Complainant

Respondent

Parties

Paul  Flattery

The Board of Management of Mercy College Woodford (amended on consent)

Complainant

Respondent

Anonymised Parties

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Representatives

 Self-Represented

MP Guinness BL instructed by Mason Hayes and 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-00065724-002

01/09/2024

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

CA-00065724-003

01/09/2024

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

CA-00065724-004

01/09/2024

It was the Complainant's complaint that he had been penalised for acting as a witness for his colleague, for raising a grievance against the previous principal, and for lodging a complaint of constructive dismissal. The Complainant gave evidence under affirmation. Documentary evidence was filed in advance of the hearing and shared with the Respondent.

The Respondent denied the complaints and raised preliminary matters at the outset of the hearing. Angela Ryan, Principal, gave evidence on behalf of the Respondent. Córa Ní Loisnigh from the Board of Management was also in attendance. Legal submissions and documentary evidence were received in advance of the hearing and shared with the Complainant.

At the outset of the hearing, the Respondent provided clarification regarding the Board of Management of Mercy College, Woodford.

The Complainant was given a number of breaks during the hearing to allow him to present his complaint in a coherent manner. It was explained to him that his oral testimony would form the basis of the decision, and if he wished to refer to any documentation, he must present it during the hearing for it to be considered in the decision. It was further explained that the jurisdiction of the Adjudication Officer does not extend to piecing together a complaint for any party. Consequently, it is imperative that parties set out their case in full at the hearing in a clear and logical manner, with reference to the documentary evidence submitted.

CA-00065724-002 – Terms of Employment

It was the Complainant’s response to the preliminary objection that the penalisation was ongoing and consequently fell within the cognisable period.

The Complainant outlined the series of fixed-term contracts of employment he held while employed by the Respondent from 2019 to 2024. He added that a contract of indefinite duration was awarded to him by an independent adjudication process in July 2021.

It was his evidence that his hours and subjects varied during this period.

He stated that in March 2021, he was approached by a former principal, Ms Quinn Canning, to sign a form regarding additional teaching hours. He testified that he had to call his union after the interaction due to Ms Quinn Canning’s accusations against him and the reduction in his teaching hours. The Complainant then raised a grievance against the former principal. However, he claimed that the grievance was not dealt with, as she was on sick leave and later retired. Prior to her retirement, he alleged that she agreed to the removal of French as a subject offered in the Respondent school from September 2021 onwards. The Complainant complained that this decision was made without consultation with him, as a French teacher.

The Complainant raised a second formal grievance in January 2022 with the Respondent relating to his hours and curriculum.

It was his evidence that he was penalised by the Respondent in March 2023 when he contacted the CEO of CEIST, the patron of the school, about the unresolved issues he had with the Respondent. He stated that the disciplinary procedure then focused on his late notification of jury duty, the production of medical certificates for an illness, and his subject planning.

In March 2024, the Complainant described a disciplinary investigation that was later withdrawn following complaints from students. Mr Hume gave evidence regarding his involvement in this disciplinary investigation.

CA-00065724-003 – Protected Disclosure

It was the Complainant’s response to the preliminary objection that the penalisation was ongoing and consequently fell within the cognisable period.

The Complainant gave evidence that he was penalised in respect of his career progression, his ability to teach his chosen subject, and the lack of support from the Respondent to undertake additional training to further his career as a result of raising a grievance against Ms Quinn Canning in 2021. It was his evidence that he suffered a loss of teaching hours and was subjected to hostile treatment from the Respondent.

The Complainant was cross-examined in respect of both these complaints in relation to the preliminary objection, the repetition in his complaints, the signed agreement of May 2022, the independent adjudication process reviewing his teaching hours, the removal of French from the school curriculum, and the subject matter of the disciplinary matters in 2023 and 2024.

CA-00065724-004- Unfair Dismissal (Constructive Dismissal)

In 2023, the Complainant stated that he applied for voluntary redeployment due to the issues he was experiencing in his workplace but later withdrew his application. The Complainant resubmitted an application for voluntary redeployment on 7 March 2024. When he sought the support of the principal at the time, he was met with hostility by his superior. Despite this, he received confirmation at Easter 2024 that he had been successful in his redeployment to another school.

It was the Complainant’s evidence that in September 2024, he was forced to leave his employment with the Respondent for reasons relating to his health and safety. He further stated that he raised a grievance in advance of his departure in June 2024, but it was not investigated by the Respondent.

The Complainant was cross-examined about his grievance. It was put to him that the registered letter containing his grievance was returned in June 2024. The Complainant accepted this and noted that he sent it again in August 2024. He further accepted that he received a reply on 5 September 2024 when the school reopened. It was put to him that, at this point, he was no longer an employee of the Respondent.

Preliminary Objections

In respect of the complaints under the Terms of Employment (Information) Act 1994 and Schedule 2 of the Protected Disclosures Act 2014 the misconceived claim under the Industrial Relations dispute, where the Complainant has used the same set of facts and said that they amount to breaches of different pieces of legislation.

CA-00065724-002 – Terms of Employment

The Respondent raised a preliminary objection on the basis the complaint arose 2019 and therefore, the complaint is outside the cognisable period provided for in the legislation.

CA-00065724-003 – Protected Disclosure

The Respondent denied the complaint.

Ms Ryan gave evidence of the timeline and reasoning for the removal of French in September 2021.

CA-00065724-004- Unfair Dismissal (Constructive Dismissal)

It was submitted on behalf of the Respondent that the Complainant chose to seek redeployment and did not lodge any grievance after the settlement of his previous grievance in May 2022. It was further submitted that the burden of proof is on the Complainant to satisfy the Adjudication Officer that he was justified in leaving without exhausting the internal grievance procedures.

In summing up, the Respondent reiterated that the complaints of penalisation fell outside the cognisable period provided for in the legislation. It was submitted that anything after February 2024 was immaterial. In response to the complaint of constructive dismissal, the Respondent argued that the Complainant voluntarily sought redeployment. The “friendly settlement agreement” was entered into by the Complainant with the advice of his union official. It was submitted that the Complainant had significant issues with being questioned on day-to-day matters by the school principal.

The Respondent relied upon the Supreme Court judgment of Ruffley v The Board of Management of St Anne's School [2017], IESC 33 where it was held; “An employer is entitled to expect ordinary robustness from its employee”.

I find there is significant overlaps between the three complaints where there was no clearly defined evidence given under each heading.

CA-00065724-002 – Terms of Employment

Preliminary Objection

Section 41 (6) of the Workplace Relations Act 2015 provides: -

“(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

Considering what the Terms of Employment (Information) Act 1994 and in particular, Section 6 C  (1) provides in relation to penalisation:-

“(1) An employer shall not penalise or threaten penalisation of an employee for—

(a) invoking any right conferred on him or her by this Act,

(b) having in good faith opposed by lawful means an act that is unlawful under this Act,

(c) giving evidence in any proceedings under this Act, or

(d) giving notice of his or her intention to do any of the things referred to in the preceding paragraphs.”

Section 6 C (5) further provides:

(5) In this section "penalisation" means any act or omission by an employer or a person acting on behalf of an employer that affects an employee to his or her detriment with respect to any term or condition of his or her employment, and, without prejudice to the generality of the foregoing, includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2015), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

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

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

(e) coercion or intimidation”

The Labour Court in Toni & Guy Blackrock v Paul O’Neill [2010] 21 ELR 1 set out the test for penalisation:-

“It is clear from the language of this section that in order to make out a complaint of penalisation it is necessary for a claimant to establish that the detriment of which he or she complains was imposed “for” having committed one of the acts protected by subsection 3. Thus the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act. This suggested that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the Claimant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment.”

Therefore, the cognisable period provided for in the legislation relates to six months prior to the date the complaint was referred to the Workplace Relations Commission on 1 September 2024, which, in this case, is 29 February 2024.

The Complainant submitted that the penalisation was ongoing and that, therefore, the entirety of his complaint from 2019 should be considered.

However, the only evidence of anything that may fall within the definition of detriment, put forward by the Complainant within the cognisable period, was the disciplinary action of March 2024. It is understood from the Complainant’s own evidence that this disciplinary action was linked to a disciplinary investigation that took place in or around March 2023.

It simply cannot be accepted that, but for the Complainant contacting the CEO of the school’s patron, he would not have been subjected to a disciplinary process, which, notably, was subsequently withdrawn before any sanction was applied in March 2024. There is no evidence of a causal link or connection between the two events, which were over a year apart.

I find that the Complainant did not suffer a detriment and, in turn, did not suffer penalisation within the cognisable period. No application for an extension of time was made. Regardless of the absence of such an application, the allegations fall outside the maximum period provided for the consideration of such complaints under the legislation.

CA-00065724-003 – Protected Disclosure

Preliminary Objection

It is again necessary to consider Section 41(6) of the Workplace Relations Act 2015.

What is clear from the evidence is that there was a signed agreement between the parties in May 2022, which arose following an interpersonal grievance. This agreement was witnessed by the Complainant’s union representative. A subsequent grievance was raised in June 2024 but was not received until the reopening of the school after the summer holidays, by which time the Complainant had been redeployed.

Section 5A of the Protected Disclosures Act 2014–2022, as amended, specifically excludes interpersonal grievances from the definition of a wrongdoing.

In conclusion, I find that there is no evidence of a protected disclosure of a wrongdoing within the definition of Section 5 of the Act or of penalisation under Section 12 of the Act within the cognisable period. No application for an extension of time was made. Regardless of the absence of such an application, the allegations fall outside the maximum period provided for the consideration of such complaints under the legislation.

CA-00065724-004- Unfair Dismissal (Constructive Dismissal)

The test for constructive dismissal is set out in Section 1 of the Unfair Dismissals Act 1969, with the burden of proof resting on the employee to establish that either, because of the conduct of the employer, the employee was entitled to terminate their contract, or that it was reasonable to do so.

The case law is clear that an employer must be given notice of the grievance, such as a formal written grievance, and then given a reasonable opportunity to investigate and respond before an employee takes the step of terminating their employment.

The Respondent did not dispute the Complainant’s evidence regarding the treatment he received from the two former principals, as neither of these individuals presented evidence at the hearing to contradict his claims. The Complainant did, however, have a witness who supported his allegations concerning the most recent former principal’s treatment of him in the workplace.

However, based on his evidence, the Complainant did not make a formal written complaint until months after he applied for redeployment on 7 March 2024, which he was successful in obtaining around Easter 2024. It is found that the Complainant had already made up his mind to leave his employment when he applied for redeployment, yet he continued to work for the Respondent without invoking any of the formal procedures available to him procedures with which he was familiar until the summer holidays, when he had finished or was near finishing teaching at the Respondent school.

As regards the disciplinary matter in March 2024, it is understood that it was withdrawn before any sanction was applied. It is noted that the Complainant had the benefit of union representation at this time, but no evidence was presented to show that he took any formal steps in relation to the process he now complains of. The mere initiation of a disciplinary investigation is not sufficient grounds to discharge the burden of proof in a complaint of constructive dismissal.

The case law is clear that an employer must be given a reasonable opportunity to respond to any grievance raised. In this instance, the Respondent was given no opportunity to address the grievance, as it was raised only days before the Complainant terminated his employment on 31 August 2024 and referred his complaint to the Workplace Relations Commission the following day, on 1 September 2024.

Consequently, I find that the Complainant has not discharged the burden of proof required to establish a complaint of constructive dismissal, given that he had already decided to leave his employment on 7 March 2024 but remained in situ until 31 August 2024.

CA-00065724-002 – Terms of Employment

I find the complaint is not well founded.

CA-00065724-003 – Protected Disclosure

I find the complaint is not well founded.

CA-00065724-004- Unfair Dismissal (Constructive Dismissal)

I find the Complainant was not unfairly dismissed.

Penalisation – Protected Disclosure – Unfair Dismissal