ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00001777
Robert Dore Dore & Company
Helen McShane Mason Hayes & Curran Solicitors
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Date of Adjudication Hearing: 04/12/2017
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly BL
In accordance with Section 8 of the Unfair Dismissals Acts, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Summary of Complainant’s Case:
The complainant was placed on administrative leave effective from the 20.01.2012 in relation to a single child incident. The department of education, following an investigation of the matter, made a finding of no case to answer on the 05.11.2012. Following the Departments decision, the Board of Management made the decision to investigate the matter themselves. It was during those investigations that the subject matter of the within case were discovered, namely the alleged fraudulent misrepresentation of enrolment figures at the school for the year 2009-2010.
An important issue arises concerning the inordinate, unwarranted and unlawful delay on the part of the chairperson of the board in conducting her investigations. The complainant was placed on administrative leave effective from the 20.01.2012 and thereafter he was placed in what has been described judicially as “an appalling limbo”. In circumstances where placing him on administrative leave was more than a mere holding exercise but rather that it was a first step in a disciplinary process, it was the duty of the chairperson to complete her investigation with reasonable expedition which she singularly failed to do. This has been acknowledged by her. Further, she had no regard whatsoever for the damage caused to the reputation of the complainant by her failure. Nor had she any real concerns for the devastating effect that her failure had on his health and well-being and that of his family. The inordinate, unwarranted and unlawful delay is clearly demonstrable from the correspondence. In behaving as she did, the chairperson deprived the complainant of his rights to fair procedures and natural justice
Immediately after the coming into being of the new Board of Management, the complainant telephoned the chairperson to advise her that he had been involved in an incident involving a child he had been teaching that week.
In response to this, the Board of Management wrote to the complainant by letter dated the 26.01. 2012 informing him he was being placed on administrative leave from the 20.01 2012 to the 31.01. 2012. This incident was also referred to the HSE.
After a short period of time the parents of the child involved in this incident notified the Board that they were satisfied with the outcome of the issue. The Board wrote to the parent’s solicitors inviting them to come into a meeting. This invitation was declined.
On the 13.012012, in a letter the Board’s Solicitors, A representative of the HSE confirmed that the incident did not warrant child protection intervention.
The complainant attended a meeting with the HSE on the 24.10 2012. Arising from this meeting, a letter from the HSE dated the 5. 11.2012 was sent to the Board and to The complainant. It advised that the HSE had concluded that an incident did occur and confirmed that the incident could not be said to constitute physical abuse of a child. The Board was advised to comprehensively and thoroughly investigate the incident.
The Board initiated their investigation into this incident after receipt of the letter from the HSE. It appears that they did little or nothing to advance their investigation between the 20.01 2012 and the 5.11. 2012
The chairperson wrote to the HSE. On the 15.01. 2013 she received a reply from the Principal Social Worker stating:
“The central issue for the HSE is to establish if the alleged incident constituted physical abuse of a child. Based on all of the information provided to the HSE by representatives of the school, parents and indeed the complainant, the HSE does not feel the threshold for physical abuse of a child has been reached.”
The chairperson sent an email on the 3.12. 2012 to the Department of Education requesting the continuation of payment of the appropriate salary to the complainant for a further period up to the 31.01. 2013.
By letter dated the 4.12. 2012, the Department replied confirming the agreement of the Department to this request, to allow the necessary investigations to conclude. In this letter it is stated:
“If the board of your school is unable to conclude the investigation by the above date, you should contact the department immediately to request continuation of salary. Such a request be accompanied by an update of the current position of this case”.
On the 4.12.2012 the chairperson sent an email to the complainant. In this e-mail, she fails to set out the findings of the HSE but she informs the complainant that the Board will continue an investigation in relation to the same complaints. The Board committed to contacting the complainant early in the New Year (2013) to inform him of the terms of reference that set up this inquiry. In this email the Board acknowledges that the process caused great stress and frustration for the complainant and offered him counselling. However, nothing was done to advance the enquiry.
On the 13.12.2012 the chairperson wrote once again to the complainant advising him that the Board proposed to initiate an investigation in the New Year. Once again nothing was done to advance the enquiry.
On the 19.12.2012 INTO wrote to the chairperson setting out in some detail the history of what had transpired to date, making complaint and seeking detailed information and documentation.
On the 9.01.2013 there was a telephone conversation between INTO and The chairperson.
On the 18.01. 2013 INTO wrote once again to the chairperson, expressing dismay that no response had been received to the letter of the 19.12.2012, despite the telephone conversation of the 09.01. 2013.
On the 01.02. 2013 and on the 14.02. 2013 INTO spoke with the Solicitor for the Board, who was also the Solicitor advising the Chairperson and the Board of Management at the disciplinary hearing.
On the 26.02.2013 INTO once again wrote to the chairperson., noting with dismay at her failure to respond to the letters of the 19.12. 2012 and the 18.01. 2013 despite the telephone conversation with her of the 9.01. 2013 and with the Board’s solicitor on the 01.02.2013 and the 14.02. 2013.
The letter of the 26.02. 2013 was not replied to until the 13.03.2013 when the boards solicitors wrote to INTO. It was in that letter, that for the first time issues other than the single child incident were mentioned. It was stated that the chairperson was preparing a comprehensive report to be investigated by the Board under the disciplinary procedures. There were serious issue of concern regarding the administration of the school accounts and compliance with DES requirements. It was stated that the chairperson was aware of the urgency of this situation.
The complainant alleges that nothing whatsoever was done by the chairperson to advance an investigation into the single child incident. She led the complainant to believe that she was going to conduct an investigation, when she clearly had no intention of doing so. The chairperson was being disingenuous and the complainant states that he is perfectly entitled to question her motives.
On the 01.05.2013 INTO wrote a lengthy letter to the chairperson setting out the history of what had transpired, complaining about inordinate delay, pointing out the impact on the complainant and making demands for information.
On the 24.05.2013 XX Solicitors, retained by INTO, wrote to the chairperson along similar lines to the INTO letter of the 01.05.2013.
On the 29.05.2013 the chairperson, and not a firm of solicitors, personally wrote to XX Solicitors. In this letter the following is stated:
“However,, I wish to inform you, as the complainant’s representative, that I have decided to initiate the agreed disciplinary proceedings in relation to a very serious matter which has just recently come to my attention. I note that in 2009 the names of 18 non-existent children were added to the school roll in or about September 2009.”
A disciplinary hearing was scheduled for the 22.06.2013.
The letter of the 29.05.2013 was replied to on the 11.06.2013. Much complaint was made concerning the conduct of the chairperson and information and documentation was sought.
On the 20.06.2013 the chairperson acknowledged receipt of the letter of the 11.06.2013. This letter confirmed that the disciplinary hearing would be rescheduled to the 07.11.2013 because the allegations made against the complainant were serious, requiring time for consideration of them by him and for him to take advice.
This letter was replied to by INTO 25.07.2013. This letter objected and protested in the strongest terms concerning the actions of the chairperson and the Board. It sought extensive documentation and information.
On the 22.11.2013 the chairperson wrote to INTO concerning the disciplinary proceedings initiated by YY and affording the complainant the opportunity of responding in writing to allegations made against him by her. She also wrote to INTO by letter dated the 23.11.2013 with enclosures.
On the 31.11.2013 INTO replied, once again seeking documentation and information which had been repeatedly sought in previous letters, but which had not been furnished.
On the 22.01. 2014 the chairperson wrote to INTO scheduling a disciplinary hearing for the 08.02.2014.
On the 03.02.2014 INTO replied on the following terms:
“We write in response to your letter of the 22nd January 2014. We are dismayed by its content and which you are now purporting to call a Stage 4 disciplinary hearing for Saturday 8th February 2014 in circumstances where you have failed or refused to provide the information sought in all of our previous letters and specifically our letters of the 11th June, 25th July, and 31st October respectively. This is not acceptable and breaches our client’s rights to fair procedures. Indeed you have not responded at all to our last letter of the 31st October 2013”.
On the 24.03.2014 the chairperson wrote to the INTO enclosing a copy of the report dated the 17.01.2014 on the independent inspection carried out by the Department of Education.
Throughout 2014 the chairperson unlawfully steadfastly refused to furnish the information sought by those representing the complainant. Her conduct in this regard, it is alleged was nothing short of shocking and utterly unacceptable. Her conduct was clearly unlawful.
The INTO ceased to represent the complainant on the 16.10. 2014. The above named Solicitors, came on record. The disciplinary hearing commenced on the 05.11.2014.
The delay between the 20.01. 2012, the complainant was placed on administrative leave and the date of the commencement of the disciplinary hearing on the 05.11.2014 was inordinate unwarranted and unlawful and this delay is attributable to the conduct of the chairperson on two fronts:
1. “Failing to complete an investigation into the single incident involving a child which was the basis for placing The complainant on administrative leave in the first instance, without any reasonable expedition whatever, between the 26th of January 2012 and the 13th of March 2013, and purporting to insist on conducting such an investigation when she had no intention of doing so particularly in light of the attitude adopted by the parents very shortly after the incident, the letter of the 13th of August 2012, the HSE letter of the 5th of December 2012 and the HSE letter of the 15th of January 2015.
2. Failing to engage with the representatives of the complainant once The chairperson sought to switch horse and abandon the single child incident and chose to embark on disciplinary proceedings concerning the September 2009 school rolls as set out in her letter to XX Solicitors dated the 29th of May 2013. She repeatedly stonewalled those representing the complainant and refused consistently to furnish information to them, to which they were clearly entitled, causing even further delay and once again this is demonstrable from the correspondence opened to the Board of Management at the disciplinary hearing.”
Repeatedly throughout her evidence at the disciplinary hearing the chairperson acknowledged the fact that there was delay on her part:
1. Lines 21 – 22 page 49 5th of November 2014 “… it wasn’t possible to conduct it expeditiously.”
2. Lines 23,24 and 25 page 51 5th of November 2014 “well it details the letters that they sent and there was a delay, I am certainly not going to say that there wasn’t a delay”
3. Lines 27,28,29 page 51 5th of November 2014 “ well it is a delay. I explained already and I will state it again for the record. There was a delay, the delay was as a result of the extensive investigation that had to be undertaken…”
4. Lines 1,2,3,4,5,6,7 page 59 5th of November 2014 “the organisation of the material, it was pretty disorganised. It took time to do it. I don’t for one minute state that there wasn’t a delay. There was a delay, there was a substantial delay in it. I am not going to say there wasn’t but it did take time and it took an extensive amount of time.”
In an attempt to justify this delay on her part the chairperson stated the following at lines 20-24 page 43 on the 5th of November 2014 “well I do work fulltime and my role as Chairperson on the Board of Management is in a voluntary capacity. So the time I have available to investigate matters of this magnitude has to fit into my time outside of my day job. So just to give you some context.” This cannot be a lawful justification for the inordinate delay on her part, with the ensuing extremely serious ramifications this has had for the complainant
It is respectfully submitted, that the delay on the part of the chairperson renders the entire procedures invoked against the complainant unlawful and he should be reinstated to his position as school Principal forthwith.
Despite the seriousness with which the chairperson apparently viewed the enrolment procedure for the year 2009-2010, it is a striking feature of her investigation that she failed to interview a single member of the Board of Management of the school which was in situ for that period, which Board of Management was the complainant then employer and not the current Board of Management. The chairperson could not give any evidence concerning the interaction between the Board of Management and the complainant in September 2009.
The Chairperson of the Board of Management for the purposes of the disciplinary hearing repeatedly considered this to be a “crucial” issue. He stated that a crucial question was whether there was evidence that the Board at the time was aware of possible irregularities in enrolment figures. He stated that this would be crucial to the issue that the Board would be considering. At lines 11,12,13,14,15,16,17 and 18 page 86 05.11.2014 he put the following question to the complainant’s solicitor:
“I am aware of that and it is just going to be a crucial question with regard to the evidence that is presented concerning the Board at the time and whether the evidence that you are suggesting bringing forward is that the Board knew that there were possible irregularities or the Board didn’t know that there were irregularities. Now are you saying that they may have been aware?”
His reply to this question was yes.
With regard to this crucial issue the only evidence adduced on behalf of the chairperson was the evidence of Ms YY.
In her evidence, under cross examination by the complainant’s solicitor at lines 13,14,15,16,17,18,19, 20 and 21 at page 118 she stated the following:
“I don’t recall that being discussed on a very frequent basis. I think people had a huge amount of trust in the complainant that he was very capable, knew what he was doing and he came in with the information. The Board were very supportive of the school they were very supportive of the endeavours of the school and they were very supportive of the Principal of the school but I don’t think they had a huge impact on the actual administrative running of the school.”
On the 08.04.2015 evidence was heard from a member of the Board of Management which was in situ in September 2009, Ms ZZ and a member of the Board of Management up until 2007, Ms.WW.
From a perusal of the transcript of the evidence given on that day it is abundantly clear from the evidence of both witnesses that the Board of Management knew of, condoned and were complicit in the enrolment procedures during the course of the tenure of the Board of Management up to December of 2011, when the current Board of Management came into being.
This is made all the more clear, by replies to several questions put by the Chairperson of the Board of Management at the disciplinary hearing to Ms. ZZ at pages 37,38,39,40,41,42,43 and 44 on the 8th of April 2015.
Likewise, the answers to the questions put by the Chairperson to Ms WW put this crucial matter beyond doubt. These answers are at pages 68,69,70,71,72 and 73 on the 8th of April 2015.
On the 2nd of June 2015 evidence was heard from Mr. QQ who is the Principal of School. He is in fact a school Principal since 1989 having commenced teaching in 1980. He holds a Master’s in Education from the NUI in Maynooth and has been a member of the CEC of the INTO from 2010 -2015.
This extremely experienced school Principal gave evidence as to the ambiguity created by the Education (Welfare) Act in 2000 and the seismic shift which took place in 2013 when a circular was circulated by the Department of Education stating that if Principals retained pupils for staffing purposes the Department would advise the Gardaí, criminalising Principals. He gave clear evidence that the rational of the circular was to clarify issues in relation to enrolments which had become very ambiguous up until then.
He gave evidence of his views on the enrolment procedures used by the complainant of which he was not critical. He spoke of the appalling vista of losing a teacher. He commented on the harshness of the chairperson’s reference to fraud.
At lines 13,14 and 15 on page 20 02.06.2015 the principal makes the following observation:
“So the 2009 -2010 returns, I am respectfully suggesting are being looked at through the lense of a 2013 circular and that is most unfair”
When asked as at 2009- 2010 would he consider what the complainant did be an issue of the upmost seriousness he replied no. (18, 19, 20, 21 page 20 2nd of June 2015)
At lines 11 and 12 of page 22 02.06.2015 the principal was asked the following question:
“So do you think that the complainant has done anything that merits a sanction?”
“No I don’t. I think he acted in the best interest of his school and his pupils based on the 2013 circular. He shouldn’t have done it, but we are all wise after 2013. Prior to 2013 he was doing what the vast majority of my colleagues were doing.”
At lines 15-24 page 34 2nd of June 2015 the Chairperson asked him what he described as a “crucial” question which was:
“You use the phrase that it was a prevalent practice among a vast majority of your colleagues that when it came to September the 30th that if there were students that had not turned up that they would keep them on the roll”
The answer to this question was:
“I am not sure I said the vast majority, I said it was a prevalent practice.”
Under re-examination by Robert Dore the following question was put to the principal at lines 6-11 page 39 02.06. 2015:
“Just arising from that specific question, there has been evidence from members of the Board that were in situ in 2009 and 2010 and not this Board, of a particular approach towards enrolments. If a Board at that time took that approach they have a collective responsibility to stand over that approach?”
The reply given by him was “They have, absolutely.”
It is respectfully submitted that this is a vitally important and crucial piece of evidence given by the principal. In the circumstances the question of fraudulent misrepresentation simply cannot arise. There is clearly no basis for the complaint made by the chairperson.
Mr. VV a retired School Principal with vast experience unequivocally corroborated the evidence of Mr. QQ
The complainant repeatedly referred to the grey area surrounding enrolments, corroborating what was said by the principal and retired principal.
With regard to enrolments, the complainant repeatedly gave evidence that at all times he was acting with the full knowledge and cooperation of the Board of Management.
The complainant gave evidence regarding the 2009 -2010 enrolments and the complainant gave evidence that there was full cooperation and transparency between himself and his Board of Management, between employer and employee (lines 24,25,26, 27 page 79 2nd of June 2015”
The complainant gave evidence of the inordinate unwarranted and protracted delay in the conduct of the investigation concerning him by the chairperson and the appalling effect that it had on both himself and his family.
The chairman has correctly identified that the crucial issue and indeed the only issue to be considered by the Board of Management is the fraudulent misrepresentation of enrolment figures for 2009-2010.
In determining whether the complainant behaved fraudulently, and there is a very high onus of proof on the chairperson to establish this, such as to merit a sanction being imposed on him, a matter of fundamental importance is his interaction with the Board of Management in 2009-2010 and the uncontroverted evidence is that the then Board of Management knew, condoned and encouraged the enrolment procedures and that the Board of Management and the complainant shared collective responsibility for them. This being the case the issue of fraud simply does not arise. In these circumstances, it is respectfully submitted that no sanction should be imposed on the complainant and he should be reinstated as school Principal forthwith.
Another fundamental issue is the prevalent practice at the time throughout the Country, with regard to enrolment policies. In light of the unequivocal evidence of Mr QQ, as corroborated by Mr VV, it is clear that in doing what he did the complainant was adopting the prevalent practice at the time and in these circumstances, it is respectfully submitted that the question of fraud simply cannot arise, that no sanction should be imposed on the complainant and that he should be reinstated as school Principal forthwith.
From a perusal of the entire transcript and given the interjections of the Chairperson and the boards solicitor, it is clear that the Board of Management, as an adjudicator between the complainant and the chairperson, was not acting in a partial and fair manner but was biased in favour of the chairperson. In circumstances where the Chairperson is employed in his day job as head of communications of the Higher Education Authority allocating funding to Higher Education Institutions and the complainant complains of the school being in receipt of capitation grants it was highly inappropriate for the Chairperson to be in the chair throughout the disciplinary hearing and may explain the pro complainant stance adopted by him and the respondent’s throughout. He went so far as to write a letter to the complainant’s solicitor on the 18th of June 2015 in an effort to explain and or justify the inordinate and unwarranted delay on the part of the complainant in finalising her investigation. This was extremely inappropriate and is further evidence of bias against the complainant.
It is to be noted that the Department of Education conducted a high level independent investigation into the conduct of the complainant and saw fit to impose no sanction on him.
In light of the inordinate delay and the evidence of the various witnesses it would be irrational and manifestly unfair for the Board of Management to do anything other than reinstate the complainant as school Principal immediately.
Summary of Respondent’s Case:
During the course of an investigation into a matter not related to this case, the subject matter of this case came to light. On 29 May 2013, the Chairperson of the Board of Management, wrote to the Assistant General Secretary of the INTO, initiating the agreed disciplinary procedures against the Principal. The Principal was requested to attend a Disciplinary Hearing on 22.06.2013. The Principal was placed on suspension with pay, in compliance with the provisions of the disciplinary procedures which provide that “if there is an allegation of serious misconduct, the Principal may be suspended on full pay pending an investigation, and the conclusion of any appeal process.”
The INTO declined to attend the Disciplinary Hearing arranged for 22.06.2013. The Chairperson wrote again to the INTO on 20.06. 2013, proposing a Disciplinary Hearing on 07.09. 2013. The INTO again declined to attend the scheduled Disciplinary Hearing. From mid-September to December 2013, the Board of Management was fully engaged in other related disciplinary investigations about which the INTO and the Principal were fully aware. The Principal was invited to participate in those investigations, but declined to do so. On 22.01.2014, the Chairperson of the Board of Management wrote again to the INTO requesting the Principal to attend a Disciplinary Hearing on 08.02.2014. The INTO again declined to attend the Disciplinary Hearing.
It is important to note that during the period of time that the Principal was represented by the INTO, i.e. from June 2013 to October 2014, the INTO declined on five separate occasions to come to scheduled Disciplinary Hearings.
The complainant now seeks to reply on the principle of inordinate and inexcusable delay. In relation to that allegation, the Board relies on the letter sent by their solicitors to the complainant’s Solicitor dated 18.06.2015. Contrary to what is alleged by the Complainant’s Solicitor at Paragraph 70 of the submissions, the letter of 18.06.2015 was not sent in an effort to explain and/or justify the inordinate and unwarranted delay on the part of the Complainant in finalising her investigation. The conduct of the investigation is a matter for the Board of Management, and not a matter for the Complainant. The facts as set out in the letter of 18.06.2015 from the boards solicitors have not been challenged or disputed in any way whatsoever, either by the Principal or his solicitor.
The Board of Management now wishes to address the evidence given by Mr . QQ and MR. VV. This is as set out at Paragraph 49 - 60 and 61 - 64 of the Principal’s submission. The Principal relies very heavily on the evidence of Mr QQ. He is described as an “extremely experienced school Principal”, who, “gave evidence as to the ambiguity created by the Education (Welfare) Act in 2000. His evidence to the Board of Management is set out between Pages 4 and 43 of the transcript dealing with the Hearing on 2 June 2015, a copy of which is with the Panel. In his evidence, he made much of the implication of the Education (Welfare) Act, 2000 on the recognition of pupils enrolled in primary schools. He stated that the Education (Welfare) Act required that schools would keep children on their rolls (who were not in the school) until such time as whatever new school they went to had advised the original school in writing that those children were now enrolled in another school.
He went on to give evidence that difficulties were experienced by schools who had enrolled children in good faith who had subsequently gone to another school which, for whatever reason, then failed to advise the original school of the fact that they were now enrolled in another school. He gave evidence that the Principal of the original school was still responsible for the welfare of the children, who were still technically enrolled in the original school and that the practice became prevalent due to the Education [Welfare] Act 2000, whereby as the Principal, “if you retained a teacher for children whom you were responsible, well you were entitled to that teacher, it had that effect, yes. As a result of it, teachers were retained in schools, but the thinking amongst school principals was, well, those children could return, those children could come back, I am responsible for the welfare of these children, therefore I am entitled to hold the staffing”. He maintained that a “very seismic shift” occurred in 2013, when the Department of Education and Schools clarified its position in relation to children who had to be retained on the register of a school under the provisions of the Educational [Welfare] Act 2000 until such time as that school had been advised of the school in which the pupils concerned were now enrolled.
In the course of its consideration of Mr QQ’s evidence on this point, the Board of Management consulted the relevant DES Circulars for the school years 2009/2010 and 2010/11. The complaint under investigation was that the Principal had knowingly made false returns to the DES in relation to the valid enrolment as of 30 September 2009. Primary Circular 0002/2009 states as follows at Paragraph 1.2:
“Only pupils who were validly enrolled on 30 September 2008 should be taken into account for the purpose of determining staff members. In this regard, the terms of the Primary Circulars 24/02 – Determination of valid enrolment in primary schools and 32/03 – Retention of pupils in primary schools – must be adhered to. Pupils retained on the school register on 30 September 2008, for the purpose of compliance with the Education [Welfare] Act 2000 should not be counted towards valid enrolment for the purpose of determining staff members.”
Exactly the same paragraph is contained in primary Circular 0021/2010, which deals with the regulations governing the appointment and retention of teachers in primary schools for the school year 2010/2011. It was clear to the Board of Management that Mr QQ, despite his extensive experience as a school principal, was wrong as a matter of fact in relation to the evidence he gave to the Board of Management on this point. There was no ambiguity created by the coming into effect of the Education (Welfare) Act 2000. The Department of Education and Schools explicitly directed that pupils retained on the school register as of 30 September for the purpose of compliance with the Education [Welfare] Act 2000 should not be counted towards valid enrolment for the purposes of determining staff members. The directive from the DES could not be clearer.
The Board also consulted the Education [Welfare] Act itself, which only deals with pupils enrolled in recognised schools who are over the age of six years. All but 2 of the 18 pupils, it was alleged the Principal had falsely returned to the DES in the October returns of 2009, were deemed to be under the age of six years and for that reason if no other would not be affected one way of the other by the Education (Welfare) Act 2000. Therefore, it was unambiguously clear to the Board that Mr O’Reilly’s evidence on this point was erroneous and could not be accepted.
The Board of Management also noted that under cross-examination, when MR QQ was asked whether he would advise a Principal who had projected a particular enrolment which had not been realised to put in the actual enrolment on the October returns, or to put in a projection that had not had not been realised on those returns, he replied, “There is no way that you would tell a Principal to write down an invalid projection. I wouldn’t give responsible advice in that way”.
The Board also considered the evidence of Mr VV. He is also a retired school principal. He gave similar evidence in relation to the operation of the Education [Welfare] Act as Mr O’Reilly. Under cross-examination, Mr VV was asked specifically what he did in relation to students who were expected to attend but did not turn up. Mr. VV replied, “We didn’t put them on the roll”. He confirmed that for junior infants who did not turn up or did not show up, he did not put them on the roll, nor did he create a record for them. Mr. VV went on to give evidence to the effect that sometimes the projected enrolment was not realised. He said in evidence, “We always had development posts nearly every year.There were one or two years we didn’t make it. What happened was, the teacher goes on a panel from, I think, 1 December”. He also stated in relation to the completion of the rolls, “I wouldn’t have made up anything just to make it”.
By way of reminder at this point the allegation under investigation by the Board of Management was essentially that the Principal had knowingly made false returns in order to realise a projected enrolment figure which had not in fact been realised.
With regard to the allegations as set out between Paragraphs 65 and 70 of the Principal’s submission, to the effect that the Principal acted at all times with the full knowledge and cooperation of the Board of Management. The clear implication of that assertion was that the Board of Management was on notice as to the actual reality of the enrolment returns made to the Board of Management in October 2009. No evidence was adduced to that effect at the disciplinary hearing. The Board submits that even if that were the case, (which is denied), it would not exonerate the Principal from wrongdoing if the allegation against him was substantiated by the Board of Management on the conclusion of the investigation. At best, it would imply that the Board of Management and/or members of the Board of Management colluded in the wrongdoing if wrongdoing was found to have occurred at the time. The evidence from the Board minutes is that the Board was notified by the Principal that the projected enrolment had been realised. The Board of Management of a National School is a statutory body corporate with perpetual succession. No evidence was adduced to the Board of Management that the previous Board as a statutory body was aware of the possibility that the names of 18 students who were not in the school on the 18th September 2009 were included in the October returns to the DES in October 2009 as having been in the school.
The Board heard evidence from Ms. ZZ a member of the Board of Management at the relevant time. The Board considered Ms. ZZ’s evidence to be unclear and indeterminate. When asked about what the Board understood the Principal to have reported to it in October 2009 Ms. ZZ replied as follows:
“I am going to be honest again. When numbers and figures and all were read out at things we never gave them a second thought, well I didn’t. It was like leave it to the complainant, he will sort it. I never sat there and went okay, how many do we need. I just didn’t do it. We just left it to the complainant. He will sort it out”.
When pressed further on this point she added:
“I can’t say what the Board---- I can tell you from my opinion that I wasn’t interested. I didn’t care. It was like the complainant will sort it out”
On her own admission, Ms. ZZ was not in a position to speak for the previous Board of Management of which she was a member.
The Board of Management now wishes to address the three specific issue as set out in the letter from the complainant’s Solicitor to the Panel dated 29.09.2015 which are as follows:
(i) All of the relevant facts were not considered or not considered in a reasonable manner.
The Principal has not set out in his submissions how and in what way it is alleged that all of the relevant facts were not considered in a reasonable manner. He has not specified as he is required to do what facts were not considered and/or what facts were not considered in a reasonable manner. Therefore, the Board does not know what case it is required to meet. The Board of Management considered very carefully all of the evidence that was before it. A significant amount of documentation was made available to The Board of Management and to the Principal in the course of the lengthy disciplinary investigation. The Principal had access to all of the documentation before the Board of Management. The Board went to the considerable expense of engaging stenographers to ensure that an accurate transcript of the disciplinary proceedings would be available to all parties. A copy of the transcript was made available to the Principal without charge.
(ii) The Principal could not reasonably be expected to have understood that the behaviour alleged would attract disciplinary action.
As with the previous ground of appeal, no argument has been set out in the Principal’s submissions to support what is simply an assertion which has not been substantiated by the Principal. It is well understood in the primary sector that the October Returns (based on the enrolment as of 30 September) determine the staffing level of a school into the following year. Fraud or deliberate falsification of documents is listed as one of the examples of gross misconduct in the disciplinary procedures introduced under the provisions of the Education Act 1998. By coincidence, DES Circular 60/2009 came into effect in September 2009 and was circulated to all first and second level schools at the start of the 2009/10 school year. There was a heightened awareness in the education sector at all levels at that time as to the implications of the disciplinary and competency procedures that were introduced
It is simply not credible that an experienced Principal would have been unaware as of September 2009 of the fact that fraud or the deliberate falsification of documents could constitute gross misconduct. It should be noted that the October returns in 2009 were actually filed in November 2009.
(iii) The sanction recommended is disproportionate to the under-performance or misconduct alleged.
As with the previous two grounds of appeal, no submissions were advanced or evidence produced to support the asserted ground that the sanction recommended is disproportionate to the misconduct alleged. The ground of appeal is simply asserted without any apparent substantiation. The Board of Management submits that the sanction proposed is not disproportionate to the serious misconduct. The disciplinary procedures, in the section dealing with gross misconduct, state as follows:“If the investigation upholds a case of serious misconduct the normal consequence will be dismissal.” The Panel should bear in mind that the Principal’s misconduct had serious consequences for the Department of Education & Skills as follows: (a) a teacher was appointed to the school, to which the school was not entitled, (b) the school received enhanced capitation in the 2009/10 school year to which it was not entitled, (c) the Principal’s allowance was increased which in turn improved the Principal’s pensionable entitlements. These significant increases in expenditure were a direct result of the false returns made to the DES in the 2009/10 school year. Somewhat ironically, they occurred at a time when the overall education budget was being reduced and when pay and conditions of teachers were the subject of serious cuts.
In this instance, the investigation upheld a case of serious misconduct with regard to the deliberate falsification of documents. The Board submits that the sanction of dismissal was proportionate to the serious misconduct which the Board found the Principal to have committed.
The Board submits that it complied with the agreed disciplinary procedures during the course of its investigation into the serious allegations made against the Principal.
Findings and Conclusions:
The parties have agreed that the transcripts for the disciplinary hearing be admitted into evidence.
The complainant in this matter alleges he was unfairly dismissed from his employment. The dismissal followed a very lengthy disciplinary process which included an appeal hearing. The respondent states that the dismissal was fair and proportionate in all the circumstances.
S6 (1) 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.
The complainant was placed on leave on the 20.01.2012 in relation to an incident involving a child in the school. This matter did not form part of the disciplinary process which led to the complainant’s dismissal. However, it is relevant in relation to the delay point relied on by the complainant. The single child incident was referred to the HSE for investigation. The Board of Management were informed on the 05.11.2012 that the department had concluded their investigation and found that essentially there was no case to answer. The Board did not write to the complainant until the 04.12.2012. In that letter, The Board did not inform the complainant of the findings in his favour. They merely informed him that they had decided to carry out their own investigation. I note that the Board did nothing to progress the matter until after the HSE had concluded their investigation. If it was the Board’s intention to carry out their own investigation, which it would seem it was, regardless of the HSE findings, they should have embarked on that task immediately. They could have withheld their findings until after the HSE had concluded their investigation. To wait until after the HSE had concluded the matter before taking any action, in circumstances were the Principal was on administrative leave, is unacceptable. I also note that the Board in fact, never carried out an investigation into the single child incident. They left that matter in limbo once they discovered the enrolment figures for 2009/2010 had been mispresented to the Department. That is not acceptable. Each allegation made against and employee by their employer should be concluded regardless of the level of seriousness in comparison to other allegations.
It was during the investigation into the single child incident that the enrolment figures issue was discovered. The Board wrote to the complainant on the 13.03.2013 setting out the allegation. The complainant’s ‘leave’ was extended. That leave was extended for two reasons, firstly to allow for the investigation into the single child incident and secondly to allow for the investigation into the 2009/2010 enrolment figures issue.
In Bank of Ireland v Reilly 2015 IEHC 241 Noonan J stated:
The suspension of an employee, whether paid or unpaid, is an extremely serious measure which can cause irreparable damage to his or her reputation and standing. It is potentially capable of constituting a significant blemish on the employee’s employment record with consequences for his or her future. As noted by Kearns J in Morgan v Trinity College, there are two types of suspension, holding and punitive. However even a holding suspension can have consequences of the kind mentioned. Inevitably speculation will arise as to the reasons for the suspension on the premise of there being no smoke without fire.
Thus, even a holding suspension ought not to be undertaken lightly and only after full consideration of the necessity for it pending a full investigation of the conduct in question. It will normally be justified if seen as necessary to prevent a repetition of the conduct complained of, interference with evidence or perhaps to protect persons at risk from such conduct. It may perhaps be necessary to protect the employer’s own business and reputation which the conduct in issue is known by those doing business with the employer. In general, it ought to be seen as a measure designed to facilitate the proper conduct of the investigation and any consequent disciplinary process.
In relation to the single child incident, there may have been some argument as to why the leave had to be extended. However, that argument is somewhat diluted by the letter dated 05.11.2012 exonerating the Principal. The Board did not give any specific reasoning to the Principal or to me during the hearing which demonstrated the necessity to extend the leave period. In circumstances where the HSE had exonerated the Principal stating that in their opinion “the HSE does not feel the threshold for physical abuse of a child has been reached” and the only other issue being investigated was the enrolment figures for 2009/2010 which said figures had been returned to the department in October, 2010 and in the absence of any explanation from the Board, I can only conclude that the decision to extend the leave period was unfair, unnecessary and potentially damaging to the Principals reputation. Had the Board done what they said they were going to do, i.e. investigate the single child incident, and done so expeditiously, there would have been no need to extend the leave period at all.
Once the disciplinary process in relation to the enrolment figures commenced, it was progressed at a snail’s pace. The complainant’s right to a fair and expeditious hearing are protected by Article 6 of The European Conventions on Human Rights. In circumstances where the Principal was on leave pending the outcome, it was incumbent on the Board to act expeditiously.
Each party to this matter blames the other for the delay. The respondent states that it set up five disciplinary hearings, each being adjourned at the complainant’s request. The complainant states that strenuous efforts were made to try and secure possession of the relevant documentation from the Board and despite requesting same on the 01.05.2013, 24.05.2013, 25.07.2013, 31.10.2013 and 03.02.2013 the information was not forthcoming. The complainant is entitled to have sight of all relevant documentation that was in the Boards possession prior to any disciplinary hearing taking place. To lay blame for the delay at the feet of the complainant in those circumstances is disingenuous.
During the disciplinary hearing and again at this hearing evidence was given by two previous board members. They clearly stated that following enquires from other schools of this type, the returning of false enrolment numbers to the department, as in the circumstance of this case, was the done thing. With the benefit of hindsight, they both conceded that it was the wrong thing to do, but at the time they, and the other board members, acting on the advice received from other schools didn’t think they were doing anything wrong. They both stated that the entire Board, at the time, were aware of and were complicit in the returning of false numbers to the department. I am satisfied that the objective of the exercise was not to defraud the department, but to secure the future of the school. Nonetheless, the result of the exercise was to defraud the Department of Education. Both the school and the Principal where the beneficiaries of additional sums of the department’s money, as a result of the misrepresentation.
I note that the chairperson of the board, during her protracted investigation of the matter, failed to interview anyone who sat on the board at the material time. Given that the Board is the employer, and the principal, an employee of The Board and only one of eight members of the Board it was a fatal error on her part not to established what role the other board members had to play in the misrepresentation. The evidence of the two previous board members given at this hearing, did, go further than at the disciplinary hearing. It was however clear, that the board at the time, were wholly complicit. Evidence was also adduced that prior to 2013 there was an ambiguity in relation to the returning of enrolment figures. In relation to the ambiguity or otherwise the board relies on the DES circulars. Primary circular 002 /2008 States that “only pupils who were validly enrolled on 30th September 2008 should be taken into account for the purpose of determining staff member.” The terms of primary circular 24/ 2002 ‘Determination of valid enrolment in primary schools’ and 32/2003 ‘retention of pupils in primary schools’ must be adhered to. Pupils retained on the school register on 30th September 2008, for the purpose of compliance with the Education [Welfare] Act, 2000 should not be counted towards valid enrolment for the purpose of determining staff numbers. Exactly, the same paragraph is contained in primary circular 21/ 2010. Mr QQ, a previous school principal gave evidence at the disciplinary hearing. The respondent states that despite him being an experienced principal his interpretation of the situation at the current time was in fact wrong. Mr QQ give evidence that an ambiguity was created by the Education Welfare Act, 2000. He stated that there was a seismic shift in the practices that had been adopted once the 2013 circular came into being. He stated that prior to 2013 the practice adopted by the board in 2009 was prevalent. Mr. QQ’s interpretation of the law at the time might have been wrong but that doesn’t change the fact that the practice was widespread.
The current board, which consists of new members, now seeks to justify its decision to dismiss the Principal. Whilst the current board’s membership has changed since 2012/2013, the functions and responsibilities of the board have not. The function of the board then and now is to manage the school on behalf of the patrons. The Board is and was accountable to the patrons and the Minster. The Principal, one member of the Board is responsible for the day to day management of the school and is accountable to the Board of Management. In the circumstances of this case I cannot ignore the equitable maxim, “He who comes into equity must come with clean hands." The Board was wholly complicit in the filing of misrepresented/fraudulent returns to the department of education. Had the current chairperson carried out a proper investigation of the matter, she would have been appraised of that fact prior to the disciplinary hearing. The principle established in the case of Bank of Ireland v Reilly (as above) apply in this case. Having been complicate in the act, the same board, albeit with new members, cannot now seek to justified its dismissal of the complainant, him being only of eight members involved in the misrepresentation/fraud.
I accept that the process of executing procedures in relation to an investigation or a disciplinary matter does not have to be perfect. As was stated in Elstone V Coras Iompair Eireann
“ The mere fact of some failing in due or agreed procedures is not a final and decisive matter for the Court on an appeal. It is clear from the provisions of Section 6(1) which states that regard must be had to all of the circumstances.”
Section 1 of the Act is silent on “to all the circumstances” however it is now well established in common law that when assessing the reasonableness test one must consider all of the circumstances of the case. I am also obliged to consider whether any failings in the process leads the claimant to form the view that he would be prejudiced if he moved forward with the process or if the failings lead him to conclude that the respondent was merely paying lip service to the process in order to disguise its predetermined result, i.e. Dismissal .In order for the claimant to succeed on that point I must conclude that it was reasonable in all of the circumstances for the claimant to form that view.
I find that the delay in bringing the disciplinary matter to its conclusion not only unacceptable but in breach of the complainant’s right pursuant to Article 6 of the convention. The complainant was first put on notice of the issue in April, 2013. The matter did not reach its conclusion until the 30.11.2015 when the complainant was dismissed. The single child incident has never been concluded. The fact that the chairperson is in full time employment elsewhere, or that she has other commitments outside of the respondent school are entirely irrelevant in the context of the disciplinary hearing. There is a legal duty on her to deal with the matter expeditiously, particularly in circumstances where the Principal was on leave for the entire period of time. She had a duty to prioritise this matter and she failed in her duty in this regard. There is also a duty on her to furnish the complainant with all relevant documentation prior to any disciplinary hearing. She failed to do so in a timely fashion. The complainant was entitled to seek to have the hearings adjourned until he was in possession of the relevant documentation. The chairperson failure to furnish the documentation having been requested to do so on five separate occasions, only served to delay the matter further. That delay, as stated early was entirely unacceptable.
In all of the circumstances, I find that the respondent has failed to justified the dismissal of the complainant and therefore his claim must succeed.
S7(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers appropriate having regard to all the circumstances:
(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or
(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or
(c) payment by the employer to the employee of such compensation (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) in respect of any financial loss incurred by him and attributable to the dismissal as is just and equitable having regard to all the circumstances.
When assessing the most appropriate remedy for the complainant, I am taking into account, the complainants own contribution to the dismissal, the delay in bring the matter to its conclusion, the effect of the lengthy suspension had on the complainant, the necessity for the suspension in the first place and his prospects of securing future employment. I find that the delay in bringing this matter to its conclusion, the length of time the complainant was unnecessarily out on suspension, together with his participation in the matter all render is prospects of securing employment in the future very slim. In Those circumstances compensation is not an appropriate remedy as the act limits the level of compensation to 104 weeks. It is for that reason that I find that re-engagement the most appropriate remedy.
The complainant is to be re-engaged into the role of Principal effective from the 01.01.2018 on the same terms and conditions prior to the dismissal. There is to be no break in his service or pension contributions.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Claim ADJ 1777 succeeds. The complainant is to be re-engaged into the role of Principal effective from the 01.01.2018 on the same terms and conditions prior to the dismissal. There is to be break in his service or pension contributions.
Dated: 25th April 2018
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly BL
Unfair Dismissal, Fraud, Re-engagement.