ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00019892
A secondary school
Complaint 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: 17/04/2019
Workplace Relations Commission Adjudication Officer: Kevin Baneham
On 19th February 2019, the complainant submitted a complaint to the Workplace Relations Commission. The complaint was scheduled for adjudication on the 17th April 2019.
The complainant was represented by Sean Carabini and Grace Williams of Fórsa. The respondent was represented by Liam Riordan, Mason Hayes and Curran. The Principal, Assistant Principal and Chair attended as witnesses.
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015following 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.
The complainant, a school Special Needs Assistant, was dismissed on grounds of serious misconduct. The grounds of dismissal relate to a finding that he used cocaine on the school grounds. He denies the wrongdoing. The respondent asserts that the dismissal was substantively and procedurally fair.
Summary of the Respondent’s Case:
The respondent outlined that the fact of dismissal was not in dispute. It submitted that there was sufficient evidence to support the finding of misconduct and the allegations had been investigated in compliance with fair procedures.
Evidence of the Principal
The Principal outlined that the incident occurred on the last day of the school term. The school organises a break-up party, with a staff sports day and some lunch. This finished at 5pm when the caretaker would come to close up. Some staff went out later to a local pub. The Principal outlined that the following Monday, the Assistant Principal said that he had walked into a bathroom on two SNAs. He saw the two SNAs standing with their back to the door. He felt that something was wrong. The complainant had something in his hand. According to his statement, the other SNA had his hand up to his face. They scurried into cubicles. The Assistant Principal said that he believed that this was drugs.
The Principal outlined that the Assistant Principal had been offered cocaine at a Christmas event in December 2017. The Principal sought advice but did not proceed as it was one person’s word against the other. Following this later incident, the Principal outlined that she sought to gather the facts.
The Principal met with the three people involved, i.e. the Assistant Principal and the two SNAs. This was not part of a formal investigation as the Principal wanted to see if there was substance to the allegation. The meetings took place in the Principal’s office in June. The Principal decided that there should be a full investigation, and this took place in September.
The Principal outlined that it is for the school board of management to decide whether there is a disciplinary meeting. The Principal did not attend this meeting. The board decided to refer the matter to the disciplinary process.
The Principal outlined that the decision to dismiss was confirmed on appeal on the 11th February 2019. Per the Circular, the complainant went off pay roll on the 26th February 2019 as the appeal had concluded.
The evidence of the Chair of the Board of Management
The Chair outlined that he chaired the disciplinary process. They heard the case presented by the Principal and the complainant’s response. While board members could ask questions, he did not ask a question and could not recall what questions were asked. There may have been questions about the technical complaints. The complainant spoke to deny the allegations.
The Chair outlined that the board looked at the evidence in the investigation report and the statements. They considered the criticisms made by the complainant. They decided that the investigation had not begun in June, as claimed, as the first meetings were only fact finding.
The Assistant Principal spoke to what he had seen on the 1st June 2018 and the contents of the Christmas conversation.
The respondent submitted that it was open for the complainant to challenge the evidence of the other SNA. The board had felt that both SNAs were involved but did not adjudicate on the other SNA’s process further. It accepted that there were no drugs on the school in December 2017.
The respondent accepted that the December 2017 conversation took place as described by the Assistant Principal. It further accepted that this led to concluding that the June 2018 incident also involved drugs.
It submitted that the other SNA’s statement amounted to a protected disclosure, so he was immune from prosecution. It submitted that the Assistant Principal had made two allegations regarding drugs and the June allegation was supported by the statement of the other SNA.
The respondent outlined that the appeal was heard by two independent persons, appointed by the board.
The respondent did not accept that the other SNA’s evidence was self-serving. This could also have been put to the other SNA and tested as part of the investigation. Cross-examination was offered to the complainant. The SNA’s evidence is what it is. While this SNA admitted to taking drugs, this was not connected with the school.
The respondent submitted that the evidence of the Assistant Principal and the SNA supported each other. The terms of reference set out in the letter of the 23rd August indicate that the scope was not exclusive to the June incident. It submitted that the December incident later became relevant as it was also the Assistant Principal who witnessed the June incident. The December allegation was not excluded from the investigation. It was open to the complainant to challenge this evidence during the investigation and disciplinary stages.
The respondent submitted that the criticisms of what happened in June are a red herring. The respondent had to look into the matter before initiating an investigation into serious misconduct. The complainant was not prejudiced as he had the full suite of protections provided by the Circular during the investigation and the disciplinary stages. The respondent submitted that reinstatement was inappropriate should redress be awarded.
Summary of the Complainant’s Case:
The complainant outlined that the allegation of December 2017 was used to corroborate the June 2018 incident. The respondent relied on the self-serving evidence of the other SNA.
There was a breach in the terms of reference as the Christmas allegation appeared in the evidence and made its way into the report of the board of management. It was only in August that the complainant was aware of the allegation being raised.
The complainant submitted that procedural breaches occurred in June. There was no informal stage and he was entitled to the protection of the Circular over the whole period of the investigation. He did not know what was said to the other parties in June. He commented that the minutes of his own meeting in June were only prepared in October.
The complainant outlined that the reason cited by the respondent in the letter of dismissal was drugs being on the premises in December. He said that the Assistant Principal had not stated that he saw drugs. The complainant thought that the other SNA would also be subject to a disciplinary procedure. He outlined that the respondent was swayed in its decision by the Christmas allegation.
The complainant outlined that the conclusion regarding the June incident was based on the SNA’s statement. This was one person’s word against the other and the allegation should have been parked in the same way as occurred in December.
Since the dismissal, the complainant recently started working in a part-time role in a franchise. He is looking to retrain in IT. He looked for other SNA roles but did not have reference to obtain a role.
In closing, the complainant outlined that the dismissal was based on what one person alleged of there being drugs in the school. He submitted that the December allegation should never have been part of this process. The substance of the case was the report of suspicious behaviour in a bathroom. The pre-investigation process was improper, and he could not know what was said to others. The respondent had relied on as the reason for the dismissal something that did not follow the evidence, i.e. the allegation of having drugs on the school in December. He commented that he did not see the minutes of the pre-investigation stage, the Board disciplinary meeting or the appeal hearing. The appeal had relied on the December allegation, but this cannot be corroborated. The appeal had not addressed that the dismissal was made on the wrong finding, i.e. drugs being on the school in December.
Findings and Conclusions:
This was a difficult case to adjudicate upon. It, however, falls on the respondent employer to displace the statutory presumption that the dismissal was unfair. Their case consisted of some very strong direct evidence, accompanied by significant procedural deficiencies.
First, I believe everything the Assistant Principal said. He gave a cogent and clear account at the adjudication. He had no axe to grind. He reported the incident of the 1st June 2018. He wrote a clear statement of what he observed in the bathroom. He saw suspicious behaviour by two colleagues. One had something in his hand; the other had his hand up to his face. They “scurried” into cubicles. He lays wrongdoing at the door of both colleagues. The Assistant Principal formed the conclusion that this related to drugs.
The Assistant Principal had previously reported a conversation where a staff member offered him cocaine. This conversation took place in December 2017 in a named pub. While no action followed this conversation, it explains why the Assistant Principal was upset following the incident of the 1st June 2018.
Second, the finding that the Assistant Principal is telling the truth is, in reality, fatal to the respondent’s case. This is because it relied on the statement made by the other SNA on the 11th September 2018. This statement conveys that the staff member was shown cocaine but said that he did not want to partake. This is not what the Assistant Principal reported. He saw the other SNA with “his hand to his face”. The Assistant Principal presumes that drugs are taken. The other SNA does not account for this evidence. He does not deny that his hand was to his face or explain why he did this action.
Third, as discussed at the adjudication, the other SNA’s statement was self-serving and unreliable. The incident in the bathroom had taken place. He was one of a pair identified as participating in “suspicious behaviour”. In a re-enactment of the classic Prisoner’s Dilemma, he laid blame on his co-accused. This is Operation Save-My-Job. The allegation was that they were both engaged in suspicious behaviour, but he frames his statement to assign blame squarely on someone else.
Fourth, the respondent was perfectly entitled to engage Stage 3 of the process set out in the Circular. It, however, engaged in the June process, which is described as both “informal” and “fact finding”. It is well established that if findings of fact are made, fair procedures apply in full. This is especially the case as the Principal carried out both the informal June process and the formal September process. She was also the prosecutor before the Board’s disciplinary process. It is open to an employer to explore whether there is a case to answer before embarking on an investigation, but this should not involve findings of fact.
Fifth, there are obvious deficiencies in the dismissal letter of the 15th November 2018. This states that the respondent accepts the evidence of drugs being offered on the school premises in December 2017. There, of course, was no allegation of drugs being offered on the school premises in December 2017. It also refers to the other SNA being offered drugs in December 2017, when no such allegation was made. The second finding was that drugs were on the school campus in December 2017 when no such allegation was ever made. These are alarming deficiencies in the decision to dismiss.
Sixth, it is worth noting that the date of dismissal in this case is the conclusion of the appeal, per the Circular. This is the 11th February 2019. There are deficiencies in how the appeal was concluded. The minutes chart the issues raised in the appeal hearing of the 24th January 2019. There are five conclusions. None, however, set out a reasoned finding of there being drugs on the school premises on the 1st June 2018. Finding (e) discusses sanction, taking as read that there was drugs on the school’s premises in June 2018. The minutes are clear that this assumption is based entirely on the other SNA’s statement, which is, of course, self-serving and unreliable. The appeal hearing does not test or question reliance on the statement. Its conclusion is, therefore, flawed.
It follows from the above findings that the respondent has not dislodged the presumption that the dismissal was unfair. The complaint is, therefore, well-founded. In deciding redress, I refer to the first finding regarding the veracity of the evidence presented by the Assistant Principal. I, therefore, decide this complaint with the formal finding that the complainant was unfairly dismissed from his employment with the respondent. Section 7 requires an award of redress and I award €1,000 as just and equitable in the circumstances and in the light of the first finding and the contribution made by the complainant.
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.
For the reasons set out above, I find that the complaint made pursuant to the Unfair Dismissals Act is well-founded and that the respondent unfairly dismissed the complainant from his employment. The respondent shall pay to the complainant redress of €1,000.
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Unfair Dismissals Act
Presumption that the dismissal is unfair