He has failed to find employment since his dismissal although he has applied for hundreds of SNA positions. The reference provided by the Principal, against whom he made complaints, has not helped. The Complainant was offered a Caretaker job in the school in September 2018 but he declined because SNA work is his main interest. He has completed a Level 5 Certificate in Early Childhood Education and Care. He has apologised to the school for the disruption caused by the wetting incident. The Principal has left the school now, so reinstatement would not involve work on that relationship. The dismissal was wrong and the Court must overturn it. Witness evidence. Ms. Lorraine Power. Ms. Power was the school Principal when the Complainant was dismissed. The witness described her extensive background and experience in education. She stated that she was Principal of the Respondent school until December 2022, when she left to take up another Principal post. The witness said that on 20 March 2019 the Complainant was due to meet the Chair of the BOM to discuss the PIP for him. Part of the PIP required him to manage his toilet breaks. The Complainant arrived in the office of the witness saying ‘Look what happened’ and pointing to his trousers which were wet on the crotch. He presented as if it was a medical emergency and asked for help. He was assisted to the toilet by the witness and the school secretary. He then came back to the office seeking help. His eyes were rolling. He refused to allow the witness to call his own doctor. She called a local doctor who declined to come out. The Complainant would not allow her to call his parents, with whom he lived. The witness called an ambulance. The Complainant was witnessed behaving strangely, staggering down the hallway. He sat outside a classroom. His eyes were rolling. Children were frightened and had to be kept in class so they did not get their break. The witness was worried for their safety. The Chair. of the BOM was called. The ambulance arrived about the same time as the Chair. The ambulance staff spoke to the Complainant. He appeared to be fine but maintained that he had a toilet accident. He was quick to point the finger at the school. The Chair. told the Complainant to take some time off. He drove home and appeared to be fine. The witness referred the matter to Medmark for a medical report. They replied subsequently to say that the Complainant did not appear to have a medical problem. This was concerning as the Complainant’s job was to look after vulnerable children. After a BOM meeting, the witness was asked to compile a report. She conducted a written investigation. She considered that the Complainant’s actions were a considered reaction to the PIP as it occurred on the very day that he was due to meet the Chair. of the BOM to discuss this and toilet breaks were an element of the plan. The witness said that three quarters of the school staff witnessed the incident which was very disruptive because the Complainant went into the corridor and leaned against the wall just as children were due to go on their break. One staff member said that she was alarmed by the incident. At the BOM meeting on 27 May 2019, the witness was present but did not participate in the deliberations by the Board. The Complainant seemed happy to go ahead and did not seek an adjournment. He was un co-operative and his behaviour was bizarre. He walked around the room. He ate sweets. He asked to be allowed to go to the toilet but then said that he did not need to go. He sang ‘The Fields of Athenry’ very loudly and largely directed at one member. It was intimidating. The Board took a break. It was put to the witness that the Complainant had said to the Court that he could either have cried or sung and he chose to sing. The witness said that he did not appear to be upset. He had a bottle of Cidona in his hand and seemed to be putting on an act. He did not seem genuine. After the break, the Board decided to terminate the meeting. The Complainant stood up. He was shaking water in a glass. He was shouting at the Chair. He ripped up documents. He was intimidating. He said ‘I can’t even p**s around here’. The witness left and took no part in any deliberations. The BOM decided that the relationship between the school and the Complainant was irreparably destroyed and the Complainant was dismissed. The Complainant appealed the decision. The appeal was heard by an independent party, Ms. Noreen Lawlor. The Complainant submitted a letter to her giving an account of the BOM meeting that was totally untrue. He included reference to the Vice-Principal who was not at the meeting. The BOM had to notify Tusla. The school had notified Tusla previously of issues raised by the Complainant. Tusla had responded by saying that they had no child protection concerns. The Complainant had raised these matters when he moved from part time to full time in his SNA role in August 2018. Issues raised by the Complainant in his appeal against dismissal were referred to Tusla, who responded by saying that they had no child protection concerns. Following his dismissal, the Complainant constantly raised issues with the Chair of the BOM. In response to questions, which the Respondent’s representative explained to the Court were related to the issue of remedy, the witness said that the Complainant subsequently turned up in the school at the end of June 2019 seeking a reference. He was referred to the BOM. He asked if he could retrieve items from the school and this was agreed. When he arrived, he was behaving peculiarly. He said that he had low sugar levels. He was given tea and biscuits but would not leave. He was on the corridor. The witness was concerned. The previous Chair of the BOM had told her to avoid being alone with the Complainant. Eventually, two men persuaded the Complainant to leave. He left through the back door and tried to re-enter. The Gardai were called. He then left. Although he had arrived on his bicycle, he drove away. On 6 December 2022, the witness was on her last day in the school. The Complainant arrived and followed the witness. He had documents in his hand that he said were for the Labour Court. She told him to send them through his solicitor. He asked to use the bathroom. He was behaving strangely. He was jumping and saying that he needed sanitiser. He left through the front door and approached children. He dropped documents and asked them to help him pick them up. The witness called the Gardai, who arrived just as the Complainant was leaving. They spoke to him. An hour later, the witness and others were asked by the Gardai for statements. A file was sent to the DPP but no further action was taken. The Complainant had no questions for the witness in cross examination. In response to questions from the Court, the witness reiterated that events prior to 20 March 2019 did not form any part of the report that she submitted to the BOM and were not part of the consideration that led to the dismissal of the Complainant. The witness clarified that the Respondent school was a mainstream school with a unit for children with autism. The witness expressed the view, in response to a question, that the Complainant was not suitable to work with children and, more specifically, with vulnerable children. She believed that he was/is a risk. She said that because of him she would not go into the school unaccompanied at night. Mr. Eamonn Loughrey. Mr. Loughrey outlined to the Court that he was a member of the school BOM from 2015 to 2019 and again from the end of 2021. He explained that he is a chartered accountant and works as a Director of Services for the Brothers of Charity service. The witness attended the BOM meeting to consider the outcome of the Principal’s investigation into the Complainant’s behaviour. He described how the Board had asked for and received a report from the Principal, in line with the Department’s circular letter. The witness said that the behaviour of the Complainant at the meeting was bizarre. The Board was meeting to gather evidence and make a decision. The Complainant would not engage. He refused to sit down. The report was put to him. It was a serious matter but he responded by singing. He chose not to take the opportunity to respond or comment. It was very frustrating and threatening. The witness said that the Board felt that there was no alternative but to terminate the Complainant’s employment. He was charged with looking after pupils. It was put to the witness that the Complainant disputed the account of the meeting. The witness said that the teacher rep. on the Board kept the record. The Complainant’s account was inaccurate. The Vice Principal was not at the meeting. The Chair. never asked the Complainant to leave nor did he ‘sternly repeat’ the demand, as alleged. The Complainant was given every chance to respond. He did not challenge anything. The Complainant’s previous behaviour was known to the Board. The witness said that he shared the opinion of the Principal that the Complainant’s behaviour on 20 March 2019 was a reaction to the PIP. The witness said that confidence in the Complainant was destroyed by his behaviour at the Board meeting and he asked how could he be trusted by the Board? The witness attended the appeal. The Complainant turned up with an open bottle of non alcoholic beer, which he proceeded to drink. The witness described the behaviour of the Complainant as ‘ridiculous’. The witness had no questions for him at the appeal. The witness said that he was not aware that the Board had any child protection concerns and he understood that this was the view of Tusla. The witness said that he was aware of the subsequent instance of the Complainant turning up in the school unannounced in December 2022. This had raised huge concerns and fear in the school, necessitating the development of a protocol. In response to questions in cross examination, the witness, when asked why there appeared to have been a delay of nearly six months in concerns being conveyed to Tusla, responded by saying that the Board relied on Tusla, who had said that there were no child protection concerns. The witness denied that his role with the Brothers of Charity had any relationship to his functions as a member of the BOM. In response to a question from the Court, the witness said that the behaviour of the Complainant at the meeting of the BOM was, in his view, the main factor in the decision to dismiss him. Mr. Michael Hughes. Mr. Hughes is the Complainant. Mr. Hughes confirmed to the Court under oath that his account of the events set out in his submission was a truthful and honest account. The Respondent’s representative had no questions for the witness. In response to questions from the Court, the witness said that he loved being an SNA but that he had raised concerns about how some children had been treated. The witness said that he had ‘wet his pants’ on 20 March 2019. He denied having made this up. He denied having a bottle of water in his hand when entering the Principal’s office and said that this was given to him later by a teacher. The witness said that he was not allowed to use the toilet. When it was put to him that this was not true and that he could use the toilet once he arranged cover, the witness said that whenever he used it, the Principal waited on him outside and he feared being confronted. The witness denied that his behaviour was designed to avoid a meeting on the PIP. He said that his behaviour was uncharacteristic, that he had never asked for a doctor and that he had suffered a level of panic. He said that he went out to the corridor as he needed a drink. He just wanted to go home to change his pants but the school had created a drama by not just allowing that. The witness could not remember if he had received the Principal’s report before the Board meeting. He accepted that his behaviour at that meeting could be described as extraordinary but denied that he did not engage, saying that he did his best. He said that the Vice Principal did bring him into the meeting, she did not attend but she brought him in. Three minutes into the meeting the witness said that he was asked to leave by the Chair. but he could not get out as the meeting was in the autism unit. He said that, to the best of his ability, he did engage but he was very angry at how he was treated. He said that he engaged with the appeal to the best of his ability. The witness disagreed with the descriptions given of his subsequent visits to the school. The witness said that he had not worked since his dismissal until recent months but he had applied for many SNA positions. He had secured only one interview for an SNA position. He was currently on a job placement. When asked if he considered himself suitable for SNA work, the witness said that being an SNA was his career, prior to which he had been unemployed and engaged in largely voluntary work over a long period since leaving school. He had experience working in Joinery. The witness said that he and others had made mistakes but felt that it was time to move on. When asked why the Court should put him back into his job, the witness said that he was a good SNA and that he loved working with children. He had gone on since his dismissal to secure a further qualification in child care. The applicable law. Unfair Dismissals Act. Unfair dismissal. 6.—(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal (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. Redress for unfair dismissal. 7.—(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances: (a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or (b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or (c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations undersection 17of this Act) as is just and equitable having regard to all the circumstances, or (ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances, and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership. 2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to— (a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer, (b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee, (c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid, (d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) ofsection 14of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister, (e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and (f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal. Deliberation. The procedures employed by the Respondent to arrive at the decision to dismiss have been carefully considered by the Court in the context that, notwithstanding the facts, an obligation rested upon the Respondent to ensure that any disciplinary procedure was conducted with full regard to the requirements of natural justice and fair procedures. Following the landmark decision on the Constitutional right to fair procedures inIn Re Haughey [1971] 1 IR 271, the application of that right in an employment context was considered inGlover v BLN Ltd [1973] IR 388. Here, a question arose as to whether the plaintiff’s dismissal was rendered wrongful at common law by the defendant’s failure to afford him a fair opportunity to defend himself against charges of gross misconduct. It was submitted on behalf of the defendant that since the evidence of wrongdoing on the part of Mr Glover was so overwhelming the absence of a fair hearing on the charges against him made no practical difference to the result. That submission was emphatically rejected by the Supreme Court. Walsh J stated: - “The obligation to give a fair hearing to the guilty is just as great as the obligation to give a fair hearing to the innocent” A frequently quoted statement of the law on the importance of observing the rules of natural justice in all circumstances in which misconduct is alleged, is that ofMegarry J in John v Rees [ 1969] 2 WLR 1298. This case arose from a serious dispute within a constituency association of the British Labour Party. A number of individuals had been expelled from the party, including a Member of Parliament, following an outbreak of violent disorder at a meeting of the Party. The case concerned, inter alia, the obligation on the National Executive of the Party to apply fair procedures before expelling members of the Party. The Judge said: - As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change. It is clear from these authorities that, in law, there is no such thing as an open and shut case. No matter how hopeless it may seem, a person accused of wrongdoing is entitled to a fair hearing in accordance with the rules of natural justice. In the instant case, it is evident to the Court that there are deficiencies in the circular letter issued by the Department to schools and that, by following the instructions set out in that circular letter, the rules of natural justice were breached by the Respondent and, as a result, the Complainant was denied fair process. In accordance with the terms of the circular letter, the Principal conducted an investigation into the Complainant’s behaviour on 20 March 2019. However, the Principal was both the source of the complaint regarding the Complainant’s behaviour and chief witness to same. Therefore, by compiling an investigation report, the Principal, albeit while acting in accordance with the Department’s instructions, acted in breach of the principle of natural justice that she cannot be a judge in her own cause, ‘nemo iudex in sua causa’. The Principal was not asked to set out her account of events. She was asked to conduct an investigation and to report on same. In the circumstances, this was wholly inappropriate. It is clear that the circular letter, with which, to be fair, the Principal complied, is in need of some revision to deal with situations where the Principal is at the heart of a complaint and/or a witness. Furthermore, the input of the Complainant was not sought in the compilation of the investigation report. Therefore, a report that was, at least theoretically, an investigation report was put to the employing body, the Board of Management, based on which they were to take a decision regarding possible disciplinary action against the Complainant. The report, which purported to be an investigation report and, crucially, not just the Principal’s account of events, contained no input from the Complainant. A proper investigation must, inevitably, afford all parties every opportunity to give their account of events. Failure to afford this opportunity to the Complainant was a breach of the other rule of natural justice ‘audi alteram partem’ or the right to be heard. While it might be argued that this right was afforded to the Complainant at the subsequent meeting of the Board, it is inarguable that any Board of Management will, inevitably, be influenced heavily by what purports to be an investigation report but which, in reality, was no more than the report of the Principal on events as she witnessed them, with supporting information. Again, the Court notes that the failure to afford the Complainant his rights derives largely, if not wholly, from a lack of clarity in the circular letter of the Department. Proper and fair procedure requires a truly independent investigation of events. This cannot and must not involve the Principal in such an investigation if he/she is the source of complaint and/or a significant witness to the relevant alleged events. The proper and only role of the Principal in the circumstances of the instant case should have been that of a witness. She ought not to have been put in a position due to a poorly constructed set of procedures, where she was the source of the complaint, chief witness, sole investigator and an attendee at a disciplinary hearing in her official capacity, rather than as a witness, albeit without her having input into deliberations on possible sanctions. It would have been reasonable of the Board to ask her for a report on the incident and then to have appointed an independent investigator, whose report could then have led the Board to consider whether or not there were grounds to initiate disciplinary proceedings. None of the above should be read as criticism of the Principal, who, the Court accepts, acted to the best of her ability and in good faith in accordance with the Department’s instructions throughout. Similarly, the Board of Management is made up of people who give their time voluntarily to assist their community and there is no evidence that the Board did anything other than attempt to do their best, to act in good faith and to follow the procedures set out for them. The fault lies firmly in the deficiencies in those instructions. One matter of exception to the above that is of concern to the Court regarding the Board’s decision making was the view expressed by Mr. Loughrey that the Complainant’s behaviour at the disciplinary meeting was the main reason for the decision to dismiss. If that was so then the Complainant was entitled to be told that his conduct at the meeting was of concern and that it could influence the Board’s decision. He was entitled to be told that and he was entitled, under the ‘audi alteram partem’ principle, to be given the opportunity to put forward his response. Failure by the BOM to discharge these obligations is a further concerning breach of the Complainant’s rights to natural justice. One final issue of concern with the Department’s circular letter noted by the Court, though not of direct concern in the instant case, is that the procedure provides for a Board of Management to act as a party to an appeal of its decision regarding disciplinary action but that the outcome of the ‘independent’ appeal, (emphasis added), is then subject to further consideration by that very Board. This gives rise to the possibility that a Board could, quite legitimately in line with the procedure, decide not to honour the outcome of an appeal in respect of which they were an interested party. It is self evident that fairness of process dictates that this matter also needs attention. Due to the fundamental failure of fair process, as outlined above, the dismissal of the Complainant is unfair. The issue then for the Court to consider is the appropriate remedy for this unfairness. The Complainant argued strongly that he did not just lose his job but that failure to reinstate him back into that job will result in him losing his career. However, the Complainant did not dispute to any significant degree the description of his behaviour in the school on 20 March 2019. It is difficult to see how the Court, notwithstanding any legitimate concerns about the procedures applied, could suggest that the Board could have anything other than the gravest concern about such behaviour, not least because the Complainant was required to work with vulnerable children. Similarly, while the Complainant was, most unfairly, denied the opportunity to explain his behaviour at the Board meeting before he was dismissed, he was afforded this opportunity before the Court. While there are some disagreements between the parties as to specific details, it is not denied by the Complainant that he walked around the room, ate sweets, sang loudly, asked to go to the toilet then admitted that this was just some sort of ruse and then ripped up documents, all of which actions were taken rather than sitting down and providing an explanation of his behaviour in respect of the matter under consideration, a matter which, in the circumstances, was certainly of legitimate concern to the Board. Furthermore, the description of the actions of the Complainant subsequent to his dismissal was not challenged. While this is of no relevance to the unfairness of the dismissal, the Court cannot ignore this behaviour in its consideration of a remedy. Nothing that the Court heard from the Complainant in respect of the incident that led to the proceedings or regarding the Board meeting or regarding his subsequent behaviour could lead the Court to the view that the most appropriate outcome would be to put the Complainant back into his former workplace. Any such decision would be, in the circumstances quite justifiably, a cause of concern to staff, pupils and parents in the school. The procedures used in this case denied the Complainant his rights and rendered his dismissal unfair. However, they do not diminish the right of the Respondent to have very understandable concerns about the Complainant’s behaviour; concerns that have irretrievably severed the essential bond of trust between the parties and, in the view of the Court, make it impossible to determine that re-instatement or re-engagement would be appropriate. The Court determines that compensation is the appropriate remedy. In considering the extent of any compensation, the Court is required to consider the extent to which the actions of a dismissed employee contributed to dismissal, actual financial losses incurred due to dismissal and attempts to mitigate any such losses. With regard to the latter, the Complainant provided no documentation to the Court to support claims that he sought employment. He did advise the Court, under oath, that he had applied for many SNA posts. He agreed that he had confined his job applications to such roles. No documentary evidence was provided of actual loss but, as he has only very recently secured a job placement, it is safe to assume that this has accumulated as his weekly wage multiplied by the number of weeks since his dismissal. By far the biggest consideration for the Court, in considering the scale of compensation on the facts of the case, is the extent to which the Complainant contributed to his own dismissal. It is not unknown for this Court to determine in cases where procedural flaws render a dismissal as unfair that the circumstances suggest 100% contribution to the dismissal by a complainant and that no award is warranted. This approach was considered by the Court in the instant case. However, the scale of breaches of the Complainant’s rights is such that the Court cannot be satisfied that it would be safe to say that the Complainant contributed 100% to his dismissal. What can be said is that he worked with vulnerable children, that his behaviour was so bizarre and disturbing that the Board had every reason for serious concern, that he has never offered an acceptable reason for such behaviour and that, as a result, he made a very considerable contribution to his own dismissal. Taking all of the above factors into account, the Court believes that an award of €2000 compensation, which is approximately four weeks’ salary, is appropriate for the unfair dismissal. The Court so determines. The Court also expresses the hope that the Department of Education and Skills will pay some attention to its observations above. Determination. The Decision of the Adjudication Officer is varied.
NOTE Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary. |
