Complainant

Respondent

Parties

Jennifer  Clancy

The Manager, Templeogue College

Complainant

Respondent

Anonymised Parties

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Representatives

Conor Duff BL instructed by Hazel Doyle Solicitors

Rosemary Mallon BL instructed by Liam Riordan Mason Hayes & Curran

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00053381-001

21/10/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00054548-001

18/01/2023

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00054548-002

18/01/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00054548-003

18/01/2023

The Complainant commenced her employment with the Respondent in May 2018. She stated that she was penalised by the Respondent following a protected disclosure she made in February 2022. She also stated that the Respondent changed a contractual document without having informed her that they were doing so.

CA-00053381-001:

The School Secretary informed the Complainant in May 2022 that there had been an ‘issue’ regarding the previous year and that the CID she had been promised had not been approved. This was the first occasion of the Complainant having been informed that her CID had not been approved and came as a complete surprise to her. On 13 May 2022, the Complainant e-mailed the Principal to clarify the situation regarding her contract of employment. When the Complainant raised the issue regarding the CID, the Principal responded by stating that there appears to have been a ‘misunderstanding’ and stated via email that they had not in fact applied for a CID for her the previous year.

The Complainant stated that the Principal’s reply was a complete contradiction, and at variance with previous representations to the effect that she had a CID. Arising from the foregoing and the Complainant’s legitimate concerns regarding her contract, on 9 September 2022 the Complainant submitted a data subject access request to the Principal seeking copies of her employment records.

 On 17 October 2022, the Complainant received copies of her employment record from the Respondent in response to her DSAR. The said documentation included the Reappointment form for 2021/2022. However, when the Complainant had sight of this document, she realised that the document had been amended with ‘tipp-ex’. The Respondent had tipp exed the ‘permanent’ box; and instead, had ticked ‘[r]egular [p]art [t]ime’.

The Complainant, at the time this amendment was made was never consulted and/ or informed regarding this unilateral amendment to her contractual documentation concerning her contract.  The following day after receiving copies of her personal data, the Complainant wrote an e-mail to the Principal on 18 October 2022 seeking clarification on what appeared to be an amendment of the contract. The said e-mail stated: ‘[f]urther, I note from file one, page four that there appears to be an amendment that was made to this document. You might confirm when this amendment took place. Further, you might please confirm why the ‘permanent’ box appears to have been smudged with correction fluid and instead ‘part time’ filled in this box’.

On 21 October 2022, the Complainant received a response from the Principal wherein the Principal acknowledged that there was an amendment to the reappointment form and stated: ‘the paperwork was changed on the advice of the payroll department’. This unilateral change had never been communicated to the Complainant.

CA-00054548-002:

The Complainant commenced her employment with Templeogue College in May 2018 under a Principal who retired in August 2019. In moving to the Respondent School, the Complainant decided to forego a pensionable, permanent contract in her former school. The Complainant left in the reasonable expectation that her subject was in such demand that she would get a permanent contract given that she teaches a core subject.

When the Complainant applied for the position at Templeogue College, she informed the then Principal that she was only in a position to work until lunchtime in circumstances where her children were primary school going age and needed to be collected from school in the afternoons. The then Principal of the school reassured the Complainant that she would take all the necessary steps to prioritise the allocation of classes until lunchtime to the Complainant. The Complainant indicated that she could potentially work some afternoon classes if sufficient notice was provided, and suitable arrangements for childcare could be made. Any afternoon classes that were assigned during the tenure of the previous Principalship and with the current Principal (pre-February 2022) were always assigned after consultation and communication with the Complainant, with ample notice. Over the three academic years pre-2022/2023, the Complainant had never worked more than one afternoon per week.

Prior to having signed a collective grievance, the Complainant retained a positive working relationship with senior management of the school. The Complainant collaborated and communicated with the Principal professionally regarding curricular and extra-curricular activities which she was involved in organising. The Complainant also provided extra support to students in her own time.

On or around mid-August 2021, the Complainant received her school timetable for the 2021/2022 academic year. When the Complainant received the said timetable, the Complainant was surprised to notice that she had been scheduled to teach two afternoon classes. The Complainant brought this to the immediate attention of the Principal by way of e-mail. The Principal replied by way of e-mail on 28 August 2021 stating: ‘Morning Jenny, Thanks for the feedback. I’ll run another timetable now and try to sort it out. See you on Monday, Niamh’. The Complainant stated that the above e-mail was highly significant and that it constituted an express acknowledgement that it was clearly an error that the Complainant had been scheduled for two afternoon classes and departed from the arrangement between the Principal and the Complainant. Following the above e-mail, the Complainant received a revised timetable for the 2021/2022 academic year which, entirely comprised of lessons until lunchtime.

On or about 7 February 2022, the Complainant along with ten of her colleagues signed a collective grievance concerning relations within Templeogue College. The grievance largely related to changes that were made to work practices within the school. The collective grievance also made a number of complaints under the provisions of the Data Protection Act 2018 and the Safety, Health, and Welfare at Work Act 2005. Specifically, the collective grievance included the following: a. Dignity in the workplace; b. Failure to provide a rest area for staff members (with express reference to the Safety, Health, and Welfare at Work Act 2005); c. Failure to consult with staff regarding changes to work practices; d. Conduct and procedures governing staff meetings; e. Failure to provide notice of scheduled teaching classes; and, Failure to adhere to the Department Circular regarding substitution rosters; in total, 17 grievances were raised within the content of the collective grievance document that was signed by eleven teachers. Of the eleven teachers, only six continue to teach at Templeogue College.

Prior to the commencement of the 2022/2023 academic year, on 17 August 2022, the Complainant noted that her timetable comprised exclusively of lessons scheduled until lunchtime. The timetable was also in accordance with the cohort of students the complainant taught the previous academic Two days prior to the commencement of the 2022/2023 academic term, on 22 August 2022, the Complainant again logged on to her VSware account for the purposes of writing out her timetable in her school notebook. The Complainant noticed that it had been dramatically altered. The altered timetable (almost) exclusively comprised of afternoon classes with very late commencement times. The said changes were made without any form of consultation and/ or communication with the Complainant in respect of same. The Complainant since learned that in fact two of her colleagues in the Spanish Department were available to teach the afternoon classes that had been assigned to the Complainant. The afternoon classes could have been assigned to the Complainant’s colleagues within the Spanish department; and, thus, allowing the Complainant to teach the morning Spanish lessons. This would have ensured continuity of students who the Complainant taught for the previous academic year.

When the Complainant noticed the changes, she immediately telephoned the school reception and spoke to the school secretary requesting to speak to the School Principal, who was unavailable. A message was left for the attention of the Principal. On the same date, the Complainant emailed the Principal requesting a call from her to discuss the changes made to her timetable. The following day (23 August 2022), after two attempts, the Complainant phoned the school and sought to speak to the Principal. The Complainant spoke to the secretary who confirmed to the Complainant that there would be no further changes to the timetable. The Complainant nonetheless sought to speak to the Principal, being the fourth attempt.

When the Complainant spoke to the Principal over the phone on Tuesday, 23 August 2022, the Principal informed the Complainant that the timetable was ‘non-negotiable’ and morning classes until lunchtime ‘could not always be accommodated’. The Complainant immediately noticed the change of tone and manner with the Principal over the phone. The Principal and the Complainant had always maintained a very cordial and friendly tone. It immediately struck the Complainant that the Principal’s tone and manner had completely changed and was in a sharp contrast to what it had previously been. The Complainant stated to the Principal that she had always worked classes until lunchtime and was not in a position to work classes after lunch, as her children required childcare. The Principal told the Complainant to ‘think about it’.

Thereafter, the Complainant contacted her ASTI representative, for advice regarding her timetable. On 24 August 2022 the Complainant wrote to the Principal and sought to rectify the issues regarding the timetable.

When no reply was forthcoming, on 25 August 2022, the Complainant e-mailed the Principal again. At this juncture, the Complainant became concerned as classes were due to commence that week. The Complainant also became concerned as her children were due to return to their respective schools, and the Complainant had not arranged childcare. The Principal thereafter, on 25 August 2022, arranged to meet with the Complainant in person the following day (26 August 2022). The Complainant understood this meeting to relate to the timetable that had been assigned. The Complainant felt relieved that she was getting an opportunity to meet and discuss the timetable issue with the Principal.

The Complainant attended the meeting with the Principal on 26 August 2022. The Complainant was joined by her Trade Union School Steward, Mr Cormac Duignan and the Principal attended with the Deputy Principal. The Principal commenced the meeting in an aggressive manner. The Principal demanded an explanation from the Complainant as to why she was not present for the afternoon session of the Haddington Road staff meeting. This was the first occasion, in the Complainant’s history of working in the Respondent school that she was asked to account for why she was not in attendance for the final half of a Haddington Road staff meeting. Furthermore, it was at all material times the expectation of the Complainant that the meeting of 26 August 2022 was for the purposes of discussing the timetable. The Complainant had no idea that this issue was for discussion during this meeting. The general tone and level of aggression adopted by the Principal had the effect of making the Complainant feel incredibly uncomfortable and intimidated throughout the course of the meeting. The Complainant had never experienced this in her entire professional life. The Principal did not allow the Complainant to discuss the issue of the timetable. The Principal adopted such an aggressive tone with the Claimant that it ultimately culminated in the Complainant having to request the Principal to calm down; and, eventually, led to the Complainant having to suspend the meeting. The Complainant left the meeting tearful and feeling very upset. The Complainant spent the entire evening crying at home and had a sleepless, and stressful night as a result. The Complainant details that she considered resigning as a result of the events culminating the meeting on 26 August 2022.

On 29 August 2022, the Complainant’s trade union representative wrote to the Principal indicating that the timetable would place the Complainant in a position where she would have no choice but to resign, if left unaddressed and was eager to resolve the issue as soon as possible. The said e-mail stated that if the timetable was not addressed, it would lead to the Complainant inter alia deeming herself constructively dismissed from her employment. As a result of events culminating with the meeting of 26 August 2022, the Complainant decided to invoke the ASTI/ JMB Agreed Grievance Procedure to resolve her dispute upon the advice of her trade union representative.

The Complainant attended her GP on 29 August 2022 as a result of her having experienced a flare up in her auto-immune disease. The Complainant’s GP, Dr Quinn indicated to the Complainant that the flare up was caused as a result of work-related stress. The Complainant detailed to her GP the actions of the Principal and the profound effect that the Principal’s behaviour was having upon her. The Complainant detailed that she had difficulty sleeping and eating and had no self-confidence as a result. The GP recommended to prescribe the Complainant anti-depressant medication and sleeping tables to assist sleep patterns and stress. The GP certified the Complainant unfit to work until 26 September 2022.  The Complainant attended her GP on several subsequent occasions and was on sick leave for a total period of 91 days.

On 29 August 2022, the Complainant received an e-mail from the Principal enclosing a letter. Within the letter, the Principal indicated that she was invoking the Disciplinary procedure against the Complainant. This was the first occasion, in the Complainant’s entire working history, that a disciplinary procedure had ever been invoked against her. This caused further upset and distress to the Complainant. The Complainant was also acutely aware that the initiation of a disciplinary procedure would be present in her employment record maintained by the School. The Complainant was at a complete loss as to what this disciplinary procedure pertained to and highlighted that the letter did not comply with the requirements of Department of Education Circular 0049/2018. Specifically, the letter did not set out the basis upon which the procedure had been initiated, the identity of the Complainant(s) (if any), the allegation that was being made against the Complainant, nor did it outline the reason why the procedure was being invoked. Following receipt of the e-mail, the Complainant wrote to the Principal on 29 August 2022, calling upon her to provide the Complainant with particulars relating to the disciplinary procedure invoked against her. To date, the Complainant has not been in receipt of a response to this letter. On 30 August 2022, the Principal wrote to the Complainant stating that the wires had crossed in terms of the disciplinary letter having been sent to the Complainant at the same time as the Complainant sent in her medical certificate.

On 30 August 2022, the Complainant wrote to the Principal seeking to invoke Stage one of the Grievance Procedure. The said request referred to the timetable revision and raised a grievance regarding the tone adopted by senior management during the course of the meeting which took place on 26 August 2022. The Complainant also referred to the disciplinary procedure having been invoked against her and the lack of particulars relating thereto. The Complainant cited within the said letter that she felt victimised as a result of having signed a collective grievance. Additionally, the Complainant sought detailed particulars regarding the disciplinary procedure that had been invoked against her.

On 5 September 2022, the Complainant received a letter from the Principal inviting her to attend for a stage one meeting on 9 September 2022. Stage one of the grievance procedure proceeded on 9 September 2022. The Complainant attended the meeting with her ASTI School Steward, Cormac Duignan. The Principal attended the meeting with the Deputy Principal. During the course of the stage one meeting, the Complainant detailed the subject matter of the grievance, the profound impact that the grievance was having upon her, and the Complainant proposed a resolution that she felt would be to the mutual agreement of the Principal. When the subject of timetable arose, the Principal denied ever having an agreement with the Complainant regarding lessons until lunchtime. Additionally, when the Complainant brought up her grievance regarding the initiation of a disciplinary procedure against her, the Principal responded by stating that she was “not prepared today” to discuss this issue.

Upon the conclusion of the meeting, the Principal thereafter wrote to the Complainant and suggested that she engage in ‘team teaching’ and split the year groups. The Principal did not propose any resolution regarding the Complainant’s grievance regarding the tone and manner in which the Principal spoke to the Complainant, nor any details relating to the initiation of the disciplinary procedure.

Following on from Stage one of the grievance procedure, the Complainant wrote on 13 September 2022 to the Principal setting out matters and proposed a resolution. The Complainant set out within her letter of 13 September the reasons why the proposed resolutions were not suitable. They detailed that the proposals were not suitable as she would still be required to teach until 14:30 on Mondays and Tuesdays; and the proposal afforded a lack of continuity for students having two different teachers for one subject. This would lead to difficulties in consistency regarding lessons, assignments, and homework particularly in teaching a foreign language subject. The Complainant made a proposal in her letter of 13 September 2022 and suggested that she reverted to the timetable as of 17 August 2022. The said proposal would have ensured consistency with the Complainant’s students whom she had taught the year previous and were in accordance with the agreement regarding lessons to lunchtime. The Complainant forwarded a comprehensive letter to the Principal, elucidating the exact reasons why the proposed resolutions were inappropriate. Within the same letter, the Complainant presented several alternative proposals. Regrettably, the Principal did not provide any response to these suggestions.

As a result of the very tight time limitation periods set out under the provisions of the Agreed Grievance procedure, the Complainant elected to progress her grievance to Stage two as she had not been in receipt of a response to her proposals sent to the Principal. She wrote to the Principal and the then Chairman of the Board of Management on 22 September 2022 indicating her intention to progress her grievance to stage two. The Chair indicated that he was no longer acting as Chairman to the Board of Management and that he would furnish the Complainant’s email to the Spiritan Education Trust. The grievance procedure expressly provides that a meeting with the Chairman of the Board of Management is to occur within a period of ten school days from the date of a teacher having elected to progress a grievance to stage two. Despite this, between the period of 22 September 2022 – 14 October 2022, the Complainant had not received any form of communication from either the Board of Management or the Spiritan Education Trust. When no reply was forthcoming, the Complainant wrote to the Principal on 11 October 2022 wherein she expressed her disappointment and intention to progress the grievance to stage three of the grievance procedure.

On 14 October 2022, the Complainant received a letter from the Spiritan Education Trust inviting the Complainant to attend before the Board for stage three of the grievance procedure. The letter indicated that the Complainant could attend with a colleague for the purposes of the meeting. The Complainant attended before the Board of Management at their meeting which occurred on the evening of Monday, 24 October 2022 at 7pm. The Complainant had, prior to the Stage three hearing and in accordance with the Grievance procedure, submitted written submissions for the purposes of the hearing.

When the Complainant entered the meeting room, with her colleague Ms Meg Loughnane, the Complainant noticed that both the Principal and the Deputy Principal were present at the Board table. The Complainant recalls the Principal grinning at the Complainant as she entered the room. The presence of both the Principal and the Deputy Principal came as a surprise to the Complainant in circumstances where the grievance procedure expressly stated that the Principal’s role at stage three is solely confined to a written response. The Complainant, who also at this stage was medically certified as being unfit for work as a result of work-related stress, felt very intimidated and threatened by the Principal’s presence at the Board table in circumstances where the Complainant’s grievance concerned matters regarding the Principal’s conduct.

When the meeting commenced, the Complainant was advised by her School Steward, Mr Cormac Duignan to request that the Principal and Deputy Principal recuse themselves from the meeting. However, to the Complainant’s surprise, when she made the application to the Chairman to recuse the Principal and Deputy Principal, it was refused. The Complainant requested that her objection be noted within the minutes of the Board meeting. During the Stage three hearing, the Complainant set out her grievance, in detail, and referred to the profound impact that the grievance was having on her. The Complainant sought to refer the Board of Management to her written submissions (as set out under the grievance procedure) and documents she sought to bring to the attention of the Board for the purposes of the Stage three hearing. When the Complainant attempted to refer to certain documents, she was informed that neither her submissions nor any documents were provided to Board Members and that she could not refer to any submissions or documents as they were ‘too large’ to print. This is despite the provisions of the grievance procedure expressly stating that the Complainant was required to prepare written submissions. The Complainant at this stage offered to provide submissions and documents to members of the Board. The Chairman then proceeded to state: ‘the submission is too big, and I wouldn’t agree to handing out spares’. A member of the Board of Management replied and stated ‘[r]espectfully, can we have one?’ after which, three copies were distributed by the Complainant for the Board members to share.

When the Complainant concluded her submission, the Chairman indicated that there would be a ten-minute break. At this time, the Principal, accompanied by the Deputy Principal left the room and went to the Principal’s office accompanied by the representative from the JMB, which the Complainant stated was completely inappropriate. Upon recommencement of the meeting, all of the aforementioned parties returned. When the Complainant and Ms Loughnane re-entered the Board room, the Principal was typing her response. Following the conclusion of the break, the Principal proceeded to make several remarkable submissions to the Board of Management. The Complainant stated that this was in direct contravention to the provisions of the grievance procedure and created an adversarial environment. The Principal on the one hand was being advised by the JMB representative regarding her submissions to the Board of Management; and, in addition, the JMB representative was invited to make her own submissions to the Board of Management in the absence of the Complainant or her ASTI School Steward. The Complainant was not afforded a right of reply to the submissions made by the Principal.

At the conclusion of the stage three meeting, the parties were invited to propose resolutions. The Complainant proposed the following resolution: ‘I seek three things. To revert to the timetable published on August 15th which maintains my cohort of students from last year. An independent enquiry into the Disciplinary Procedure and for the Principal to sign a document to comply with the Principal Code of Conduct’. The Principal was then afforded an opportunity to make her proposal and stated that it was not in the interest of the students to revert to the timetable but that she was happy to suspend the Disciplinary Procedure.

When the submissions had concluded, the Complainant was instructed by the Chairperson of the Board of Management that she should go to Room 50 of the school whilst awaiting a proposal from the Board of Management. The Complainant went to room 50 with her colleague, Ms Meg Loughnane. The Chair of the Board of Management intimated to the Complainant that the Board of Management had agreed to make a recommendation to the parties that they engage in mediation in an attempt to resolve the dispute. The Complainant was quite taken aback in respect of this proposal in circumstances where the Principal agreed to the appointment of an independent investigator to review the manner in which the disciplinary process had commenced and proceeded. The Complainant indicated to the Chairman that she would need to consider the proposal and that she would revert. The Chairman concluded the meeting by informing the Complainant that a formal letter with a suggested resolution would be forthcoming.

On 27 October 2022, the Complainant received a letter from the Chairperson to the Board of Management. Within the letter, the Chairman inferred that the Complainant had agreed to enter mediation. The Complainant stated that this represented a gross and purposeful misrepresentation of what occurred during the currency of the Stage three meeting. The Complainant at no material time agreed to enter into the mediation process and at all times made clear that she would consider the proposal and revert. The Complainant responded by way of letter dated 28 October 2022 refuting, in the strongest possible terms the content of the Chairman’s letter.

On 25 October 2022, the Complainant wrote to the Chairman of the Board of Management and indicated her intention to progress the grievance to stage four of the procedure. The Complainant indicated that she did so with regret in circumstances where she had made meaningful attempts to propose resolutions to the Board of Management.

The stage four panel was comprised of a nominee from the ASTI as well as one from the JMB and Mr Eamon Stack who was appointed jointly by the ASTI and JMB to act as Chairperson for the purposes of the hearing. On 23 November 2022, the Complainant had been in receipt of a booklet of papers enclosed under cover letter purportedly from the then Chairman of the Board of Management.

The Complainant stated that the requirement for submissions to be prepared by the Chairman of the Board of Management is to ensure that the process is non-adversarial and that the report is neutral. The Complainant stated however that the Respondent acted in flagrant breach of the grievance procedure during Stage Four. Despite the requirement for the Chairperson to prepare a report to for the Tribunal, the Principal drafted a personalised and targeted submission that had the sole objective of making insulting and untruthful remarks about the Complainant.

Arising from the content of the Chairman’s report, the Complainant instructed her then solicitor to write to the Chairperson of the Stage Four Tribunal, Mr Eamon Stack. On 23 November 2022, the solicitor wrote to Mr Stack setting out the objectionable content of the said submissions and indicated that the above comments and/ or remarks ‘should find no place in what is envisaged to be an independent, objective report solely confined to each stage of the grievance procedure’. The said letter stated that to allow the report ‘to go before the independent members of the tribunal would cause a clear prejudice’ to the Complainant as it pertains to make factual determinations and assessments of the Complainant’s character and ‘attitude’. The said letter called upon Mr Stack to immediately confirm in writing that the report would not be sent to all members of the Tribunal for the purposes of the Stage four hearing as it would cause ‘irreparable prejudice’ to the complainant. Mr Stack replied by way of e-mail dated 24 November 2022 wherein he confirmed that all members of the Tribunal had been in receipt of the said report and ‘suggested’ that her solicitors contact the trade unions.

The Stage four hearing proceeded on 28 November 2022 at the Green Isle Hotel, Newlands Cross, Dublin 22. The Principal was accompanied by the JMB representative and the Complainant was accompanied by her ASTI representative. A timetable had been prepared for the day which included a breakdown of allocated times. The Stage four hearing was an exceptionally formal and adversarial process. Both parties prepared written submissions for the hearing and were invited to a plenary and caucus session.

During the Stage four hearing, the Principal acknowledged that she had written the Board of Management’s response paper. The Complainant’s ASTI representative objected to the Respondent’s report being submitted to the Stage four hearing in circumstances where it was written by the Principal and contained outrageous remarks as to the Complainant’s character. The Tribunal, however, accepted the Principal’s submissions. The Principal contended at the Stage four hearing (for the first time) that the Complainant had taught four afternoon classes during the 2019/2020 academic school year, to include a Spanish class at 14:10 on Mondays and Spanish classes at 13:30 on Thursdays and Fridays. Much time was spent on this issue by the Principal at Stage four of the grievance procedure. The Complainant stated in evidence at the hearing that the VSware timetable was altered to now record that the Complainant taught the Monday, Thursday, and Friday afternoon classes. In fact, the Complainant had only taught one afternoon a week during that academic term. It was asserted that this was a complete fabrication on the part of the Principal and was stated during the Stage four hearing to undermine the Complainant and was completely untruthful.

On 6 December 2022, the Complainant received an e-mail from Mr Eamon Stack enclosing a document containing the Tribunal’s decision which stated inter alia, the following: ‘[t]he core grievances presented to the tribunal hearing are as follows: (a.)The teacher claimed in her submission to the Tribunal, that: - The Principal had penalised her for having signed a collective grievance by scheduling her timetable to conflict with her family commitments. And claimed that: - This was in contravention of an agreement since 2018, that her classes would be scheduled to finish before 14:00 every day. (b.)The teacher claimed in her submission to the Tribunal, that the Principal did not engage in respectful and appropriate communication. (c.) The teacher claimed in her submission to the Tribunal, that the Principal, contrary to her understanding of procedures in Circular 0049/2018, commenced a disciplinary procedure against her without informing her of the basis for so doing. […] In accordance with paragraph 4.7 of the Grievance Procedure the Tribunal, having reviewed all the written and oral evidence presented to it, has reached the following determinations. - The Tribunal is unable to determine the validity of Ms Clancy’s grievance (a) above, by unanimous vote. - The Tribunal is unable to determine the validity of Ms Clancy’s grievance (b) above, by majority vote. - The Tribunal is unable to determine the validity of Ms Clancy’s grievance (c) above, by majority vote. So, in conclusion, the Tribunal has not upheld this appeal.’ Arising from the content of the Tribunal’s decision, her solicitors wrote to Mr Stack by way of letter dated 8 December 2022. Within the letter, her solicitors indicated that the decision of the Tribunal was lamentably ambiguous and perplexing. Specifically, it was difficult to fathom how a three-member Tribunal (consisting of a Chairperson with a decisive vote) could be unable to arrive at a decision through either unanimous agreement or a majority vote. Mr Stack did not explain how he had come to this decision.

Further evidence was given by the Complainant in relation to a career break request that she made and the delays in response by the Principal to this request. As this evidence related to events after the referral of this complaint, namely 18 January 2023, I have not detailed it here

The Respondent did not provide any written submission in advance of the hearing and did not present any witness to give direct evidence. Ms Mallon BL made several points in her closing submission which I have detailed in my findings below.

CA-00053381-001:

Section 5 of the Terms of Employment (Information) Act states as follows:

5.—(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3 , 4 or 6 , the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

(a) 1 month after the change takes effect, or

(b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee's departure.

(2) Subsection (1) does not apply in relation to a change occurring in provisions of statutes or instruments made under statute or of any other laws or of any administrative provisions or collective agreements referred to in the statement given under section 3 or 4 .

The Complainant asserted that the Respondent breached the Act when an amendment was made to her contractual documentation, namely her reappointment form for 2021/2022.

It was not disputed however that the Complainant had received her written statement of her terms and conditions of employment in respect of the 2021/2022 academic year, as required under section 3 of the Act and there was no suggestion of any change in that document.

As there was no change in relation to her written statement and that is the only document that comes within the scope of the Act, as set out above, I cannot consider any changes to any other documentation that may have allegedly been made.

I therefore find that this complaint is not well founded.  

CA-00054548-001:

This complaint was withdrawn.

CA-00054548-002:

The Protected Disclosures Act defines a protected disclosure at Section 5 as follows:- Protected disclosures5. (1) For the purposes of this Act “protected disclosure” means, subject to subsection (6) and sections 17 and 18 , a disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker in the manner specified in section 6 , 7 , 8 , 9 or 10 .(2) For the purposes of this Act information is “relevant information” if—

(a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and(b) it came to the attention of the worker in connection with the worker’s employment.

(3) The following matters are relevant wrongdoings for the purposes of this Act—

a) that an offence has been, is being or is likely to be committed,

b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services,

c) that a miscarriage of justice has occurred, is occurring or is likely to occur,

d) that the health or safety of any individual has been, is being or is likely to be endangered,

e) that the environment has been, is being or is likely to be damaged,

f) that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur,

g) that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement, or

h) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed.

(4) For the purposes of subsection (3) it is immaterial whether a relevant wrongdoing occurred, occurs or would occur in the State or elsewhere and whether the law applying to it is that of the State or that of any other country or territory.(5) A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer.(6) A disclosure of information in respect of which a claim to legal professional privilege could be maintained in legal proceedings is not a protected disclosure if it is made by a person to whom the information was disclosed in the course of obtaining legal advice.(7) The motivation for making a disclosure is irrelevant to whether or not it is a protected disclosure.(8) In proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is. I must firstly establish that a protected disclosure has been made before I can decide whether penalisation within the meaning of the Act has occurred. In this regard, I note that the Respondent accepted that the Complainant made a protected disclosure when she signed the collective grievance along with ten of her colleagues on 7 February 2022.

I will now consider whether she was penalised for having made the protected disclosure and note that the protection provided under the Act is afforded to persons who have made a protected disclosure within the meaning of the Act.

Specifically, Section 12(1) of the Act provides :-

• 12. (1) An employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee, for having made a protected disclosure.

I further note the Act at section 3 (1) states that:

"penalisation" means any direct or indirect act or omission which occurs in a work-related context, is prompted by the making of a report and causes or may cause unjustified detriment to a worker, and, in particular, includes—

(a) suspension, lay-off or dismissal,

(b) demotion, loss of opportunity for promotion or withholding of promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) the imposition or administering of any discipline, reprimand or other penalty (including a financial penalty),

(e) coercion, intimidation, harassment or ostracism,

(f) discrimination, disadvantage or unfair treatment,

(g) injury, damage or loss,

(h) threat of reprisal,

(i) withholding of training,

(j) a negative performance assessment or employment reference,

(k) failure to convert a temporary employment contract into a permanent one, where the worker had a legitimate expectation that he or she would be offered permanent employment,

(l) failure to renew or early termination of a temporary employment contract,

(m) harm, including to the worker’s reputation, particularly in social media, or financial loss, including loss of business and loss of income,

(n) blacklisting on the basis of a sector or industry-wide informal or formal agreement, which may entail that the person will not, in the future, find employment in the sector or industry,

(o) early termination or cancellation of a contract for goods or services,

(p) cancellation of a licence or permit, and

(q) psychiatricor medical referrals;

Allegations of Penalisation

·       Career Break Application

The Complainant stated that there was a significant delay in informing her if an application for a career break she made would be granted. As it was not disputed that this happened after the instant complaint was referred to the WRC, I cannot consider it and do not accept the suggestion by Mr Duff BL that the reference to this alleged act of penalisation in his written submissions constitutes a referral of the issue to the WRC.

·       Grievance process

The Complainant stated she was penalised during the course of the grievance process, namely by the Principal at stage 1, by the Board of Management at stage 3, and by the members of the stage 4 tribunal.

Having considered all of the evidence related to the various stages of the grievance procedure, I conclude the following based on the evidence presented:

1. Stage 1:
   • The Principal did attempt to reach a compromise with the Complainant at stage 1.
   • Although the Complainant rejected this compromise, it does not constitute penalisation under the Act.
2. Stage 3:
   • The Board's handling of the stage 3 process was inadequate and lazy, particularly given their refusal to properly address the Complainant’s detailed submission.
   • Despite this, I find their treatment of her did not constitute penalisation because they ultimately sought to resolve the matter through mediation, even if I accept that the way they did so was disingenuous, as the Complainant had clearly indicated that she did not wish to engage in such a process.
3. Stage 4
   • As the tribunal members were independently appointed by both the Complainant’s union and the Respondent’s managerial body, I find that the Complainant was not penalised by the Respondent in respect of the conduct of the stage 4 hearing.

In summary, while there were significant procedural failings and inappropriate behaviours by the Respondent during the grievance investigation, I find that there was no connection between the protected disclosure and the alleged acts of penalisation during the grievance process.

·       Change of Hours, change in class years taught, shouting, threat of disciplinary action

The Complainant stated that for the 2022/2023 academic she was penalised by being assigned to work largely in the afternoons instead of in the mornings, which she had always done, prior to having made the protected disclosure. In this regard, Mr. Duff BL highlighted that there had been an agreement in place since she began working with the Respondent, which was not disputed in evidence, that the Complainant would work largely mornings. As this was disregarded by Principal in respect of the Complainant’s 2022/23 timetable, I find that this change in working hours constitutes penalisation at section 3 (1) (c).

It was also asserted by the Complainant that a practice exists in the school whereby teachers begin teaching a particular class/year and continue with these students until Leaving Certificate but that following the protected disclosure, and contrary to the well-established practice, she was expected to teach senior cycle students that she had never previously taught. I am of the view that the alteration of the year classes she taught, which is contrary to the practice in the school, constituted unfair treatment, which is penalisation as set out at section 3 (1) (f).

The Complainant stated that she was shouted at by the Principal in her office at a meeting on 26 August 2022 during which she had sought to discuss the altered timetable. I am satisfied on the basis of the Complainant’s evidence that she was intimidated by the Principal when she did so and note that intimidation constitutes penalisation at section 3 (1) (e).

The Complainant also stated that the Principal sought to initiate disciplinary procedures against her but never explained why. I accept her evidence that this instigation of such procedures became widely known and that this caused damage to her reputation in the school, which is provided for in the definition of penalisation at section 3 (1) (m) above.

While I therefore accept that all four of the allegations set out above constitute penalisation under the Act, Ms. Mallon BL stated in her closing submissions that, even if I made such a finding, the Complainant could not meet the “but for” test set out above because no evidence was presented to suggest that any of the other ten signatories to the collective grievance were penalised.

I accept this contention and note that there was no evidence presented to suggest any of the other signatories were unhappy with the hours of work assigned in September 2022 or whether any privileges, such as a late start or an early finish, that they had enjoyed in the past were removed from them. There was also no evidence presented to indicate that they were dissatisfied with any aspect of the classes they had been assigned for the year. Similarly, there was no evidence given to suggest that any of the other signatories of the collective grievance were subjected to the same unfair treatment as the Complainant, such as being shouted at or having the threat of disciplinary proceedings being imposed on them.

Additionally, I do not accept the Complainant’s suggestion that she was vulnerable because she was the only non-permanent/non-CID staff member among the ten signatories who signed the collective grievance. This claim was, in my view, speculative, and no evidence was presented to suggest that another teacher who was not permanent/ non-CID and had not signed the collective agreement was treated in a different way to her.

While I therefore accept Ms Mallon BL’s suggestion that none of the other ten signatories who signed the collective grievance was penalised and that no evidence was presented to suggest that any non-permanent teacher was not, I also noted that the Complainant was the only teacher acting in a job-sharing capacity who signed the grievance document and that her job-sharing colleague in the school did not do so.

In the absence of any evidence from the Respondent to explain why the Complainant’s hours were significantly altered, contrary to the agreement that was in place to work largely mornings, to dispute the fact that she was shouted at in the Principal’s office, to explain why the threat of disciplinary action was made against her or why the classes/years she taught were changed—unlike her job-sharing colleague who did not sign the collective grievance and was not subjected to any such treatment—I find that, the Complainant has established a connection between the protected disclosure and the act of penalisation and has therefore met the “but for” test set out by the Labour Court in the seminal decision of Anna Monaghan and Aidan & Henrietta McGrath Partnership PDD162.

As I have established that the Complainant made a protected disclosure and that she was penalised, as set out above, as a direct result of having done so, I find that this complaint is well founded.

CA-00053381-001:

I find that this complaint is not well founded for the reasons set out above.

CA-00054548-001:

This complaint was withdrawn.

CA-00054548-002:

I find that the complaint is well founded for the reasons set out above.

In deciding on an award of compensation, I note that section 12 (2) of Schedule 2 of the Act states that I may “require the employer to pay compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 260 weeks remuneration”.

Although the legislation requires me to consider "all of the circumstances," which Mr. Duff BL suggested includes legal costs, when deciding on the award of compensation, and I acknowledge that the Complainant incurred significant legal costs in bringing this case, I accept the argument made by Ms. Mallon BL that, as a matter of public policy, legal costs are not awarded either at the WRC or the Labour Court. Therefore, the inclusion of any estimate of legal costs in an award of compensation by me would be contrary to the statutory intention and I have not provided for same.

Ms. Mallon BL also stated that I must disregard any stress or emotional toll the Complainant experienced in the calculation of my award because a complaint regarding such matters should have been brought to the Injuries Board in the first instance as set out by O’Donnell J in Dillon v Irish Life Assurance plc (IEHC 203). I accept this position and therefore note that although penalisation includes “injury”, as set out at section 3 (1)(g) above and, despite the Complainant’s evidence of enormous personal distress which caused a flare up in her medical condition, I cannot make any provision for an injury in my award as no evidence was presented to suggest that she referred a complaint to the Injuries Board.

Even though I cannot therefore provide for an “injury”, I must recognise as outlined above that, because of the protected disclosure she made, the Complainant was subjected to multiple acts of penalisation. Specifically, as set out above, her working hours were changed, she was treated unfairly when the year/classes she taught were altered, her reputation was damaged in the school by the instigation of unexplained disciplinary procedures and she was intimidated when she was shouted at by the Principal at a meeting on 26 August 2022. In addition, I noted that these were not all once off acts of penalisation because, according to the Complainant, the Principal made clear during the grievance investigation that there was no guarantee the change in working hours from largely morning to mainly afternoons would be confined to one academic year.

I also accept the suggestion by the Adjudication Officer in ADJ-00043225 that “it is clear the legislative intention behind the Protected Disclosures Act 2014 was to afford a very high degree of protection to persons making protected disclosures, which protection was in part expressed by the conferral on an adjudication officer of an extended compensation-award jurisdiction”. 

As any sanction also needs to be effective and dissuasive to provide a real deterrent against future infractions, as set out in Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891, I believe that an award at the very bottom of the scale would be inappropriate given the multiple and sustained acts of penalisation.

I must also recognise however that the Von Colson decision states that an award must be proportionate. In this regard, I note in the first instance that the Respondent school is a largely publicly funded body and that any award will likely deplete the resources available for the students. In addition, no evidence was presented to suggest that the Complainant was at a financial loss as a result of the penalisation or that it would negatively impact either her career or her reputation at any stage in the future. Accordingly, while the award must be both effective and dissuasive, it would be disproportionate in the circumstances of this case to set it either at the upper end or around the mid-point of the legislative ceiling.

Considering all of the foregoing points, I direct the Respondent to pay to the Complainant the sum of €39,912, namely 15 months’ salary, by way of non-remuneration related compensation, which I find is just and equitable having regard to all the circumstances of the matter.

CA-00054548-003:

The Complainant indicated that this complaint should be withdrawn if CA-00054548-002 was well founded. I therefore deem this complaint to have been withdrawn.