Complainant

Respondent

Anonymised Parties

School secretary

Primary School

Representatives

Shane Lambert Fórsa Trade Union

Mason Hayes & Curran LLP /Cathy McGrady BL

Act

Complaint Reference No.

Date of Receipt

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

CA-00036122-001

12/05/2020

The background to this dispute relates to a period when the school principal was on extended leave and when she returned there were two categories of payments made to the Complainant that appeared to be unauthorized. The Complainant who is secretary at the school it is alleged paid herself increases that she was not entitled to and that were not sanctioned by the board of management.

The Complainant believed that she was authorised by the assistant principal to process these payments. The salary increases related to a pay increase that on the plain reading of certain circulars she was entitled to and was told by the assistant principal that she was likely to be entitled to, based on restoration of pay deductions made under the Financial Emergency Measures in the Public Interest (No.2) Act 2009.

 The second payment alleged unauthorised payment that related to a long-standing practice of claiming for work during holiday periods when the school was closed. The school principal disputed that practice existed.

The school secretary managed the payroll for staff who were paid by the school which was separate to the teaching payroll system.

This system was a more informal process with authorisation to make payments or increase hourly rates directed by the school principal and according to the Complainant without any  written board authorisation. The approval process was generally orally communicated.

The Complainant had an unblemished record with the school for 14 years while employed as school secretary.

The process followed by the school that led to the Complainant being dismissed was fundamentally flawed. The school principal in completing her report arrived at a finding that the Complainant had in fact misappropriated funds. It was not an independent fact find. It was hugely prejudicial to the Complainant’s defence. The most senior teacher/manager in the school in reaching such a conclusion before any disciplinary finding had been made meant that the Complainant was denied the right to a fair hearing. The Board thereafter was acting on a prejudiced report and any decision that followed on from that report had to be flawed.

The Complainant as school secretary became aware of a circular from the Financial Support Services Unit that indicated she was entitled to a pay increase. The acting school principal confirmed that she was entitled to that increase. The acting school principal stated that the Board had agreed to the increase. She was entitled to a 10% salary increase from January 2019. Thereafter the main issue was whether she was entitled to backpay.

The Complainant requested permission from the acting principal before she put through the pay increase. The Board she was told was reviewing her backpay amount if any.

On the 12th of March 2019 the Complainant received a letter from the Chair referring to her request for a pay increase and the Board had agreed a €1 hourly increase effective January 2019.

The Complainant was surprised at this development and wrote to the Chair and referred to the circulars that indicated she was entitled to a higher increase.

On the 24th of May 2019 the Complainant was invited to attend a meeting with the Chair and trustee of the school.  At this meeting the Complainant was advised of a circular from 2010 that instructed schools to cut secretaries salaries by 5%. The Complainant stated that the previous school principal had decided not to implement that increase. As no cut had been applied the Chair informed her that in fact she had been overpaid. Based on this perspective the Chair advised her to accept the €1 per hour increase as fair.

On the 4th of July 2019 the Chair again wrote to the Complainant and stated that the pay cuts did apply to her when they should have been implemented in 2010.

On the 18th of July 2019 the Complainant attended a meeting accompanied with her partner. The Chair presented her with a detailed figures which indicated that she had been overpaid by €24,329.69 and that money was owed back to the Department of Education who are not her employer.

At this meeting the school principal who had returned from leave stated that ignorance of the law was no excuse and that she could have held these funds in trust. At the end of the meeting the Chair stated that the school would take on the cost of the overpayment.

The school principal informed the Complainant that she was on temporary lay-off and could not assume that she would be returning in September 2019.

The Complainant received a letter from the Board on or about the 19h of August 2019 which stated that the amount owed in backpay was in fact €11,578.82.

The Complainant when she returned to work in September reduced her hourly rate of pay to €22.

On the 4th of October 2019 the Complainant was invited to attend a meeting with the principal and deputy principal. At that meeting she was asked why her pay had increased in January 2019 and who authorised it. The Complainant stated that the acting principal had.

The Complainant was never told in advance what this meeting was about, that it could give rise to disciplinary action/investigation. In effect she was ambushed.

The acting principal had approved the increase as verified by a subsequent mortgage application form and salary certificate that the acting principal signed detailing what the Complainant’s hourly rate was.

On the 7th of October 2019 the principal having compiled a report sent it to the Board, a highly prejudiced report. There was no independent and impartial investigation.

On the 9th of October 2019 a copy of the minutes of the meeting held on the 4th of October 2019 was sent to the Complainant. Those minutes were written up by the deputy principal who was central to the contradictory accounts concerning the authorisation or non-authorisation of the salary increase. The Complainant refused to sign these minutes.

The Complainant was suspended on the 21st of October 2019.

The Complainant had given herself unauthorised pay increases for the period January to June 2019 and overpayment of holiday pay amounting to an additional 2 weeks’ pay.

In an investigation of the matter the school principal concluded that the increases could not have happened by accident and that they amounted to misappropriation of school funds. It is alleged that the unauthorised payment was discovered when the principal returned to work in August 2019.

During the period of the alleged misappropriation the Complainant was in communication with Board seeking a pay increase. She was looking for an increase to €24 per hour and refused an offer of €23 per hour.  The Board did not authorise any pay increase.

The principal’s detailed report was sent to the Board and to the Complainant. The principal suggested that the matter required investigation and had not made any definitive finding.

The Board advised the Complainant that the disciplinary investigation would be conducted according to the statutory code detailed in SI 146/2000. The Chairperson wrote to the Complainant to advise her that pending the conclusion of the investigation she would be suspended with pay and this was not a punitive sanction rather allowing for the gravity of the allegations it would allow her to prepare for the hearing and investigation.

The disciplinary hearing took place on the 27th of November 2019. The Complainant was accompanied by her trade union official.

The Complainant presented a written submission to the Board. The Complainant was given the opportunity to challenge any evidence being relied upon.

The principal did not participate in the Board’s disciplinary investigation and decision.

The Board concluded that the allegations of unauthorised payments had in fact occurred and this amounted to a breach of trust and confidence and constituted gross and serious misconduct. Having reached this conclusion, the appropriate sanction was dismissal with immediate effect.

The Complainant was afforded the right to appeal the Board’s decision. The appeal was an external independent professional. The appeal was not upheld.

The Board reiterated the decision to dismiss effective from the 9th of December 2019.

The school have stated that they conducted a fair process overall and that the decision was within the band of reasonableness.

The Respondent has stated that the process was overall fair for the following reasons:

1.      The report of the principal was fair and comprehensive. It never made any adverse finding. It was a clear and objective report so that the Complainant knew what potential misdemeanours were in issue.

2.      The principal never took part in the decision to dismiss.

3.      The Complainant was given ample time to prepare for the hearing and it was only for that reason that she was put on garden leave, it was not punitive.

4.      The Board applied fair procedures and complied with the statutory code SI 146/2000.

5.      She was advised of her right to have Union Representation.

6.      She was advised that a written reply would assist the Board and the Complainant made a very detailed written submission which was fully considered.

7.      The Complainant was advised that she had the right of appeal to an independent Chair

The initial fact find by the school principal was flawed. Her report makes findings based on the facts that are highly prejudicial to the Complainant:

At page 3 of the summary the report states:

‘I am concerned that this amounts to the unauthorised taking of school money and is in effect the misappropriation of school funds. The total amount which I think may have been misappropriated by Ms Redacted amounts to €3,866.67

I do not believe that what occurred could have occurred by accident’

In the fact find report there is no fair statement of the Complainant’s explanation and her account to explain what happened and that the acting principal allegedly authorised the payment. The account is therefore very one sided. It cannot be viewed as an independent and objective account of what each of the main protagonists stated. It does lean towards a definitive view of what happened and that it amounts to theft.

The acting principal who was a central actor and protagonist in the matter was also participating in the process as an assistant to the investigator while the Complainant is clearly at arm’s length.

The fact find was not independent and strayed into the territory of making an adverse finding. It did identify facts that required a detailed response and do appear to be irregular. However, the guilt of the Complainant could only be determined after a fair hearing.

The question that must be asked does the disciplinary process that follows cure this defect or is it fatal to a fair hearing?

Redmond in Dismissal Law 3rd edition states at 13.14:

‘Perfect’ procedural justice has been defined as the ideal of a procedure guaranteed to lead to an outcome where justice is identified by some independent criterion. 24 The balance between substantive and procedural justice becomes most crucial in relation to the reasonableness of an employer’s decision to dismiss. Increasingly, procedural justice is being taken for granted by all concerned and the WRC’s function is to decide how exacting its tenets shall be. An employer will be regarded as having fairly dismissed an employee only if it both gave the employee the full benefits of a fair procedure and accorded him his just deserts or established a functional necessity for his dismissal. Section 6(7) of the Unfair Dismissals Act 1977 further emphasises the importance of reasonableness. In determining if a dismissal is unfair regard may be had:

(a)to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

And at 13.16 Redmond states:

The WRC will scrutinise an employer’s conduct very closely where the employer is faced with a problem requiring investigation. In Dunne v Harrington 26 its predecessor, the EAT, declared that an employer may investigate either:

‘(a) personally in a fair and reasonable manner, i.e., as fully as is reasonably possible, confronting the “suspected” employee with “evidence”, checking on and giving fair value to the employee’s explanation or comments and allowing the employee to be represented at all such meetings/confrontations if the employee requests it or a union/management agreement requires it and to produce “counter evidence” 27 or he may:

(b)rely on the reports of others. If he does so without confronting the accused employee with the contents of the same, without hearing, investigating, and giving value to his replies, giving him reasonable opportunity to produce rebutting “evidence”, and to be represented if the employee feels this to be desirable, then such employer breaches a fundamental rule of natural justice, viz, that the other party (i.e., the employee in these circumstances) should be heard. In short, an employer acting on the reports of third parties and not acquainting the employee with same does so at his peril if it results in the dismissal of that employee.’ 28

And at 13.22 Redmond cites:

The High Court in Loftus and Healy restated the issue thus. It was not a question of whether the ex-employees were deprived of procedures to which they were entitled but:

‘whether the denial to them of such procedures is such that the defendant must be deemed to have failed to establish ... [the basis of its dismissal] as the whole or the main reason for and justifying their dismissal

As I have found that the fact find investigation was flawed, I now turn to how the decision was made to terminate the Complainant’s employment and if the Respondent had established a basis for the dismissal and if denying the Complainant, a fair fact find/investigation fatally compromised their capacity to make that decision.

There are two allegations being made against the Complainant:

1.      She gave herself an unauthorised pay increase

2.      She paid herself 2 weeks holidays that were unauthorised

The Complainant has stated that her then manager authorised the salary increase.

 Her explanation for the holiday pay relates to an alleged well-established practice that allowed her to receive the payment for work that was over and above her normal pay.

The Complainant stated that her manager signed a salary certificate form when she was applying for a mortgage and that is independent verification that she was in fact authorised to receive that salary increase. Her manager stated that she signed that form without checking the detail and out of a desire to assist the Complainant to obtain a mortgage.

The Complainant was suspended with pay prior to the disciplinary hearing so that she could prepare for the hearing.

I note in O’Sullivan v HSE [2022] IECA 74 Noon J. restated:

The Continued Suspension of Professor O’Sullivan

103. The suspension of any employee is a serious matter. I commented on this in my judgment in Bank of Ireland v Reilly [2015] IEHC 241 where I noted, at para. 40: - “The suspension of an employee, whether paid or unpaid, is an extremely serious measure which can cause irreparable damage to his or her reputation and standing. It is potentially capable of constituting a significant blemish on the employee’s employment record with consequences for his or her future career. As noted by Kearns J. (as he then was) in Morgan v. Trinity College Dublin [2003] 3 I.R. 157, there are two types of suspension, holding and punitive. However, even a holding suspension can have consequences of the kind mentioned. Inevitably, speculation will arise as to the reasons for the suspension on the premise of there being no smoke without fire.”

The fact of suspension can give rise to an inference of prejudice.

On or about the 9th of December 2019 the Board wrote to the Complainant and stated:

The Board of Management has given careful consideration to everything that was said by you at the meeting. The Board has given careful consideration to the Principal’s report to the Board.

The Board does not appear to have addressed the Complainant’s grievance about the principal’s investigation being biased and prejudiced, that the deputy principal participated in that investigation; although she allegedly approved the salary increase; that the investigation report was one sided and made no reference to her account and explanations for receiving the payments. She also stated that the decision to suspend her was unfair and amounted to prejudice.

The Complainant submitted a very detailed submission to the Board; however, on the evidence presented it is not apparent that her key arguments were seriously engaged with by the Board and reasons given by them why they did not find those explanations credible on the balance of probabilities.

At a very high level it could be argued that the Complainant had the right to make a submission, was afforded the right of representation and that she was heard and could challenge the case made out against her.

However, the Complainant has made out a strong case that the process followed by the school was flawed in several respects. The fact find investigation was prejudiced as it was not an independent and impartial process and reached a negative conclusion that she had probably misappropriated school funds; the placing of the Complainant on suspension was prejudicial; the Board did not engage with the Complainant’s account of what happened or why they preferred the principal’s explanation and the deputy principal’s explanation with reference to the alternative explanations provided by the Complainant.

 I now turn to the appeal process.

The parties agreed that the submitted Appeal Report would suffice for the purpose of this Adjudication as the Chair of that appeal could not attend the hearing.

The appeal was to address specific issues which the appellant ‘feels have received insufficient consideration, as set out in the letter of appeal.’

The independent appeal did not uphold the appeal and the appeal itself consisted of three pages. The appeal was based on the following allegations:

1.      Breach of procedure which results in a fundamental flaw in the outcomes

2.      The Complainant was not afforded a reasonable opportunity to respond to the issue

3.      The Complainant could not have reasonably be expected to have understood that the alleged behaviour would attract disciplinary action

4.      Severity of the sanction imposed.

At this hearing the Complainant has stated that she was denied fair procedures; it is not clear that the appeal process also was requested to assess in detail how fair the process was in respect to the initial fact find, the suspension, the failure to engage with the Complainant’s account of what occurred and why those accounts did not find favour with the Board. The Chair of that appeal could not attend at the hearing.

I have concluded the process was flawed as the investigation and fact find was not impartial; that the deputy principal who allegedly authorised that payment was involved in the fact find as an assistant to the investigator; that the Board did not correct the flaws in the prejudice and negative findings in the principal’s report, that the decision to suspend was prejudicial, that the Board failed to give reasons why it did not accept any of the explanations provided by the Complainant and demonstrated that they had impartially engaged with her submission and evidence. The process while it appears to have complied with SI 146/2000, did so only at a very high level and, was prejudiced. The decision arrived at therefore by the board is such that the Respondent must be deemed to have failed to establish ... [the basis of its dismissal] as the whole or the main reason for and justifying their dismissal.

I determine that the Complainant was Unfairly Dismissed on the 9th of December 2019.

I have concluded that the Complainant was denied fair procedures. The process was flawed as the investigation and fact find was not impartial; that the deputy principal who allegedly authorised that payment was involved in the fact find as an assistant to the investigator; that the Board did not correct the flaws in the prejudice and negative findings in the principal’s report, that the decision to suspend was prejudicial, that the Board failed to give reasons why it did not accept any of the explanations provided by the Complainant and demonstrated that they had impartially engaged with her submission and evidence. The process while it appears to have complied with SI 146/2000, did so only at a very high level and, was prejudiced. The decision arrived at therefore by the board is such that the Respondent must be deemed to have failed to establish ... [the basis of its dismissal] as the whole or the main reason for and justifying their dismissal.

The Complainant has obtained a new role. The parties have made submissions concerning mitigation of loss. The Respondent maintained that the Complainant has failed to adequately mitigate her loss.

The Complainant has submitted that her losses to date amount to more than €50,000.

The Complainant’s salary was €819 gross weekly.

Reinstatement and re-engagement are not suitable remedies as the trust and confidence between both parties has been fundamentally broken.

While there are fundamental flaws in how the investigation was conducted that compromised the fairness to dismiss; the circumstances of this case and evidence did raise several irregularities that would require further examination in the event of a new hearing of the complaint. However, the parties have moved on and compensation is the most appropriate remedy.

In Sheehan -v- Continental Administration Co Limited UD 858/1999 the tribunal set out a reasonable standard test to be applied when assessing if the Complainant mitigated their loss:

‘’ A claimant who finds himself out of work should employ a reasonable amount of time each workday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various company’s seeking work…. The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss’’

In Redmond on Dismissal Law 3rd edition at:

[24.72]

The common law rule of mitigation of damages applies to compensation for unfair dismissal. Questions of mitigation are questions of fact. The burden of proof lies on the party seeking to allege that another has failed to mitigate loss. 111 Sir John Donaldson explained the duty in AG Bracey Ltd v Iles: 112

‘The law is that it is the duty of a dismissed employee to act reasonably in order to mitigate his loss. It may not be reasonable to take the first job that comes along. It may be much more reasonable, in the interests of the employee and of the employer who has to pay compensation, that he should wait a little time. He must, of course, use the time well and seek a better paid job which will reduce this overall loss and the amount of compensation which the previous employer ultimately has to pay.

The test to be applied is an objective one in determining if the employee acted reasonably to mitigate loss.

In a buoyant employment market and having regard to periods of lockdown, a similar administrative role should be obtained in 6-7 months. I award the Complainant €25,000 in compensation arising from being unfairly dismissed inclusive of compensation for statutory rights and notice.

Fair Procedures

Complainant

Respondent

Anonymised Parties

School secretary

Primary School

Representatives

Shane Lambert Fórsa Trade Union

Mason Hayes & Curran LLP /Cathy McGrady BL

Act

Complaint Reference No.

Date of Receipt

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

CA-00036122-001

12/05/2020

The background to this dispute relates to a period when the school principal was on extended leave and when she returned there were two categories of payments made to the Complainant that appeared to be unauthorized. The Complainant who is secretary at the school it is alleged paid herself increases that she was not entitled to and that were not sanctioned by the board of management.

The Complainant believed that she was authorised by the assistant principal to process these payments. The salary increases related to a pay increase that on the plain reading of certain circulars she was entitled to and was told by the assistant principal that she was likely to be entitled to, based on restoration of pay deductions made under the Financial Emergency Measures in the Public Interest (No.2) Act 2009.

 The second payment alleged unauthorised payment that related to a long-standing practice of claiming for work during holiday periods when the school was closed. The school principal disputed that practice existed.

The school secretary managed the payroll for staff who were paid by the school which was separate to the teaching payroll system.

This system was a more informal process with authorisation to make payments or increase hourly rates directed by the school principal and according to the Complainant without any  written board authorisation. The approval process was generally orally communicated.

The Complainant had an unblemished record with the school for 14 years while employed as school secretary.

The process followed by the school that led to the Complainant being dismissed was fundamentally flawed. The school principal in completing her report arrived at a finding that the Complainant had in fact misappropriated funds. It was not an independent fact find. It was hugely prejudicial to the Complainant’s defence. The most senior teacher/manager in the school in reaching such a conclusion before any disciplinary finding had been made meant that the Complainant was denied the right to a fair hearing. The Board thereafter was acting on a prejudiced report and any decision that followed on from that report had to be flawed.

The Complainant as school secretary became aware of a circular from the Financial Support Services Unit that indicated she was entitled to a pay increase. The acting school principal confirmed that she was entitled to that increase. The acting school principal stated that the Board had agreed to the increase. She was entitled to a 10% salary increase from January 2019. Thereafter the main issue was whether she was entitled to backpay.

The Complainant requested permission from the acting principal before she put through the pay increase. The Board she was told was reviewing her backpay amount if any.

On the 12th of March 2019 the Complainant received a letter from the Chair referring to her request for a pay increase and the Board had agreed a €1 hourly increase effective January 2019.

The Complainant was surprised at this development and wrote to the Chair and referred to the circulars that indicated she was entitled to a higher increase.

On the 24th of May 2019 the Complainant was invited to attend a meeting with the Chair and trustee of the school.  At this meeting the Complainant was advised of a circular from 2010 that instructed schools to cut secretaries salaries by 5%. The Complainant stated that the previous school principal had decided not to implement that increase. As no cut had been applied the Chair informed her that in fact she had been overpaid. Based on this perspective the Chair advised her to accept the €1 per hour increase as fair.

On the 4th of July 2019 the Chair again wrote to the Complainant and stated that the pay cuts did apply to her when they should have been implemented in 2010.

On the 18th of July 2019 the Complainant attended a meeting accompanied with her partner. The Chair presented her with a detailed figures which indicated that she had been overpaid by €24,329.69 and that money was owed back to the Department of Education who are not her employer.

At this meeting the school principal who had returned from leave stated that ignorance of the law was no excuse and that she could have held these funds in trust. At the end of the meeting the Chair stated that the school would take on the cost of the overpayment.

The school principal informed the Complainant that she was on temporary lay-off and could not assume that she would be returning in September 2019.

The Complainant received a letter from the Board on or about the 19h of August 2019 which stated that the amount owed in backpay was in fact €11,578.82.

The Complainant when she returned to work in September reduced her hourly rate of pay to €22.

On the 4th of October 2019 the Complainant was invited to attend a meeting with the principal and deputy principal. At that meeting she was asked why her pay had increased in January 2019 and who authorised it. The Complainant stated that the acting principal had.

The Complainant was never told in advance what this meeting was about, that it could give rise to disciplinary action/investigation. In effect she was ambushed.

The acting principal had approved the increase as verified by a subsequent mortgage application form and salary certificate that the acting principal signed detailing what the Complainant’s hourly rate was.

On the 7th of October 2019 the principal having compiled a report sent it to the Board, a highly prejudiced report. There was no independent and impartial investigation.

On the 9th of October 2019 a copy of the minutes of the meeting held on the 4th of October 2019 was sent to the Complainant. Those minutes were written up by the deputy principal who was central to the contradictory accounts concerning the authorisation or non-authorisation of the salary increase. The Complainant refused to sign these minutes.

The Complainant was suspended on the 21st of October 2019.

The Complainant had given herself unauthorised pay increases for the period January to June 2019 and overpayment of holiday pay amounting to an additional 2 weeks’ pay.

In an investigation of the matter the school principal concluded that the increases could not have happened by accident and that they amounted to misappropriation of school funds. It is alleged that the unauthorised payment was discovered when the principal returned to work in August 2019.

During the period of the alleged misappropriation the Complainant was in communication with Board seeking a pay increase. She was looking for an increase to €24 per hour and refused an offer of €23 per hour.  The Board did not authorise any pay increase.

The principal’s detailed report was sent to the Board and to the Complainant. The principal suggested that the matter required investigation and had not made any definitive finding.

The Board advised the Complainant that the disciplinary investigation would be conducted according to the statutory code detailed in SI 146/2000. The Chairperson wrote to the Complainant to advise her that pending the conclusion of the investigation she would be suspended with pay and this was not a punitive sanction rather allowing for the gravity of the allegations it would allow her to prepare for the hearing and investigation.

The disciplinary hearing took place on the 27th of November 2019. The Complainant was accompanied by her trade union official.

The Complainant presented a written submission to the Board. The Complainant was given the opportunity to challenge any evidence being relied upon.

The principal did not participate in the Board’s disciplinary investigation and decision.

The Board concluded that the allegations of unauthorised payments had in fact occurred and this amounted to a breach of trust and confidence and constituted gross and serious misconduct. Having reached this conclusion, the appropriate sanction was dismissal with immediate effect.

The Complainant was afforded the right to appeal the Board’s decision. The appeal was an external independent professional. The appeal was not upheld.

The Board reiterated the decision to dismiss effective from the 9th of December 2019.

The school have stated that they conducted a fair process overall and that the decision was within the band of reasonableness.

The Respondent has stated that the process was overall fair for the following reasons:

1.       The report of the principal was fair and comprehensive. It never made any adverse finding. It was a clear and objective report so that the Complainant knew what potential misdemeanours were in issue.

2.       The principal never took part in the decision to dismiss.

3.       The Complainant was given ample time to prepare for the hearing and it was only for that reason that she was put on garden leave, it was not punitive.

4.       The Board applied fair procedures and complied with the statutory code SI 146/2000.

5.       She was advised of her right to have Union Representation.

6.       She was advised that a written reply would assist the Board and the Complainant made a very detailed written submission which was fully considered.

7.       The Complainant was advised that she had the right of appeal to an independent Chair

The initial fact find by the school principal was flawed. Her report makes findings based on the facts that are highly prejudicial to the Complainant:

At page 3 of the summary the report states:

‘I am concerned that this amounts to the unauthorised taking of school money and is in effect the misappropriation of school funds. The total amount which I think may have been misappropriated by Ms .... amounts to €3,866.67

I do not believe that what occurred could have occurred by accident’

In the fact find report there is no fair statement of the Complainant’s explanation and her account to explain what happened and that the acting principal allegedly authorised the payment. The account is therefore very one sided. It cannot be viewed as an independent and objective account of what each of the main protagonists stated. It does lean towards a definitive view of what happened and that it amounts to theft.

The acting principal who was a central actor and protagonist in the matter was also participating in the process as an assistant to the investigator while the Complainant is clearly at arm’s length.

The fact find was not independent and strayed into the territory of making an adverse finding. It did identify facts that required a detailed response and do appear to be irregular. However, the guilt of the Complainant could only be determined after a fair hearing.

The question that must be asked does the disciplinary process that follows cure this defect or is it fatal to a fair hearing?

Redmond in Dismissal Law 3rd edition states at 13.14:

‘Perfect’ procedural justice has been defined as the ideal of a procedure guaranteed to lead to an outcome where justice is identified by some independent criterion. 24 The balance between substantive and procedural justice becomes most crucial in relation to the reasonableness of an employer’s decision to dismiss. Increasingly, procedural justice is being taken for granted by all concerned and the WRC’s function is to decide how exacting its tenets shall be. An employer will be regarded as having fairly dismissed an employee only if it both gave the employee the full benefits of a fair procedure and accorded him his just deserts or established a functional necessity for his dismissal. Section 6(7) of the Unfair Dismissals Act 1977 further emphasises the importance of reasonableness. In determining if a dismissal is unfair regard may be had:

(a)to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

And at 13.16 Redmond states:

The WRC will scrutinise an employer’s conduct very closely where the employer is faced with a problem requiring investigation. In Dunne v Harrington 26 its predecessor, the EAT, declared that an employer may investigate either:

‘(a) personally in a fair and reasonable manner, i.e., as fully as is reasonably possible, confronting the “suspected” employee with “evidence”, checking on and giving fair value to the employee’s explanation or comments and allowing the employee to be represented at all such meetings/confrontations if the employee requests it or a union/management agreement requires it and to produce “counter evidence” 27 or he may:

(b)rely on the reports of others. If he does so without confronting the accused employee with the contents of the same, without hearing, investigating, and giving value to his replies, giving him reasonable opportunity to produce rebutting “evidence”, and to be represented if the employee feels this to be desirable, then such employer breaches a fundamental rule of natural justice, viz, that the other party (i.e., the employee in these circumstances) should be heard. In short, an employer acting on the reports of third parties and not acquainting the employee with same does so at his peril if it results in the dismissal of that employee.’ 28

And at 13.22 Redmond cites:

The High Court in Loftus and Healy restated the issue thus. It was not a question of whether the ex-employees were deprived of procedures to which they were entitled but:

‘whether the denial to them of such procedures is such that the defendant must be deemed to have failed to establish ... [the basis of its dismissal] as the whole or the main reason for and justifying their dismissal

As I have found that the fact find investigation was flawed, I now turn to how the decision was made to terminate the Complainant’s employment and if the Respondent had established a basis for the dismissal and if denying the Complainant, a fair fact find/investigation fatally compromised their capacity to make that decision.

There are two allegations being made against the Complainant:

1.       She gave herself an unauthorised pay increase

2.       She paid herself 2 weeks holidays that were unauthorised

The Complainant has stated that her then manager authorised the salary increase.

 Her explanation for the holiday pay relates to an alleged well-established practice that allowed her to receive the payment for work that was over and above her normal pay.

The Complainant stated that her manager signed a salary certificate form when she was applying for a mortgage and that is independent verification that she was in fact authorised to receive that salary increase. Her manager stated that she signed that form without checking the detail and out of a desire to assist the Complainant to obtain a mortgage.

The Complainant was suspended with pay prior to the disciplinary hearing so that she could prepare for the hearing.

I note in O’Sullivan v HSE [2022] IECA 74 Noon J. restated:

The Continued Suspension of Professor O’Sullivan

103. The suspension of any employee is a serious matter. I commented on this in my judgment in Bank of Ireland v Reilly [2015] IEHC 241 where I noted, at para. 40: - “The suspension of an employee, whether paid or unpaid, is an extremely serious measure which can cause irreparable damage to his or her reputation and standing. It is potentially capable of constituting a significant blemish on the employee’s employment record with consequences for his or her future career. As noted by Kearns J. (as he then was) in Morgan v. Trinity College Dublin [2003] 3 I.R. 157, there are two types of suspension, holding and punitive. However, even a holding suspension can have consequences of the kind mentioned. Inevitably, speculation will arise as to the reasons for the suspension on the premise of there being no smoke without fire.”

The fact of suspension can give rise to an inference of prejudice.

On or about the 9th of December 2019 the Board wrote to the Complainant and stated:

The Board of Management has given careful consideration to everything that was said by you at the meeting. The Board has given careful consideration to the Principal’s report to the Board.

The Board does not appear to have addressed the Complainant’s grievance about the principal’s investigation being biased and prejudiced, that the deputy principal participated in that investigation; although she allegedly approved the salary increase; that the investigation report was one sided and made no reference to her account and explanations for receiving the payments. She also stated that the decision to suspend her was unfair and amounted to prejudice.

The Complainant submitted a very detailed submission to the Board; however, on the evidence presented it is not apparent that her key arguments were seriously engaged with by the Board and reasons given by them why they did not find those explanations credible on the balance of probabilities.

At a very high level it could be argued that the Complainant had the right to make a submission, was afforded the right of representation and that she was heard and could challenge the case made out against her.

However, the Complainant has made out a strong case that the process followed by the school was flawed in several respects. The fact find investigation was prejudiced as it was not an independent and impartial process and reached a negative conclusion that she had probably misappropriated school funds; the placing of the Complainant on suspension was prejudicial; the Board did not engage with the Complainant’s account of what happened or why they preferred the principal’s explanation and the deputy principal’s explanation with reference to the alternative explanations provided by the Complainant.

 I now turn to the appeal process.

The parties agreed that the submitted Appeal Report would suffice for the purpose of this Adjudication as the Chair of that appeal could not attend the hearing.

The appeal was to address specific issues which the appellant ‘feels have received insufficient consideration, as set out in the letter of appeal.’

The independent appeal did not uphold the appeal and the appeal itself consisted of three pages. The appeal was based on the following allegations:

1.       Breach of procedure which results in a fundamental flaw in the outcomes

2.       The Complainant was not afforded a reasonable opportunity to respond to the issue

3.       The Complainant could not have reasonably be expected to have understood that the alleged behaviour would attract disciplinary action

4.       Severity of the sanction imposed.

At this hearing the Complainant has stated that she was denied fair procedures; it is not clear that the appeal process also was requested to assess in detail how fair the process was in respect to the initial fact find, the suspension, the failure to engage with the Complainant’s account of what occurred and why those accounts did not find favour with the Board. The Chair of that appeal could not attend at the hearing.

I have concluded the process was flawed as the investigation and fact find was not impartial; that the deputy principal who allegedly authorised that payment was involved in the fact find as an assistant to the investigator; that the Board did not correct the flaws in the prejudice and negative findings in the principal’s report, that the decision to suspend was prejudicial, that the Board failed to give reasons why it did not accept any of the explanations provided by the Complainant and demonstrated that they had impartially engaged with her submission and evidence. The process while it appears to have complied with SI 146/2000, did so only at a very high level and, was prejudiced. The decision arrived at therefore by the board is such that the Respondent must be deemed to have failed to establish ... [the basis of its dismissal] as the whole or the main reason for and justifying their dismissal.

I determine that the Complainant was Unfairly Dismissed on the 9th of December 2019.

I have concluded that the Complainant was denied fair procedures. The process was flawed as the investigation and fact find was not impartial; that the deputy principal who allegedly authorised that payment was involved in the fact find as an assistant to the investigator; that the Board did not correct the flaws in the prejudice and negative findings in the principal’s report, that the decision to suspend was prejudicial, that the Board failed to give reasons why it did not accept any of the explanations provided by the Complainant and demonstrated that they had impartially engaged with her submission and evidence. The process while it appears to have complied with SI 146/2000, did so only at a very high level and, was prejudiced. The decision arrived at therefore by the board is such that the Respondent must be deemed to have failed to establish ... [the basis of its dismissal] as the whole or the main reason for and justifying their dismissal.

The Complainant has obtained a new role. The parties have made submissions concerning mitigation of loss. The Respondent maintained that the Complainant has failed to adequately mitigate her loss.

The Complainant has submitted that her losses to date amount to more than €50,000.

The Complainant’s salary was €819 gross weekly.

Reinstatement and re-engagement are not suitable remedies as the trust and confidence between both parties has been fundamentally broken.

While there are fundamental flaws in how the investigation was conducted that compromised the fairness to dismiss; the circumstances of this case and evidence did raise several irregularities that would require further examination in the event of a new hearing of the complaint. However, the parties have moved on and compensation is the most appropriate remedy.

In Sheehan -v- Continental Administration Co Limited UD 858/1999 the tribunal set out a reasonable standard test to be applied when assessing if the Complainant mitigated their loss:

‘’ A claimant who finds himself out of work should employ a reasonable amount of time each workday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various company’s seeking work…. The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss’’

In Redmond on Dismissal Law 3rd edition at:

[24.72]

The common law rule of mitigation of damages applies to compensation for unfair dismissal. Questions of mitigation are questions of fact. The burden of proof lies on the party seeking to allege that another has failed to mitigate loss. 111 Sir John Donaldson explained the duty in AG Bracey Ltd v Iles: 112

‘The law is that it is the duty of a dismissed employee to act reasonably in order to mitigate his loss. It may not be reasonable to take the first job that comes along. It may be much more reasonable, in the interests of the employee and of the employer who has to pay compensation, that he should wait a little time. He must, of course, use the time well and seek a better paid job which will reduce this overall loss and the amount of compensation which the previous employer ultimately has to pay.

The test to be applied is an objective one in determining if the employee acted reasonably to mitigate loss.

In a buoyant employment market and having regard to periods of lockdown, a similar administrative role should be obtained in 6-7 months. I award the Complainant €25,000 in compensation arising from being unfairly dismissed inclusive of compensation for statutory rights and notice.

Fair Procedures