EMPLOYMENT APPEALS TRIBUNAL
CASE NO: UD2318/2011
Board Of Management Presentation Secondary School,
UNFAIR DISMISSALS ACTS 1977 TO 2015
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. K.T O'Mahony B.L.
Members: Mr D. Hegarty
Mr D. McEvoy
heard this claim at Cork on 10th January 2017 and 27th February 2017
Claimant: Mr T. Rice B.L. instructed by Mr. Edward O'Sullivan, Solicitor, 7 Ashe Street, Tralee, Co Kerry
Respondent: Ms R Mallon B.L. instructed by Mason Hayes & Curran Solicitors, South Bank House, Barrow Street, Dublin 4
Summary of Evidence
The claimant commenced employment as a teacher with the respondent in 1985. She taught French and Irish up to Leaving Certificate level at this educational institution. She commented that the school had an excellent academic record and she regarded her role there as more of a vocation than a job. Apart from her teaching duties, the claimant also held the position of year head of first year pupils. A complaints procedure for parents/guardians against teachers was in place. Up to early 2010 there had been no formal disciplinary issues between the claimant and the respondent and she had never been the recipient of any sanctions.
On 19th January 2010, when the claimant called the roll for her 3.20pm – 4.00pm French class a pupil (the pupil) was absent and when the claimant asked if she had been absent all day she was told that she had been at school but had gone home prior to her class. Nobody had advised the claimant that the pupil had permission to go home early. At 4.40/50pm the claimant telephoned the pupil’s mother (the mother) to ascertain whether she was at home. There was a serious dispute as to the contents of that phone call. The pupil’s parents were upset.
The following day, at the request of the pupil’s mother (the mother), the Principal met her and the claimant to discuss the phone call. The mother’s position at that meeting was that the caller’s phone number was blocked, the caller was very angry and did not identify herself but later in the call told her she was Head of First Year. The caller asked if her daughter (the pupil) was home and told her that she had left school without permission. The caller told the mother that the pupil had better “damn well” have her homework done and that she “damn well” knew she did not have permission to leave. Her daughter confirmed to the mother there and then that she had permission from the coach and Mrs M. to go home after gym. The claimant’s position was that she was concerned about the pupil’s safety and that she had identified herself to the mother during the call.
During the meeting the mother told the claimant that her daughter was depressed going into her class every day and was afraid of her from the first day in her class when the claimant told her she was on her “bad list”. The claimant’s response to this was that if her daughter was suffering from depression she should see a doctor.
At the claimant’s request and with the mother’s permission the pupil was brought to the office where the claimant asked her a number of questions. During this process it emerged that the pupil had not done her homework the previous evening on her mother’s instructions. On hearing this claimant said she no longer wanted the pupil in her class. When the mother tried to intervene the claimant stated, “I am talking to my pupil so please do not interrupt me.” The claimant told the mother she was not interested in her explanation and left the office. The next day the claimant confirmed to the Principal that she would not teach the class if the pupil was in it. The Principal removed the pupil from the French class the following day and she sat in Assembly.
Over the next few days the Principal spoke to the claimant a number of times hoping to arrange a meeting between the claimant and the parents to resolve the matter but the claimant was insisting on an apology from the mother. The mother was upset at this development. The father became involved at this stage and told the Principal they had no reason to apologise and mentioned taking the issue to the Board of Management (the Board). On Friday, 22nd January, the claimant told the Principal to inform the mother that she would be available from 3.00pm that day if she was prepared to apologise to her. The father told the Principal that his concern was for his daughter and all he wanted was that the claimant would acknowledge that her phone call was out of order and that she should apologise. However, he believed that any further effort by the Principal to resolve the matter would be a waste of time and indicated that they were making a complaint to the Board. The Principal had emphasised to the claimant twice over these discussions that the issue for the parents was the tone and nature of the phone call of 19th November.
The Principal now moved to the formal process of the Complaints Procedure (Procedures for Voluntary Secondary Schools) (as agreed between ASTI and the Joint Managerial Body) and arranged for a Stage 1 meeting between the parents and the claimant with herself on 26th January 2010. The issues between them were identified. At this meeting the claimant accepted that she way have come across as angry on the phone on 19th January and may not have given her name but attributed this to the fact that her concern for the pupil’s safety was foremost in her mind. Despite several requests being made the claimant refused to apologise and the matter remained unresolved. The meeting lasted about an hour.
On 8th February the pupil’s mother telephoned the Principal to say her daughter was sick over the weekend and that she felt that remarks such as “telling fibs about me to your parents” passed by the claimant in class were directed at her. The mother’s position was that her daughter is happy in all other classes but the claimant “terrifies” her. The Principal spoke to the claimant about this and her response was that she speaks to her classes with great sensitivity. On 11th February the Principal received a letter from the parents asking that their daughter be withdrawn from the claimant’s class. The claimant refused to take a copy of the letter and said she wasn’t interested in their problems.
The Principal sought further time to resolve the issue but the parents believed it would be futile and they did not want to go through the experience of another meeting with the claimant. On 12th February the claimant obtained the sanction of the Board to pay for external French classes for the pupil, if the matter was not resolved. On 23rd February, after mid-term, the parents told the Principal they were prepared to walk away if the claimant would apologise. While the parents enquired about the next step in the Complaints Procedure they let the matter rest.
Around three months later, on 19th May 2010 the parents informed the Principal that they wished to proceed to Stage 2 of the Complaints Procedure as their daughter’s health had become an issue. She was suffering stomach pains and migraine and was on medication, her grades had dropped and leaving the class for 40 minutes every day made her feel isolated. She was intimidated by the claimant who, it was alleged, was giving her “withering looks” in the corridor. In their letter to the Board the parents recorded a formal complaint of bullying against the claimant and requested an investigation. The Board appointed its Chairman and another member as the two authorised representatives to deal with the complaint at Stage 2. The claimant was given a copy of the letter of complaint and a copy of the Complaints Procedure The claimant contended that the new complaints should be at Stage 1. The advice of the JMB on this was that the two authorised representatives, if they so wish, need not deal with the intimidation or bullying complaint at Stage 2, but it felt that it was all one complaint.
The two authorised representatives met the parents and the claimant separately on 31st May 2010. The matter was not resolved. The authorised representatives produced an Outcome of Meeting document on their discussions with both parties and furnished these to both sides on 1st June. These documents contained a summary of each party’s position. The salient points were: the claimant denied the allegation of persistent bullying and maintained her original position on the other issues but denied refusing to teach the pupil; the father requested a meeting of all concerned including his daughter, at which the claimant would issue a verbal apology and further that he “would go all the way” if the matter was not resolved. On 3rd June the father confirmed with the Principal that she had witnessed the claimant’s refusal, at the 20th January meeting, to teach their daughter. The claimant felt that there were inaccuracies in the 31st May reports.
The claimant wanted to resolve the problem and sought to meet the Chairperson of the Board along with the Principal but a mutually suitable time for both the Chairperson and the claimant could not be arranged due to their respective holiday arrangements. The attitude of the other authorised representative was that the procedure had begun and must now take its course. The claimant told the Principal that case was on Facebook and the parents were doing the bullying and that in any event she was condemned by the Board.
On 17th June the mother wrote to the Board confirming they wished to proceed to Stage 3 of the Complaints Procedure and in this letter responded to the claimant’s position as outlined in the 31st May document. As regards the phone call on 19th January, the parent’s issues were about the tenor tone and content of the phone call. Their daughter had not been aware of a procedure for signing out (of school). They contended that the claimant had persistently bullied their daughter and had intimidated her in the class and, since she had been withdrawn from class on 11th February, in the corridor or hallway. They refuted many of the claimant’s statements to the authorised representatives. Having clarified that school days are days the school is in operation as a school as distinct from being an exam centre, the Stage 3 could proceed and it was suspended until the new school year.
The claimant told the Tribunal that leaving the issue open over the summer holidays prolonged her misery. By that stage she felt unsupported by the respondent and her role in the school was being unfairly undermined. She formed the impression that the respondent regarded her as being guilty of everything of which she was being accused. The claimant told the Tribunal that she was burnt out through stress due to the ongoing complaint. She felt she had no option but to consider leaving her job. The situation was not going to be resolved. The pupil’s father had said he would “take it all the way” or “go on Joe Duffy”. In a brief letter to the Principal dated 17 August 2010 the claimant gave notice that she would retire on 17th November 2010. In her evidence to the Tribunal the claimant’s position was that she felt the parents would not stop. In late June the claimant told the Principal that she felt the Board had already condemned her.
On 24th August the claimant was notified that Stage 3 procedure was proceeding and was furnished with a copy of the parents’ letter of complaint. In her written response to the Board the claimant denied any wrongdoing.
On 1st September the parents alleged that that the claimant had bumped into/shouldered their daughter as they passed one another in the corridor/hallway. Specific details of the incident were later furnished to the Board. The pupil was with her friend at the time of the incident. On hearing this, the claimant felt that her decision to retire was the correct one. She felt the accusations would not stop. She felt she was not getting any support from the Principal.
On 7th September 2010 while absent on uncertified sick leave, the claimant received a letter from the Chairperson advising her to return to school. The respondent’s position was this advice was related to the claimant’s entitlements with the Department. The claimant’s position was that her absence was due to the stress she was suffering.
The Stage 3 procedure took place on 13th September. In her formal presentation to the Board, the claimant refuted all the allegations in the complaint letter. The Principal and the two authorised representatives left the meeting and did not participate in the decision-making process, in accordance with the agreed procedures. The claimant’s evidence to the Tribunal was that she felt undermined. A member of the Board accused her of telling lies at the meeting. The reported bullying incident of 31 August was not addressed and her accuser was not present. The Principal received a telephone call from the father on 28th September in which he held the claimant responsible for her child’s reported ailments.
The Board’s decision on the Stage 3 meeting was set out in its letter of 28th September 2010 to the claimant. The Board upheld the substantive complaint of bullying but “not the totality of the complaint”. They noted some inconsistencies in the claimant’s position. Her explanation that her concern for the health and safety of the pupil was the reason for making the phone on 19th January was not consistent with waiting some 60-70 minutes before making the call. Furthermore, in this regard the Principal had told her on 19th January that if anything was amiss she would deal with it the following morning.The claimant’s position as to whether she had identified herself to the mother during the 19th January phone call was not always consistent. The Board found her attitude to the parent’s concern about their daughter was “detached, uncaring and hurtful” and her “complete indifference” to the withdrawal of the pupil from her French class on or around 11th February was also a significant factor for the Board. The claimant was accompanied at the presentation of her case to the Board. The claimant’s reaction to the letter of 28th September was that the respondent was saying she was a liar. She felt devastated and just wanted her job to end. Despite suffering a loss of confidence she continued to teach to the best of her ability.
By letter of 13th October 2010 the Chairperson of the Board advised the claimant that the matter was progressing to the Stage 4 Disciplinary Hearing, which would be held on 4th November 2010 and sought her written views on the Stage 3 outcome. In this letter she was advised that she would have the opportunity to respond in full to the allegations against her, to state her case fully and to challenge any evidence on which the Board was relying. She was further informed that the meeting may give rise to the imposition of a disciplinary sanction up to and including dismissal.
The claimant was represented by her trade union official at the 4th November hearing. The meeting was disruptive and was adjourned until 10th November 2010 but that meeting also ended acrimoniously. The trade union official argued about the procedures and whether the matter should be at Stage 4. The Board was dissatisfied at the whole tenor of the meeting.
The claimant was unhappy with the lack of support from the Board and the school in general. The process was all-consuming. Notes were left on her desk during the day asking her to call to the office. The claimant felt that these requests should have been dealt with after school. She successfully applied for a retirement package from the Department of Education and Skills. Her worst fears were confirmed when she was confronted with the new allegation in September. The father told the Principal he wanted her removed from the school. She worked out her notice and attended a farewell dinner organised by some teachers but there were no speeches or acknowledgment of service at the dinner. She retired on 17th November 2010. She completely rejected the father’s latest allegation. She felt she would not get a fair hearing from the Board. There was nothing to substantiate what the parents were saying.
Constructive dismissal is defined in section 1 of the Act as:
(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it would have been reasonable for the employee to terminate the contract of employment without giving prior notice of the termination to the employer,
The contents of the claimant’s letter of 17th August 2010 notifying the Principal of her retirement were:
“I wish to advise you that I will retire from the teaching staff of [the school] on Nov. 17th 2010”
This letter was submitted to the respondent while the process dealing with the parent’s complaint against the claimant was ongoing and between the completion of Stage 2 and the commencement of Stage 3. That process continued until shortly before the claimant retired on 17th November.
The claimant complained that the Board and the Principal were not supportive to her during the entire process. However, they both have a duty of care to the child as well as the teacher and it is vital that it/she remains neutral throughout the process.
The claimant made a number of other complaints against the Board’s and the Principal’s handling of the process. However, in her letter of resignation, mid-way through the process, she made no complaint about these alleged failings. Furthermore she failed to invoke the grievance procedure. The Tribunal is mindful, in making its determination, that subsequent to submitting her letter of 17th June the claimant never indicated to the respondent that she might seek to withdraw her notification of retirement.
The Tribunal is satisfied that the claimant failed to discharge the onus of proof placed on her under the Act to show that it was reasonable for her to retire in the circumstances. Accordingly, the claim under the Unfair Dismissals Acts, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal