ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00039455
Parties:
| Employee | Employer |
Anonymised Parties | A Special Needs Assistant | A School |
Representatives | Liz Fay Forsa Trade Union | Catherine Kelly, Legal Representative |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Industrial Relations Act 1969 | CA-00051093-001 | 10/6/2022 |
Date of Adjudication Hearing: 15/11/2022
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 13 of the Industrial Relations Acts 1969 following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
Background:
The employee received a written warning for being absent during an unauthorized break. The Employee alleged that she was dealt with publicly by her Supervisor with others present and this was inappropriate.. The Employee initiated a grievance against her Supervisor for dealing with her publicly and because additional information was provided in an investigation process which was not part of the original remit of the grievance and that she was not given the right to representation or that fair processes were followed in the investigation. The Parties engaged in extensive correspondence on the issue prior to the conclusion of the Investigation and Disciplinary processes. |
Summary of Complainant’s Case:
The Employer erred on a number of occasions by incorrectly administering grievance and disciplinary processes with and against the Employee.
The Employer did not adhere to the agreed resolution processes for grievances and disciplinary actions and the Employee was not afforded access to fair procedure and natural justice.
On October 8th 2021 there was an incident regarding a student with Special Education Need (SEN). This incident was notified to the Special Education Needs CoOrdinator (SENCO), by another SNA. It was alleged that the Employee was not present in a classroom when a student who she was assigned to work with had a medical incident.
The SENCO proceeded to question the Employee as to her whereabouts at the time of the incident in front of a number of colleagues in a tone and manner to which the Employee took affront and would have expected that where her work was being questioned that it would be done in a manner that afforded her privacy and confidentiality, in line with agreed policy for disciplinary matters. As a result of this interaction the Employee undertook a grievance against the SENCO. This grievance escalated through the informal stage to formal stage without resolution. On November 24th 2021 the formal stage of the grievance process was held. This was chaired by the Head of Schools, on behalf of the Chief Executive. At this meeting the SENCO made allegations against the Employee and her alleged dereliction of duty on October 8th 2022, despite the Head of Schools informing both parties that the meeting was going to be concerned only with the grievance as set out. On November 25th 2022 The SENCO provided an email to the Head of Schools providing ‘evidence’ for the ‘investigation’ against the Employee. On November 29th the Head of Schools emailed the then Principal of the School and requested a report on his follow up of the matter.
On the morning of December 2nd the Employee was invited to attend the then Principal in his office that afternoon for a ‘chat’. When the Employee went to attend the office that afternoon the Principal was not available and so the Employee informed the school secretary that she would have to leave as she had commitments after work and could not wait any longer for the Principal .
On December 9th the Principal once again asked the Employee to attend his office for ‘just a chat’. The Employee duly attended and was then advised that the Head of Schools had instructed the Principal to report back regarding October 8th. There was no notification to the Employee that she was subject of a formal complaint, there was no terms of reference for the investigation agreed, there was no meeting invitation, agenda, purpose of meeting, governing policy or right to trade union representation for this investigation provided to the Employee. The Employee was not provided with minutes of her meeting with the Principal for agreement, nor was she provided with copies of witness testimony, statements or any other evidence held against her in order to provide the Employee with the opportunity to defend herself.
The Principal submitted a final report of his investigation on January 13th 2022. This report was not furnished to the Employee until March 25th 2022, over two months after the ‘investigation’ had concluded. The Employee was notified on March 25th 2022 in writing that she was now subject to a Stage 2 Disciplinary process. The Principal retired and a new Principal took over.
On March 31st Fórsa wrote to the new Principal requesting documentation and clarifications regarding the process against the Employee.
On April 7th the new Principal replied setting out replies to a number of queries as raised.
On April 7 TH 2022 Fórsa responded to the new Principal setting out their understanding from reading documents provided that the SENCO had conducted an informal process against the Employee and to request answers to outstanding queries, as well as to state concerns that the process being engaged with related to an incident that occurred some nearly six months earlier and that March 25th was the first incidence of the Employee being advised of a formal process being taken against her.
On April 21st the new Principal returned correspondence and set out that the school were not satisfied that the incident had been addressed in full, to answer outstanding queries and also to advise that the new Principal would be chairing the disciplinary meeting.
On April 22nd Fórsa wrote to the new Principal and the HR Manager and setting out their understandings of the case to date, together with their belief that the investigation process was flawed, and to request that the new Principal recuse himself from the Disciplinary meeting as he was a witness to events of the 8th of October and did not himself at that stage instigate a formal process against the Employee, nor did he advise the SENCO to do so.
On April 26th the Employer responded to the request for the new Principal to recuse himself from the Disciplinary process.
On April 27th Fórsa repied to set out their dissatisfaction with the new Principal remaining as chair of the Disciplinary.
On May 16th Fórsa submitted the respondent’s observations to the minute of the record of the disciplinary meeting together with queries for clarification, a list of witnesses and a request to cross examine witnesses.
On May 24th the new Principal replied, refusing cross examination of witness, no confirmation or statements of interview with witnesses identified by the Employee in her defence and the final record of the disciplinary meeting.
On May 25th Fórsa replied by email asking for clarification with regard to witnesses identified by the Employee and setting out rationale for request to cross examine witnesses.
On May 26th the new Principal emailed Fórsa to enquire of the Employee wishes to stay engaged in process while absent on sick leave.
On May 26th Fórsa replied . On May 27th the new Principal responded with his legal advice for not allowing cross examination of witnesses and to correct the day count for issuing of disciplinary decision .
On May 27th Fórsa replied and set out their rationale for requesting cross examination of witnesses, request clarification as to witnesses on behalf of the Employer and to accept correction of day count with regard to issuing of disciplinary decision.
On May 27th, correspondence was issued by Forsa to the HR Manager regarding final decision of disciplinary process.
While the Employee accepted that the Head of Schools was concerned as to the content of the accusations levelled at the Employee the Union Representative was of the firm belief that those accusations, made in a grievance process should have remained within that process and that the Head of Schools who was in attendance at the meeting on November 24th in the capacity of chairing a grievance meeting against the Employee, should have reminded the SENCO as to her responsibilities to staff under her direction with regard to the appropriate grievance and disciplinary processes and not entertained the SENCO by instigating an investigation and by-passing the appropriately agreed procedures for same.
The Trade Union Representative had grave concerns that management within Employer schools are unclear as to how to conduct a disciplinary investigation. This is clearly evidenced in the manner in which the Principal conducted a disciplinary investigation into the incidents against the Employee. At no stage in the investigation process was the Employees right to fair procedure upheld.
Of further concern is that the Employee was not provided with all evidence gathered against her until after March 25th. The Trade Union Representative expressed her concern that their reasonable objections to the stage 2 disciplinary proceeding on the basis that the investigation upon which was based was inherently flawed and did not afford the Employee fair procedure were not given due consideration. The Trade Union Representative stated her belief that by the Employer not adhering to the agreed resolution processes for grievances and disciplinary actions that the Employee was not afforded access to fair procedure and natural justice. The Trade Union Representative sought compensation for the breaches of procedure. |
Summary of Respondent’s Case:
The Employee is employed as a Special Needs Assistant since 19th November 2008.
Special Needs Assistants play an important role in assisting the teacher to support students with special educational needs who have significant care needs. They also play a vital role in the educational/personal development of a child who requires their support.
“The Special Needs Assistant (SNA) scheme is designed to provide schools with additional adult support staff who can assist children with special educational needs who also have additional and significant care needs. Such support is provided in order to facilitate the attendance of those pupils at school and also to minimise disruption to class or teaching time for the pupils concerned, or for their peers, and with a view to developing their independent living skills. “Department Circular 0030/2014.
One particular student in the class that the Employee was timetabled for during Period 4 on 8th October 2021 has Primary Care needs. The student has a confirmed diagnosed disorder and needs consistent adult supervision to ensure safety as seizures can happen at any time during the day.
Department Circular 0030/2014 outlines examples of what are classified as Primary Care Needs and one example given in this circular “is non-nursing care needs associated with specific medical conditions: such as frequent epileptic seizures or for pupils who have fragile health.”
The students care plan developed at the school outlines that the student has Primary Care Needs. As part of the students Care Needs Plan under strategies used to support student’s identified Care needs the following is included;
Assisting in the classroom setting when they have seizures Providing physical and emotional support to student when having a seizure Ensuring student has playdough/ putty on the desk as the SNA must put this in their hand during a seizure Ensuring there are no harmful objects near student when having a seizure.
On 8th October 2021 the student with the confirmed diagnosed disorder had a seizure at the end of Period 4 at 11:55 a.m. the Employee was not in the classroom when this occurred. In this particular class three Special Needs Assistants were timetabled to support students; one SNA supported a child with ASD, and the Employee and another SNA supported a student with a specific medical condition, the student with the confirmed diagnosed disorder and other students with access to SNA support. In relation to the student with the specific medical condition, the medical condition is such that they may have to be removed from the class by an SNA and this is what happened on this particular day; leaving only one SNA within the classroom to support the students present, which included the student with the confirmed diagnosis, as the Employee was absent without the approval of the Principal.
Shortly after the Employee returned both she and the then Deputy Principal entered the Special Education Needs Co-Ordinator’s office in relation to another matter. While there it was reported to the Special Education Needs Co-ordinator (SENCO) that a student had a seizure in the previous class. The SENCO queried to those present which included the then Deputy Principal, the Employee and another SNA as to who should have been supporting the student at the time of the seizure. the Employee at the time stated that she was on her break. (The Employee’s break time as advised by the then Deputy Principal by email on 14/9/22was to be taken during Period 3). Following this the Employee submitted a grievance in relation to how the SENCO interacted with her.
The SENCO’s duties include
SEN Co-ordinator ASD Co-ordinator Reasonable Accommodation Psychological Assessments Planning of SNA support
Planning of SNA Support involves assisting with timetabling and co-ordination of SNA support.
The grievance progressed through Stages 1 and 2, as per the Grievance Procedure for Staff employed by Education and Training Boards (ETBs), at School level. As the grievance was not resolved at Stage 2 the matter was referred to the Chief Executive Officer (CEO) of the Employer. As prescribed under Section 16 of the Education and Training Boards Act 2013 the CEO may nominate a delegated officer to deal with the matter in accordance with his/her executive authority. The CEO delegated the Director of Schools Youth and Music to hear the grievance at Stage 3.
The Director of Schools Youth and Music became aware of the allegation re the Employee’s absence and referred the matter to the then Principal of the School seeking a detailed report. Fórsa contend that the Director of Schools Youth and Music acted out of process. It is the Employer’s position that the Director of Schools Youth and Music took appropriate action in referring the allegation to the Principal. The Employer has a duty of care to both staff and service users. In this matter the Employer believes the Director of Schools Youth and Music would have been remiss in her duty of care had she not referred the matter to the Principal.
The then Principal of the School spoke with the Employee on 2nd December 2021. The Employee informed the Principal that she was not discussing the issue and was going to contact her Union for advice. The Principal spoke with the Employee again on 9th December 2021. The Principal, in speaking with the Employee on both of these dates was to afford the Employee the opportunity to explain her alleged absence during Period 4 on 8th October 2021. The Employee informed the Principal that her absence from period 4 on 8th October 2021 was down to a mistake and she had discussed this already with the Deputy Principal on the day. The Employee had told the Deputy Principal on the day that she had taken her break during period 4 instead of period 3 as she did not understand the email that was sent with reference to breaktimes at the time. The Employee did not make the Deputy Principal aware that she had been absent in excess of her 15-minute break. The Principal concluded that it had not been possible to establish the reason for the absence of the Employee from period 4 on 8th October 2021.
The Principal of the School retired on 15th January 2022. The new Principal was appointed from 17th January 2022. The newly appointed Principal had been the Deputy Principal of the School.
On review of the report of the retired Principal, the new Principal consulted with the HR Department on 10th March 2022. It was determined that, in the absence of any explanation, the matter should be dealt with at Stage 2, Written Warning, of the Disciplinary Procedure for staff employed by Education and Training Boards. Correspondence in relation to same issued to the Employee on 25th March 2022.
The Employee’s representing Union objected to the newly appointed Principal as not being suitably independent and impartial for disciplinary meeting. The Employer’s position is that grievance was not against new Principal and he continued with disciplinary process.
At the disciplinary meeting the Employee explained that she had left the school during Period 4, what she thought was her break time, to get a cup of coffee. As per timetable issued the Employee’s break was scheduled during Period 3. When she returned she realised she had left her mobile phone, her bank card and her cash in the coffee shop and returned to get them causing her to be absent for longer than normally assigned time for break. She told no one this other than a newly appointed SNA and a teacher; she did not notify Principal, Deputy Principal or SENCO of this. She accepted this was a bad error in judgement.
It ass the Unions position that the Employer, at no stage, followed the agreed Disciplinary Procedure. This is not accurate. When the now retired Principal spoke with the Employee on the 2nd and 9th December 2021 it was to allow her explain her alleged absence during Period 4 on 8th October 2021. The Employee initially refused to engage and advised that she was contacting her Union. On 9th December 2021 the Employee stated that she had discussed this already with the Deputy Principal on the day. The Employee had told the Deputy Principal on the day that she had taken her break during period 4 instead of period 3 as she did not understand the email that was sent with reference to breaktimes at the time. The Employee did not make the Deputy Principal aware that she had been absent in excess of her 15-minute break. The Principal was unable to establish the reason for her absence. On review of the retired Principal report the newly appointed Principal determined that the matter should be dealt with under the Disciplinary Procedure for staff employed in ETBs resulting in the letter of 25th March 2022 issuing to the Employee inviting her to a disciplinary meeting initially scheduled for 6th April 2022.
On 27th May 2022 correspondence in relation to outcome of Disciplinary hearing issued to the Employee from Principal. |
Findings and Conclusions:
This dispute arose out of a claim that the Employee was absent from a class due to being late returning from a break off site and had taken her break at a different time to that scheduled. The Employer allows staff to leave the premises while on paid breaks. This Is not a matter for the Adjudicator to deal with in this Recommendation. The Employee in her submission gave reasons for being late but this issue was not at the core of the Complaint. The Employee was given a written warning which expired on November 26th 2022 so the warning is now not relevant to the dispute as it has expired and the issues involved were mainly defended at the Hearing on procedural grounds rather than the substance of the issue involved.
The dispute has signs of an interpersonal conflict but this is also not core to the issues at hand.
The Employees Representative made out a strong case that there were a number of flaws in how the Investigation was handled by the Employer and while seeking compensation for the Employee the Representative was equally concerned with ensuring proper investigation procedures were followed by the Employer in the future. The Adjudicator finds it difficult to justify recommending compensation for the Employee for essentially an absence she caused, not withstanding her reasons for being late back for work/on a different break than scheduled, which could have had very serious consequences for the student under her care and fortunately did not on this occasion. This Adjudicator has, on many occasions in the past and at the Hearing into this dispute, informed Parties in a dispute which involved an impact on a child or elderly person that their grounds to succeed must reach a very high bar. As stated above the issues involve both the instant case and how matters should be dealt with in the future. I provide the following input to assist the parties in any future situations.
That a Disciplinary discussion be held in private.
That any grievance should be documented, and a copy given to the employee concerned.
That a person doing an investigation should not be a party to a grievance.
That grievances be dealt with separately unless by agreement to merge them.
That the Employer write up Terms of Reference for an investigation. Terms of Reference should normally be agreed for an Investigation, but the Investigation cannot be delayed if no agreement (after appropriate consultation) on the terms is forthcoming from an Employee involved.
That the Employee be given the right to be accompanied at the Investigation. If this is requested by an Employee then I suggest it is fair to allow it. This is normally another Employee or Trade Union Representative. Normally the accompanying person cannot answer questions for the person involved in an investigation, but they can take time out to consult before the person being investigated replies to any questions. The whole issue of Representation was dealt with in Burns -v- Governor of Castlerea Prison, where the Supreme Court held that there were a number of factors to consider when deciding whether or not legal representation at an investigation and disciplinary process is warranted including the question of whether there will be multiple legal issues, the capacity of an employee to present their own defence, the complexity of the facts to be presented as well as the complexity of the hearing procedure. I refer the Parties to this judgement and this was followed up by the Court of Appeal in Iarnrod Eireann v McKelvey (2018 IECA 346 at paragraph 36 “It is important, I believe, to conduct this exercise mindful of the guidance provided by Geoghegan J. in Burns to the effect that it is wholly undesirable to involve lawyers in workplace investigations unless it be established that there is something exceptional about the matters to be scrutinised such that it would be reasonable to conclude that the proposed hearing could not be a fair one absent legal representation." (ibid, at para 53. While these cases deal with legal representation it may be useful reading for the Employer to consider for any future cases.
With regard to the cross examination of witnesses in an investigation that right is normally only given when a serious conflict of evidence arises in a serious disciplinary matter i.e. dismissal being considered. However, sight of, and the right to query and discuss with their Representative and respond to, a Witness statement to be considered in an investigation is a right of any employee. It is important for an Investigator to bring any employee queries back to the witness for comment and assessment.
I note that the Employee has been moved, at her request and by agreement, to another location so to a degree that resolves any possible interpersonal conflict that may have existed. The Written warning expired on November 26 so that should now be removed from the Employees HR file as per normal practice. I find that the delay in issuing the Investigation report had more to do with the change of Principal at that time than any deliberate delay by the Employer.
I recommend that the Employer take note of the above actions and should give serious consideration to implementing them for future situations.
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Recommendation:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I am required in a Recommendation to recommend either in favour of the Employee or the Employer and due to the above weaknesses in the Investigation process,, elaborated on in a general sense as the warning has expired, I recommend in favour of the Employee in the instant case. However, I do not see justifiable grounds, on the overall assessment of all the issues involved and the risk to a child caused by the Employee, to recommend compensation in favour of the Employee. Equally and probably more importantly, the Employee has to take cognisance of the potential serious risks to children under her care should she be late back from a break in the future, for whatever reason, and make every effort to avoid same. The Employee also needs to ensure she is familiar with the break schedules to avoid a repeat of taking her break at the wrong time.
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Dated: 23rd January, 2023
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Key Words:
Trade Dispute |