Complainant

Respondent

Parties

Martha  McLoughlin

Kildare Town Community School

Representatives

Lars Asmussen, BL, instructed by Sean Costello Solicitors

Claire Bruton, 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-00047687-001

15/12/2021

The complainant worked as a teacher with the respondent school from September 2012. In 2019, arising from complaints, the then Board of Management decided to dismiss the complainant. The complainant appealed to the Teachers Disciplinary Appeals Panel (DAP) who found that the agreed procedures were not followed in a clear-cut fashion and the relevant facts were not ascertained. The BOM accepted the DAP recommendation of a revised sanction. This was a suspension for 3 months and a final written warning.

The final written warning commenced in February 2020. Other alleged conduct issues were raised by the school principal from October/November 2020.

In January 2021, a comprehensive report was sent by the Principal to the BOM. Having considered the report, the BOM decided to dismiss the complainant in May 2021. Again, the complainant appealed to the DAP although on this occasion the decision to dismiss was upheld.

The complainant alleges that she was unfairly dismissed. The respondent denies it was an unfair dismissal. The respondent position is that she was dismissed due to conduct during the 12 months of the final written warning.

Summary of Ms McLoughlin’s (Teacher) Evidence

Ms McLoughlin outlined her experience and career in teaching. Her pay is €2185.82 per fortnight. She outlined the history of the previous complaints in 2019 and said she had been cleared of any wrongdoing. The DAP recommendations were accepted by the BOM in 2019. She had clarified at the DAP hearing that as a professional teacher she was open to undertake Continuing Professional Development (CPD) to upskill. This was reflected in the letter she signed of 29th January 2020 prior to her return to the school after suspension. Her understanding was that there were ongoing issues under discussion on her behalf by her union and school management at this time.

After the 3-month unpaid suspension, she returned on 3rd February 2020 and schools were then closed on 13th March 2020 due to Covid. Like all teachers at the time, she was teaching remotely, and this brought its own challenges. She said there was no prior discussion with her on whether the issues outlined in the letter of 16th November 2020 from the School Principal were conduct or competency issues.

She gave evidence of the lack of due process on 14 alleged conduct issues in the letter of 16th November 2020 received from the Principal. She said there was no informal discussion on the issues as they arose. She had not received any written complaints or witness statements. For some issues, she was not aware of who or what the complaints were about, as some were described in a general manner.

She made a complaint of alleged bullying against the Principal on 18th November 2020 and in the same email requested that she be contacted only through her union. She made a formal bullying complaint to the BOM in December 2020 as she felt she was being constantly monitored on every aspect of her work. She said that her mental health was impacted at this time and she had some counselling over this period. She clarified that the process into the alleged bullying complaint had not been concluded.

On the 14 alleged conduct issues identified by the Principal, she attended a review meeting with the Principal accompanied by her union official in December 2020 which lasted only 15 minutes as she was overwhelmed by the formality and court like approach taken.

She was reluctant to attend a meeting with the BOM arising from her previous experience in 2019. She was awaiting personal data which had been sought from the school. She felt that she needed all  information on record available to her as otherwise she would have been blindsided.

She gave evidence on the Occupational Health Reports which conflicted with her GP advice not to attend the BOM meeting in May 2021. She was devastated that the meeting had taken place in her absence and that she had been dismissed.

She gave some background on a complaint by a parent in October 2020 due to her disclosure in class of a student with a learning disability. This issue was later documented in the minutes of the BOM meeting in May 2021 when she was dismissed. She did not know why this issue was in the minutes of the BOM meeting when it was already resolved after a discussion with the parent.

She gave evidence of her subsequent temporary employment as a teacher and her efforts to find employment. She was now in receipt of unemployment benefit although she is on a panel awaiting to be offered employment.

She was cross-examined by the respondent’s representative. She was asked why she did not seek further information on the 14 conduct issues raised by the Principal. She replied that she had sought personal data from the school and was awaiting this information. She was questioned on the earlier 2019 DAP recommendations and whether she was aware that fundamental change was expected of her which is why she was to undertake CPD training and was issued with a final written warning.

She was questioned on why she did not participate in the review during the 12-month period. She responded that the tone of the November 2020 letter from the Principal was disciplinary in nature and her understanding of a review was that it should be an open two-way discussion.

She was questioned on her sick leave absence and the Occupational Health Reports which said that she was deemed fit to attend the meeting with the BOM. She replied that her GP was more aware of her stress and medical condition. She was questioned further on the correspondence leading up to the dismissal meeting of 14th May 2021 and why she was surprised the meeting proceeded without her.

She was asked why she did not respond to the issues raised by the Principal particularly as she was able to submit a bullying complaint and instruct solicitors at that time. She responded that she was awaiting personal data and had done some preparation with the assistance of her union to respond to the issues raised by the Principal.

She was cross-examined on her income since the dismissal and her efforts in seeking permanent employment. She replied that she had sought other teaching jobs and she was not confining herself to this type of work. She said that her age may be a reason why she has not been successful to date, in obtaining a permanent job.

Summary of Mr Hayes (School Principal) Evidence

Mr Hayes gave some background of the school and of his appointment as Principal towards the end of 2018.

On foot of complaints from parents at the end of 2018, he investigated these and submitted a report to the BOM, as per the disciplinary procedures. The BOM decided to dismiss the complainant although this sanction was reduced on appeal to a 3-month suspension and a final written warning. In January 2020, he attended a meeting with a BOM member, the complainant and her representative who all signed a declaration of how matters would proceed in accordance with the final written warning over the following 12 months. The letter included Continued Professional Development (CPD) and adherence to the specific improvements identified.

The complainant returned to the school after the suspension in February 2020. The school was then closed due to Covid and there was a return to classrooms in September 2020. He was not satisfied with the progress of the complainant in completing the CPD courses and with other school/classroom issues. On 16th November 2020, he wrote to the complainant seeking a review meeting and set out 14 areas of concern he had with her conduct. This culminated with a meeting on 7th December 2020 with the complainant and her union representative. This meeting lasted 15 minutes as the complainant left the meeting abruptly.

As the complainant was reluctant to attend another meeting, he offered her the option of making a written submission on the conduct issues he had raised. The complainant did not take up this option.  Later in December 2020, the complainant made a bullying complaint against him to the BOM.

As there was no engagement by the complainant, he wrote a comprehensive report to the BOM setting out the issues of concern with her conduct. He attended the BOM meeting on 14th May 2021, and he was questioned on aspects of the comprehensive report. He then left the meeting and the BOM decided to dismiss the complainant. He was then aware of the subsequent appeal to the DAP and their decision to uphold the decision of the BOM.

He was cross-examined by the respondent’s representative on his awareness of the principles of natural justice and he was brought through the relevant sections in circular 49/2008. He was questioned on the DAP decision of November 2019 to uphold the complainant’s appeal and the recommendation to reduce the sanction to an unpaid suspension period and final written warning. He was questioned on the duration of the warning period from 1st February 2020 to 1st February 2021 with the dismissal of the complainant in May 2021.

He was asked about the conditions set out in correspondence of December 2019 under which the complainant was expected to comply when she returned in February 2020. He confirmed that these terms were ultimately agreed and signed off by all parties on 29th January 2020.

He was questioned on the issues to be addressed by the complainant as set out in the letter of 16th November 2020. Of the 14 conduct issues identified, he was asked whether these issues were raised at the time with the complainant and if she was afforded appropriate details on the issues so she could respond. Although there was questioning on each of the 14 issues, in short, the response was that these issues were to be discussed later during the review meeting.

He was asked whether the email of 18th November 2020 was a complaint of alleged bullying against him, and the adequacy of his response by referring the complainant to her union.

He was questioned on the review meeting of 7th December 2020 and the subsequent letter of 15th December 2020 to her union official which stated that there was a deadline of February 2021 for the conclusion of the process.

He was questioned on the comprehensive report sent to the BOM and whether there were written complaints or witness statements attached to the report. It was confirmed that the report was a standalone report without these attachments. He was further questioned on issues in the report which were never raised with the complainant at the time they occurred.

He was asked about the BOM minutes and a discussion at that meeting concerning the disclosure of a student with a learning disability.

On re-examination, he clarified that the letter of 29th January 2020 was signed by all parties. He had a concern that the complainant was avoiding participation in the review. Prior to the letter of 16th November 2020 there had been some earlier informal contact in September 2020 to set up the review. He clarified that a Deputy Principal was to accompany him at the review meeting and that it was not a disciplinary meeting.

Summary of Ms Prendergast (Chairperson, BOM) Evidence

Ms Prendergast outlined her previous years on the BOM prior to becoming Chairperson. She said she reviewed the disciplinary procedures to ensure there was compliance and that all parties would be dealt with in a fair manner. She understood that the complainant would have received the comprehensive report around the same time as the BOM and that they wanted her to attend to give her views. She said that the first date for meeting the complainant was changed due to the mid-term break and it was then arranged for 22nd March 2021. The second scheduled meeting was also postponed due to the complainant being on sick leave. Subsequently, two further dates of 14th or 17th May 2021 were offered. Letters were then received by the complainant’s solicitor and her GP that she could not attend the meeting. She said that the BOM had received legal advice and the meeting proceeded on 14th May 2021. The BOM went through the comprehensive report which was followed by questions to the Principal from members of the Board. She said the Principal left the meeting and then the BOM had further discussions before making the decision to dismiss the complainant. She said the decision was not an easy one given the information available and the fact that the complainant did not attend. She confirmed that she attended the subsequent DAP appeal and the decision to dismiss was upheld.

Ms Prendergast was cross-examined by the complainant’s representative. She confirmed there were no written complaints or witness statements attached to the comprehensive report. She was asked whether the BOM considered the issues in the report to be conduct or competency issues. She was questioned on the BOM knowledge of the data request to the school in March 2021. She was asked about the GP and solicitor’s letters that confirmed the complainant was not certified fit to attend the meeting. She was questioned on the information offered by the Principal on the conduct issues including a complaint from a parent in October 2020 on the disclosure of a learning disability in the classroom.

The Law

Section 6(1) of the Unfair Dismissals Act provides:

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

Section 6(4) of the Unfair Dismissals Act provides:

“Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:…

(a) ………………………………………………

(b) the conduct of the employee…”

According to the Act, the onus is on the respondent to demonstrate the grounds for dismissal were justified. Therefore, the hearing commenced with the respondents giving evidence to show that grounds existed to form the basis for dismissal. The respondent relies on the grounds for dismissal outlined in the comprehensive report which was considered by the BOM and then subsequently on appeal to the DAP.

It is well established that employees are entitled to contractual and constitutional rights to fair procedures.Given the role and reputation of a teacher both within the school and the wider community, it is essential that robust procedures are in place when issues of conduct or competency arise.

At the hearing it was clarified that the adjudication role was not to re-investigate or become a decision maker on the substantive conduct issues. The representatives accepted this and focussed their questioning of witnesses on the procedural aspects of the case.

Procedures under Circular 49/2018

The circular outlines two procedures depending on whether the issue is one of conduct or competency. During the hearing, the respondent clarified that the issues related to conduct even though the complainant’s representative questioned the rationale for this approach.

The circular outlines under Stage 4 that –

‘a comprehensive report on the facts of the case will be prepared by the Principal and forwarded to the board of management. A copy will be given to the teacher.

The board of management will consider the matter and will seek the views of the teacher in writing on the report prepared by the Principal. The BOM shall afford the teacher an opportunity to make a formal presentation of his/her case.’

The procedure then states, ‘Having considered the response the board of management will decide on the appropriate action to be taken.’

Appendix 1A of the circular then sets out the procedure to appeal a BOM decision to the Teachers Disciplinary Appeal Panel (DAP).

This case is unusual in that prior to dismissal, the complainant did not take the opportunity to make representations on the issues raised by the Principal at the end of 2020. The complainant made representations on the substantive and procedural issues for the first time at appeal stage after the BOM decision to dismiss in May 2021.

The process at appeal stage reviews the procedural issues so the detailed submission from the complainant on the conduct issues were not considered by the DAP.

The DAP decided that the BOM was within their rights to proceed with the hearing on 14th May 2021 having examined the Occupational Health and GP reports.

The DAP also decided that the agreed procedures were adhered to. This will be discussed later. The decision was ‘In accordance with Circular 49/2018, Appendix A, section 16, the BOM may proceed with the disciplinary action.’

Circular 49/2018 also allows for a legal appeal as below which the complainant has availed of-

‘These procedures are without prejudice to the right of a teacher to have recourse to the law to protect his/her employment.’

12 Month Final Written Warning

The issue of the February 2021 deadline raised by the Principal in correspondence arose in evidence. The review period was from February 2020 to February 2021 under the final written warning. It was suggested by the complainant’s representative that a dismissal outside of the review period could be considered invalid. It was also suggested the deadline referenced by the Principal indicated a predetermined outcome to the process underway.

The context of the final written warning is significant. It was a recommendation from the DAP accepted by the BOM in 2019. It was a unique situation as the normal staged disciplinary procedure was bypassed and the complainant found herself at stage 3, the final written warning stage.

On a close examination of the procedures there is a clause at stage 2 which states-

‘There may however be occasions where an employee’s work or conduct is satisfactory throughout the period the warning is in force only to lapse very soon thereafter. Where such a pattern emerges and there is evidence of an undermining of the disciplinary process, the employee’s previous conduct and pattern of behaviour may be considered as a whole in a future disciplinary procedure.’

The above clause for some reason is not included in stage 3 of the procedure. This may have influenced the Principal to ensure the review was undertaken within the 12-months. He had a duty to undertake the review as if not carried out, the complainant could claim he was outside the 12-months.

It is regrettable that the time-line was not resolved by the parties particularly as all parties representatives signed the letter of 29th January 2020. At that time, Covid had prevented classroom teaching from March to September 2020. The complainant also had sick leave over the same critical period when the review was sought. This meant that the review in effect was taking place over a short time-span from November 2021 to February 2022.

I do not agree with the complainant’s representative view on an ulterior motive of the Principal in undertaking the review and making reference to a deadline. It was open to both sides to seek more time due to the circumstances. Whilst nothing turns on this issue, it does set the context for subsequent events due to the time constraints.

Comprehensive Report and Minutes of BOM Meeting to Dismiss

In conjunction with the evidence at the hearing the important documents to be considered are:

·         Letter of 16th November 2020 to the complainant requesting a review meeting on the 14 issues of concern to the Principal.

·         The subsequent comprehensive report sent to the BOM by the Principal under Stage 4 of the Circular.

·         The minutes of the BOM meeting of 14th May 2021.

·         The submissions to the DAP and the DAP recommendations.

The comprehensive report and BOM minutes are relied upon by the respondent to show the grounds of dismissal and the procedures followed. The Principal had sought to commence the review and as there was no co-operation, he formally set out the issues of concern in the letter of 16th November 2020. He then submitted a comprehensive report to the BOM which was copied to the complainant at the end of January 2021.

The complainant’s representative challenged witnesses on aspects of the comprehensive report and minutes of the BOM meeting. This questioning focussed on whether the procedures and in particular the general principles were being complied with. Indeed, much of the evidence of both sides rightly focussed on these matters. The respondent’s representative demonstrated the steps that had been taken by the Principal and the BOM leading up to the dismissal. The complainant’s representative drilled into the contents and focussed on procedural defects.

General Principles Underpinning Procedures

These are to ensure the normal general principles of natural justice apply and are contained at the beginning of Circular 49/2008. The complainant’s representative is particularly relying on the following contained in these general principles-

·         That the basis for disciplinary action is clear …….

·         Early intervention at the appropriate level to address perceived inappropriate behaviour is desirable for all parties so as to minimise the risk of having to escalate sanctions as provided for in these procedures.

·         That the employee will be advised in writing in advance of the disciplinary meeting of the precise nature of the matters concerned and will be given copies of all relevant documentation. In the case of a complaint, this detail will include the source and text of the complaint as received.

·         A complaint should be in writing.

·         That the teacher concerned has a right to a fair and impartial examination of the issues being investigated, taking into account the allegations or complaints themselves, the response of the teacher concerned to them, any representations made by or on behalf of the teacher concerned and any other relevant or appropriate evidence, factors or circumstances.

 Later under Stage 4 of the Procedure it states-

‘If it is perceived that the poor work or conduct has continued after the final written warning has issued or the work or conduct issue is of a serious nature a comprehensive report of the facts of the case will be prepared by the Principal and forwarded to the board of management.’

Although the procedure is silent on the Principals attendance, he attended and then left the BOM to deliberate on their decision. The complainant did not attend.

Findings

I have considered the procedures and the direct evidence of the parties. There was no early intervention to informally raise with the complainant the conduct issues relied on in the comprehensive report of January 2021. Practically all the issues were not documented contemporaneously as they arose prior to 16th November 2020.

The comprehensive report submitted to the BOM contained an extensive list of issues/concerns about the complainant’s conduct. The complainant was not given copies of all the relevant documentation such as written complaints, witness statements and other relevant documents. It is unclear what evidence was gathered to substantiate the conduct issues in the report. Therefore, a question arises as to whether the comprehensive report was fact based due to the absence of documents and an over reliance on hearsay evidence. The comprehensive report concluded with the following statement-

‘As I have already stated in this report I am of the view that Ms Mc Loughlin has failed to comply with the requirements of the Final Warning in any substantive way. There has been no improvement in her performance as measured against any of the key requirements as set out in the Final Warning.

I am of the view that that the failure to comply with the requirements of the Final Warning could amount to serious misconduct on Ms McLoughlin’s part. As I have also set out in this report I am of the view that Ms McLoughlin through her actions has sought to undermine me as Principal in the performance of my statutory role. I am concerned that her actions in this regard also amount to serious misconduct.

For all of these reasons I am referring my concerns to the BOM at Stage 4 of the disciplinary procedures for further investigation.’

The procedures state that the comprehensive report should contain the facts of the case. This then allows the BOM to examine the facts and consider any representations from the teacher. Other than providing the facts, there is no requirement for the Principal to attend as any matters of fact should speak for themselves. Although the comprehensive report contains much detail, there is insufficient evidence of an investigation on the conduct issues to validate the concerns of the Principal.

Although the complainant was on a final written warning, there is a requirement that conduct be investigated and substantiated to a reasonable degree. The extensive list of conduct issues or even a selection of these were not investigated to the degree that they become ‘factual’ as required by the procedures. The concluding remark in the extract above referring concerns to the BOM for further investigation tend to show that a proper investigation had not taken place. The General Principles as outlined above state- ‘That the teacher concerned has a right to a fair and impartial examination of the issues being investigated, taking into account the allegations or complaints themselves, ……..’

An investigation undertaken even without the co-operation of a teacher, should still contain written complaints and witness statements to consolidate the facts. There is still a requirement to establish the ‘facts of the case,’ as required by the procedures.

Redmond on Dismissal Law, 3rd Edition at 13.54 states ‘The investigation must be comprehensive to the degree that the outcome could be assured to provide a basis for conclusions to be drawn on the balance of probabilities following the conduct of the Respondent’s disciplinary process.’

BOM Deliberations

The BOM were required as per the procedures to examine the comprehensive report and decide whether further disciplinary action was warranted and if so, they may avail of a list of sanctions. The procedure does not specifically state other options although the use of the word ‘may’ does suggest that the BOM had other options.

Relevant Facts

It should be noted though that this was stage 4 and normally all the other stages would have ensured that the relevant facts were established. In this case, the earlier stages were bypassed as the complainant was at stage 3 as per the DAP appeal in 2019. There is no evidence that the BOM gave these circumstances the required consideration.

The Chairperson gave evidence that this was not an easy decision, and the minutes reflect this. The minutes show that there was some difficulty by members with understanding the detailed comprehensive report. For instance, the Principal was asked at one stage by a BOM member- ‘If you were to summarise 3 serious issues what would you summarise?’

This does not demonstrate that the report was clear on the facts particularly as the Principal was not required to be in attendance.

The minutes of the BOM do not demonstrate that any further investigation took place.

Complainant not on notice

In evidence it was clarified that an email complaint of 28th October 2020 from a parent was read to the meeting by the Principal. The complainant’s representative alleged that this specific issue was not included in the comprehensive report and therefore should not have been raised at the meeting. It is clear from the minutes that this issue was given some weight when a decision was being made on an appropriate disciplinary sanction. A member of the BOM said ‘No effort has been made regarding changes improving relationships with all key stakeholders including students for example, the case with the student with dyslexia.’

This breached the procedure as the complainant was entitled to know the ‘basis of any disciplinary action.’ The BOM should not have allowed the process to extend into an area which was outside of the conduct issues on notice to the complainant.

The voluntary members of the BOM were at a disadvantage though as the complainant nor their representative were present to object to these considerations. Nevertheless, this was still a serious breach of process which prejudiced the complainant and influenced the decision-making process.

Redmond at 13.72 states that ‘Heavy emphasis has been made in recent case law on the duty on an employer to set out clearly the allegations made against an employee from the outset, with the employer not permitted to augment the allegations as the investigation progresses.’

DAP Deliberations

In evidence, the respondent representative brought the Chairperson of the BOM through the DAP hearing as she herself was present on behalf of the BOM. The DAP decided on a detailed assessment of the medical evidence that the BOM were entitled to proceed with the meeting on 14th May 2021 even in the absence of the complainant.

Decision Not to Refer Back to BOM

The complainant appeared at the appeal with her representative and had made an earlier submission which included a detailed response to each of the issues raised in the comprehensive report. As this detailed response was not considered by the BOM at first instance, the DAP could not consider the submission either. The procedures though did allow the DAP to recommended that ‘the case should be re-considered by the board of management to remedy a specified deficiency in the disciplinary procedure.’ 

This was an opportunity to remedy a deficiency in the process particularly as there was now a late submission which the BOM would have wanted available anyway when they considered these matters at first instance. The complainant’s medical reports during Covid along with the history of the case were sufficient reasons to allow some latitude to remit matters back to the BOM for reconsideration.

Procedural Defects

I have examined the complainant’s submissions to the DAP hearing. This included a detailed outline of the procedural defects. It mentioned the lack of early intervention by the Principal, an absence of written complaints, witness statements and a failure to fully investigate the alleged conduct. As the DAP also had a copy of the minutes of the BOM meeting, there was an opportunity to examine whether the facts of the case were investigated fully in the comprehensive report. The minutes also reveal that BOM members needed clarity on aspects of the report and allowed an additional issue not on notice to the complainant to be discussed.

The following extract from the DAP decision appears to place the onus on the teacher to appear and defend herself rather than placing the onus on the BOM to ensure that the factual matters of the case were clear and fully investigated before deciding to dismiss.

 ‘Following a final written warning as a result of a previous DAP finding and the failure of the appellant to engage in a review meeting as required under the findings of the previous disciplinary hearing, it was in order for the Principal to proceed to Stage 4 of the procedures and to prepare a comprehensive report for the BOM. The appellant was invited to make a written response as a prelude to the proposed meeting with the Principal which she refused to do. This is not part of the normal process and demonstrates flexibility on the part of the Principal. The appellant also failed to attend any of the three scheduled meetings with the Board of Management. Adequate advance notice was given for these meetings to enable the appellant to prepare fully. The failure of the appellant to attend these meetings does not mean that the agreed procedures were not adhered to.’

The DAP spent much time assessing the medical reports and made a well-considered decision on this matter. It is not clear though that due consideration was given to the complainant’s submission on the procedural defects.

There was no evidence given by a member of the DAP so there is no further explanation provided on their considerations.

BOM Acceptance of DAP Recommendation

Having found that a case had not been established by the complainant, the DAP at the end of their report concludes ‘In accordance with Circular 49/2018, Appendix A, section 16, the BOM may proceed with the disciplinary action.’

It is noted that section 16 of the procedure state that ‘Where the opinion is to the effect that such a case has not been established the BOM will proceed with the disciplinary action’.

Section 18 then states, ‘The final decision in respect of the appeal panel recommendation rests with the BOM which shall set out in writing the basis of the decision.’

The wording above suggests that despite the recommendation from the DAP there was still a window to allow the BOM to take stock and re-consider. They now had access to the complainant’s submission. This was a further opportunity for the BOM to reconsider matters and allow for a proper investigation. This opportunity was not taken up by the BOM.

Summary of Findings

It may appear that the complainant was afforded due process and fair procedures in that she had opportunities to counter conduct allegations of which she did not avail. She was also afforded an appeal to the DAP as per the procedures. On consideration of the detailed evidence though, there were several breaches of procedure as discussed. These are summarised as:

·         The conduct issues were not raised contemporaneously.

·         There is an absence of written complaints and witness statements.

·         There is an absence of evidence to show that an investigation was carried out to establish facts.

·         There was no full investigation and the Principal’s concerns on conduct were not validated.

·         There is no evidence of the BOM carrying out a further investigation.

·         An issue was discussed at the BOM which was not on notice to the complainant which prejudiced her.

It is common case that procedural defects can occur and these do not automatically make the dismissal unfair. The defects in this case were considerable and contributed to the complainant not being afforded due process. An opportunity arose later in the process to correct previous defects, and this was not availed of.

For the reasons outlined, I find that the complainant was unfairly dismissed on procedural grounds.      

Redress

The Law

The definition of ‘financial loss’ in section 7 of the Act provides: ‘… any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, ………….’

Section 7.2 of the Act states in determining the appropriate award, I must have regard to:

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid, […]

(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

The complainant has sought compensation and I agree that this should be the appropriate remedy. The reason for this is that mutual trust has broken down between the parties and this could have occurred as far back as 2019 arising from the first disciplinary process.

The complainant gave evidence of her attempts to obtain employment. She obtained temporary employment as a teacher from 24th March 2022 to 3rd June 2022 and from 27th August 2022 to 2nd June 2023. Allowing for the notice period already paid and the combined 11 months temporary employment, I estimate the overall financial loss to be estimated at €70,000. I estimate loss of pension rights and superannuation entitlements at €2,000 which brings the total loss to €72,000.

On prospective loss, the complainant confirmed in evidence that she is on a panel for a post. As she should also have opportunities to apply for and attain a teaching post, I am not making any award for prospective loss.

Under 7.2 (b), I consider that the complainant contributed to her dismissal by not co-operating or making representations in accordance with the procedures. The agreed procedures are in place to protect both parties and yet despite several opportunities to make representations either verbally or in writing, the complainant did not participate until the appeal stage. There was an opportunity over a number of months to respond in writing to the conduct issues raised by the Principal. There was a further opportunity to respond in writing to the BOM from January 2021 to May 2021 which was also not taken up. Due to the complainant’s conduct, as described, I consider it just and equitable to reduce the actual financial loss by 50% to €36,000.

Under 7.2 (c), deals with measures the complainant took to mitigate her loss. The evidence shows insufficient efforts over the period to obtain employment. There were emails submitted which show attempts were made from 24th February 2022 and this is not in line with Sheehan v Continental Administration Co Ltd, UD 858/1999. Due to this inactivity in seeking employment over several months, I decide to reduce the award by a further €8,000. This reduces the compensation award to €28,000.

I decide that the complainant was unfairly dismissed, and the respondent shall pay to the complainant just and equitable compensation of €28,000.

I decide that the complainant was unfairly dismissed, and the respondent shall pay to the complainant just and equitable compensation of €28,000.     

Unfair Dismissal, Procedures