Complainant

Respondent

Parties

Eileen  Murphy

Presentation Secondary School Board of Management

Representatives

  Self-represented

Ms. Cathy McGrady BL instructed by Mason Hayes & Curran LLP

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-00039748-001

10/09/2020

The Complainant was a school secretary in the same school in Cork city from 1979 until 2020. It is the Complainant’s case that she was constructively dismissed by her employer, the Board of Management of the school.

She submits that there were a series of events over a two-year period, which culminated in an incident following which the Complainant left the school in a distressed state, attended at her GP, and was then placed on certified sick leave for work-related stress. The final incident took place on 22nd October 2019.

The incident in question involved a scheduling clash between a pre-organised virtual training in an accounts package which the Complainant was due to undertake online in her office, and the re-scheduling of a fire drill in the school (which had been initially scheduled to take place earlier in the morning producing no scheduling conflict), to a time which resulted in a direct clash between the two events. It was the Complainant’s position that this was done on purpose. She says that her ‘heart was thumping’ and that on examination by her GP, her blood pressure was affected (temporarily). She was subsequently referred to Cork University Hospital (CUH) by her GP. She submitted an initial medical cert. for three days, and further cert. for six weeks, the second cert. cited “work related stress” as the reason for her absence.

The crux of the Complainant’s case is that the Board of Management of the school which was her employer failed to act in a timely manner to address or resolve the situation, such that the effects of that failure to respond appropriately amount to constructive dismissal.

In November 2019, the Complainant raised a grievance against the school Principal, but the substance of this case, in which she submits she was constructively dismissed, is that the Board of Management of the school did not progress her grievance adequately or at all, in a timely manner, in line with a reasonable process, such that it was tantamount to a constructive unfair dismissal within the meaning of the Unfair Dismissals Act 1977. She particularly highlights that the Chair of the Board of Management notified the school’s insurer (Allianz) but not the Board of Management as to the fact that she was on certified sick leave for work-related stress, prior to her writing to him setting out her grievances. She learnt this fact through documentation obtained under GDPR.

She submits that neither the school Principal (against whom she subsequently raised the grievance) nor the Chairperson of the Board of Management reached out to her when she went on sick leave on October 22nd, 2019. She says that the next contact came from her, several weeks later, when she formally wrote to the Board of Management raising a grievance against the school Principal. She further highlights that the Department of Education (DES) who paid her salary directly, was not notified of her absence on sick leave for several weeks, by the school, something she discovered directly from the DES, when she raised a query with their payroll section.

It is the Complainant’s case that the net effect of how the Board of Management of the Respondent school, which she emphasises is her employer, handled the matter was to force her out of her job which she had held for forty-one (41) years, as she was initially on half-pay (while on certified sick leave) and then, after three months, when she could receive no further sick pay, she was moved (by the Department of Education) to T.R.R. (Temporary Rehabilitation Payment) due, it is her contention, to the issue was not dealt with in a timely manner.

The Respondent denies the Complainant’s claim, in its entirety. It submits that the allegation in relation to the re-scheduling of the fire drill is false – that it was re-scheduled not to discommode or target the Complainant, as she alleges, but rather to facilitate a meeting between three school principals, three deputy school principals and three home school liaison teachers in relation to an unrelated matter. It further submits the virtual training was recorded and she could have watched it at a later time.

It submits that in December 2019, the Complainant was certified fit to work by Medmark (Occupational Health) and the outstanding issues were identified to be human resources issues not medical ones.

It submits that it addressed the grievance raised in November 2019, in a timely manner in line with the applicable Dignity at Work policy.

It submits, that with the consent of both parties and in line with the policy, the Board of Management appointed an independent mediator to mediate the issue, and that any delay in the mediation occurring was attributable to the national lockdowns associated with the Covid-19 pandemic, and instigated by the independent mediator, of his own volition.

It submits that the Complainant was accommodated by the Respondent, in a number of ways throughout this time period, as a matter of fairness, which it outlined (including designating her leave “approved” rather than “unapproved”); and later finding another secretary to work on site when the Complainant objected; and allowing the Complainant to take her holidays in August 2020 rather than July 2020 (which she requested) at a cost to the school of approximately €2,000.

The Respondent submits that once the Chairperson of the Board of Management received the Complainant’s grievance in November 2020, that he implemented the applicable policy straight away. He gave the party against whom the complaint was raised an opportunity to respond in writing (in line with the terms of the applicable policy, and as a matter of fair procedure), which she did, and he brought the matter to the attention of the Board of Management. As both parties (the Secretary and the Principal) were amenable to attempting to address the matter informally via an independent mediator, one was sourced and appointed. Due to the Covid-19 lockdown restrictions, the mediator postponed the mediation – the school was closed for a portion of this time also, and the Chairperson of the Board was ‘cocooning’. Once the country started to come out of lockdown, the mediator re-scheduled the mediation, and it ultimately took place in June 2020.

The mediation between the Principal and the Secretary, facilitated by the independent mediator, went ahead in June 2020. Both parties attended alone (without a support person or representative as on the date the Principal was available, the Complainant could not source one, and requested that if she (the Secretary) were attending on her own, that the Principal would do so also, a request to which the Principal acceded). One of the outcomes of the mediation was that the Principal agreed to request of the Board of Management of the Respondent school that the Complainant be facilitated in her request to take her annual leave in August 2020 (instead of July 2020 as is custom and practice, when the school is for all intents and purposes closed), at a cost of approximately €2,000 to the school. That request was made by the Principal and approved by the Board of Management; and the Complainant did take her annual leave in August 2020, in the run up to her effective retirement date. For completeness, the Principal also denies the allegations made against her by the Complainant.

In May 2020, the Complainant was certified fit to work by her own GP (with no restrictions) and did return to work in May 2020 working remotely from home, in line with the Covid-19 national restrictions in place at the time.

On May 21st, 2020, seven (7) days after her return to work, the Complainant wrote to the Board of Management giving notice of her intention to retire, with her effective retirement date being September 4th, 2020.

Without prejudice to the foregoing, the Respondent submits that the Complainant retired and did not resign which it submits is fatal to her case. It submits that she did not exhaust the grievance procedure, which it also submits is fatal to her case. It submits that she was certified fit for work in December 2019 (by Medmark) and again in May 2020 (by her own GP, with no restrictions).

It submits that in terms of mitigation, that she has made no attempt to mitigate her putative losses (which it denies) and submits that her assertion that the Respondent would not give her a reference rendering her “unemployable” to be a “fabrication”, It submits that there is no basis for this – that the Complainant never sought a reference, and that the Respondent received no request for a reference, and was not surprised by this, as the Complainant had retired. It submits that there is no basis whatsoever for the assertion that a reference would not be provided.

The Complainant represented herself. She submitted comprehensive written submissions and supporting documentation and gave evidence on her own behalf at the hearing.

The Complainant explained that she worked in her job as a school secretary, paid by the Department of Education, in the Respondent school for forty-one years, that she loved her job and had many, many happy years there.

It is her case that for approximately two years prior to the culminating incident (October 22nd, 2019), that her workplace was an unpleasant and an unhappy place for her; and that unhappiness largely stemmed from conflict with the school Principal. She submits that there was a series of incidents/events, the effect of which cumulatively impacted her, ultimately culminating in her leaving the school in a distressed state on October 22nd, 2019, attending at her GP and being certified sick, remaining on sick leave until early May 2020, at which point the Complainant was certified fit to work by her own GP and did return to work. She outlined that she had availed of counselling through the Employee Assistance Programme (EAP) which she found to be very helpful.

The Complainant submits that no appropriate process or procedure was applied, in a timely manner, by the Board of Management, who she emphasises is her employer, and she submits that the net effect of this was that she was left with no pay and no resolution to the issue and was put in a position where she had no choice but to resign her employment.

The Covid-19 global pandemic occurred in the intervening period, and employees were directed, in line with State guidelines to work from home. The Complainant was certified as fit to work and did work from home for a period. She gave notice of her intention to retire on May 21st, 2020, with her effective retirement date to be September 4th, 2020. She was subsequently directed by the Principal to attend in person at the school (as there was work to be done pertaining to the Leaving Certificate which it is the Principal’s evidence could only be done on site and in person). The Complainant declined to do so and she emphasised that there had been no resolution to her grievance raised, or the matters which she said impacted her health, causing her to be on certified sick leave, for work-related stress. She also raised concerns in relation to both she and her husband falling into the “high risk” category in relation to Covid-19.

On cross-examination

The Complainant was challenged in relation to the events of October 22nd, 2019. It was put to her that her supposition that the time of the fire drill had been changed in order to clash with her online training was false and that the evidence of the school Principal would be that the reason for moving the fire drill was the school had an opportunity to make a joint application with two neighbouring schools, and that meeting had to be scheduled at a time when three school principals, three deputy school principals and three home liaison officers were available; the deadline was shortly after the  schools mid-term break, so the majority of the work had to be done prior to that, in order to meet the application deadline.

It was put to her that the fire drill involved three hundred (300) people and that it was not reasonable to discommode 300 people to accommodate one (1).

It was also put to her that some potential solutions were offered to her on the day, which she denied were appropriate suggestions – they included staying in the school during the fire drill; or attending a small portion of it and then returning to her training.

The Complainant acknowledged that she had been upset and worked up, in her interaction with the school Principal that morning; and she acknowledged that her response was not appropriate, but described what occurred as “the last straw” and said that she left the school with her heart thumping, and red-faced. She went to her GP.

It was also put to her that her allegation that she had not been notified of her Medmark appointment deliberately was false and that the evidence would be that the school Principal was out on certified sick leave, when notification of the appointment was received.

The contents of a long letter accompanying notification of the Complainant’s retirement were explored with her and it was put to her that the letter contained no reference to any toxic work environment. The Complainant said that she had worked in the school for a long time (and had been connected with it for a longer time) and that she focused on her happy memories, when writing a letter at the end of a long career, and she did not want anyone to take those from her. She also said that she had wanted her letter read out, at the Board of Management meeting, and felt aggrieved that that request had not been acceded to. [The minutes of the Board of Management meeting indicate that three people retired and that the meeting decided it would be appropriate, as it was being held on Zoom, to allow the members of the Board to read the three letters, in their own time.]

It was put to her that the Principal had facilitated her twice in taking annual leave, during the school year, which she was not obliged to do, when the Complainant had family visiting from abroad, and that the Complainant had acknowledged (at least one of those occasions) in her letter. The Complainant acknowledged that again at the hearing – that she had been facilitated in respect of annual leave during term time and that she was grateful for that, which was why she had included it in her letter.

The Complainant emphasised her hurt at how she was treated. She empahsised that the Board of Management was her employer; that it had not contacted her during the period that she was out on certified sick leave for work-related stress and that she had to contact it (some five weeks later), which she did to raise a formal grievance. She said that the result of her grievance not being processed in a timely fashion left her first on half-pay, and then when her sick pay ran out on no pay – she was moved to TRR by the DES. In May 2020, she (in conjunction with her GP) was certified fit to work, in the context of the Taoiseach directed people to work from home. She returned to work and worked from home, for a short period. She decided, having consulted with her family, to retire – she said that no job was worth her health, that she felt nothing was going to change, and she submitted notice of her retirement. The Principal subsequently directed her to work on site from the school – the Complainant’s view was that when there had still been no resolution of the issues which had resulted in her being on sick leave for work-related stress, that position was untenable. She perceived that the net effect was that she was being forced out of her job by the failure of the Board of Management to address the situation.

It was put to her that Dr. Steele had acted on each occasion and in line with the policy. The timeline of the emails back and forth were put to her – that he had responded to her straight away, that he having taken advices, had given the other party an opportunity to respond (as required by the policy, and in line with fairness and natural justice), that he had notified the Board of Management, that the Board of Management (with the consent of the parties and in line with the policy) had appointed an independent mediator and that it was the mediator, who is an independent professional, who had postponed the mediation in the context of the outbreak of Covid-19 in March 2020 and a national lockdown.

The Complainant denied this and really objected to not being contacted prior to raising her grievance. The Complainant expressed the view that if it had been dealt with when it should have been (in her view), she would have been back in work by the time Covid occurred, with the matter resolved, and receiving her salary. She also said that she was horrified that DES payroll had not been notified of her absence. She said that the delays at each point meant she effectively ran out of money.

Economic Losses and the duty to Mitigate:

The Complainant, who was unrepresented, was unsure at the hearing as to what her economic losses were – she was unable to provide a figure, when requested to do so by the Adjudication Officer. Mindful that she was unrepresented, the Complainant was invited by the Adjudication Officer to submit a supplemental written submission, within a prescribed timeframe, outlining what she submitted her economic losses to be, which she did; and the Respondent was then given an opportunity to respond to that supplemental submission in writing, which it did. The Complainant included a large amount of additional unsolicited submissions in her supplemental submission. Those do not form part of the case. It was clarified for the Respondent, by the Adjudication Officer, that those do not form part of the case, and that the only matter on which the Complainant was invited to make a submission was her economic losses, and that was also the only matter to which the Respondent was invited to respond. The Respondent requested a three-day extension to the timeframe allowed to respond, which was granted. There were further unsolicited correspondences from the Complainant which were also not considered, and which do not form part of the case.

Full and detailed particulars of loss suffered by Complainant, as per her supplemental written submission:

From October 22nd, 2019 - May 2020

Doctors’ Fees: €355

Loss of net earnings December 2019 – May 2020: €8,081.20

Loss of future earnings from September 2020 - August 2025 (not allowing for increase of gross earnings)

Net difference between net take-home pay in October 2019 and take home between pension and Jobseekers pay Sept 2020 - June 2021: €8,359.80

Difference between net take home pay in October 2019 and pension June 2021 - August 2023:       €3,374.88

Difference between net take home pay October 2019 and pension

September 2021 - August 2022: €12,189.84

September 2022 - August 2023: €12,189.84

September 2023 - August 2024:                €12,189.84

September 2024 - August 2025: €12,189,84

The Complainant submits that the above figures are based on net payment, and not including projected increases in payment from October 2020.

These figures total to €68,832.24. 

The Respondent submitted a comprehensive written submission along with supporting documentation. The Chairman of the Board of Management and the then Principal of the Respondent school both gave evidence at the hearing also.

As per the written submission,  the Respondent’s summary of its position is as follows:

The Complainant commenced her employment with the school as a school secretary on 3rd September 1979.  (A copy of the Dignity in the Workplace procedure applicable to the Complainant was submitted).

The Complainant was absent due to illness from 22nd October 2019.  The Respondent submits that it would not be appropriate for an employer to contact an employee while they are absent due to illness. The Complainant’s medical certificate was for six weeks. However, on the Online Claims System (“OLCS”) a medical certificate cannot be submitted for more than four weeks at a time, without the employee being automatically referred, by the centralised system to the Occupational Health Service Medmark.

The Principal asked the school’s part-time secretary not to input the Complainant’s leave as it would have resulted in an immediate referral to Medmark. The Respondent submits that this was done in an effort to try to accommodate the Complainant. The Complainant’s absence due to illness was inputted onto the OLCS system on 15 November 2019. 

A complaint was received from the Complainant on 25th November 2019.  (A copy of that complaint was submitted). The Chairperson of the Board of Management, Dr. Frank Steele informed the Principal of the complaint on 9 December 2019.

The Principal was on certified sick leave from 9th December 2019 to 16th December 2019.  The school was subsequently closed for the Christmas break until the beginning of January 2020. The Principal furnished her response to the allegations made against her to Dr. Steele on 17th January 2020. That response was furnished to the Complainant. (A copy of the correspondence in relation to her complaint was submitted).

The Complainant’s allegation that she was deliberately not informed of a Medmark appointment or it was “a cynical way of ignoring this situation” is denied.  As outlined above, the Principal was on certified sick leave on that date.

The Complainant attended Medmark and in a report from Dr. Bronkhorst dated 23rd December 2019 it was confirmed that she was medically fit to return to work. Dr. Bronkhorst suggested that the Complainant’s perceived unresolved difficulties at work should be dealt with through the available procedures and processes in the workplace and that the Complainant was fit to participate in any such procedures. (A copy of that report was submitted.)

As the Complainant did not return to work in circumstances where Medmark had stated that she was fit to work, it was therefore a decision for the Board as to whether the Complainant’s leave would be inputted as ‘approved’ or ‘unapproved’ on the OLCS system. The Complainant’s salary would have been stopped completely if ‘unapproved’ leave had been decided upon. The Board of Management agreed that given the circumstances her leave would be approved. (A copy of correspondence in relation to this matter was submitted.)

The Board of Management agreed to deal with the Complainant’s bullying complaint under Article 2C of the Dignity in the Workplace Procedure. Dr. Steele confirmed that he would act as the designated member of management to facilitate an appropriate course of action.

Dr. Steele suggested a mediated solution and Mr. Patrick Sheridan, Mediator was appointed in this regard. Terms of reference in relation to the mediation were agreed with a view to Mr. Sheridan meeting with both parties. (A copy of correspondence in relation to this matter was submitted.)

Due to the Covid-19 global pandemic, the school was closed, and as the country was in a national lockdown it was not appropriate for the mediation to take place during this period. 

On 8th May 2020, the school received an email from the Complainant attaching a medical certificate which stated that she was medically fit to return to work. The Principal responded to state that she was glad to hear that the Complainant was back to full health and explained that due to the current pandemic she would be required to work from home. (A copy of that email was submitted.)

On 21st May 2020, an email was received from the Complainant attaching her letter of retirement. There was no reference to any “toxic environment” or indeed any issues in relation to her working environment in her letter of resignation. (A copy of that letter was submitted.)

On 25th May 2020, given the situation with the Leaving Cert. grades, the Complainant was asked to come to the school to complete essential administration work as was permitted by the Department of Education (DES). At that time, an email was received from the Complainant’s Trade Union representative to state that she would not return to the workplace because she was at risk (due to Covid-19). Following further communication, the Principal then asked the part-time secretary to carry out those duties. (A copy of correspondence in relation to this matter was submitted.)

On 15th June 2020, the Principal emailed the Complainant to ask her if she could take her annual leave in July. This was always standard practice in the school.  The Principal explained to the Complainant that she would need “all hands-on deck for the return to school in August”. The Principal was carrying out her duties as school manager as she was facing a huge challenge in getting the school ready for the return to school after the Covid-19 closure. The allegation therefore that she was “playing games” is denied. Other ancillary staff in the school were also asked to take their annual leave during the month of July and they agreed.  (A copy of correspondence in relation to this matter was submitted.)

On 23rd June 2020, an email was received from Mr. Sheridan, Mediator seeking to facilitate the mediation as the country was coming out of lockdown. The mediation took place. As part of that mediation, it was agreed that the Principal would approach the Board of Management with a view to securing finance that would enable her to arrange for secretarial assistance for the month of August. This would allow the Complainant to take her holidays from 24th July 2020 until the date of her resignation on 4th September 2020. The Complainant’s allegation that the Principal had no intention of honouring that element of the agreement is denied. Though the Principal is responsible for the day-to-day running of the school, in this instance, as there would have been a substantial cost to the Board in approving the Complainant’s holidays in August, this decision had to be made by the Board. Therefore, the Principal asked for an emergency meeting of the Board on 30th June 2020.  An emergency meeting was held, and the Complainant’s holidays were approved as requested. This incurred a financial cost of €2,000.00 to the Board of Management. (A copy of the correspondence in relation to this matter was submitted.)

When the Complainant retired on 4th September 2020, she was presented with a bunch of flowers from the Board and staff of the school, which is normal practice with all employees who are retiring.

The Chairman of the Board of Management and the then Principal both gave evidence at the hearing.

Dr. Franke Steele, Chairman of the Board of Management – 1st witness for the Respondent

Dr. Steele outlined that he was the Chairman of the Board of Management of the Respondent school. He explained that he had received a grievance from the Complainant in November 2019. He said that once he received the complaint, he notified the Board of Management. He explained that the applicable policy was under the Safety, Health and Welfare at Work Act 2005 and he contacted the Complainant setting that out. He explained that he gave the other party an opportunity to respond to the allegations, which she did. He outlined that his goal was to be fair to everybody involved. He outlined how the Board of Management acted in line with the policy and in line with advices. He explained that he, himself, was ‘cocooning’ – this was the early days of the Covid-19 pandemic. He explained that when the parties were amenable to mediation, an independent mediator was picked by the Board of Management, in line with the policy. He explained that due to the pandemic, the mediator found it necessary to postpone the mediation, which was beyond anyone’s control and that the mediation did ultimately take place in the summer of 2020, once things had opened back up again, to a certain extent.

On cross-examination

The Complainant challenged the witness as to when he knew what. She put to him that he was aware that she was out on sick leave, having submitted a medical cert. which stated “work-related stress” in October 2019 prior to her raising a grievance in November 2019, and that he had not contacted her. She put it to him that she had no contact from the school – none from the Principal, none from him - the Chairperson of the Board of Management - and none from the Board of Management during that period. She expressed her shock and her hurt at this.

The Complainant challenged the witness on the fact that, during that period, he had notified the school’s insurer, in relation to her absence. The witness explained he thought this was simply a matter of prudence. She challenged him again on his approach, on his failure to inform the Board of Management which she emphasised was her employer and on his taking advices and notifying the school’s insurer but on making no contact with her during that period. She expressed hurt that no-one from her employer had contacted her to check if she was okay, despite the condition/circumstances in which she left the school and the cert. she had submitted. He emphasised his interest in being fair to everyone.

The Complainant challenged the witness on his independence and his use of the phrase in his correspondence with her that he had “no hand, act, or part.” He explained that he had “no hand, act or part” in picking the mediator – that the mediator is an independent professional, appointed by the Board of Management, and that was what he meant by the use of that phrase, in his correspondence with the Complainant (and with the other party). He explained that he wanted to make sure that (from a fair procedures point of view), people got whatever they were entitled to.

The Complainant challenged him on the lack of procedure and the lack of urgency at dealing with the matter and put to him that she had, in effect, run out of money, while on sick leave waiting for the matter to be addressed. The witness disputed this. He said that he had applied the procedure straight away once he received the complaint and dealt with it promptly at each stage, but that there was a global pandemic in March 2020 that unfortunately meant the mediator had to postpone the mediation, which the mediator did independently of his own volition. The witness said that those events were beyond his control. He re-iterated that the mediator is an independent professional and that the country was navigating a global pandemic at the time. The Chairperson added that he himself was “cocooning.”

The Complainant criticised the fact that the procedure had no timelines for response and said that the policy applicable to SNAs had timelines and she felt that she should be entitled to the same treatment – she suggested that the disparity was discrimination. The witness explained that he applied the correct policy, as applicable to her role and the grievance she had raised.

Second witness – former school principal, Ms. Nicola Barrett

The witness outlined that she was the Principal in the school at the relevant time. She explained what happened in relation to the re-scheduling of the fire drill, on 22nd October 2019, and why it was re-scheduled. She explained that it was moved to accommodate a meeting between three schools in relation to a joint application the three schools were making – a time had to be found which worked for three school principals, three deputy school principals and three home school liaison officers. She explained that the mid-term break was coming up and the deadline for the application was shortly after it, so most of the work in relation to the application had to be done before the schools broke for mid-term.

In relation to the time-change, she said that she had not given consideration to the Complainant’s online course, as the rules regarding a fire drill are that everyone has to leave what they are doing and exit, irrespective of what it is. So, she had not checked the timetable in relation to anyone. It was a health and safety matter.

She outlined the suggestions made to the Complainant as offered compromises so she could do her virtual course, which she said the Complainant rejected.

It was also submitted that the course was in fact recorded, and could have been watched later by the Complainant.

The witness outlined the reaction of the Complainant to the time-change, her behaviour on the day and how the Complainant left the school grounds. She disputed the Complainant’s version of events in relation to how she spoke to her. She said that she spoke firmly to her but that she was certainly not aggressive.

She said that she was notified of the grievance raised on December 9th, 2019, and that she was on certified sick leave from December 9th, 2019, to December 16th, 2019. The school broke for Christmas shortly thereafter. She outlined that she took time and responded as soon as she could to the grievance raised – she acknowledged that she actually used some of her time on sick leave to try to address it. She said that what the Complainant had submitted was very lengthy and she had to respond and address all of it, which took time. She submitted her response in January 2020.

[Adjudicator’s note: The timeline is that the Complainant submitted her grievance on November 25th, 2019. The Chairman of the Board took advices and determined the correct policy to apply. The other party was given a copy of the grievance, and invited to respond in writing, on December 9th, 2019. That party was on certified sick leave from December 9th, 2019, to December 16th, 2019. A pause in the matter over the Christmas break was proposed by the Chairperson of the Board of Management. The school closed for Christmas on Friday, December 20th, 2019, and reopened after a two-week break, the week of January 6th, 2020. The other party furnished her response on January 17th, 2020.]

She said that the Complainant left on October 22nd, 2019, and initially a three-day cert. was handed in, which made no reference to workplace stress.  The Principal said that she asked after the Complainant, when her husband handed in the cert. Then, a subsequent six-week cert. was submitted which stated “workplace stress”. She said that in terms of formally contacting the Complainant, she thought that she may not have been the person the Complainant wanted to hear from, at the time. She said that she wanted to give her “a bit of space.”

She was asked about the inputting of the absence information into the DES’ centralised system. She said that because the cert. was for a period longer than four weeks, it would have triggered an automatic referral to Medmark (Occupational Health doctor) and that it was done to accommodate the Complainant. The information was inputted on November 15th , 2019.

She was asked about the Complainant’s retirement letter and the fact that it outlined the Principal had accommodated the Complainant to take annual leave during term time. She said that she thought it was kind of the Complainant to include it, and that given where things were at, she was surprised the Complainant remembered. It was clarified that the Principal had actually accommodated the Complainant twice, in that regard.

She was asked about agreeing to mediation and attending without a support person. She outlined that both parties consented to mediation (in line with the process), that it was then postponed by the mediator due to the pandemic, and that in terms of availability, when it came up again, the Complainant was unable to source a support person for the date set, and requested that if she was attending alone that the Principal would also attend alone, a request to which she acceded, despite the fact that she would have preferred to have a support person present.

While the contents of the mediation are confidential, one of the outcomes of the mediation was that the witness would request of the Board of Management that it accede to the Complainant’s request that she could take her holidays in August 2020. The reason that required the agreement of the Board of Management is that it would incur a cost of approximately €2,000 to the school. She confirmed that she did this, in line with the agreed outcomes of the mediation agreement. The Board of Management acceded to the request.

She was asked about directing the Complainant to work on site in May 2020. She said that she thought it was reasonable. The Complainant was certified fully fit for work (with no restrictions) by her own GP. She explained that there were tasks in relation to the Leaving Cert. (in the context of Covid) that could not be fulfilled remotely, they had to be dealt with urgently. She explained that information from the DES was coming in very late in the day, and she therefore required the school secretary to be on site, to complete the tasks required for the students and parents.

On cross-examination

The Complainant raised the fact that she had had no contact from her employer – either the Principal or the Board of Management when she was off sick, and she highlighted the state she left in – that she was distressed, her heart was thumping, she was red-faced. She re-iterated her hurt at how she had been treated and that no-one made contact with her or reached out to her.

She raised the issue of the fire drill [at this point the Complainant seemed to accept the explanation offered as to why the fire drill had been moved.] She raised the solutions that had been offered to her and she put forward her view that they were not solutions.

The Complainant asked the witness whether she accepted that there had been a cumulative number of events over the previous two years which had culminated in the events on the day of the fire drill. The witness did not accept that. She said, in her view, issues had been dealt with as they came up, in the ordinary course of work, and were generally relatively minor in nature, e.g. one incident related to a laminator.

She was asked about directing the secretary to work on site in May 2020, in circumstances where the mediation had not yet happened, i.e. the grievance raised had not yet been addressed. The witness said that she thought it was reasonable to require the Complainant to work on site. She said that she thought that they could set things aside for the good of the students, in the context of the very important work that had to be done in relation to the Leaving Cert. and which could only be done on site.

The Complainant raised with the witness that at one point she had said to the witness (the Principal) words to the effect of: “You let me do my job[as secretary]…and I’ll let you do yours [as Principal].”

There was a query raised by the Adjudication Officer, at the hearing, as to when the Board of Management had been notified initially by the Chairperson of the Board of Management in relation to the Complainant’s complaint, and whether the Principal was present. The date was clarified to be 26th November 2019 that the Board of Management was notified, in general terms. [Adjudication Officer’s note: I note that this date is at odds with the date the Complainant submits the Board of Management was notified.]

The Principal also stated that she was not present for the portion of the Board of Management meetings where the matter was being discussed (as a matter of fair procedure).

In the Respondent’s supplemental submission – invited by the Adjudication Officer, at the hearing - in relation to the question of the Complainant’s economic losses, the Respondent denies the Complainant’s assertions in her supplemental submission. It states that it is not in a position to address the figures submitted in the absence of the provision of supporting documentation. It highlights the fact that the Complainant’s public sector pension is linked to public sector increases going forward and particularly emphasises its submission that the Complainant retired rather than resigned. It submits that the Complainant made no effort to mitigate her losses and submits that she appears to have no intention of mitigating her losses going forward. The Respondent hotly disputes the assertion that the Respondent interfered in any way with the Complainant sourcing alternative employment, in particular around the issue of a reference. It submits that no request for a reference was received and that there is no basis for the assertion that one would not have been provided.

Constructive dismissal – burden of proof

In this case, the Complainant alleges that her employer through its failure to address a grievance she raised, in a timely manner, and produce a solution, constructively dismissed her. The burden of proof is on the Complainant, in a constructive dismissal case.

The definition of ‘dismissal’ in section 1 of the Unfair Dismissals Act sets out that dismissal includes ‘the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer.’

This definition sets out two circumstances in which an employee might consider themselves to have been dismissed by the ‘conduct’ of the employer, i.e., where they were ‘entitled’ to terminate their contract or where it was ‘reasonable’ for them to do so.

An employee is ‘entitled’ to consider themselves to have been dismissed when the employer has repudiated the contract of employment. It is ‘reasonable’ for the employee to consider that they have been dismissed when they can no longer be expected to put up with the ‘conduct’ in question.

Berber v Dunnes Stores

In a claim of (constructive) wrongful dismissal, the Supreme Court in Berber v Dunnes Stores (12th February 2009) held: ‘There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee. In assessing whether there has been a breach by the employer what is significant is the impact of the employer’s behaviour on the employee rather than what the employer intended. Having regard to the mutuality of the obligation the impact of an employee’s behaviour is also relevant. The test is an objective one: if conduct objectively considered is likely to cause serious damage to the relationship between employer and employee a breach of the implied obligation may arise.’

Finnegan J. further described the test in the following terms regarding whether an employer’s actions breached the term of trust and confidence:

‘1. The test is objective.

2. The test requires that the conduct of both employer and employee be considered.

3. The conduct of the parties as a whole and the accumulative effect must be looked at.

4. The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.’

In Berber, the Supreme Court held that the employer had committed a repudiatory breach that went to the root of the contract of employment through ‘oppressive conduct’ in light of the employee’s precarious physical and psychological health.

In this case, re-instatement and re-engagement were not sought. Compensation was the remedy sought, and, if an Adjudication Officer is satisfied that a Complainant has been unfairly dismissed, he/she is required to award a sum which is ‘just and equitable’ in all the circumstances, which has regard to the conduct of the employer, mitigation undertaken by the Complainant, and economic loss including future loss, not exceeding two year’s remuneration, which is a monetary and not a temporal sum.

Having carefully considered the evidence and submissions, and applying the relevant law, I find that the Complainant was not dismissed, constructively or otherwise.

I find the Complainant’s direct evidence that she retired having discussed the matter with her family to be correct. She outlined that, as much as she had loved her job over the years and loved the school, no job was worth her health, and that she did not like what her job and work environment had become in the previous two years. She further added that she did not want anyone to take her happy memories [of her good times in the school] from her. So, she retired. I note that, from a legal perspective, retiring - as opposed to resigning - is elective.

The test as to whether someone was constructively dismissed is an objective one and I find that the level of extreme reaction exhibited by the Complainant is disproportionate to any of the facts which have been established.

I find that the Complainant elected to retire subsequent to being certified fit for work and having returned to work, and without exhausting the grievance procedure.

I further find that the failure to exhaust the grievance procedure is fatal to her case.

I find that there is no basis for the Complainant’s assertion, at 5(b) of her supplemental submission that: “I found that all job applications required a reference from previous employer. Under the circumstances, I had no hope of having a reference. My employers, by their treatment of me, have made me unemployable.” The Complainant did not seek a reference from her former employer and there is no basis for her assertion that she would not have been provided with one.

It seems to me, having heard the case and considered the submissions carefully, that the Complainant felt disrespected at work and that she registered her protest at that in various ways. It seems that some of the Complainant’s perception that she was insufficiently respected in her workplace resulted from the fact that the Complainant had a relationship with the school nearly fifty (50) years in length – she was a past pupil prior to becoming an employee – and had a particular view of her own status and position in the school, which, towards the end of her tenure she felt was not recognised by others or reflected back to her in their interactions with her. She placed great emphasis on the length of her tenure and on the length of the tenure of some of the other long-standing members of the school community.

There are multiple instances where the Complainant describes herself as feeling deeply offended and/or hurt. I fully accept that she is sincere in those emotions. However, very little by way of facts or evidence was proffered to support the level of anger and very strong sense of feeling aggrieved which the Complainant clearly displayed at the hearing (and throughout her submissions). She genuinely believes that she has been badly wronged but has failed to meet anything approaching the threshold with respect to constructive dismissal. She has failed to evidence any facts commensurate with her level of hurt, anger and response.

A feature of this case is that the Complainant has put the worst possible construction on the behaviour of others, and attributed ill-motive to them, without any evidence to support those very serious allegations. She has alleged that things were done to target her and she was very angry and upset by her perception that she was being targeted (e.g. the moving of the time of the fire drill and the failure to notify her of the Medmark appointment) but, at the hearing, we heard very clear, cogent and credible evidence, which I accept to be accurate, as to the entirely reasonable explanations for those matters – reasons not involving the Complainant at all, in either case.

At the root of this seems to be a misperception on behalf of the Complainant around the reporting structure in a school - the school secretary reports to the school Principal, which means that the school Principal is entitled to issue reasonable management instructions and the school secretary is obliged, in her role as secretary, to follow them. That gap in understanding was exemplified by the Complainant putting to the Principal at the hearing that the Complainant had, at one stage, said words to the Principal to the effect that, the Principal should let her do her job as secretary and she would [correspondingly] let the Principal do her job as Principal. That is simply not how a reporting structure works. The fact that a previous Principal may have had a different approach; or that a school secretary has been in the job for a long time does not negate her obligation to follow reasonable management instructions issued by the Principal, in the Principal’s capacity as the person in charge of the day-to-day running of the school.

The Complainant does not dispute that she was physically fit for work from December 2019 onwards, but points to the impact of work-related stress on her health and well-being. The Occupational Health doctor’s report sets out, as follows: “Ms. Murphy has been out from work with a complaint of stress-related symptoms. She is being provided with interventions under the care of her GP, who certified her as unfit for work with work-related stress. On assessment today, she did not present with any significant symptoms or clinical signs. Her activities of daily living outside of work are not restricted.

It is my opinion based on assessment of this lady that she is medically fit to return to work. I explained to Ms. Murphy that from a medical perspective she is in my view fit for work and she agreed with my opinion that the obstacle in her return to work is her perceived unresolved difficulties at work rather than any illness. IR/HR issues were raised by this lady today. Naturally, I am not in a position to adjudicate on or validate this matter, but I mention it as it was central to the history offered. I suggest that it is dealt with through the available procedures and processes in the workplace. Ms. Murphy is in my view fit to engage in any such procedures. She is also fit to travel abroad at present.”

This case really highlights the difficulties which arise if two people who work in close proximity have a challenging interpersonal relationship and are employees in a school environment. In another type of workplace, broader options for resolution may be more readily available, which are simply not available in a school. This difficulty is underscored by the fact that the governance of schools is conducted by a voluntary board of management which meets at intervals throughout the year, but which is generally not on site, during the working week. In this case, the Complainant found herself in conflict with the approach of the most senior person on site with responsibility on a day-to-day basis, to whom she was a direct report. The question then arises as to how to address that situation satisfactorily in line with fair procedure and natural justice. One of the difficulties correctly highlighted by the Complainant is the problem with the structure whereby the Principal of the school is also the Secretary to the Board of Management and the contact point for communication with the board, in circumstances where the issue she was seeking to have addressed had arisen with the Principal. It is striking that, under the current system, it falls to the person who is the subject matter of the complaint to manage the HR practicalities around the recording of  the employee’s absence and communication to the employee in respect of their referral to occupational health and the communication onwards of any findings made.

The Complainant sought to read across the Circular applicable to Special Needs Assistants (SNAs) to her scenario, on the basis that that Circular, at least, provided a time-line for the matter to be addressed, whereas the policy applied to her case did not. Since the hearing in this case, the Labour Court has, as set out below, highlighted deficits in that particular Circular, with respect to the requirements of fair procedures and natural justice, specifically around the idea of the Principal being involved in every stage of the process.

The Complainant’s own GP certified her fully fit for work, with no restrictions, from May 2020. Seven (7) working days later, the Complainant notified the Respondent of her intention to retire.

She was subsequently directed by the Principal to attend on site, at the school, for work. This related to tasks which had to be completed in relation to the Leaving Certificate and which the Principal and the Respondent maintain could not be completed remotely, which I accept to be accurate, especially in light of the late information being received by schools from DES, in the context of the Covid-19 pandemic. The Complainant declined, citing, inter alia, her high-risk status and her husband’s high-risk status with respect to Covid-19, as well as the ongoing lack of resolution to the grievance she had raised – she sought to have the Board of Management over-ride that directive, which it declined to do. Ultimately, the part-time secretary attended at the school and carried out the tasks required, as requested.

I do not accept the submission, made on behalf of the Respondent, that it would have been inappropriate for the Respondent to contact the Complainant while she was on sick leave – reasonable contact with an employee is permitted, particularly in respect of visibility as to when the employee expects to be returning to work and/or a referral to an Occupational Health doctor for an assessment, in that regard. It is also not uncommon for an employee to be certified as unfit to work but fit to engage with an employer. I think that the Principal’s evidence that in the circumstances she wanted to give the Complainant “a bit of space” is a much more honest account of what occurred. That, however, does not preclude the Board of Management from contacting the Complainant, had it been notified by the Chairperson of the Board of Management.

National Circular applicable to Special Needs Assistants (SNAs) - Circular 0072/2011 at page 19.

The Complainant further quoted a national Circular applicable to Special Needs Assistants (SNAs) and submitted that, in her opinion, the timelines set out therein with respect to SNAs raising a grievance should also apply to school secretaries on the basis of ‘parity’ in the workplace. The Complainant sought to ‘read across’ from the Circular applicable to SNAs to her own situation. There is no legal basis for this. It does not apply to her.

I further note that the Circular 72/2011 applicable to SNAs, in respect of Grievance and Disciplinary Procedures upon which the Complainant sought to rely has since been found to have legal deficiencies in respect of fair procedure and natural justice (‘nemo judex in sua causa’ and ‘audi alteram partem’) by the Labour Court, in the case of Scoil Áine Naofa V. Mr. Michael Hughes UDD2330, in particular – as per the facts of that case - in respect of a situation where the school Principal is either making a complaint or is a significant witness to an incident which then becomes a disciplinary matter. The Labour Court states, in its determination of that case, that the appointment of an independent investigator would have gone a long way to curing the most glaring of the defects, in the Circular: “It would have been reasonable of the Board to ask her [the Principal] 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.”

In the case before me for hearing, the Board of Management appointed an independent mediator to mediate the matter, with the consent of the parties (in line with the process), the Chairperson having taken advices in relation to the matter, and the party against whom the grievance was raised having been given an opportunity and time to respond in writing to the grievance raised in writing. I find that those simple and procedurally correct actions go a long way to remedying any defects in the approach taken.

Furthermore, where there was a discrepancy between the medical assessments (occupational health V. the Complainant’s own GP), the Board of Management took a generous approach which was the more favourable to the Complainant and entered a period of leave as “approved”, ensuring that she received some monies, despite correspondences from the DES indicating that the Complainant was required to attend at work, as she had been certified fit for work by Occupational Health and was subject to the requirements of the Circular governing that. The reason for this approach was there seemed to be some uncertainty as to whether the Occupational Health doctor should have liaised with the Complainant’s own GP before issuing his report. Therefore, the Board of Management took the more generous of the two approaches available to it.

Public Sector Duty

The Complainant cited Public Sector Duty under the IHREC Act 2014 but that is a very broad, general provision which places an obligation on a public body to:

1.      Conduct an assessment of the equality and human rights issues relevant to its purpose and functions.

2.      Set out in its strategic/corporate plan the policies, plans and actions to address issues raised in the equality and human rights assessment, and

3.      Report annually, on developments and achievements in regard to the equality and human rights issues and actions, in its annual report.

Steps 1,2 & 3 are to be completed in a manner which is accessible to the public.

None of the above is applicable to the Complainant’s employment or to her employer - a voluntary secondary school under Catholic patronage.

Discrimination

Separately, the Complainant appears to be using the term ‘discrimination’ broadly to mean that she was subject to behaviour, treatment or experiences to which she feels she ought not have been subject, in the workplace. That is not what is meant by discrimination, from a legal perspective. Discrimination pertains to a member of a protected class of person being treated less favourably (as a result of possessing that protected characteristic – gender, age, disability, sexual orientation, membership of the Travelling community etc.) as compared against a comparator who did not possess the protected characteristic in question.

The Complainant has advanced no case or complaint on the basis of membership of a protected class. This case does not pertain to discrimination.

Allegations made by the Complainant

In terms of the allegations advanced. I find that there is no basis for the Complainant’s allegation in relation to the change of the time of the fire drill, which precipitated an extreme reaction from the Complainant. I also note her training was recorded and could have been watched later.

I further find that there is no basis for the Complainant’s allegation that she was deliberately not informed as to the date of her Medmark appointment.

The Complainant made a number of allegations about the motives of others, for which she provided no basis and/or which she simply failed to substantiate.

I find that the Complainant was found to be fit to return to work in December 2019, something she accepted at the hearing. There seems to be a conflation between unfitness to work and HR issues – they are not the same. She has an obligation to present for work, having been found fit to do so.

I further find that there is no basis for her allegation that she would not have received a reference nor that she was rendered “unemployable.”

I find that there is no basis to her allegation in respect of being directed to attend on site at work, in May 2020. I further note, that when she declined, that was also accommodated and the part-time secretary was asked to attend on site and do the administrative work urgently required in respect of the Leaving Cert., which she did.

I find that the Complainant retired.

I find that the Complainant made no attempt to mitigate her losses, as she would be required to do, had she been unfairly dismissed, constructively or otherwise; but, in fact, she decided to retire.

As an observation, it is a basic matter of fair procedure and natural justice that an allegation is not the same as a finding; and that an employer has a duty to both an employee making the allegation and an employee against whom the allegation is made, to mind them both through the process.

I find for the Respondent.

I find that this complaint of constructive dismissal is not well-founded.

Constructive Dismissal; Retirement; Grievance Procedure;