Complainant

Respondent

Parties

Susan  Quain (Nee Goodwin)

Board Of Management Catherine McAuley Special School.

Representatives

Self-represented 

Cathal McGreal BL instructed by Brian Matthews, Millett & Matthews Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00066033-001

16/09/2024

The Complainant commenced her employment with the Respondent on 1 September 2009. Her employment terminated on 16 September 2024.

On 16 September 2024, the Complainant referred her complaint to the Director General of the WRC pursuant to the Unfair Dismissals Act, 1977 (as amended) alleging that she was unfairly dismissed. The Respondent rejects the claim.

The Complainant submits as follows.

In March 2019 the Complainant initiated Stage 2 of the bullying and harassment procedure against her colleague, Ms A, in the Respondent’s school (Catherine McAuley Special School / CMCA). The Complainant alleged that Ms A bullied and harassed her for carrying out her duties as Designated Liaison Person (‘DLP’).

The Complainant alleged that Ms A intentionally avoided engaging in the bullying and harassment procedure and that Respondent’s management did not do all it could to encourage her engagement, and, in the Complainant’s view, intentionally allowed her to delay the process. The Complainant also alleged that the investigator took an inordinate time completing the report and that the Respondent did not do all it could to move this process forward.

The Complainant submits that between 2019 and 2021, the principal, Mr Greg Browne (‘the Principal’) informed her that he was “unable to get involved in staff disputes” and would not instruct Ms A to cease her bullying behaviour towards the Complainant. The Complainant submits that Ms A bullied and harassed her very publicly (e.g. in staff meetings, in the staffroom, at reception). Several staff members submitted written and verbal accounts at that time to the Principal.

The Principal encouraged the Complainant to engage in bullying and harassment procedures. The Complainant twice submitted a separate complaint to the Principal in relation to her concerns on Ms A’s failure to follow child protection procedures. He refused to follow the Complainant’s advice as DLP to investigate her child protection concerns separately and assured the Complainant that this would be included as part of the bullying and harassment investigation. This investigation was never carried out.

In October 2019, the Complainant initiated Stage 4 of the bullying and harassment procedure as Ms A failed to engage in the process. The Complainant engaged with and followed the advice of the INTO throughout this process. The Board of Management (‘BOM’) engaged Mr Tiernan Lowey BL to complete an independent investigation.

The Complainant submits that Ms A’s failure to follow child protection procedure continued during this time. The Principal assured the Complainant that once there was a tenth incident, he would contact Tusla for advice. In October 2019, on Ms A’s tenth incident of failure to follow child protection procedure, the Principal refused to contact Tusla for advice and the Complainant resigned her position as the DLP.

The Complainant submits that Ms A’s bullying behaviour continued unchecked by management and the Complainant went on stress related sick leave for six months from October 2019. The Complainant was instructed by her GP not to return to work until the issue was resolved. Medmark also instructed her not to return to work until the issue was resolved.

The Complainant returned to work in March 2020 as she could work from home with restricted movement in school due to the Covid-19 pandemic. Nonetheless, Ms A continued to behave in a negative way towards the Complainant outside of school buildings. The Complainant also became increasingly upset by the management’s unwillingness to address Ms A’s behaviour. The Complainant went on a career break from January 2021. The Complainant has taken 4 consecutive career breaks to allow the school time to complete their investigation. The Respondent has never updated the Complainant on the progress of the investigation unless she contacted them first. She very often got no reply, or if the Respondent did reply, she often found the responses dismissive and/or untrue. The Complainant put this argument to the Respondent, who offered to send records of its correspondence with the investigator. The Complainant never received these documents.

The Complainant submits that the Respondent actively allowed Ms A to intentionally avoid engaging in the process, knowing she was going on maternity leave in early 2021. Up to that point, the Respondent had never provided Ms A with timelines for a response—a point the Complainant repeatedly argued. Therefore, in May 2021 the Complainant submitted a single complaint to the Teaching Council (‘TC’) in relation to Ms A’s bullying behaviour towards her and failure to follow child protection procedure. The Complainant raised that she felt that the Board of Management (‘BOM’) of the Respondent was not doing all it could to bring the investigation to a close. It was the Complainant’s hope that this would put pressure on the Respondent to complete the investigation on Ms A’s return. The Respondent informed the Teaching Council that the report would be completed by December 2021. The Teaching Council advised the Complainant to wait for the report. The report was not completed by December 2021.

The Complainant submits that, in October 2022, she submitted a second complaint to the Teaching Council in relation to Ms A’s bullying behaviour and a separate complaint related to her failure to follow child protection procedure as the Complainant was concerned this was not being investigated and Ms A was still teaching. The Complainant again raised that she felt the BOM were not doing all they could to bring the investigation to a close. In her response to the Teaching Council (Dec 2022), the Chairperson of the Board Dr Michelle Dunleavy (the Chairperson) stated that;

·         the report would be completed by December 2022.

·         with regards to child protection concerns that the board were "not aware of the substance of the complaint, what is alleged to have occurred, what failures are alleged or when this is alleged to have occurred”.

The Teaching Council advised the Complainant to wait for the report. The report was not completed by December 2022.

In August 2023, the Complainant formally submitted a Stage 1 grievance formally outlining her concerns in relation to Ms A’s failures to follow child protection and Stage 1 grievance against the Principal for failure to act on child protection concerns raised by the Complainant in her capacity of the DLP and his management of the Complainant’s case. The Complainant received no response, so she re-submitted her complaint by registered letter in October 2023 and emailed to notify the school.

The Complainant wrote to the Chairperson of the BOM seeking clarification on a number of issues including whether or not the BOM were aware of the child protection concerns she reported to the Principal in 2019. The Chairperson responded on 5 October 2023 stating “At the outset, I want to reiterate that the Board has been aware throughout this process of your concerns about [Ms A’s] alleged failure to follow child protection procedures” which appears to contradict her previous statement to the Teaching Council that the board was "not aware of the substance of the complaint, what is alleged to have occurred, what failures are alleged or when this is alleged to have occurred”.

The Complainant responded on 12 October 2023 seeking clarity. In her response, the Chairperson shared an excerpt from her correspondence with the Teaching Council which included the following statement: ‘Ms. Quain/Goodwin had some time ago raised concerns about compliance with the Department of Education Child Protection Procedures. These concerns related to both [Ms A] and a number of other staff’. The Complainant submits that this statement is entirely untrue and the Chairperson has ignored the Complainant’s repeated requests for clarification on why she shared this false information with the Teaching Council.

The Complainant submits that in February 2024 she submitted a SAR seeking documentation to evidence the Chairperson’s claim and other relevant documentation related to the Complainant’s case. The Complainant submits that it was incredibly difficult to get this information from the Respondent. The Complainant submitted a formal complaint in May 2024 to the Data Protection Commission. Finally, the Complainant received a letter from the Respondent confirming there was no data to back up the Chairperson’s allegations against the Complainant. The Chairperson alleged that she mistakenly copied this statement from a draft letter, but she has never explained why the false statement was written in the draft letter or where she got this information from. Dr Dunleavy was only appointed Chairperson after the Complainant took extended leave from the school.

The Complainant submits that from the documentation she did receive from the Respondent it emerged that;

·         The Complainant’s bullying and harassment complaint against Ms A was consistently referred to as an ‘arbitration process’ in BOM meeting minutes and never referred to as a bullying and harassment investigation.

·         The Complainant’s concerns (reported formally in writing as DLP) in relation to Ms A’s failure to follow child protection procedure were not reported/minuted in board meetings.

The Complainant wrote to the BOM multiple times seeking clarification on the above issues and other discrepancies in the Respondent’s reporting/correspondence on her case. The Complainant repeatedly emailed requesting update and timelines on when she would receive the report. The Complainant has received no response from the Respondent to these queries.

The Complainant submits that in August 2023 she also initiated a Stage 1 grievance against the Principal of the Respondent school for failing to adequately report and respond to the DLP’s reports of child protection concerns about a staff member and for the manner in which he has dealt with the Complainant’s complaints. This formal complaint was initially simply ignored. Over time this complaint escalated to Stage 4. The Complainant submits that the BOM responded to her Stage 4 letter stating that it would respond once it read the investigator’s report. The BOM received this report in March 2024. The Complainant sent a reminder letter to the Chairperson in June 2024 but received no response.

The Complainant submits that in February 2024, she was informed that Ms A (the respondent to her complaint) had been furnished with a copy of the investigation report and was provided with an opportunity to respond. The Complainant sent multiple emails to the Respondent asking when she would get a copy of the report but received no response.

The Complainant submits that the Working Together document states that the investigator shall, on conclusion of their report, furnish a copy to both parties simultaneously and advise them that the appeal process is open to them. It is only after this process a copy is furnished to the BOM. The Complainant was not furnished with a copy at this juncture, nor was she offered an opportunity to appeal.

In March 2024 the Complainant reported the inordinate delay in the completion of the investigation and furnishing of the report to her to the WRC. Shortly after the Complainant submitted this complaint, the Chairperson emailed her to apologise for the delay, proposed to meet to discuss the Complainant’s concerns and suggested a number of dates. The Complainant agreed to meet and confirmed a date. The Chairperson never responded to the Complainant’s agreement to meet, and the date passed without any comment or apology from the Chairperson.

In April 2024, Ms A’s responses were incorporated in the report. This updated report was sent to Ms A (respondent) and the BOM. The Complainant did not receive a copy. The Complainant’s emails asking if/when she would receive a report were ignored.

In June 2024, in lieu of a report, the Complainant was sent a summary letter whereby she was informed that that Mr Lowey BL found no evidence to support 9 of her 10 allegations. He did find evidence of misconduct in one allegation (allegation 3) and recommended disciplinary procedure. The summary letter stated that the BOM accepted all recommendations by Mr Lowey, nonetheless decided it was not appropriate to engage in the recommended formal disciplinary procedure in relation to allegation 3. The Complainant was provided with no rationale for this decision or offered any opportunity to query, respond to or appeal the report. This summary letter stated that Stage 4 of the INTO bullying and harassment process was now concluded. 

The Complainant submits that during June 2024, she submitted a SAR to gain access to the report and continued to communicate with the Data Protection Commission.

In July 2024, the Chairperson wrote to inform the Complainant that Ms A and the Complainant would be required to sign consent forms to access sections of the report. The Chairperson added “I must warn you that this could make the document you eventually receive unintelligible” and also stated it would take three months to complete redactions if the two parties did not sign the consent form.

The Complainant stated repeatedly in her correspondence over the year that she needed to see the report to make a decision on whether she could return to work in August 2024. In the letter dated 8 July 2024, the Chairperson stated the following: ‘the School will be closed for summer from 26/06/2024 and will not re-open until 26/08/2024.  We would respectfully request that you do not email or send correspondence during this period, as no one will be available to attend to same.  The first meeting of the Board of Management for the academic year commencing Autumn 2024 is currently scheduled for 30/09/2024. The Board can respond to any queries you might have thereafter.’ The Respondent’s solicitor later argued that this statement meant not to contact the board, but this statement very clearly stated that the school is closed of summer and not to email or send correspondence.

At this point, the Complainant felt that access to the report would never be granted and that the delay tactics would continue indefinitely. In August 2024 the Complainant sought legal advice and was advised that there was no legal basis for the consent forms she was asked to sign. Following correspondence with the Complainant’s solicitors, the BOM released the report with the appropriate level of redactions. The Complainant was advised by her solicitor that, while there was no legal basis for the consent form, she should sign it to expedite the process. The Complainant had expected to receive the report before the start of the school term and, as a result, she did not apply for another career break in February 2024. At this point, the Complainant applied for an emergency career break to allow time for the report to be provided to her.

In September 2024 the Complainant received the report by post. On reading the 539 paged report, the Complainant noted several significant concerns, including but not limited to the following:

·         Exclusion of witness testimonies: Despite proposing approximately 10 staff members who had witnessed Ms A’s bullying behaviour towards the Complainant related to Allegation 6, none were interviewed. Instead, investigator interviewed only Ms A, who denied the behaviour, and he subsequently concluded there was ‘no evidence’ to support the Complainant’s claims.

·         Failure to acknowledge documentary evidence: In allegations 1 and 2, the Complainant alleged that Ms A made false allegations against the Complainant and provided documentary evidence supporting this claim. The only witness interviewed corroborated the Complainant’s account. Additionally, the Vice Principal reported attending a meeting where Ms A retracted her false statements as untrue. Ms A herself admitted during her interview that the statements were untrue, and that she had retracted them. Nevertheless, the report concluded that there was ‘no evidence’ to support the claim that false allegations were made.

·         Scope of investigation: The central argument of the Complainant’s complaint was that Ms A engaged in bullying behaviour by spreading false information and making allegations that undermined the Complainant’s professionalism in her role as Designated Liaison Person (DLP). As part of the TOR, the Complainant submitted an additional document to the investigator outlining the key matters she wanted investigated, including whether Ms A’s allegations against her were true, whether the Complainant’s actions aligned with her role as DLP and the Working Together procedures, and whether child protection policies were adhered to by both parties. In his report, the investigator stated that it was not within his remit to establish the truth of these allegations. In the Complainant’s view, this was the fundamental purpose of the investigation: to determine whether she was subjected to bullying and harassment.

·         Exclusion of key evidence: important letters, written accounts by staff, and other pre-existing evidence documenting Ms A’s bullying behaviour were omitted from the investigation, despite the investigator being made aware of their existence.

·         Lack of rationale for decisions: no rationale was provided for the exclusion of the proposed witnesses or previously recorded testimony.

·         Inclusion of speculative allegation: during the Complainant’s interview, she mentioned a suspicion that Ms A may have said something to an inspector to undermine her role. The Complainant clearly stated that she had no evidence for this suspicion and was uncertain whether it should be included. When reviewing her interview, the Complainant specifically requested the removal of this point. However, it was not removed and was instead shared with Ms A. This became the only part of the Complainant’s testimony highlighted under Allegation 10, where it was described by the investigator as a ‘highly speculative allegation.’ While all other testimony and evidence the Complainant submitted regarding Ms A’s bullying behaviour was omitted from the summary report, this single piece of her testimony was included. The Complainant believed it was intentionally selected to discredit her.

·         Bias in witness selection: the Complainant believed that both of Ms A’s witnesses had a conflict of interest. For one, admitting involvement in the incident she was questioned about would have implicated her in serious misconduct. The Complainant had also proposed an impartial witness to this incident who the Principal had reported discussing the matter with at the time. However, neither the Principal nor this witness was interviewed.

The Complainant submits that these are only a few examples of the numerous issues she identified in the report.

The Complainant felt that both the action and inaction of the Principal and the BOM in her case has made the situation in work so intolerable she had no choice but to resign. Therefore, she formally submitted her resignation on 15 September 2024.

The Complainant continued to engage with the Data Protection Commissioner and the Chairperson finally responded to her SAR related to the false information shared with the Teaching Council on 16 October 2024. In this letter, the Chairperson stated that, having reviewed all correspondence, she became aware that the passage whereby she quoted herself sharing false information about the Complainant to the Teaching Council was in fact ‘actually quoted from a preliminary, unsent draft of your letter to [the Teaching Council]’. She had since ignored the Complainant’s query as to why she wrote this in a draft letter and where she got this information from.

Attempts to Discredit

The Complainant believed that the Principal and the Chairperson have taken deliberate actions to discredit her throughout the course of this investigation. The Chairperson either included in or drafted for her letter to the Teaching Council the false information. The Chairperson has refused to disclose the source of this information. Additionally, the Principal repeatedly referred to the Complainant’s bullying and harassment case as an arbitration process when addressing the BOM.

The Complainant also believed that the investigator’s report, along with the testimony of the Principal, Vice Principal, and one witness sought to portray the Complainant as highly stressed. In her view, this portrayal was intended to discredit her and suggest that she was incapable of managing herself professionally.

In response, the Complainant submits that the role of Designated Liaison Person is inherently stressful. It involves working closely with children and families who have experienced traumatic abuse and neglect. DLPs are not provided with supervision or therapeutic support. Nevertheless, the Complainant effectively performed this role for five years before Ms A’s allegations without any history of conflict or accusations of unprofessional behaviour.

Although this was an unpaid role, the BOM presented the Complainant with a cash gift at the end of both 2017 and 2018 school years as a token of appreciation for her work. The BOM expressed sincere gratitude and acknowledged the exceptionally high standard to which her duties were performed. The Complainant was confident this would be reflected in the minutes of the relevant BOM meetings.

During this period, the Complainant was also completing a part-time Master’s by Research in Psychology specialising in sexual harm in young people with intellectual disabilities. The Complainant submits that her academic supervisor provided a reference confirming her ability to manage stress exceptionally well during this time. Following her departure from the Respondent, the Complainant worked for two years in a HSE Psychology Service and subsequently for another two years in a specialist Tusla service for young people who have sexually offended/harmed. A reference from her Tusla supervisor in that role confirmed her ability to manage highly stressful situations professionally and effectively.

The Complainant submits that, while the responsibilities of a DLP are undeniably demanding, her track record demonstrates that she is highly capable of managing professional pressures and maintaining professional standards in challenging environments.

Constructive Dismissal

The Complainant submits that she anticipated that the Respondent may attempt to argue that she always intended to leave the Respondent to pursue a career in clinical psychology and that this is not a case of constructive dismissal. The following timeline demonstrates that this was not the case. Prior to taking long term leave from the Respondent, while the Complainant was uncertain about a definite long-term career path, she fully intended to remain in the Respondent school for the foreseeable future and believed her immediate future lay in school management or school consultancy, particularly with a focus on Relationship and Sexuality Education (‘RSE’). Clinical psychology, while an aspiration, was not a viable or attainable option for her at that time due to the tough entry requirements and her lack of the necessary qualifications and experience.

Entry into a clinical psychology training program is notoriously difficult. Applicants must possess an undergraduate degree in psychology, a Master's degree, at least two years of experience in a related role (e.g., Assistant Psychologist), and significant research experience. Despite having some of these qualifications, the Complainant was fully aware that admission into a training program was not guaranteed and could not have been relied upon as a planned career trajectory. It is worth noting that the clinical psychology program at the University of Limerick typically receives 200-300 applications each year for only 10-12 available places. If the Complainant was to successfully acquire the required experience, her intention was to do so gradually and on a part-time basis, while continuing her role as a teacher. She had considered that she may have to take a brief career break to gain AP experience at some point, after which she would return to teaching to save money for further training.

The Complainant began her career at the Respondent school in 2009 and pursued a psychology degree part-time through the Open University, completing it in 2015. In 2014, she assumed the role of Designated Liaison Person and maintained a very positive working relationship with the Principal. He advised the Complainant on several occasions that when an AP2 post became available, it would be structured around the DLP role, recognising the necessity of this position, the substantial time commitment it required and the Complainant’s years of dedicated work without renumeration.

In 2018, the Complainant commenced a Master's degree in psychology, initially focused on community integration projects for asylum seekers and refugees. In April 2019, the Complainant applied to the HSE national AP panel and was ranked 4th, making her eligible to accept an AP position in the near future. When the Complainant informed the Principal of this, he explicitly expressed that he did not want her to leave and stated that there was potential for her to apply her psychology training and skills within the Respondent school and opportunities for career development and advancement.

The Complainant submits that, following discussions with the Principal, it was agreed that a new position would be created for the Complainant and she would step out of classroom duties to focus on designing and delivering an RSE program for students, training staff, and producing resources for wider school use and also completing her role as DLP. The Complainant shifted her Masters research focus to the development and evaluation of this RSE program and as a result, also changed supervisor. This project was designed to directly benefit the Respondent. It was a very innovative role and project, and the Complainant was very excited and committed to staying in CMCA for the foreseeable future.

In September 2019, the Complainant formally began this role and was highly engaged and enthusiastic about the work. However, following an unplanned school inspection in October 2019, the inspector deemed her role inappropriate and directed her to return to the classroom. Despite strong advocacy from the Principal and the Deputy Principal, who argued the necessity of a standalone DLP role in a school with such vulnerable students, the inspector's directive stood.

This decision caused significant professional disruption for the Complainant. She was left without a clear role in the school for many weeks. Despite repeatedly raising this issue with the Principal, the Complainant was left without a role and minding students who were removed from class for behavioural issues or dysregulation. During this period, Ms A's behaviour towards the Complainant escalated, and the Principal stated he was unable to intervene. In response to the ongoing stress and lack of resolution, in November 2019, the Complainant resigned from the DLP role and took stress-related leave.

The Complainant submits that during her leave, she was advised by her GP and Medmark not to return to CMCA until the ongoing investigation was resolved. The Complainant spent three months on reduced salary. Six months later the situation was still unresolved and when faced with losing her salary entirely, she planned to resign. The sudden onset of the COVID-19 pandemic allowed the Complainant to continue working remotely until September 2020. Despite assurances, upon returning to the school premises in September 2020, Ms A's bullying behaviour towards the Complainant persisted outside of school buildings without any intervention from management. This resulted in her decision to seek alternative employment.

In October 2020, the Complainant accepted an Assistant Psychologist position with the HSE. This role involved a 60% reduction in salary, an increased commute, and additional fuel and childcare costs. It was never the Complainant’s intention to remain in this role long-term, as it was financially and logistically unsustainable. Her plan was always to return to CMCA once the investigation concluded.

When an AP1 post which included the DLP role, was advertised, the Complainant applied to maintain her connection to the school and signal her continued interest in management roles. She was not successful in this application - but she did not expect to be. She was more interested in the AP2 DLP role the Principal had repeatedly told her would be created in the future. Later, AP2 posts were advertised with the DLP role combined with Religious and SPHE/Wellbeing Co-ordinator role—a combination the Complainant believed was intentionally structured to exclude her. A staff member more senior than the Complainant had held the position of Religion and SPHE/Wellbeing Coordinator for many years. This allocation is in direct contrast to the arguments the Principal strongly made to the inspector for the creation of the Complainant’s role in 2019. At this point, the Complainant accepted that the school were attempting to dissuade her return and, therefore, she did not apply for the role. Once the AP2 roles were allocated, the DLP role reverted to the AP1 position.

In 2022, the Complainant applied for clinical psychology training and was unsuccessful in securing any interviews. She reapplied in 2024 and was fortunate to secure a place at the University of Limerick. Despite this, she delayed resigning from CMCA, as she was still awaiting the investigation report. In September 2024, after finally receiving the report and recognising that the school had no intention of addressing her concerns, the Complainant formally resigned. This decision was not driven by a long-term plan to pursue clinical psychology but was instead the result of prolonged systemic failures within CMCA that left her with no other viable professional path.

Financial Impact

This matter began in January 2019 when Ms A made false allegations against the Complainant, accusing the Complainant of failing to treat her in a professional manner and of not fulfilling her duties as Designated Liaison Person effectively. While the Complainant acknowledged that the WRC does not consider retrospective financial claims, she believed it is important to document the extent to which the delays in addressing and resolving this matter have caused financial hardship over the past six years. The Complainant remained in this process, despite its toll, as she believed that leaving earlier would have resulted in the investigation never being concluded. She has worked exceptionally hard over the last 5 years to bring her salary up to what it is now.

·         When the Complainant took stress-related leave in 2019, she spent three months on a reduced salary.

·         From January 2021 to June 2022, when the Complainant accepted the role of Assistant Psychologist (AP) with the HSE, she took a 60% reduction in her salary. During this period, fuel costs were very high, and she also faced significant commuting expenses. It was a very difficult time for the Complainant’s family financially, but absolutely necessary for her mental health.

·         When the Complainant later accepted a part-time role with Tusla, her salary decreased further. While she supplemented her income through substitute teaching and tutoring, this work was sporadic and unreliable.

·         The Complainant missed out on four salary increments while on a career break, awaiting the conclusion of the school’s investigation. Had this matter been addressed in a timely manner using standard disciplinary procedures, she would still be employed at CMCA and would almost certainly hold an AP2 role.

·         Due to the temporary nature of AP contracts, the Complainant has been unable to secure a mortgage. Building a house was something that the Complainant and her family planned to do in the last few years. She never anticipated remaining on a career break for four years, and this has had a substantial financial and emotional impact on the Complainant’s family.

·         The Complainant was also required to pause and redesign her Master’s study and secure placement in another school to complete her Master’s degree. This resulted in an extension of her course by two semesters, incurring significant personal costs.

·         Furthermore, the Complainant felt that she had no option but to hire legal representation to obtain a copy of the investigation report from the school, adding further financial strain.

The Complainant firmly believed that her career at CMCA was derailed because of these events. She was effectively pushed out by management for raising legitimate concerns in her role as DLP and for submitting a legitimate complaint against a colleague. The financial, professional, and personal costs of this experience have been profound and far-reaching.

In conclusion, and on a personal note, this experience has been deeply upsetting and disappointing. The Complainant submits that she dedicated over a decade of her life to CMCA and held the Principal in the highest regard. She trusted his advice when he encouraged her to submit a bullying and harassment complaint, believing his assurances that both her concerns and the child protection issues would be addressed.

To now see how her case—and the Complainant personally—have been misrepresented by the Principal and members of the BOM is deeply hurtful. After 10 years of service, it is incredibly disheartening to feel pushed out, ignored, and treated as a problem. This experience has taken the Complainant in a new direction, and she doubted she would ever return to the classroom. While this was not how she envisioned her future in 2019, she was focused on moving forward, leaving this experience behind her, and building a new and fulfilling career in psychology.

Submission of 17 January 2025

On 17 January 2025, the Complainant furnished an additional submission. The Complainant believed that it would demonstrate that the Respondent’s actions adversely affected her health, thereby supporting her claim that the working conditions were intolerable.

April–June 2019:

During this period, the Complainant experienced significant distress while attempting to engage Ms A in Stage 2 of the formal process. Despite the Complainant’s repeated efforts, Ms A avoided participation. The Respondent insisted that meetings occur only during lunch breaks (20 minutes which was totally inadequate) or after school hours, when Ms A consistently claimed unavailability. Management made no attempt to compel her engagement. Additionally, Ms A's bullying behaviour towards the Complainant went unchecked. Management stated they could not address her behaviour directly and that it would be managed through the formal process—a process Ms A repeatedly evaded. While the Respondent argued they managed her behaviour through an investigation spanning Stages 2–4, the Respondent failed to address her persistent disrespect, public shouting, and refusal to communicate with the Complainant professionally.

May 2019:

·         16 May 2019: the Complainant contacted the Employee Assistance Program (EAP) for an initial clinical assessment. Counselling was recommended.

·         20 May 2019: the Complainant informed the Principal that she needed to take stress leave. He was supportive but advised against labelling it "work-related stress leave" as it might "work against me in the future."

·         21–22 May 2019: the Complainant visited her GP, who prescribed medications and recommended extended time off work.

·         The Complainant also began counselling through the EAP (three sessions were allocated). Following these sessions, the Complainant continued private counselling fortnightly at her own expense (€65 per session). Despite ongoing therapy, she experienced persistent low mood, exhaustion, and feelings of being overwhelmed.

June 2019:

The Complainant returned to work on 4 June 2019 feeling partially recovered and managed well, largely because Ms A was not present and on extended leave. During her absence, the Complainant’s mental health improved, and she worked effectively until the end of the academic year.

September 2019:

Initially, the Complainant’s mental health remained stable upon her return. Mediation was scheduled, and the Complainant hoped for resolution. She focused on her new role, which she enjoyed. However, Ms A's rude and dismissive behaviour persisted unchecked by management.

October 2019:

·         9 October 2019: mediation with Ms A failed.

·         10 October 2019: returning to school was distressing. The Complainant felt vulnerable, unprotected, and constantly anxious.

Ms A’s behaviour escalated significantly after mediation and there were a number of incidents where Ms A shouted at the Complainant in public spaces and in front of other staff. The Principal again stated he could not intervene. The Complainant became extremely upset and spoke to her named colleague who expressed concern for her well-being and encouraged her to take leave. When she brought this to the Principal, he supported this decision.

November 2019:

·         Severe back and neck pain developed. The Complainant’s GP attributed this to stress and anxiety.

·         Due to the ongoing difficulties in school, the Complainant’s Master's supervisor advised delaying ethical approval for her research, which was both a relief and a significant disappointment.

·         Back pain worsened, and the Complainant required physiotherapy. The physiotherapist diagnosed an inflamed disc caused by stress and lack of physical activity. Regular physiotherapy sessions were required at a personal cost.

January 2020:

·         6 January 2020: the Complainant’s salary was reduced to half. This news caused significant emotional distress. An occupational nurse from Medmark recommended regular GP visits and consideration of long-term antidepressants.

·         13 January 2020: While in the waiting room at the GPs, the Principal called the Complainant to inform her that Ms A had informed him she would be on leave for two months. He suggested this might ‘pave the way for [the Complainant’s] return.’ The Complainant found this deeply upsetting, as it offered no real solution—what would happen when she returned? Would her behaviour resume and the Complainant would have to leave again? The Complainant was very distressed when she went into her GP and unsure what to do. Her GP said that she should not return to work if there was a situation where Ms A could return while she was there. He advised the Complainant to consider long term medications and referred her to A&E due to concerns about chest pain.

·         13 January 2020: The Complainant went to A&E. Tests indicated stress and anxiety as the cause.

·         14 January 2021: the Complainant spoke with the occupational nurse at Medmark, who advised against her return to work, citing potential harm. The nurse instructed the Complainant to inform the Principal to cease phone contact, as it was causing unnecessary distress. She also stated that it would be inappropriate for the Complainant to return if Ms A could be reinstated while she was present.

·         20 January 2020: the Complainant’s GP put her on longer term medications, but the side effects were severe, including exhaustion, persistent low mood, and an inability to engage in daily activities.

·         27 January 2020: the Complainant visited Medmark doctor. She was advised not to return to work and to come back in a month.

February 2020:

Financial strain intensified. Reduced income forced the Complainant to cancel savings, withdraw her children from creche, and halt her Master’s research activities entirely. Due to errors made by the school, the Complainant’s follow up appointment with Medmark was significantly delayed causing further stress. The Complainant had to intervene directly and contact Medmark and the school multiple times to ensure the process continued as planned. The Complainant saw the doctor again on 2 March. The Medmark doctor reported that the Complainant was healthy again but could not return until her work-related concerns were dealt with.

February 2020 – December 2021

The Complainant returned to school buildings in September 2020 and was dismayed that the process of investigation still had not started and Ms A resumed her behaviour, repeatedly ignoring the Complainant and treating me with disrespect any time their paths crossed. The Complainant knew the school were never going to take action to prevent her behaviour, so the Complainant took a career break to allow them time to complete the investigation.

Since she has left CMCA, the Complainant has stopped taking all medication and have never taken stress related leave since. She has never had any conflict with a colleague since.

Submission of 18 March 2025

Alternative Career Roles Considered

The Complainant submits that, while her primary goal was always to return to CMCA, as time passed, she became increasingly concerned that the school had no intention of completing the investigation or ensuring a safe work environment. The Complainant considered returning to a mainstream primary school role a step backward in her career progression. She actively sought roles that aligned with her expertise in education, safeguarding, and leadership, but these opportunities were rare and difficult to access. At any point, had the school completed the investigation and facilitated a safe return, the Complainant would have returned. This never happened, forcing her to explore alternative career pathways.

In 2021, when the Complainant had to return to CMCA or lose her salary, she applied for a Principal position at the two-teacher school in a named  hospital, as it matched her background in special education and working with vulnerable young people. She did not secure an interview.

The Complainant also explored a transition to third-level teaching by considering a joint PhD in Psychology and Education. Her university progression panel were in favour and confirmed she could pursue this, but the Complainant later decided against it due to the slow career progression in academia, which would involve years of insecure roles and pay disparity.

The Complainant explored teaching opportunities in a named Prison School, but positions were inaccessible for her due to the online standard application routes.

The Complainant engaged directly with the Head of the named ETB, about potential roles in the prison education system. The Complainant expressed interest in securing a role in education in September 2024.

The Complainant served on the Board of Management of a named primary school to gain leadership experience and a deeper understanding of school governance. She also briefly took on a voluntary role as a school director to support the school during a period of need.

The Assistant Psychologist roles the Complainant secured in the HSE and Tusla were highly competitive and required long commutes to Ennis and Dublin, reinforcing the specificity of her expertise and the difficulty of securing relevant roles outside education.

The Complainant submits that with no viable path back to CMCA and extremely limited opportunities for progression in education, she had no choice but to rebuild her career from the ground up in a new field, accepting an entry-level pay scale despite over a decade of professional experience.

Summary of direct evidence of the Complainant

The Complainant submits that she reported a number of serious child protection incidents. In her capacity of the DLP, the Complainant spoke with Ms A and informed Ms A that she did not follow the relevant procedures. Ms A took offense. Ms A then made false allegations against the Complainant in a meeting. The Respondent took it as an issue between friends. However, it was very much work related. The Complainant’s concerns were child protection and bullying and harassment.

The Complainant submits that she spoke with the Principal who witnessed the treatment of the Complainant by Ms A in public meetings. The Principal told the Complainant that he could not get involved as Ms A had previously accused him of bullying. He advised the Complainant to raise a complaint. The Complainant contacted the INTO. The Complainant decided to raise separately the child protection issues and the bullying and harassment matter.

The Complainant submits that, before the Terms of Reference were signed off, Ms A went on maternity leave. The Complainant felt that there was not enough pressure put on her to sign it off before she commenced her maternity leave.

The Complainant said that she was unwell at that time. She went through mediation, but it was a terrible experience and Ms A stormed out of the room.

The Complainant said that she was put on medications by her GP and it took time for her to recover. The Complainant said that she felt that the school treated her dismissively. There was no sign of investigation before March 2020 when the Covid-19 pandemic started. She was devastated. She said that she really wanted the report to be compiled, and action taken.

The Complainant said that she was about to leave but the Principal contacted her regarding an option of working from home. He assured the Complainant that at school she and Ms A would be separated. The Complainant said that she still had to meet Ms A every now and then.

The Complainant said that when she applied for a career break, the Principal instructed her not to indicate that it was because of the complaint as it could impact the decision.

The Complainant said that the school has never contacted her. She then decided to notify Tusla and the Teaching Council of her concerns. The Teaching Council reverted to her stating that they were waiting for the report that was due the next month to be furnished by the school. The Complainant said that she was very upset, she did not know what she could do to move things along.

The Complainant said that she really believed that there was no way that an investigator would ignore all the evidence. She started to believe that the school tried to discredit her. The Chairperson said that the Complainant had made complaints about other staff members, which was untrue. The Complainant asked where she had the information from but received no reply. She then requested data release to establish that. It also transpired that the Respondent referred to the matter as “arbitration”. The Complainant believed that it was to create an impression that there was an issue between staff members.  One year after the Complainant raised the matter with the DPC, the Chairperson explained that this statement was in her draft letter. The Complainant asked why it was not released but she received no reply. 

The Complainant said that she submitted a complaint to the Teaching Council regarding both child protection concerns and bullying and harassment. She said that she was worried about Ms A’s fitness to teach.

The Complainant said that it was very confusing, she did not know if the Principal informed the BOM of her concerns. The Principal told her to submit her complaints, he said it would be dealt with. She said that she never intended to be out for so long.

The Complainant said that she submitted her first claim to the WRC but it did not proceed.

The Complainant said that the situation destroyed her family financially, they could not get a mortgage, build the house they had planned to build. She said it impacted her family a lot.

The Complainant said that she was then told that the report was furnished, was being reviewed. She hoped she would have it in April 2024. She then thought she would definitely get it by August 2024 and she could return to work in September. For that reason, she did not apply for another career break.  The Complainant then got a summary letter outlining the findings of the report. She was then told that the report would be redacted and she was asked to sign a consent form. The Complainant said that Ms A got a draft of the report, she had seen it all, she had an opportunity to provide input. It got to the point that it was illogical. The Complainant said that at that point she got a solicitor who was in contact with the Respondent. The Respondent said it would take three months to redact the report. The Complainant said that she could not come back until she got the report. Her solicitor received the report in August 2024. The Complainant said that she felt that the school delayed it and ignored her hoping she would give up.

The Complainant said that the report recommended a disciplinary action, but the Respondent decided not to proceed.

The Complainant said that the Principal was her confidant, she believed him. She now felt hurt, she was not welcomed back, and she was very unwell.

The Complainant said the Teaching Council replied to her that the school know nothing about the child protection issue. The Complainant said that she thought that the Principal did not communicate her concerns to the BOM. In August 2023, she raised the child protection matter with the BOM as she understood that the BOM was not aware of it. She then, separately, raised a grievance against the Principal. The Chairperson responded that the BOM was aware of the child protection concerns. The Complainant said that she received no reply or acknowledgement to her stage 1 grievance against the Principal. She then initiated stage 2 and sent her complaint to the Principal by registered post and by email. The Complainant then initiated stage 3 and brought her grievance to the BOM. She was told that the BOM would not address the matter as it happened so long ago. The Complainant replied that the school has delayed the process on purpose. She proceeded to stage 4 but received no reply. Her grievance against the Principal was never investigated.

The Complainant said that in August 2024, she received a copy of the report. There was no appeal option for her. The Complainant said that at the relevant time there was no separate procedure in the Respondent school and she was told to follow Working Together policy.

Summary of cross-examination of the Complainant

Mr McGreal BL commenced the cross-examination at 10.10am and continued for the full day of the hearing.

It was put to the Complainant that the relevant events rooted in January / February 2019. The Complainant noted that there were incidents relating to child protection allegation prior to that time. The Complainant was asked if she recorded everything, did she keep a diary. The Complainant said that she kept record as much as possible.

It was put to the Complainant that she wanted Ms A to make a complaint about her. The Complainant said that she would have liked Ms A’s allegations against the Complainant to be investigated. Mr McGreal put it to the Complainant that it was another way of seeking vindication. It was suggested to the Complainant that Ms A did the right thing and did not make a formal complaint.

The Complainant confirmed that the Principal was her confidant on a professional level, that they were friendly; that she had the Principal’s phone number if she needed to contact him for a professional reason.

The Complainant was repeatedly asked when it changed, when did she stop trusting the Principal. She replied that it happened over a period, it was not a defined point, a specific moment. While she could not pinpoint when exactly it happened, she felt that she could not trust the Principal.  The Complainant said that it fluctuated. On occasions, she felt that maybe she could trust the Principal, then something would happen that would make her to question that and change her mind. The Complainant gave an example when in December 2021, the Principal came to her classroom and, in reply to her query regarding the investigation, he snapped at her and told her to stop asking. At that time, she wondered if she could trust him. Subsequently, in January, the Principal was reassuring he told her not to worry, that they would sort it out. She then thought that maybe she could trust him.

It was put to the Complainant that the Principal “was blue in his face” from trying to get the investigator to complete the report. The Complainant accepted that very little could be done during Ms A’s absence. However, she said that there were periods that something could have been done. E.g. the Terms of Reference took some three months to write. The Respondent knew that Ms A would be absent, and the Complainant asked to have it done quicker. Every single year, the Complainant was told that the report would be completed before Christmas.

The Complainant said that she was told two years before she got the report that the investigation was completed and the investigator needed to write the report.

It was put to the Complainant said that she was “accusing people”. She replied that she made complaints that a teacher was not following child protection procedures. It was concerning and an action was needed. She said that Ms A did not follow procedures and any children under her care were exposed. She said that the Principal just did not want to get into it. The Complainant said that she believed that telling her that her bullying and harassment complaint would be investigated together with the child protection matter was deliberate deception. The Complainant said that when she asked the Principal to ring Tusla for advice, he refused.

The Complainant accepted that the Deputy Principal attempted to facilitate a conversation between her and Ms A. The Complainant said that she wanted Ms A to retract her false allegation. Potentially, the Complainant asked for an apology, she could not remember. However, she would draw the line without apology. Ms A retracted four out of five allegations but would not retract the allegation that the Complainant was disrespectful. It was put to the Complainant that it was almost resolved until she asked for a formal retraction. The Complainant replied that it was not resolved to her. The Complainant wanted it to be made clear, she wanted her name to be cleared. Ms A destroyed the Complainant’s reputation. Ms A wrote a letter to the Principal and made allegations at a staff meeting. The Complainant wanted her to retract these informally in a room, Ms A would not take responsibility.  The Complainant believed that Ms A destroyed her reputation and there was a large group of staff who believed Ms A. The Complainant said that after she went on a career break, she was not that concerned about her name. It was about child protection issues and the way the Complainant’s complaints were handled.

The Complainant said that the delay was her main point. The Complainant said that vindication and clearing her name was not the matter for these proceedings, this was about her unfair dismissal.

It was put to the Complainant that she was on sick leave from 25 October 2019 to 22 March 2020 and the Respondent could not do anything during this period. The Complainant said that she was not fit for work but fit to engage in anything that would move the process. The Respondent objected to this statement asserting that it purports to be an opinion. 

The Complainant was asked if she was aware that her DSAR required the Respondent to put time, cost and effort into it. She confirmed that she was.

The Complainant was referred to the Principal’s letter of 20 March 2020. The Complainant said that she believed her work environment was not safe and she thought the Principal knew it. She said that she had raised the child protection issues in a meeting with the Principal and his Deputy and was told that sometimes the management needed to ignore it. Another time she went to the Principal’s office upset, and she was told to ignore it. The Complainant said that the school would not protect her from bullying and harassment.

It was put to the Complainant that she could not return to work on 6 March 2020 if Ms A was there. She replied that she would return if Ms A was told to stop bully and harass her. The Complainant said that the Principal told her that he could not deal with Ms A as she had accused him of bullying previously. The Complainant said that she asked the Principal to sit down with the two of them and explain that they had to work together. It would allow the Principal to be impartial.

It was put to the Complainant that it would be a problem from Ms A’s point of view as it would give the Complainant vindication for something that was not investigated. The Complainant said that it was the management’s job to manage staff. She wanted to be protected while the investigation was ongoing, it was the Respondent’s responsibility to find a way to do so but nothing was done.

The Complainant said that the Covid-19 pandemic was awful, but she was happy when she received the letter of 20 March 2020. It meant that she could come back, and Ms A would not be there. However, the Complainant said that when she came back, Ms A was there.

The Complainant said that the Principal told her at all times that, if the investigation found that there was an issue, he would be able to take an action. She always thought that he did believe her and she believed that he would be able to take an action after the investigation. As the time went by, she thought that the delay was to make her and Ms A go.

The Complainant was asked if she considered her options regarding the report and she replied that there was no way for her to challenge it.

It was put to the Complainant that she marked “personal development” on her career break request form. It was put to her that in five forms, she indicated on her application that the information provided was true and accurate, but she ticked a box that was not true. The Complainant said that before her first break she first thought that by the end of the year, the matter would be resolved. The Principal advised her not to write anything about her complaint in the application form. In his letter, the Principal told her to take a career break until the matter was resolved.

The Complainant was asked if in 2021 she told her then employer how long she would be on a career break. The Complainant replied that she told her supervisor that she worked in the Respondent’s school, that she was bullied and harassed and left on a career break on bad terms. She did not say how long the career break would be, so she did not tell them.

The Complainant was referred to her letter of 21 May 2021, and she was asked what she meant what she said that she would consider all options available to her. The Complainant said that she meant that she would consider seeking legal advice if needed, perhaps in relation to personal injury; she met with the INTO about it.

It was put to the Complainant that she could have stayed in her employment and lodged a dispute to the WRC. The Complainant said that she did not know what to do. She was advised by her solicitor to wait until the process was finished. It was put to the Complainant that she should have considered a trade dispute as an employee, but she was not interested in staying with the Respondent. The Complainant objected to the Respondent’s assertion that she was not interested in staying in the school. Regarding the Complainant’s first dispute referred to the WRC pursuant to the Industrial Relations Act, 1969 it was objected to by the Respondent. The Complainant said that it was disappointing and upsetting. It was put to the Complainant that the Respondent was waiting for an appeal to the Labour Court.

Regarding the Complainant’s letters of 24 August 2023 (to the Principal raising child protection concerns against Ms A and raising a grievance against the Principal), the Complainant said that the Principal misled her many times from March 2019. She believed that his aim was to protect the children. She believed that the Teaching Council needed to know that Ms A did not follow procedures.

The Complainant said that when she got the Chairperson’s emails, she believed that the Chairperson did not know anything. The Complainant thought that maybe the Principal did not say anything to the Board.

It was put to the Complainant that she thought the Principal was not protecting children in 2018 but she did nothing until 2023. The Complainant said that it was an ongoing failure by the school to protect children. It was the Principal’s job to oversee that and he did not take responsibility.

The Complainant was asked what her optimal outcome would be and replied that she wanted acknowledgement that Ms A did not follow child protection procedures and a training should be provided to Ms A. The Complainant said that she wanted to achieve justice, she was shining light on what was going on there.

The Complainant said that she had two complaints with the WRC (one did not go ahead), three the same with the Teaching Council and one with the DPC. It was put to the Complainant that the Respondent was “complaint fearful”. The Complainant said that she would imagine the Respondent was afraid to incriminate themselves. She said that they could have an unreserved conversation with her with no fear of a complaint.

The Complainant said that for the last 2 years she wrote a lot of letters, and she understood that it could be frustrating but she felt the school ignored her hoping she would go away. The Complainant said that it was exhausting for her, but it was the right thing to do to fight for the child protection; her conscious was clear. The Complainant said that the Chairperson first said she knew nothing; then she said she did know but the Principal was dealing with it. The Complainant knew that he was not dealing with it. She asked the BOM for minutes and there was nothing there.

The Complainant was asked if she imagined working again with the Principal when she reported him to the Teaching Council. She clarified that she did not make a complaint about the Principal to the Teaching Council but to school only. The Complainant said that the Principal was an amazing principal and she knew he would never do anything to hurt a child, but she thought that there was an attempt to avoid any action.

The Complainant was referred to the Chairperson’s letter of 15 December 2023 where the Chairperson informed the Complainant that due to the passage of time, the BOM was not in a position to take any further steps. It was put to the Complainant that the school could not do anything about complaints that related to events 6 years previously. The Complainant disagreed.

It was put to the Complainant that dealing with her DSARs was a monumental task, and she might have been contributing to it (by her letters and DSARs, etc.). The Complainant said that if she got a straight answer, she would not have to ask.

It was put to the Complainant that was irreconcilable that she could imagine working there again. The Complainant said that if she thought that it could be resolved, she could imagine working there if the investigation was proper and if all sat down and talked. She said that it was awful, but it could have been resolved and they could have moved on. She said that she believed in repair very strongly; people can sit down and resolve problems. The Complainant said that there could be an external mediator or maybe it could be resolved internally. The Complainant said that every time she applied for a career break, she thought about her return.

The Complainants said that throughout 2024, she considered her options, her return or finding another job, and her PhD. She was annoyed and disappointed when she got the summary of the report but not the actual report in June 2024. The Complainant agreed that the investigator could not proceed in Ms A’s absence. She noted that she informed the Respondent that she could participate in the investigation while absent from work.

It was put to the Complainant that the Respondent was wary about the data protection matters in the context of the report. The Complainant said that it was over the top to redact the report to the level of illegibility.

The Complainant confirmed that during her career break, she was engaged with other employers. She was permitted to do so. She was asked if she advised the Respondent of same, to which she responded that she was not obliged to.

The Complainant said that she informed the Respondent that she could not come back unless she gets the report. The Complainant was asked how was the Principal supposed to prepare for the next school year in circumstances where she waited until 15 August 2024 to apply for an emergency career break. The Complainant replied that she had no intention to take an emergency career break. Ms A had received a copy of the report so she hoped she would too. She said that, in reality, the posts are never filled until August. The Principal knew that she could not return. She rejected the assertion that the Respondent was “scrambling” for a teacher.

The Complainant said that it was not about the report to be in her favour but about the investigation being conducted properly. She said that she gave a list of witnesses but until she got the report she did not know who was interviewed. She said that, after she took the break, she on purpose did not talk to people. The Respondent asserted that it was unbelievable that she did not try to find out who was interviewed. The Complainant said that she had hoped it would be a fair investigation.

Quite significant amount of time was spent by the Respondent’s representative on examining the Complainant’s relationship with the two course providers. The Complainant clarified that her circumstances in the context of her employment and a career break were not relevant to the course provider. There was no obligation on her to stay on the course either.

The Complainant disagreed with the Respondent that she had no intention to go back to the Respondent when she signed her contract on 26 June 2024.

During cross-examination, Mr McGreal BL exhibited and referred the Complainant to an article from the British Journal of Psychiatry (2004) entitled Unusually persistent complainants and more specifically to the conclusion stating that “persistent complainants pursuit of vindication and retribution fits badly with complaints systems established to deliver reparation and compensation.” The Adjudication Officer pointed out to Mr McGreal that the article was at no stage introduced in the Respondent’s extensive Book of documentation containing some 51 appendices. While the Respondent might have considered the reading interesting or thought-provoking, no expert witness to give opinion on the matter was available.

Concluding remarks

In her concluding remarks, the Complainant said that it’s been extremely difficult 6 years for her and her family. The Complainant said that she felt that she had to pursue the procedures. She said that she did not expect that the Respondent’s representative would cross-examine her for 7 hours. She said that she was not a vindicative person or a complainer, but she made a decision and felt she had to pursue it. 

Loss

Post-hearing, on 8 June 2025, the Complainant furnished a Statement of Primary Service issued by the Department of Education and dated 4 June 2025 detailing the Complainant’s remuneration details. The document recorded the Complainant’s last increment date as 4 April 2020, with a stated salary of the Complainant of €60,571. The document further recorded an allowance of €5,177.

In response to the Respondent’s correspondence of 13 June 2025, the Complainant reverted on 16 June 2025 stating that the Department advised her that it was unable to produce the specific document requested. Subsequently, the Respondent’s solicitor suggested that, if the document fell short, the Complainant could consent to the Respondent accessing her employment and salary details directly. The Complainant has provided this consent. The Complainant noted that she had previously provided salary information to the WRC based on the publicly available Department of Education salary scales.

On 22 June 2025, the Complainant emailed the WRC with further clarification, acknowledging difficulty in obtaining accurate salary details for 2021. The Complainant originally sourced this information from teacher pay scales posted online by the DOE and INTO, but she now realised that these scales have changed since 2021, meaning the figures may differ slightly from those that she had initially reported to the WRC or to what was stated in the 'Statement of Service' document she had sent. The Complainant could not locate the 2021 scale online and remained uncertain of the exact figures.

The Complainant noted that she explained to the DOE that payslips were deemed insufficient to determine salary. However, in response, the DOE stated that this was all they could provide. The Complainant furnished a payslip dated 24 December 2020. The Complainant further noted that she was on reduced pay due to sick leave for almost three months at the beginning of 2020, which affected her gross pay for that year. The Complainant clarified that she was a pre-2011 entrant, on point 12 of the scale with a qualification allowance (Honours- paid separate to base salary) in 2021.

The Complainant gave evidence and furnished documentary evidence regarding her employment status post-termination of her employment with the Respondent. The Complainant was offered and accepted a place on the Doctor of Clinical Psychology programme for the academic year 2024/2025. She signed a specific purpose contract with the HSE for the purpose of undertaking a postgraduate professional training programme in clinical psychology, leading to the qualification of Doctorate in Clinical Psychology. The expected end date was 1 September 2027.

Remuneration was outlined as follows:

The approved salary scale (as at 01/06/2024) for your post: Year 1: € 42,973 Year 2: € 45,163 Year 3: € 48,925 You will be paid at the 1st point of the scale, i.e. € 42,973 per annum, with an increment date of 2nd September 2025.

Mr McGreal BL, on behalf of the Respondent, submits as follows.

Preliminary issue: this claim is fundamentally misconceived

This claim has been lodged on the basis of a fundamental misconception on the part of the Complainant. The Complainant had not worked for the Respondent for a period of four years prior to making this claim. Whilst she wrote a letter of resignation in September 2024, she clearly states in this claim that she had made up her mind – definitively – not to return in January 2024, a full 9 months before resigning. The Complainant has expressly said that she only withheld her letter of resignation because of a concern she had that an investigation of her grievance would not be completed if she resigned. This is no basis for a claim of constructive dismissal.

To quote the Complainant’s ‘resignation’ document submitted to the WRC (emphasis added),

“In January 2024, I was offered a place at UCC. At this point, I decided I would not return to [the Respondent] and would have resigned immediately. However, I delayed resigning as I was concerned that doing so would jeopardize my chances of receiving the report from the of school, which they assured me would be completed soon. I believed the report would be provided by March or April 2024.”

There is no reference in these three key sentences, as one might expect from a person who has been legally advised specifically on this point, to any intention of coming back to work.

There is a legal submission below but the WRC will be aware that constructive dismissal as defined in section 1 of the Unfair Dismissals Act 1977-2015 operates in the same way as it did at common law. It is elective. This Complainant gave as context to her claim her complaint that had been mistreated by a colleague, Ms A and also the manner in which this grievance was dealt with by the Respondent. If that is her position, according to the Complainant herself, this crystalised, at the very latest, in January 2024. It is now known that this is when her election to accept repudiation was made. The law on this is very clear

·         “[R]epudiation of the contract by an employ[er] does not terminate the contract but, rather, gives the employee the unusual choice to accept or reject repudiation. If the employee takes alternative employment, the employee will be taken to have accepted the option to rescind the contract…”; (Clark, Contract Law in Ireland, 8th ed. Roundhall, para 18-68 - ‘discharge following breach of contract’ - citing Tomas Marshall (Exports) Ltd v Guinle [1979] Ch. 227 and Gunton v Richmond Upon Thames London Borough [1980] 3 WLR 714.)

·         “In general, the innocent party must act promptly and decisively …” (Ibid at para 18-73 - ‘discharge following breach of contract’- citing An Bord Iascaigh Mhara v Scallan Unrep., HC, May 8, 1973.)

·         “Whilst some degree of prevarication by the injured party may be permitted, in general terms, the termination must be of the contract in toto.” (Ibid, at 18-74 - ‘discharge following breach of contract’)

The Complainant has lodged a lengthy Single Complaint Form followed by 127 pages of submission and materials. Unfortunately, this body of documents is only a very small part of the documentation the Complainant is really asking this tribunal to consider. She refers repeatedly in her submission to “documentation available on request”. This is ominous. Included in this reference is an enormous investigation report, running to hundreds and hundreds of pages, of meticulous detail. It took 4 years to complete. And the further residual documents generated over this time – whether they are relevant or not – run to thousands of pages.

The Complainant clearly intends to revisit every single allegation and complaint she has made against the Respondent and various members of its staff dating all the way back to 2018. The Complainant has made dozens of complaints of one kind or another, often repeating or escalating the same complaint, years after the event. She referred matters to the Teaching Council (repeatedly), the INTO, TUSLA, and the Data Protection Commission.

Part of the reason, certainly, of the delay in this case, is the extraordinary delay of the investigator. A schedule of sixty-five (65) times the school contacted the investigator with a view to progressing matters is set out below. However, the Adjudication Officer is asked not to be too easily persuaded that this is the primary issue in this case. The key issue really is the nature of the central grievance of the Complainant and how it came to be an absolute red line for the Complainant. Whilst she never goes so far in her submission, it seems clear now that she was never going to return to a workplace where Ms A continued to work. This notwithstanding, the Complainant’s alternative career had clearly supplanted any possibility of a return. From January 2024 she had decided that she would resign and only delayed in doing so in writing because she was concerned she wouldn’t receive a report from the investigator.

Even if the Complainant could say with certainty, which she cannot, that the investigator was wrong, the remedy she seeks is outside of the compass of remedies available in this claim. Unfair dismissal claims are not a forum for appealing investigations. In any event, a person who raises a grievance, as opposed to person who faces an allegation of wrongdoing (for whatever reason the Complainant does seem to consider herself in the latter camp), has no automatic right of appeal.

In truth, this case comes down to this: two teachers of the Respondent, the Complainant and Ms A, fell out badly in or about January 2019. Complaints and counter complaints were made by these two employees, using words like ‘bullying’ ‘screaming’, ‘harassment’ and above all, the keynote phrase ‘false allegations’. Bad feeling festered, and the school had to deal with the consequences. Ultimately the Respondent was asked to contend with emotive and high-toned exchanges between these two teachers, together with a multiplicity of complaints, and most frustratingly, the painstaking manner of an investigator who took an age to deliver on his report.

It took four years. Perhaps the school could have called a halt to the investigation and started again. But having invested so much time and effort into the process, this would have meant writing off all the good work that had been done and starting all over again. And it may not have meant a quicker process. This was in circumstances where it appears that issues were being taken with every single thing the school did and where further complaints were piled on top of the original grievance. Starting again might well have exacerbated the problem. Time was afforded and a report was produced, but it took four years. This was four years during which the Complainant was absent on four successive career breaks, pursuing an alternative career in psychology. In the end, this career path superseded anything contained in this claim and the Complainant self-admittedly only delayed resigning in case the process leading to the investigation report would be abandoned if she resigned.

To prosecute her claim that this was a constructive dismissal, the Complainant intends to traverse (and conduct her appeal) the investigation report. It will take weeks. The Respondent requests that the following preliminary issues be heard first to avoid several weeks of potentially unnecessary – and ultimately inadmissible – evidence:

(i)                  Is not an employee bound to act promptly from January 2024 in communicating her acceptance of the repudiation of her contract?

(ii)                Can an employee, having stated that she intended to resign but only delayed doing so to secure a report, ever be deemed to have acted reasonably?

(iii)               What was the precise employment status (for instance, in terms of contractual obligation to other employers) of the Complainant prior to her resignation?

(iv)               What is the Complainant’s loss? The relevant Department of Education Circular (concerning career breaks) guarantees the seniority of the employee on the break but whilst it preserves increments for various other types of leave, it does not do so for career breaks. Moreover, a qualification allowance is assumed rather than demonstrated as apposite.

(v)                Can any order of compensation be made where the Regulations for calculation of loss do not account for a claimant who has been absent for 4 years and who has taken up several successive alternative employments.

At the time the Complainant resigned and lodged this complaint, she had been absent from work for four successive career breaks (4 years). She had already taken up successive alternative employments.

The Complainant has not properly particularised her precise employment status on 14 September 2024 when she lodged her unfair dismissal claim (just two days after she resigned).

Having submitted that she received legal advice from an employment law specialist solicitor, the Complainant has conspicuously omitted to refer to any objectively demonstrable plans and intentions to continue to work for the Respondent that are reconcilable with this claim. If this turns out to be the case, much time will have been wasted on the substantive questions in the case.

In the thousands of pages of materials generated by this case the Complainant makes no single reference to her commitments, representations and contracts of employment with those employers she was employed by whilst on a career break. No independent evidence is offered (hearsay or otherwise) of her intention ever to work again for the Respondent. Notably, by 1 February 2024, the Complainant had taken none of the steps mandated (mandatory language is used) by Government Circular to return to work. She was a full 8 months late in giving any notification of her intention to take a further career break on 15 August 2024 just days before the school year was supposed to commence (she called it an ‘emergency career break’). It made no sense at all to make an application for a career break in such circumstances. Neither had she given any indication that she actually intended to resume work that August. She resigned 30 days later on 14 September 2024.

This is in circumstances where for three years previously she had made her application for a career break in January or February. Her declared reason for doing so was ‘personal development’. She had also taken up successive alternative employments. In 2023 when the Complainant applied for a career break she had commented merely that “I remain hopeful the outstanding investigation will be completed before the next career break application deadline.” This is the language of someone who has other career plans.

The Respondent’s policy on career breaks is subject to the provisions of the Department Circular. Two provisions in the Respondent’s policy are relevant, however. These are:

Paragraph 12: “The onus lies on a teacher/SNA to be familiar with the contents of relevant circulars.”

Paragraph 22: “A teacher on a career break is precluded from taking up an appointment in any capacity in any school within the State.”

Department of Education Circular 54/2019 makes it clear that employment is preserved during a career break. However, this is not unconditional. It is submitted that in the absence of compelling evidence to the contrary, the Complainant had no objective intention of returning to work when she applied for her ‘emergency career break’. In fact, she had long ago accepted what she viewed as a repudiation of her contract. There is no other reasonable alternative interpretation of the facts in this case.

Part 9 of the Circular provides as follows (page 105):

“9.1 A teacher must notify the employer by 1st February of his/her intention to return to work from a Career Break at the beginning of the next school year.

9.2 It is the responsibility of the teacher returning from a Career Break to ensure that he/she is registered with the Teaching Council on the intended date of resumption. Please note that the Teaching Council registration process, which includes vetting, may take up to 12 weeks during the peak period of July and August. Additional police clearance requirements may also be applicable where teachers have lived abroad. Teachers are therefore advised to commence the registration process once they have notified the school of their intention to return to work.

9.3 A teacher returning from a Career Break following an absence greater than 2 school years must undergo a medical assessment and be certified medically fit by the OHS prior to returning to work. …”

The Complainant has nowhere referred to any practical arrangement she had taken in 2024 to show she ever really intended to return to work with the Respondent.

Neither was there any valid reason why she was absent for so long. The reason why the Complainant left, and never came back to work is that she never intended to. The extraordinary slow progress of the investigator did not help matters certainly. But there was never deliberate delay and the Respondent spent an inordinate amount of time and resources trying to resolve both the complaints of the Complainant and the delay of the investigator. All of that being so, the outcome of that complaint were not such that they would justify the Complainant’s absence from work and there is no other evidence to this effect.

The Complainant refers to having been ‘instructed’ by two doctors not to return. That is not in evidence, and even if it was, it is not what was said. The Complainant has submitted in her ‘narrative of events’ that she ceased to be on medication for any related issue in the year 2000, and, though she has not properly particularised them, she had also obviously been actively working and engaging in other professional interests.

More than four years passed and the Complainant, for her own reasons, did not return to work. She is not, therefore, entitled to make this claim as a person who regarded herself as an employee on 14 September 2024. Even if she were able to do so, it is clear that the legislative mechanisms by which loss is calculated simply do not apply to claimants who have been absent on career breaks for over 12 months. There is no other way of interpreting the provisions of SI 287/1977 the Unfair Dismissals (Calculation of Weekly Remuneration) Regulations 1977.

The following are the relevant particulars provided of the Complainant’s plans to return to work with the Respondent from her ‘Narrative of Events’ document (with bold italics added):

·         “During my leave, … I spent 3 months on reduced salary. 6 months later the situation was still unresolved and when faced with losing my salary entirely, I planned to resign.

·         “Despite assurances, upon returning to the school premises in September [2020], Ms. [A]'s bullying behaviour towards me persisted outside of school buildings without any intervention from management. This resulted inmy decision to seek alternative employment.”

·         “October 2020, I accepted an Assistant Psychologist position with the HSE...”

·         “… I supplemented my income through substitute teaching and tutoring …”

·         “I was more interested in the AP2 DLP role Mr Browne had repeatedly told me would be created in the future. Later, AP2 posts were advertised [in the School] with the DLP role combined with Religious and SPHE/Wellbeing Coordinator role … At this point, I accepted that the school were attempting to dissuade my return and, therefore, I did not apply for the role. ….”

·         “In 2022, I applied for clinical psychology training and was unsuccessful in securing any interviews. I reapplied in 2024 and was fortunate to secure a place at the University of Limerick. Despite this, I delayed resigning from CMCA, as I was still awaiting the investigation report.”

·         “I have worked exceptionally hard over the last 5 years to bring my salary up to what it is now.”

It should be noted that evidence will be given contesting the facts as construed by the Complainant in the above excerpts from her “Narrative of events” in particular in relation to any alleged reduction in her salary due to absence and the recruitment for the AP2 post referred to above and other posts of responsibility.

The Single Complaint Form

The Respondent does not dispute the dates and monetary details contained in the Single Complaint form. However, it should be noted that as the Complainant was on career break for four years. She was not in receipt of remuneration in respect of her work in the school and furthermore, was not available for work in the school (having absented herself from work for the purposes of a career break) when she resigned. The Complainant has not therefore suffered financial loss (as described in SI 287/1977 – Unfair Dismissals (Calculation of Weekly Remuneration) Regulations 1977) and this tribunal is not empowered to make any award to her for the financial loss she claims.

A detailed response to each part of the narrative grounds of claim in the Single Complaint Form is given below.

It is important at the outset to clarify what the scope of the Complainant’s claim is and in particular what reason she relies upon as the rationale for her resignation in September 2024.

·         In the Single Complaint Form (and on page 7 of her Submission) the Complainant states “I feel that both the action and inaction of the principal and BOM in my case has made the situation in work so intolerable I have no choice but to resign.”

·         In her Submission (page 10 – bold italics added) the Complainant states “Despite this, I delayed resigning from CMCA, as I was still awaiting the investigation report. In September 2024, after finally receiving the report and recognising that the school had no intention of addressing my concerns, I formally resigned.”

·         In the Complainant’s ‘resignation’ document submitted to the WRC (emphasis added), “In January 2024, I was offered a place at UCC. At this point, I decided I would not return not to [the Respondent] and would have resigned immediately. However, I delayed resigning as I was concerned that doing so would jeopardize my chances of receiving the report from the of school, which they assured me would be completed soon. I believed the report would be provided by March or April 2024.”

In other words, the key events in this case occurred long before she resigned. If the investigation had taken a fraction of the time it took, the position would be precisely the same.

It will be the Respondent’s argument that the Board went to extraordinary lengths, in very difficult circumstances, to investigate and resolve the Complainant’s concerns, that the concerns in question did not warrant her being out of the school for 4 years on “career break” and certainly did not justify her resignation. From a very early stage, she had always intended resigning and is on the record as having said so.

Introduction and background

The Respondent is the Board of Management of Catherine McAuley School, a special school recognised as a school for the purposes of the Education Act, 1998. As provided for in Section 14 of the Education Act, the Board of Management of the school is corporate body charged with the management of the school and with discharging the functions of a school set out at Section 9 of the Education Act. As provided for in Section 24 of the Act, the Board is the employer of staff in the school and is responsible for their appointment. Teaching staff (both teachers and SNAs) are paid directly by the Department of Education. The terms and conditions of staff paid by the Department of Education are set by the Department itself and not the school.

The school is special school designated for the education of children with Mild or Borderline Mild General Disabilities. It is a co-educational school which presently caters for two hundred and seventy pupils aged between 5 and 18 years of age. It is one of the largest special schools in the country and operates from a large campus on the outskirts of Limerick city. Referrals for entry to the school come from the parents of pupils in both primary and secondary mainstream schools residing in Limerick city and county, east Clare, north Cork and north Tipperary. The school follows the curricular programmes prescribed by the Department of Education. The Curriculum for Pupils with Mild General Learning Disabilities is the bedrock of all that is taught, along with the Primary School’s Curriculum. The school also provides recognised post-primary programmes including the Junior Certificate School Programme, The Junior Cycle L2LP & L3LP, the Leaving Certificate Applied and QQI Levels I to IV.

The school is financed directly by way of capitation grants provided by the Department of Education and by its own fundraising. A dedicated staff has ensured that pupils receive a broad-based curriculum, encompassing literacy and numeracy along with a wide variety of vocational subjects including horticulture, woodwork, home economics, hair care and information technology. The development of the whole person is integral to the school philosophy and consequently subjects like religious education, art, drama, physical education and social education are also on the curriculum for each student.

This is a case in which there has been a very long delay in the investigation of the Complainant’s complaints about her colleague and former friend, Ms A. And this delay is an adverse feature of the case which the Respondent will have to explain. However, this delay does not mean that there was any entitlement on the part of the Complainant to resign and claim constructive dismissal. Nor indeed does it appear that the delay is the cause identified by the Complainant of her resignation and this is largely confirmed by the Complainant’s submission. The Complainant had informed the school long before the conclusion of the investigation that she intended to resign. This is an argument the Complainant has clearly anticipated in her submission but which she appears to wish to deflect. Her submission shows no objective evidence of an intention to return. As the Complainant admits herself in the submission, she used the career breaks to train as a psychologist. The school has no such role. While her psychology training might have been of some application in the school, it would have been as part of her role as teacher not in some separate position. The Complainant was ultimately offered the role of developing a delivering an RSE program in the school but this program was withdrawn shortly after commencement on foot of a direction by an Inspector of the Department of Education. In her submission, the Complainant appears aggrieved by this development but the school is not responsible for any such direction and is bound to comply with it.

In any event, the delay in the delivery of the investigation report is not ultimately the central consideration. It is the substance of the investigation. For all of its delay, the report is measured, careful and extremely comprehensive. It recommended that a single incident – of the many complaints - warranted further consideration by way of disciplinary process (Investigation Report of Tiernan Lowey BL). Further action was not mandated or required by the process. Ultimately a single and discrete (and much reduced) adverse finding was not progressed to disciplinary stage. Whilst this could not be grounds for Mr Lowey himself to rely on, given his delay, for the school it went without saying that by the time the report was published, it was simply the reality of the situation that many years had elapsed without further incident.

It is important to note that the Complainant’s documented and extensive narratives contain frequent instances of hearsay and reliance on what other people said. The Complainant relies heavily on these to support her position. Without these, this claim is entirely a subjective exercise. Constructive dismissal is not decided on a subjective basis, indeed a subjective point of view cannot substantiate either the definition of constructive dismissal or bullying.

It is fully accepted that the WRC is permitted to receive – and even entertain - hearsay. But the hearsay and ostensibly privileged information on which the Complainant relies may test that practice in this case. The Complainant includes what the INTO officials and her lawyers are said to have advised, what other staff members ‘felt’ or ‘thought’ and most significantly perhaps, certain limited medical opinions about matters that are not evidenced. For instance, it is not clear at all on what basis the Complainant can say she could not have returned to work for so many years before she resigned.

The following submission, despite its considerable length, is intended to foreshorten what has the potential to be a very lengthy case. Before making any further submission however, the Respondent wishes to set out one statement which appears to sum matters up – and it is not from an interested party. It is perhaps the most sensible thing that anyone has said in this case so far. A colleague of the Complainant was, in the course of Mr Lowey’s investigation, asked a general question about her relationship with the Complainant and her answer was the following:

“I know Susan for about 10 years. Susan is very hard working and she had taken on an awful lot. She did talk to us at an In-School Management meeting that January and I felt for her as I gathered that she seemed quite stressed. She was trying to study for her psychology degree and she was stressed. I suggested that she think about being a resource teacher. She had a lot on her plate. She came to the In School Management meeting but I didn't know she was coming. I would have a lot of time for Susan. I would have a lot of time for [Ms A] as well. She is a great teacher. [Ms A] was part of our IT Teaching and Learning team. She was always very cooperative and very capable. I wouldn't have anything negative to say about either of them. Just a pity they couldn't have sorted this out in an informal way.”

This is a case where almost every single aspect of the Complainant’s many complaints has already been set out in painstaking detail by the Complainant. This is right down to the ‘I said, she said, then she looked at me in a particular way’ type of narrative. Indeed the case, in particular the many timelines and narrative accounts of the Complainant, reads like a biography written by a person who feels they have been slighted and misunderstood. Far from being a person dismissed for wrongdoing, this is an unusual case of a person who has resigned but seeks to demonstrate her good standing and reputation and dispel any suggestion that perceived slights and accusations (repeatedly described as ‘false allegations’) are not well founded. It is important to remember that this case is about complaints by the Complainant. Not against her.

The core of the Complainant’s complaints and this claim is essentially a reply to criticisms (never made formally) by a person who was once a close friend and confidante. But the WRC deals with the breach of rights and employment law entitlements, it is not a venue for revisiting perceived slights or criticisms or matters were never elevated to the status of formal adverse findings. It is certainly not a place that will entertain exaggerated or misplaced usage of words like ‘bullying’, ‘harassment’, ‘intimidation’, ‘unsafe’ and most importantly of all, the word ‘unreasonable’.

Whereas there is plenty to say in this case about unreasonable behaviour, there is only a single matter on which the Respondent can be said to open to a complaint of being unreasonable is the time it took to deliver the investigation report. But that alone does not make the Complainant’s case.

In the Complainant’s letter of resignation she wrote on 14 September 2024 she essentially refers to two reasons for her resignation:

·         the ‘unchecked’ behaviour of Ms A, and

·         management by the School of a complaint about this behaviour.

She says nothing in that document about her prolonged absence from work. But the Complainant does conclude the letter by saying she does not trust the school to ‘protect her’. In doing so she places front and centre what her position might have been had she not made her decision to resign in January 2024. That is that the alleged failure to vindicate her position meant that she would be unable to return to work.

If that was her position, the legal position on the facts of this case is that she cannot simply resign. She should have returned to work. If that turned out to be a scenario that grounded a constructive dismissal then so be it. But she never tested that hypothesis. The public policy and legal principle grounding the law of constructive dismissal is that the worker cannot decide to avoid the issue by resignation.

Corrosive relationship, exaggerated language and ‘false allegations’

It is very relevant to the consideration of reasonable conduct – or whether there was a breach of contract – to look at what the Respondent was dealing with in terms of two employees who were once friends and then found themselves intractably opposed. It is a case study of the corrosive effect of an interpersonal dispute which was made worse, not better, by the deployment of the Complainant, and also to some extent (albeit she at least did not formalise them) of Ms A, of words like ‘bullying’ and ‘harassment’ and in particular the misuse of the word ‘false’ when used with the word ‘allegation’. An allegation can be made, it can be off the mark, and it can be unfounded. But this does not make it false or malicious. It certainly does not mean it is sufficient to constitute bullying.

Again, the investigator, for all his delay, did not produce a shoddy report and cannot (and should not) be criticised for failure to conduct an exacting and detailed analysis of the complaints and their context. Whilst the parties to this case may not agree with everything in that report, he did look carefully, for example, at the desired outcomes for both parties. What he heard from the Complainant is directly relevant to this constructive dismissal claim. He quoted the Complainant at para 126-7 of his report as saying (emphasis added):

“I can't believe that this is where we are at. We are at Stage 4 and you have been hired because she has refused to engage with me. From the start, I just wanted to talk about it. I don't want an apology. I believe I have enough evidence to prove this is not true. I would like an acknowledgement that this is not true. I'd like this clarified by letter or in a meeting to staff to let them know it wasn't true.

[…]

"[t]here is still a discussion around how she was to make these retractions. She will probably say that she is willing to retract if Susan retracts too. I have asked her what that is and she hasn't said. The story has become fantastical. She is very unpredictable. I am hoping she is going to see that there is so much evidence against her that she won't continue with it. I want to feel vindication that it isn't true. I want staff informed. I just want it to be over.”

There is much that can be said of this desired outcome but the following is important. Repeatedly the investigator had to refer in his report to the fact that only the Complainant made a complaint. Repeatedly he pointed out the fact that Ms A, for her part, did not ever pursue a procedural complaint, formal or otherwise. So it was never a question of her ‘continuing’ with anything.

There is a clear theme running through the Complainant’s grievance that she is appalled to have been herself the subject of criticism or complaint. There is an apparent need for vindication on the part of the Complainant which is out of place and counter-indicative of a well-founded constructive dismissal claim. It is unfortunately the case that the finger pointing dynamic, the he-said-she-said, is very easy to become blown out of all proportion.

In particular, this ‘complaining about being complained about’ dynamic is at the heart of this claim. Ms A made a complaint, she did not make a claim or lodge a formal grievance or seek ‘vindication’. These are the steps taken by the Complainant alone and it is these steps, over similar issues, that have brought us to this litigation. Consider, for example, allegation number 2 of the investigated grievances. It is claimed to have started with a letter from Ms A on 4 February 2019, addressed to the school Principal. It is claimed that the Respondent made “false allegations” regarding the Complainant. These are said to have consisted of the Respondent accusing her of:

·         Not updating her on cases.

·         Excluding her from meetings.

·         Not behaving in a professional manner in how she dealt with the Respondent on 31 January 2019.

·         Failing in her duty as DLP.

It is difficult to understand how these matters can ever have be elevated to something malicious or ‘sufficiently calibrated’, to use the words of the Supreme Court (on which see below) to be described as bullying.

Complaints are complaints. They are not findings. ‘Accusation’ is an emotive word used in this case when, again, this is not a finding or a black mark against the Complainant. Ms A did not lodge a complaint in the procedural sense. She may have been wise not to do so but this sensible approach – an approach of just getting on with the job – was not shared by the Complainant. The Complainant instead may be said to have chosen a path of ‘attack is the best form of defence’, lest anything substantial in terms of criticism be said about her.

Grievance procedures were never intended to be a medium for supressing another worker’s complaint or expression of dissatisfaction, or criticism; not without that criticism being formalised as a finding or actionable adverse record against a complainant. Grievances are not supposed to be an opportunity to ventilate every little thing. The Complainant however, invested herself wholly in her grievance. She pursued a course where she seems to have decided very early on that if she was not vindicated, she would never return to work for the Respondent or with Ms A. Indeed she made her decision definitively in January 2024 as we have seen.

More realistically, this was a falling out between two former friends which was never going to get any better through employment procedures. Therefore, as confirmed by the Complainant’s reaction to the much belated arrival of the Investigation Report, the Respondent was always faced with an impossible task. The Respondent could not force these two workers to get on. The clear way forward was the one option that needed both sides of the argument to consent: mediation. Mediation was attempted but that did not avail the school and arguably that was the last opportunity to avoid this litigation.

This is a case of two workers falling out and becoming entrenched. No amount of investigating matters was ever going to resolve this by procedural intervention and formalising the argument. The terminology deployed (not by the Respondent) in the dispute was misused, misapplied and misunderstood. The school (and the investigator) were left to make sense of it, assuage reactions to emotive content, without ever being able to put it as plainly as this. Now that the employment relationship has ended, the school, can, through these submissions say it more plainly. Objectively speaking, the following concepts or characterisations should never have been deployed:

·         Harassment.

·         Bullying.

·         Unsafe work environment, the need for protection …etc.

·         Screaming and shouting.

·         Defamation.

·         Unprofessional conduct.

But even when such words are used, a modicum of common sense should prevail and tell us that it is one thing to say such things. It is a different thing entirely to make formal disciplinary findings that any such thing actually occurred.

Public hearing and dramatic expansion of original complaint

Initially the complaints of the Complainant focused on Ms A. She placed them in a context of her role as DLP but they remained essentially complaints about Ms A. Gradually they broadened to many others, on certain broader issues which were not, notably, the delay in dealing with her grievance. Allegations against the school and its staff increased dramatically over time from a bullying allegation against Ms A, to issues more properly the domain of Tusla and the Teaching Council. Over time a bullying complaint became a complaint by the Complainant that members of the Respondent’s staff should be the subject of an enquiry based on child protection. The Complainant’s allegations culminated in accusations of deception and deliberate suppression of the report.

A given instance of conduct – even misconduct – does not become worse because of the delay in the investigation. And there is a very big difference between the disputes that arose between Ms A and the Complainant and the broad-ranging claims by the Complainant – which include more than just Ms A - of an inability to teach or endangering children.

The Respondent as a whole is accused of many things. Mr Browne, Dr Dunleavy, and certain witnesses in the investigation, have all been criticised. But the broadening of the issues from bullying to child protection issues is a very real feature of the Complainant’s broadening complaint. And the conduct which is impugned cannot have been after the Complainant left on her first career break (or even the time during which she was absent on sick leave) because she was not present. Therefore, the complaints broadened whilst the same 2019-early 2020 time frame remains the narrow timeframe.

The Complainant may remain convinced that her original complaints were well-founded but she is now, with this claim, bringing them into the public domain. She has not made any effort to confine her complaints which now comprise the entire history of her complaints against Ms A and others. The Adjudication Officer is asked not to refer to extraordinary extent to which the Complainant takes issue with the character, honesty and professionalism of certain of her colleagues, in particular Ms A. This is not the appropriate forum, if indeed there is an appropriate form, for some of the content of the Complainant’s complaints. The determination with which the Complainant prosecuted her claims against Ms A culminate in various ways that will not be directly referenced here but can be found in her documents which ostensibly form part of this case. But an example of how insistent the Complainant was had to be set out as follows by letter from school had to write to the Complainant on 15 December 2023, a full 5 ½ years after the fact,

“I note that you commenced a grievance process against the Principal and [Ms A] in late August 2023 specifically in relation to the child protection concerns this time. In relation to this, I note that the matters set out in your enclosed letter of the 7th March 2019 and in your recent letter, go back as far as the 30th April 2018. As you will appreciate, we are now coming up to almost six years having passed in respect of some of these matters. [reference to legal advice] [A]n employer cannot ask fairly an employee to account for or respond to allegations beyond a certain point in time. Our understanding is that the longer the period of time that has passed since the period that the allegations refer to, the more likely it is that an employee would be prejudiced in their ability to recall the events and fully respond to these allegations.”

Constructive dismissal claims require a tipping point

The Adjudication Officer is asked to consider what would have happened if the Investigation Report had been delivered a year earlier, or 2 years earlier? Or before she made her definitive decision to resign in January 2024? Would the Complainant’s circumstances have been different? Would she have reacted the same way? Would she have resigned? The Complainant told Mr Lowey that she had decided to leave the school a very long time ago. She said that it was her employer that persuaded her come back but that sickness intervened and so she went on a series of career breaks. She does not address this in the single complaint form but she clearly delayed her resignation to await the outcome of the investigation – however long it was going to take. She had also clearly decided to resign. She said the following to Mr Lowey (para 472, bold italics added),

"Yes, I was out sick for a significant period of time and Greg took over my role. I told him I was going to leave the school. I went to Medmark and they said it shouldn't have been allowed to go so far. [Ms A] was out sick. She was quite ill and had an operation. I was going to leave, then Covid happened. Greg said can you hold on until the school re-opens. I agreed to the terms of reference before the summer holidays. Then Greg asked me to come back and I only agreed because this process had started … “

(It should be noted that the Respondent contests the version of the conversations put forward by the Complainant).

By way of clarification on 15 January 2025, the Complainant emailed the WRC attaching a document entitled ‘Resignation’ in which she confirms what she meant by this last sentence. She came back because she was worried that the investigation would be discontinued if she actually submitted her letter of resignation. In reality she had accepted what she viewed as repudiation of contract at the very latest, in January 2024.

There has never been a constrictive dismissal where the circumstances progressed unnoticed or without incident from a position where resignation would not be reasonable to a position where it clearly is. The Complainant will no doubt rely on cumulative reasons. But it remains a crucial circumstance that whilst there was extraordinary delay in this case in delivering an investigation report, she knew the outcome when she resigned and knew from 12 June 2024 (letter summarising the report’s conclusions) what the employer’s intentions were in relation to the recommendations contained in the report.

Constructive dismissal – failure to return as distinct from leaving

It cannot be the law that a worker is entitled to lodge a grievance and be off work until it concludes. It cannot be the law that a worker can rely simply on the fact that a grievance was made, and that it took a very long time, and that she awaited the report as a reason why she did not submit her letter of resignation. It is fundamentally important in this case to recall that this Complainant did not walk out or resign in the sense of leaving the workplace. She had already placed herself outside the work environment for her own reasons. These reasons were not medical and they were not justified by any finding in the investigation report.

A letter which illustrates the position being taken by the Complainant from a very early stage is the letter of 9 January 2020 from the Complainant to Mr Browne. She states that she is fit to work but that her opinion was that her workplace was unsafe.

Therefore, she should have been at work when she says she felt she had no choice but to resign. But the point is that she would have had no basis to say so if she had continued to work whilst the investigation was ongoing. And there is no reason why she should not have done so. In other words, she cannot avail of her own decision to be absent to claim she could not reasonably be expected to have returned.

It is important to consider this in the context that the Complainant has been in receipt of substantial advice and assistance from the INTO and from her solicitors.

Deliberate delay and failure to respond

The Respondent is accused of deliberately delaying the publication of the investigation report of the grievance. This is most certainly not true. The Respondent submits that there was enormous correspondence generated by – and cost associated with –the investigation. In the result, the report produced is an extraordinary work of detailed analysis and careful expression. The Respondent made repeated (65) contacts with Mr Lowey seeking clarification from him of where matters stood and what the likely date for the report being provided would be.

The Complainant also overstates the manner of the Respondent’s administrative default in the delay that occurred. Over and over in the course of the complaint as set out in the Single Complaint Form, the Complainant refers to there having been ‘no response’ from the Respondent. Again, whilst admitting there was extraordinary delay in this case in dealing with a single process of investigation, the Complainant placed no small amount of administrative burden on the Respondent on many other issues over the years and the Respondent is not guilty of the failure of response as described. It should be noted, as the Complainant appears to concede in her submission that she made a substantial number of data access requests to the Respondent concerning many thousands of pages of documentation. The first such request was made in January 2020 followed by a further request in July 2022 and a further one on March 2024. There was then a final access request made in relation to the report on 17 June 2024.

It should also be noted that the investigation was a standing item on the Board of Management’s agenda and that whether or not it was minuted, at each Board meeting the Principal provided whatever update he then had for the Board of Management. When the report was ultimately provided to the Board of Management, the Board met on no less than five separate occasions to consider the report and to consider the best way forward. The decision taken by the Board not to follow the Investigator’s recommendation to conduct a disciplinary investigation was taken after substantial consideration.

Not a grievance sufficient to justify 4-year absence

Once it is satisfied that this was not a case of deliberate delay, the question for the WRC may ultimately be whether the Respondent should have done more to ensure the grievance was dealt with more expeditiously and whether a failure to do so amounts to grounds for constructive dismissal. It is submitted that this may have been the case if there had, in fact, been deliberate delay and where the underlying grievance was such that no reasonable employee could be expected to work on, under a cloud. However, there was no adverse disciplinary finding. This was not a grievance of such substance and gravity (in the result) that it could possibly have justified a 4-year absence and a constructive dismissal.

Repeated reference to medical issues in absence of medical history

The Complainant repeatedly refers to medical absence and medical advice. Only on 15 February 2025 has she clarified that this was confined to a period from mid-2019 and early 2020. This is impossible to reconcile with the Complainant’s sweeping claims in respect of medical sequelae. In her 2025 document entitled ‘Medical Evidence in Support of Claim’ the Complainant puts forward what she incorrectly describes as ‘evidence’ and incorrectly styles as ‘in support of her claim’. She has repeatedly referred to legal advice (without detailing it). She must know that these references to medical issues are inadmissible.

The Complainant self refers by reference to the novel concept of ‘mental health leave’ in her engagement with Mr Lowey (page 106 of the report). The Respondent is only aware of generic and non-specific advice about addressing the Complainant’s concerns and ensuring a safe place of work. These are not directives to the Complainant or to the school licensing or mandating an absence from work pending the outcome of a grievance. The Complainant cannot do so without making fuller disclosure of her medical history. This is particularly in circumstances where a) her absence was so protracted, b) her grievance was not so substantial that it was either fully vindicated or justified a 4-year absence and c) it goes to her ability to work and mitigate loss.

Furthermore, in respect of the Complainant’s claim to have been on “sick leave” while on career break, the strict position is that as a teacher on career break is not being paid, they cannot be said to be on sick leave. This is explicitly set out the Department of Education circulars relating to sick leave for teaching staff. (see para 7.1 of Circular 13/2024 which is the current circular relating to sick leave for teachers).

Delay in bringing these claims

The constructive dismissal complaint was received by the WRC on 16 September 2024. The Complainant’s resignation was less than two days prior to that date. The peculiarity of constructive dismissal is that the matters complained of cannot amount to grounds for dismissal if they crystallised before that period. It is difficult to see any reading of the Complainant’s case in which they did not. There are several references in the voluminous written material generated in this case to the Complainant’s intentions to resign.

The most acute examples of these are (underline added):

·         On 30 October 2019 in a letter to her employer the Complainant said (emphasis added), “I am writing with regret to inform you that following advice from my GP and the INTO, I have decided to take leave indefinitely due to significant work related stress. … Due to the significant impact this is having on my mental health, I feel I have no option at this point but to remove myself from the situation until after the investigative process is complete.”

·         As part of her 21 May 2021 detailed reporting of alleged misconduct of Ms A to the Teaching Council. There she stated, “Currently, I find it hard to imagine I will ever return to my school and I would not feel comfortable leaving this complaint open, which is why I am not submitting this to the Teaching Council.”

However extraordinary the delay in the report being finalised was, this cannot be an excuse for not lodging a claim before this tribunal where it appears to have been the Complainant’s intention from early as October 2019 or May 2021 that she intended to resign her position in the school. Furthermore, contrary to what the Complainant suggest in her submission, it is very clear that it was the Complainant’s intention at all times to qualify as a psychologist, a role which as noted above does not exist in the school, and in order for the Complainant to progress her career as a psychologist she would needed to resign anyway.

The Complainant has waived her legal privilege

The Complainant repeatedly refers and relies on various pieces of legal advice that she says that she received from her solicitor. This was her choice and she clearly seeks some advantage in so doing. It is a choice to waive privilege in respect of her legal advice. However, it is not appropriate to publish and set out her advice in this way. She must disclose to the Respondent prior to any further submission all of the advice (together with her instructions), not just those parts of the advice she wishes to rely on.

In a pattern that should be clear from the previous two points, the Complainant has repeatedly sought to strengthen what she has done and the positions she has taken by reference to professional advice she says she has received: she refers to medical advice, advice from her solicitor and also the legal advice she says she received from the INTO. This is underlined by the following content of the Investigation Report, at para 117,

“As will be seen below, following the events of February and March 2019, the Complainant set about sending a series of letters to the Respondent concerning child protection matters. The Respondent described these letters as amounting to harassment. During her interview, the Complainant said she wrote the said letters to the Respondent "on the advice of the INTO." She then confirmed that with the exception of one, all of he said letters were approved by the INTO. She said the INTO latterly said the letter that had not been approved in advance was acceptable.”

The Complainant cannot introduce hearsay into this process where it would be such as to deprive the Respondent of a fair hearing. It is submitted that these references – and others like it – are not a satisfactory way to seek to present a claim.

Mediation and informal resolution

The Complainant has answered ‘No’ to the suggestion of mediation on the single complaint form. The Respondent feels that mediation might have been helpful in this case were it not for the fact that the Complainant’s main complaint appears to relate to the findings of the investigator’s report – which the Respondent is unable to vary or amend. Mediation therefore would appear to be unlikely to resolve the Complainant’s complaint as what she seeks is not within the power of the Respondent to grant.

This is a case which could clearly have been resolved much earlier by way of informal discussion, or mediation. It is not for any respondent to say this is a defence, but it does arise in a case where an investigation was carried out (however extraordinary the delay in doing so) and where the outcome was rejected by the worker, and she resigns. At the early stages of the Bullying and Harassment Procedure it appears that the Complainant was actually following a different procedure in the INTO/CPSMA Working Together document which provides for the possibility of mediation. It is the Board’s understanding, although it was obviously not party to it, that the INTO facilitated a mediation process and that the mediation process did not in fact bear fruit. This is corroborated by the fact that the Complainant felt it necessary to invoke the next stage of the procedure, although the next stage of the procedure that she invoked was in fact from the Bullying and Harassment Procedure rather from the Grievance Procedure.

Mediation is by definition a process that is voluntary and the content of any mediation – even the content of discussions as to whether there should be mediation is a private matter. The Respondent wishes to state that it had always been preferable to the Respondent to resolve matters informally. That being so it is for a worker to choose to make a formal complaint. No amount of consent on one side can change that. The Complainant is not accused of refusing to do something she was never obliged to do. But in hindsight, the outcome of the investigation shows that one a single issue – a single allegation arose for resolution. That issue could have been resolved long ago by simply talking and not litigating.

Response to narrative complaint in the Single Complaint Form (line by line)

In February 2019 the Complainant initiated Stage 2 of the school’s Grievance procedure (set out in the “Working Together” document which is a suite of workplace related procedures agreed between the INTO and the CPSMA – the management body for primary and special schools) against her colleague Ms A in Catherine McAuley School (CMCA). She alleged that Ms A bullied and harassed her for carrying out her duties as Designated Liaison Person (DLP). Half-way through the process, it appears that the Complainant moved to another procedure in the same Working Together document, the Bullying and Harassment Procedure, which ultimately progressed to Stage 4 thereof. After a very long delay, the external investigator found that only one discrete aspect of her complaint warranted further action.

It is alleged that the Principal informed her that he was unable to get involved in staff disputes and would not instruct Ms A to cease her bullying behaviour towards her. This is denied. It is alleged that Ms A bullied and harassed the Complainant very publicly. This too is denied and is not borne out by the investigator’s report. Moreover, several staff members submitted written and verbal accounts at that time to the Principal. The definition of bullying and its threshold are discussed in the legal submission below.

Mr Browne encouraged the Complainant to engage in procedures provided for the purpose of dealing with such allegations. However, it is alleged that he refused to follow the Complainant’s advice as DLP to investigate her child protection concerns separately and the Complainant asserts that she was assured that this would be included as part of the procedure to deal with bullying and harassment. This is not in fact the case, the Respondent submits that these child protection concerns were dealt through a decision to provide further child protection training to staff and advice to them as individual cases arose.

In October 2019, the Complainant initiated Stage 4 of the Bullying and harassment Procedure as Ms A failed to engage in the process. In fact, the Complainant started with the Working Together grievance procedure and then moved to Stage 4 of the Bullying and Harassment Procedure. The Board of Management engaged Mr Lowey BL to complete an independent investigation

It is alleged that Ms A's bullying behaviour continued unchecked by management and the Complainant went on stress related sick leave for 6 months from October 2019. It is asserted that the Complainant’s GP diagnosed her with Generalised Anxiety Disorder and instructed her not to return to work until the issue was resolved. It is asserted that Medmark also instructed the Complainant not to return to work until the issue was resolved. Medical evidence or opinions are not accepted and the Complainant is placed on full proof of these. It is notable that no personal injuries proceedings, or any related proceedings, have issued in this respect.

The Complainant returned to work in March 2020. She could work from home due to the Covid pandemic. It is alleged that Ms A continued to behave in a negative way towards the Complainant outside of school buildings. The Respondent notes however that the school was closed at this point and staff were working remotely. It therefore seems unlikely that Ms A and the Complainant would have had anything more than very brief and very rare interactions at this stage.

It is claimed that the Complainant became increasingly upset by management’s unwillingness to address her behaviour. The Complainant went on a career break from January 2021. Indeed, the Complainant took four consecutive career breaks. She states that this was to allow the school time to complete their investigation. However, her declarations to the Department of Education under the formal application scheme do not provide this reason. The Complainant in fact took up successive employments and periods of study during this period.

In May 2021 the Complainant submitted a single complaint to the Teaching Council in relation to Ms A's bullying behaviour towards her and failure to follow child protection procedures. The Complainant said that she felt the Board of Management of CMCA were not doing all they could to bring the investigation to a close.

The school informed the Teaching Council the report would be completed by December 2021. It is asserted that the Teaching Council advised the Complainant to wait for the report. In fact, the Board of Management of the School had been repeatedly informed by the investigator, through the Board’s solicitor, that the investigator would be completing his report but the date of completion was again and again delayed. The date of completion of the report moved from 2021, to dates in 2022, to multiple dates in 2023 and it was only ultimately in 2024 that the report was finalised.

In October 2022, the Complainant submitted a complaint to the Teaching Council in relation to Ms A's bullying behaviour and a separate complaint related to her alleged failure to follow child protection procedure. The Complainant asserts that she was concerned this was not being investigated and Ms A was still teaching. The Complainant said that she felt the BOM were not doing all they could to bring the investigation to a close.

In her response to the Teaching Council (December 2022), the Chairperson of the Board stated that the report would be completed by December 2022 having been informed of this by the investigator.

The Complainant asserts that it was the Respondent’s position with regards to child protection concerns that the Board was "not aware of the substance of the complaint, what is alleged to have occurred, what failures are alleged or when this is alleged to have occurred". In fact, the statement of the Chairperson to the Teaching Council that the Board were not aware of the substance of the complaint referred specifically to the complaint that the Complainant had made to the Teaching Council. The Board were not privy to the contents of this complaint and details of it were not furnished by the Teaching Council to the Board, nor would it have been appropriate for this to have occurred. The Chairperson’s letter was informed by the statement of the investigator that the investigation would be concluded by Christmas 2022 and was furthermore premised on the fact that the Board were not aware of the contents of the complaint to the Teaching Council.

The Complainant asserts that the Teaching Council advised her to wait for the report. In August 2023, the Complainant formally submitted a Stage 1 Grievance formally outlining what she says were her concerns in relation to Ms A's failures to follow procedure. The Complainant also wrote to the Chairperson seeking clarification on a number of issues including whether or not the Board was aware of the child protection concerns she says that she had reported to the Principal in 2019. The Chairperson responded "At the outset, I want to reiterate that the Board has been aware throughout this process of your concerns about [Ms. A's] alleged failure to follow child protection procedures."

The Complainant asserts that this contradicts her previous statement to the Teaching Council. In fact, there is no contradiction between the quotation from the Chairperson’s letter that the Board was aware throughout the process of the Complainant’s concerns about Ms A with what the Chairperson had said to the Teaching Council. As noted above, the Board of Management was not aware of the contents of the Complainant’s complaint to the Teaching Council, but the Board of Management was made aware throughout the process by the Principal about what concerns the Complainant had raised about Ms A’s alleged failure to follow child protection procedures.

During these exchanges, the Chairperson shared an excerpt from her correspondence with the Teaching Council which included the following statement: “Ms Quain/Goodwin had some time ago raised concerns about compliance with the Department of Education Child Protection Procedures. These concerns related to both [Ms A] and a number of other staff.” It is claimed by the Complainant that this statement is entirely untrue and that the Chairperson ignored her requests for clarification. This is not correct and the Chairperson communicated with the Complainant to clarify that the letter that the Chairperson had sent to the Teaching Council contained a quotation from a draft letter which unfortunately contained an error, this draft letter had not been sent and had been revised before being sent.

ln February 2024 the Complainant refers to matters within the remit of the Data Protection Commission. She refers to submitting a DSAR which she describes as seeking to evidence the Chairperson’s claim and other relevant documentation related to her case. She has claimed that she did not receive all of this documentation and submitted a formal complaint in May 2024 to the Data Protection Commission. This matter was concluded several months ago when the Chairperson of the Board noted that the reference to the Complainant having made multiple complaints against a number of staff was an error contained in a draft letter which was subsequently mistakenly quoted by the Chairperson in a letter to the Teaching Council.

The Complainant makes an issue of the reference to the complaint she made – described as a bullying and harassment complaint - against Ms A as being referred to as an 'arbitration process' in BOM meeting minutes. In fact, on 8 April 2024 the school wrote to the Complainant explaining that the Board of Management would be asking the Principal to correct these references at the next meeting so that the handwritten minutes would be amended to delete “arbitration” and replace those references with “investigation”. The Complainant appeared to wish to rely on the mistake made in the minutes to suggest that the Principal had misled the Board of Management, this was not the case, and the Board of Management were aware at all times that what was being undertaken was an investigation.

The Complainant states in her complaint to this tribunal that her concerns (reported formally in writing as DLP) in relation to Ms A's failure to follow child protection procedure were not minuted in Board meetings. She says she wrote to the Board about this and claims that she has received no response from the school to these queries. The Board did in fact respond to her on this point a number of times and noted that the minutes of the Board meetings contain the headlines of matters and that not every point discussed at the Board meetings are minuted. In, for example, the letter from the Chairperson of the Board of 15 December 2023 it was stated “as flagged in my previous letter you, while it may not have been minuted, the Board was kept up to date by Mr. Browne in respect of your engagement with him and your concerns. The Board was also brought up to date on the steps taken by Mr. Browne to deal with those concerns and the Board, as I have already confirmed, was happy with same”.

The Complainant refers to August 2023 and initiating a Stage 1 grievance against the Principal for failing to adequately report and respond to the DLPs reports of child protection concerns about a staff member and for the manner in which he has dealt with my complaints. Over time this complaint she escalated to Stage 4. She states that the BOM responded to her Stage 4 letter saying that they would respond once they read the Investigator’s Report. The Board received this report in March 2024 and she sent a reminder letter to the Chairperson in June 2024. It is claimed that she received no response. This is not correct. When the grievance was escalated to Stage 4, the Board of Management, having considered it, responded to the Complainant confirming that due to the passage of time it would not be appropriate for the Board to ask any member of staff to try to justify or recall what they had done or what they had not done more than five years ago. In the letter of the 15 December 2023, the Board stated “as you will appreciate, we are now coming up to almost six years having passed in respect of some of these matters. The Board has sought advice in relation to its ability to engage with the grievance concerning matters which occurred so long ago. The advice received by the Board of Management is that as a matter of employment law, an employer cannot fairly ask an employee to account for or respond to allegations beyond a certain point in time”. The letter goes on to highlight that if the Board were to commence any form of investigation on foot of the concerns raised in the Complainant’s Grievance Procedure against the Principal and Ms A concerning child protection matters, that Ms A and the Principal would be heavily prejudiced due to the passing of time in their ability to make any meaningful response to these grievances.

The Complainant states in her claim to this tribunal that in February 2024 she was informed that Ms A had been furnished with a copy of the Investigations Report and was provided with an opportunity to respond. In fact, as per the Terms of Reference, Ms A as Respondent in that process was provided with a copy of the preliminary report only (which did not include the full findings section). The investigator has confirmed that she did not receive a full copy of the report at that stage.

The Complainant states that she sent multiple emails to the school asking when she would get a copy of the report, but received no response. The Complainant goes on to state that the Working Together document provides that the Investigator shall, on conclusion of the investigation, furnish a copy of the report to both parties simultaneously and advise them that the appeal process is open to them. The Complainant states that she was not furnished with a copy and was not advised of her opportunity to appeal. It should be noted that no such provision in relation to sharing the report is contained in the Working Together Bullying and Harassment Procedure which also does not contain any appeal mechanism. The investigation that was undertaken here exceeds what is envisaged in the procedure but the procedure contains no provision in relation to the sharing of any report, nor is any appeal process provided in the procedure.

The Complainant states in her complaint to this tribunal that in March 2024 she reported the inordinate delay in the completion of the investigation and furnishing of the report to the WRC. She states that shortly after she submitted this complaint, the Chairperson emailed her to apologise for the delay. She proposed they meet to discuss her concerns and suggested a number of dates. The Complainant states that she agreed to meet and confirmed a date. It is claimed that the Chairperson never responded to her agreement to meet and the date passed without any comment or apology from the Chairperson. This is not correct, the Chairperson had invited the Complainant to a meeting and received notification after that invitation that she had commenced proceedings through the WRC under Section 13 of the Industrial Relations Act. The Chairperson wrote to the Complainant on 23 April 2024 informing her that she would be speaking to the Board about the possible meeting in light of the fact that there was now litigation in progress against the Board.

In June 2024, in lieu of a copy of the report, the Complainant was sent a summary letter which informed her that Mr Lowey found no evidence to support 9 of her 10 allegations and that he did find evidence of misconduct in Allegation 3 and recommended disciplinary procedure. The Complaint states that the summary letter stated that the board accepted all recommendations by Mr Lowey, yet nonetheless decided it was not appropriate to engage in the recommended formal disciplinary procedure in relation to Allegation 3. The Complainant states that she was provided with no rationale for this decision or offered any opportunity to query, respond to or appeal the report.

The letter of the Board of Management of 12 June 2024 sets out in detail the findings and recommendations of Mr Lowey BL. Stage 4 of the C2 INTO Working Together process envisages that the Board of Management would conduct what is referred to on page 24 as an investigation. In lieu of the Board of Management conducting an investigation, and given the protracted history of grievances between the parties, the Board of Management appointed Mr Lowey BL, an experienced employment law barrister, to conduct an investigation and to make recommendations and findings to the Board in accordance with the agreed Terms of Reference.

Stage 4 of the C2 procedure does not include any appeals procedure and states that “where the Board of Management finds that bullying/harassment has not occurred both parties should be informed accordingly”. That is exactly what the Board of Management did in its letter of 12 June 2024.

The Complainant states that in July 2024 the Chairperson wrote to inform her that Ms A and the Complainant would be required to sign consent forms to access sections of the report. The Complainant alleges that the Chairperson added "I must warn you that this could make the document you eventually receive unintelligible" and also stated it would take three months to complete redactions if they did not sign the consent form. The Complainant has misconstrued the letter received from the Board of Management in July 2024. In that letter it was stated that if she and Ms A did not both consent to the release of their data, the level of redaction that would be required would make the document virtually unintelligible. This was contained in the letter from the Chairperson of 8 July 2024 and was specifically in the context of a scenario where the consents of both Ms A and the Complainant were not forthcoming.

The Complainant states that in August 2024 she sought solicitor advice and that she was advised that there was no legal basis for the consent forms she was asked to sign. She states that “Following correspondence with my solicitors, the board of management released the report with the appropriate level of redactions”. It must be noted that the report was released with the appropriate level of redactions after both the Complainant and Ms A had signed the consent forms.

The Complainant further states “In September 2024 I received Mr. Lowey's report. On reading Mr. Lowey's 539 page report, it has become clear that Mr. Lowey did not include testimony from any of the multiple staff members I proposed who witnessed Ms. A's bullying behaviour towards me. Important letters, written accounts and evidence have also been excluded from the investigation. Mr Lowey provided no rationale for these decisions. I have countless issues with the validity of this report, which I will outline in further detail should the WRC choose to investigate this matter.” As will be noted from the Investigator’s extremely detailed and comprehensive report, the Investigator spent almost three years interviewing the parties, obtaining written correspondence and documentation from them, considering this and drafting his report. Mr Lowey BL is an employment law practitioner of some repute and of substantial experience. The Board of Management is entitled to rely on the report drafted and submitted by him.

The Complainant further alleged “I feel that both the action and inaction of the principal and BOM in my case has made the situation in work so intolerable I have no choice but to resign. Therefore, I formally submitted my resignation on the 15th of September 2024. My solicitor advised me to submit this complaint to the WRC.”

From the perspective of the Board of Management, a substantial contributing factor to the Complainant’s anger with the Respondent was the delay in the Stage 4 investigation being concluded. It was repeatedly made clear that the Board of Management was extremely dissatisfied with the delay in the investigation being concluded and the report being finalised. During this period, the Complainant filed a number of grievances against the Principal and Ms A, together with making multiple complaints to the Teaching Council about Ms A and once to Tusla. The Board of Management appreciated that the Complainant was highly frustrated by the delay in the investigation being concluded during this period. It did however serve to substantially complicate matters when she was continuing to file grievances in relation to matters which the Board had understood would be the subject of the investigation under the Stage 4 procedure. The Respondent could not have been more concerned that the Complainant would take issue with any misstep or data protection breach or potential breach of expose itself to any class of complaint. This created a very real need to consider and reconsider and pause before everything that was done and said.

Legal submissions

Constructive dismissal tests

The key legal submission was made in the opening paragraphs of this submission: repudiation of contract, as alleged, was putatively accepted in January 2024 and any claim for constructive dismissal under the contract test runs from that point in time. It is therefore out of time. On the reasonableness test, it is not reasonable to ‘delay’ resigning for eight or nine months simply to secure a report of an investigation. Concern that the investigation would not take place if a resignation was made at the relevant time is not a reason within the present legal context.

This tribunal needs no submission as to the law on constructive dismissal. It has not changed since Margot Conway v Ulster Bank Limited UD 474/1981. Neither of the tests for constructive dismissal, the contract test or the reasonableness test, can be said to have been satisfied in this case. The grievance was ultimately – in almost every complaint but one - not well-founded in the investigative result and the investigative result came before the Complainant resigned.

In her submission, the Complainant stated that “the school had no intention of addressing my concerns”. The school commissioned an investigation and report which far exceeded the requirements of the agreed Bullying and Harassment procedure. While the investigation may have taken a very substantial period of time, it is clear from the Complainant’s submission that delay was not the reason for her resignation. As she noted in her submission, she wanted to see the report before making a decision on whether or not to resign. This contradicts what she submitted on 15 January 2025. In her ‘resignation’ submission she clearly states the decision had been made 9 months earlier.

Even if she had awaited the report to make her decision, it is not reasonable for an employee to seek to impugn, appeal or seek to alter an investigative outcome in this way. In Joyce v. Brothers of Charity Services [2009] 20 ELR 328, the complainant was a respondent in a disciplinary matter. As in the current case, the employer appointed an independent investigator to conduct the investigation. When the investigation concluded, having found in his favour, the claimant, inter alia, sought amendments to the findings of the investigator. When the employer declared itself unable to do so, the employee resigned. The Tribunal found that it was not within the remit of the employer to “seek the alteration of the investigation findings” and that “there were not adequate or reasonable grounds for the claimant to terminate his contract of employment”. The resignation of the employee was therefore unreasonable. This case is directly applicable to the Complainant’s alternative scenario and clearly shows that resignation, on foot of her disagreeing with the findings of the investigator, would also have been unreasonable.

The investigator was an independent person, unconnected with the school or either party; a qualified lawyer; an acknowledged and experienced expert in the practice of employment law who has appeared before this tribunal and all levels of the Irish courts in relation to employment matter. He conducted an investigation during which he: A. interviewed the Complainant and respondent, B. interviewed such other persons as he felt relevant to the process, C. received many hundred pages of documentation and documentation.

Finally, he produced an enormously comprehensive report which made findings and recommendations in accordance with the Terms of Reference. The costs of this report (and the associated legal advice) were substantial and were met by the school from its own funds.

Clearly, the school went to extraordinary lengths to provide the Complainant an opportunity to ventilate her concerns and to fully investigate them. While the Complainant may have felt subjectively that the report not validating her concerns this does not satisfy the reasonableness test. The reasonableness test is of necessity an objective one which mirrors the test of reasonableness in unfair dismissal cases.

Furthermore, it should be noted that the respondent staff member, Ms A, has been out of the school on a job-sharing scheme for some years and this has continued in the 2024/2025 academic year. Ms A was also absent for protracted periods on maternity leave and sick leave throughout the investigation. Even if the Complainant had returned to the school in September 2024 (or September 2023 for that matter) she would not have encountered Ms A in the workplace. The Complainant had specifically asked on previous occasions if Ms A would be in the school in particular years and she was told that Ms A would not be. Again, the Complainant deciding that she no option but to resign appears unreasonable given that the party she said made her working life impossible was not actually in the school. The Complainant could have returned at any point in the last 3 years and not encountered Ms A in school.

It is also notable that the Complainant resigned without attempting to come back to school. She sought a series of career breaks ostensibly arising from her reluctance to return to school during the currency of the investigation but actually used by her to qualify as a psychologist and seek alternative employment. At no point during the investigation, notwithstanding Ms A’s absence, was she willing to even try a period of being back at work.

Crucially the Complainant in this case had been absent for a lengthy period before resigning (and as noted above had been considering resigning from the school for a number of years) and there was notably no ‘last straw’ incident before she did so (On which see McGrath v JD Wetherspoon Plc ADJ-00031597 where interesting points are made by the AO about failure to raise grievances, last-straw incidents and raising medical issues before resigning). The Complainant had not been suspended, which makes it very different to the mainstream judicial consideration of the issue of delay.

Lastly in the analysis of reasonableness of the employee’s own behaviour, it is notable that the Complainant nowhere concedes any wrongdoing, excess of zeal or even overreaction on her own part. This is surprising given the tit-for-tat dynamic, the complaint, cross complaint and mutual adoption of terminology such as ‘false accusation’ between the Complainant and Ms A. In other words, it cannot objectively have all been Ms A’s fault even taking what the Complainant claims at its height. Consider the following from Mr Lowey’s report (p.108),

“The Complainant said that she wrote a series of letters to the Respondent with the assistance of the INTO. The Investigator questions the wisdom of such a direct approach to the parties' dispute given the troubling events in February and March 2019. This approach is not contemplated in the INTO procedures.

The Respondent admitted that she found the letters intimidating. While this was not the intention of the Complainant, it was not unreasonable for the Respondent to feel this. The Complainant also confirmed that she knew the Respondent had said she had found her letters to be intimidating.”

It is submitted that the document that best represents the vehemence (almost zealousness) with which the Complainant pursued her complaints against Ms A was not the Tusla reports or the Teaching Council complaints (there was more than one) but rather the 11 page document entitled “Review of Child Protection Cases and concerns” which can only be described as an indictment of allegations. If the root of the Complainant’s difficulties is accusations made against her, there was no small measure of accusations made, by her, in response.

Bullying

A legal submission that must be made – if only in passing – is that there never was any bullying in this case. Like many unwarranted concepts that were deployed in this case, this word has been misconstrued and misused by the Complainant.

There was a well-documented view from in or around 2004 that the definition of bullying almost required aggression. The fairly recent 2004 Health and Safety Authority formulation is worth setting out: "Bullying [occurs] where aggression or cruelty, viciousness, intimidation, or a need to humiliate dominates the relationships. Isolated incidents of aggressive behaviour, while to be condemned, should not be described as bullying. In the workplace environment there can be conflicts and interpersonal difficulties. Many of these are legitimate industrial relations difficulties which should be dealt with through the appropriate industrial relations channels. Only aggressive behaviour which is systematic and ongoing should be regarded as bullying." Through a series of cases it could be said that the meaning given to bullying in law became broader. However, the bar was raised again in Ruffley v The Board of Management St Anne’s School [2017] 2 IR 596 (Neut. Cit, [2017] IESC 33). There the Supreme Court confirmed that the bar that must be overcome by litigants for actionable workplace bullying is a high one. The definitional requirement goes so far as to require some element of repeated, calibrated and probably also malign intent. The Court found that what the plaintiff – in an extraordinary series of missteps of disciplinary process far more grave than here - had experienced was at worst a botched disciplinary process. But it was not ‘severe’ and ‘offensive at a human level’ (O’Donnell J. as he then was, id., para 67). Crucially, it was emphasised that cumulative acts falling short of the definition cannot simply be counted up to meet the definition. Rather, bullying conduct is, “… conduct [that] must be repeated, not merely consist of a number of incidents; it must be inappropriate, not merely wrong; and it is not enough that it be inappropriate and even offensive: it must be capable of being reasonably regarded as undermining the individual’s right to dignity at work.” (Ibid., Para 62)

It is often the case that workers who feel they have encountered offensive conduct or inappropriate treatment are witnessing or experiencing bullying. The facts of this case come nowhere near that level of mistreatment. This is also clear from SI 674/20, Industrial Relations Act 1990 (Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work) Order 2020 which sets out certain matters that are not bullying (para 2.6). These include actual management criticism so-found together with corrective action and performance management. Here Ms A never progressed any of her criticisms to any process capable of any of these matters. They simply did not arise, but the point is that even the had arisen, they are not bullying. More relevant in the 2020 Code’s list of non-bullying behaviour are the following:

·         Expressing differences of opinion strongly

·         Offering constructive feedback, guidance, or advice about work-related behaviour which is not of itself welcome

·         Workplace conflict where people disagree with or disregard the others’ point of view

The message from the legislature and from the Supreme Court is clear. Some substantial and objective robustness and forbearance is required of workers. You may not be happy about it and it may be upsetting but this does not mean you don’t have to get on with things and work with people you don’t like and don’t get on with. Bullying is a word that should not be overused and its criteria should not be understated. To bully someone – and to be found to have bullied someone - is of an order of gravity far above what occurred in this case.

Delay in Internal Procedures

The delay in this case is obviously quite significant. But it is not unprecedented and longer delays have been found not to give rise to a breach of rights. A legal submission on the concept of delay in the context of internal procedures is also required. The law on delay arises predominantly in cases concerning prejudice and where there has been a suspension. It is generally the case that it is the issue of prejudice alone which forms a substantial basis on which to invalidate a process that has been the subject of inordinate delay (McGowan v Wren [1988] ILRM 744; Gallagher v Revenue Commissioners (No.1) [1991] 2 IR 370 at 375-376 where it was held in the High Court that delay is only relevant to defence and mitigation in the proceedings themselves and will not be a basis to invalidate the proceedings; Hogan, Morgan and Daly also cite Gallagher v Revenue Commissioners (No.2) [1995] 1 ILRM 241 at 245; Curley v Governor of Arbour Hill Prison [2005] 3 IR 308 at 320 and Morgan v Trinity College Dublin [2003] 3 IR 157 at 175).

The caselaw for the most part concerns applications to the High Court to achieve orders of certiorari against disciplinary procedures ongoing but over a protracted period. It is submitted that the argument that delay somehow vitiates the employer’s position to the point of justifying a resignation is far less compelling than that of a worker absent from work under a cloud of a disciplinary process. In any event, prejudice is everything and the prejudice in this case disappeared once the Investigation Report had been furnished and turned out to be almost entirely adverse to the Complainant.

Hogan, Morgan and Daly put the matter as follows in relation to public bodies and delay in disciplinary processes:

“[I]t seems likely—though the case law does not permit one to be dogmatic about the point—that unjustified delay by the respondent public body in holding a disciplinary hearing is a ground of invalidity if, but only if, a plaintiff can point to some prejudice which flows from it.” (Hogan, Morgan and Daly, Administrative Law in Ireland, 5th ed., Round Hall, 2019, para 14-98.)

In Ryan v Law Society of Ireland [2002] 4 IR 21 a seven-year delay was not sufficient to invalidate the process because there had been no prejudice, the process could validly proceed solely on the basis of the relevant documents available. Herbert J said:

“[T]he weight of judicial authority in this jurisdiction in my judgment favours the principle that, save where some Act of the Oireachtas or rule of procedure contains an express time frame or where an indication of urgency may properly be inferred from the language used, delay is not in itself a ground of invalidity in proceedings before domestic disciplinary tribunals and the applicant must, in addition to establishing delay, be in a position to point to some specific prejudice flowing from it.” (At 32)

Delay of itself did not prejudice the Complainant because she was not suspended, her reputation was not impugned and she has progressed an alternative career as she had clearly intended to do for some years. To be clear, the Complainant was never prevented from returning to work by the Respondent.

Possible award of compensation

As noted above, on the date of her resignation the Complainant was on a career break having applied for this at a very late stage in August 2024. Prior to this, the Complainant had been on a series of back-to-back career breaks from January 2021 onwards. As is also clear from her own submissions, the Complainant was employed elsewhere when she resigned. As such, the Complainant was neither in work in the school, nor available for work in the school on the date of her resignation. As the Complainant was absent on the basis of her own perceived necessity to be absent and as this necessity was not in any way borne out or justified by the findings of the independent investigator, the Complainant’s absences are akin to her being unavailable to work due to illness and as such the case law in relation to same applies. As such therefore, she is not entitled to recover for any actual financial loss due to her being absent on career break.

Furthermore, it should be noted that the Complainant, while saying on the one hand that she accepts that this tribunal has no jurisdiction to make such an award, lists a substantial number of points which she feels constitute a financial impact on her. Included in this was her own decision to take up a position of Assistant Psychologist with the HSE during which she allegedly took a 60% reduction in her salary. Thereafter she also accepted a part-time role with TUSLA during which she states that her salary decreased further. Again, these were decisions that the Complainant made and had no bearing on her entitlement to redress. She goes on to refer to missing out on salary increments while on career break and again the necessity for her to take these career breaks is far from clear and the fact that the Board of Management granted the application for a career break should not be taken that the Board of Management in any way agrees that these career breaks were necessary in the circumstances.

As noted at the beginning of this submission, the Complainant was not working during the requisite period of 26 weeks set out in Regulation 7(b) of the Unfair Dismissals (Calculation of Weekly Remuneration) Regulations 1977. As the Complainant had absented herself from the workplace during this period rather than her not being provided with work during this period, Regulation 6 of the 1977 Regulations does not apply and the relevant renumeration for the purposes of calculating any potential redress is set at zero euro.

Supplementary submission of 28 February 2025

Calculation of Loss

It is a most unusual application to claim loss that is calculated on the basis of remuneration four years prior to the claimed dismissal. It is agreed that the only conceivable provision in the 1977 Regulations (S.I. 287 of 1977) previously cited is Regulation 4.

Accordingly, the loss claimed by the Complainant cannot be based on any increase in pay since the last week in which she worked normal hours. Difficulties arise in calculation because of re-employment, notably under the Public Service Pensions (Single Scheme and Other Provisions) Act 2012. Pension contributions cannot be duplicated. However, it is submitted that loss does not arise in this case, by reason of the following submission arising from the documents served on the Respondent by order of the Adjudication Officer.

Elective constructive dismissal

It is a matter of central relevance to the disposal of these proceedings that the Complainant was asked to disclose details of her re-employment in the normal way prior to the first day of hearing. She not only did not provide these but protested that she should not have to. The documents were disclosed by direction.

These documents are entirely inconsistent with the position put forward by the Complainant to the Adjudication Officer at hearing. It is clear from these documents that on 21 January 2024 the Complainant not only committed to a contract for a period of three years, but she knew that upon seeking a further career break in 2024 for the academic year 2024-25 that both the school’s Policy on Career Breaks and the Terms and Conditions of Employment for Registered Teachers only permit one further such career break. In other words, she committed to a contract that cannot be reconciled with the career break.

We were not told any this by the Complainant, but the directly relevant information provided includes the following

a.       it is clear that refund on monies is payable by the Complainant had she decided to abandon her new contract;

b.       another candidate will have lost his or her place because the Complainant committed to it;

c.       there was a ‘reserve candidate’ in the wings who would have taken up the place, presumably for a limited period of time;

d.       funding was made available to finance the position the Complainant committed, and we are not told whether this funding would be for the Complainant to refund if she withdrew;

e.       it is clear that ‘doctoral fees’ would have to be refunded;

f.        presumably UCC were not informed of the Complainant’s previous employment status with the Respondent;

g.       the acceptance of the UCC position was unequivocal; (Her acceptance letter of 21 January 2024 states, “I am absolutely delighted to accept the offer of a place on the UCC Clinical Psychology program for 2024/25. Please extend my thanks to all on the interview panels who were so welcoming and warm and really gave me every opportunity to be my best on the day. And thank you for all your work coordinating the interview process. The whole experience was so straightforward and positive for me. I'm really looking forward to meeting you all in September!”)

h.       there were many months from 21 January 2024 for a change of heart;

i.         the Complainant then did have a change of heart and informed UCC by email of 13 May 2024 that she was withdrawing;

j.         she did not withdraw because she thought better of returning to the school (she remained employment by TUSLA at the time), but rather she opted to take up a position with UL;

k.       in a piece of correspondence that does not align in terms of the dates above (she must have known she had secured the UL position before her formal offer), UL offered a position to the Complainant, in very similar terms;

l.         the Respondent has not been provided with an acceptance email;

m.     The Respondent has not seen anything by way application letters, CVs, references etc.

n.       presumably UL were not informed of the Complainant’s previous employment status with the Respondent (there is no record of it);

o.       it is not indicated whether UL were informed of the previous commitment made to UCC;

p.       notably the position in UL it is subject to reference checks, but the Respondent was not contacted (the Complainant has not told us whether she listed the Respondent or its staff as referees);

q.       the contract dated 2 September 1024 with UL is for a 3-year term and provides for a 60% contribution of funding by the HSE which is refundable pro rata at the Complainant’s expense if it transpired that the Complainant withdrew in September 2025

r.        we are provided with a copy of a declaration by the Complainant under the Public Service Pensions (Single Scheme and Other Provisions) Act 2012 which states she did not have pension entitlements with/from her employment with the Respondent;

s.        in the accompanying statutory declaration for employment with the HSE the Complainant solemnly declared that she had not omitted to communicate information that was “relevant to [her] application or to [her] continued employment with the Health Service Executive”; It is perhaps this, above all, that confirms her election to accept repudiation of her contract by the Respondent.

t.        whilst the point may seem obvious, the greater point is that it was set out in writing in a document that the Complainant signed at a crucial time: double employment in the circumstances would have been impossible (see reference to section 33 of the Organisation of Working Time Act 1997);

u.       Clause 28 of the contract provides strictly for compliance with academic requirements and payment of fees in default;

v.       Clause 30(6) provides on a pro-rata basis that “On successful completion of the D Psych, Sc, I agree to work for the Health for the Health Service for a period of three years with priority being given to my initial assignment area where there are approved vacancies. I accept that failure to adhere to this condition will result in me being liable to the HSE for repayment of the D Psych Sc fees.

w.     not a single word of this was communicated to the Respondent

x.       the Respondent scrambled in September 2024 to find a replacement for the Complainant.

In light of the above, the very least that is required in this case is an independently and objectively verifiable decision made by the Complainant to be available for work with the Respondent in 2024. We do not know what other arrangements (there will inevitably have been a great many) were made that are documented and objectively verifiable that show the Complainant had no intention of returning to work for the Respondent in 2024 (or 2025). These would include application letters and forms, CV, references, a whole variety of domestic arrangements and so on. The Adjudication Officer is asked to direct that these documents be provided. For the avoidance of doubt, their absence will be relied upon whether such an order is made or not. In accordance with Supreme Court decision in Crofter Properties Ltd v. Genport Ltd. [2002] 4 I.R 72 the Respondent is entitled to rely on the absence of an obvious proof as much as the adduced existence of such a proof.

As previously submitted the dismissal in this case did not occur as claimed. Termination of the employment relationship did not occur when claimed. It occurred when this Complainant elected to accept repudiation of her contract on 21 January 2024 (at the latest). What occurred on that date is very different to taking a job for a fixed term within the period of a currently sanction career break. It is very different to commit to a contract going beyond any such entitlement. The Complainant made a decision to do just that on 21 January 2024 (unequivocal acceptance of UCC position). She then changed her mind in May and committed to UL. All without informing the Respondent.

All of this supports the submission that this claim has been lodged on the basis of a fundamental misconception on the part of the Complainant. The Complainant had not worked for the Respondent for a period of four years prior to making this claim. This is worth repeating, as it may be the preliminary view of the Adjudication Officer that these matter goes solely to the question of mitigation: whilst the Complainant wrote a letter of resignation in September 2024, she clearly stated in this claim, having received legal advice, that she had made up her mind – definitively – not to return in January 2024, a full 9 months before resigning.

The Complainant addressed this in her most recent submission in writing dated 15 January 2025. She expressly said that she only withheld her letter of resignation because of a concern she had that an investigation of her grievance would not be completed if she resigned. The law simply does not permit of a situation where an employee holds a job nominally (in name only) to secure a report (that did not, incidentally vindicate her complaint), and on that basis alone say her employment somehow was sustained. The law on this is very clear and this too is worth repeating:

·         [R]epudiation of the contract by an employ[er] does not terminate the contract but, rather, gives the employee the unusual choice to accept or reject repudiation. If the employee takes alternative employment, the employee will be taken to have accepted the option to rescind the contract…”; (Clark, Contract Law in Ireland, 8th ed. Roundhall, para 18-68 - ‘discharge following breach of contract’ - citing Tomas Marshall (Exports) Ltd v Guinle [1979] Ch. 227 and Gunton v Richmond Upon Thames London Borough [1980] 3 WLR 714)

·         “In general, the innocent party must act promptly and decisively …”; (3 Ibid at para 18-73 - ‘discharge following breach of contract’- citing An Bord Iascaigh Mhara v Scallan Unrep., HC, May 8, 1973)

·         “Whilst some degree of prevarication by the injured party may be permitted, in general terms, the termination must be of the contract in toto.” (4 Ibid, at 18-74 - ‘discharge following breach of contract’)

·          

Summary of direct evidence of Mr Greg Browne, the Principal

The Principal outlined his career and the background to the Respondent. The Principal said that his role is to ensure that all policies are understood and applied. He said that he was disappointed to hear that the Complainant had some concerns regarding his role. He said that he was accessible to any teacher. The Principal said that the Complainant did an excellent job.

The Principal said that he did not want any of this to happen. It was a matter of individuals differences and the school put huge energy, time and resources into it in the last six years. The Principal said that there were several meetings between the parties and the school engaged with the INTO. At the early stage, complaints came from Ms A and the Deputy Principal met with the parties. The Principal was not there as Ms A accused him of being prejudicial. It was absolutely not in the Respondent’s interest to delay the matter.

The Principal said that in February 2019, Ms A stood up at a staff meeting and had a go at the Complainant. He stopped her. Initially, the Complainant had a grievance about this meeting but then other grievances appeared. Four out of five were resolved during a meeting with the Deputy Principal. The Complainant then proceeded to the Teaching Council with some 10 issues.

The Principal said that he could not understand why the Complainant wanted Ms A to formally complain about her. He said that Ms A at no stage formally raised any complaints against the Complainant.

The Principal said that it was not true that the BOM deliberately delayed the investigation process. He said that Ms A was absent and there were periods when nobody could do anything. He said that he understood that Mr Lowey BL would be an arbitrator and for that reason he called the process an “arbitration”.

The Principal said that the terms of reference were explained to both parties and, once agreed, the BOM stepped away and the investigation was passed to Mr Lowey. The BOM could not interfere.

Mr McGreal BL adduced an email from Mr Lowey BL to the Respondent’s solicitor dated 12 April 2024 whereby Mr Lowey stated “I fully accept that any delay in finalising the report is mine and has nothing whatsoever to do with the Board, Any suggestion that the Board has intentionally delayed in this regard is completely incorrect”. He further stated: “While I hop the report will provide some context to explain the delay, I fully accept I bear primary responsibility in this regard. Regrettably, I have been unable to devote the time necessary to conclude the investigation sooner and I sincerely apologise for any difficulties this has caused.”

It was suggested that this email disproves that the delay was deliberate.

The Principal said that his understanding was that the first person was interviewed in 2021. He was the last person interviewed, it was in 2023. Ms A was out on sick leave, maternity leave and other types of leave that she was entitled to between 2020 and 2024.

The Principal said that eight members of the BOM have professional background, they would be aware of the seriousness of the matter and dealt with it in a professional manner. The Respondent did everything it could to resolve the issue.

The Principal said that the Complainant went out sick in 2019. In March 2020, he told the Complainant that there was an opportunity for her to come back with working remotely and if the Complainant was uncomfortable, she would be in a separate building; any arrangements could be made.

The Principal said that he understood that the Complainant decided to go on a career break to pursue her psychology degree (6-month break). The Complainant did not indicate that a return to safe environment, if she was successful in her interview for the post of responsibility, would be problematic.

The Principal said that his time was consumed with the data requests, complaints against Ms A, Tusla, etc. It took him weeks to go through all the material. He ignored nobody and took it seriously. The issue was a grievance against a staff member and it was dealt through the grievance procedure, it was Mr Lowey’s responsibility.

The Principal said that the school has the highest level of policies and procedures in the context of child protection and he credited the Complainant for a part of it.

Regarding the return to work, the Principal said that Medmark determines whether a person is fit to return, Medmark did not make an assessment of the school was safe or not.

The Principal explained that applications for a career break are submitted in February each year. The BOM works over the summer to secure post approvals and conduct interviews. He stated that upon receiving the Complainant’s application in August 2024, he contacted the diocesan office to include her position in the interview process, which was approved.

The Principal rejected the suggestion that he did not want the Complainant to return. He acknowledged that any delay in responding during the summer was regrettable but maintained that the school replied to all correspondence. He also confirmed that the Complainant had his phone number but did not call him.

The Principal further confirmed that he was not contacted for references and was unaware that the Complainant was seeking alternative employment.

The Principal’s email to the Complainant of 19 August 2024 was introduced at this juncture. In the email, the Principal informed the Complainant that the BOM was willing to allow her application for an emergency career break on the understanding that she reverted with the relevant forms by 20 August 2024. The Principal explained in the email that to his knowledge the BOM was not refusing to send the Complainant a copy of the report and that the BOM was not responsible for any delay in its completion.

Summary of cross-examination of the Principal

The Principal confirmed that the Respondent had a bullying and harassment procedure in place. He said that staff would be aware that the INTO Working Together was a basis for the process.

The Principal confirmed that he worked closely together with the Complainant in her capacity of the DLP.

The Principal said that he was aware that four out of five issues were resolved at the meeting with Deputy Principal and the Complainant was happy with that.

The Principal was asked why he did not take any disciplinary action after the incident in February 2019 given that the report stated that Ms A had a case to answer. The Principal said that he believed and still believes it was a grievance. The Complainant put it to the Principal that Ms A made comments that were distressing to her, she asked the Principal to intervene and ask Ms A not to do it again. The Principal said that he had correspondence from both staff members saying things about each other. There was a meeting arranged with him, the Deputy Principal and both staff members. At the meeting, Ms A alleged that he was biased and he removed himself from the process. He was informed then that the process that took place in May and June 2019 did not work. Subsequently, in October 2019, an independent INTO arbitrator was engaged.

The Complainant asked the Principal whether he told her that he had legal advice that the child protection concerns should be dealt with together with the bullying and harassment complaint. He replied that he might have.

The Complainant put it to the Principal that it took three months to write the terms of reference. She said that she asked for a deadline to be set as all knew that Ms A was going on leave. The Principal said that the Respondent did not have any part in the terms of reference, it was the investigator.

It was put to the Principal that Ms A went on leave in January 2020 and the investigation did not commence until August 2020. There was no update for some five months. Ms A went on maternity leave in May 2021 and returned in May 2022. The Complainant questioned why there was no update between 2020 and 2021. The Principal said that as a principal he could not divulge to the investigator who was back and who was on leave.  The Principal said that it was up to each party to notify the investigator that they were available, the Respondent would not communicate with the investigator regarding their absences, leave and returns to work.

The Complainant put it to the Principal that she raised her child protection concerns again in September, October and November 2019. The Principal said that he would have to check as he was not sure. He said that other issues were brought up to cloud the grievance the Complainant had with Ms A. He thought that it was clear that the grievance could develop into animosity and he did not want that. The Complainant put it to the Principal that she separately, in her capacity of the DLP raised the child protection concerns relating to two separate incidents, she reported it to the Principal, and they wrote to Ms A. The Principal replied that staff indicated some difficulties, the BOM engaged and consulted with staff. Ms A raised her concerns with understanding of the child protection procedures. The Principal agreed that, after they wrote to Ms A, Ms A reverted to him accusing the Complainant of bullying and asking him to instruct the Complainant not to write to her.

The Principal said that all teachers have to engage with the DLP. If Ms A felt uncomfortable, she could engage with him. He believed that the child protection issues were brought to cloud the grievance.

The Principal did not dispute that the Complainant had requested him to contact Tusla to seek advice regarding her concerns with Ms A in the context of child protection procedures. The Principal did not dispute that the Complainant raised bullying and harassment issues with him as well. It was put to the Principal that the Complainant furnished a report to him regarding her concerns; she told the investigator that the Principal had he report but it was not included in the investigator’s report.

It was put to the Principal that the Complainant was promised the AP2 role. The Principal said that he could not promise the job. An independent panel decided on the outcome.

The Principal said that after the Medmark report in 2020, the Complainant did not engage regarding her safe return to work. He and the BOM did everything they could, and the Complainant could have returned. However, when it was put to him that he had said that he could not prevent any further bullying and harassment, the Principal said that he could not give any assurances. The Respondent’s representative noted at this juncture that the bullying and harassment was alleged but the Principal could not do anything as the allegations were not proved. The Principal said that he was anxious to make arrangements that would allow both parties to work, hence the suggestion of working in different buildings.

The Principal was referred to his letter to the Complainant dated 20 March 2020. In the letter, the Principal explores the possibility of the Complainant’s return to work and suggest:

“This would allow us the time to explore other options to bridge the period between now and the conclusion of the investigation. This could include allowing parties apply for leave/career break until this matter is resolved, which could facilitate a continuing of one’s teaching career. I refer you to Circular 0054/2019 which provides guidance on these matters.”

The Principal was asked if he suggested a career break to the Complainant. He said that Medmark said that the Complainant was fit but her own GP said she was not. The Principal suggested options. This was from caring point, the BOM was conscious that the Complainant was on a reduced salary. Out of respect the BOM had for the Complainant, a solution was suggested to allow her time to make decisions.

The Principal was asked if he believed that the Complainant would return in August 2024. He said that he received nothing to the contrary.

Regarding the “personal development” box ticked in the “Objective of career break” area of the form, the Principal said that in 2020 the Complainant told him that she was pursuing psychology, Masters and then PhD. He said that he did not have any correspondence to say that her career break was related to the investigation.   

The Principal was referred to an email he received from the Complainant on 20 August 2024. The Principal said that he could not speak for the Complainant, he presumed that she was pursuing her career development.

In redress, the Principal said that the Complainant did not inform him about her alternative employment arrangements while on a career break.

Summary of direct evidence of Dr Michele Dunleavy, Chairperson of the BOM

Dr Dunleavy outlined her qualifications and teaching career.

The Chairperson said that the Principal was receiving complaints from both sides. She was not aware of the details but was aware that it would all be resolved internally if the Complainant did not insist on the fifth allegation to be withdrawn.

The Chairperson said that she felt that the longer it went on, it was more upsetting. She was frustrated with the delay. Every time she checked, one party was unavailable or it was a school holiday. Every time it came up, the Respondent’s solicitors were asked to write to the investigator. The Chairperson said that she wrote to the investigator, who took full responsibility for the delay. She said that the BOM did not deliberately delay the process.

Regarding the report, the Chairperson said that the BOM met three times to discuss the report. The Chairperson was very cautious as she was concerned about further allegations. As soon as the BOM made a decision, the parties were contacted.

The Chairperson said that she was not aware of the child protection issues on the ground but was aware of the Complainant’s complaints, these were discussed by the BOM.

The Chairperson said that the Teaching Council contacted the Respondent regarding the Complainant’s complaint. The Teaching Council would not share the details of a complaint.

Regarding the investigator’s finding that there was a case to answer, the Chairperson said that that it was not the Respondent’s desire to wait until it’s too late but given the time passage it was difficult to investigate the matter.

The Chairperson said that the Respondent scrambled to replace the Complainant in August 2024.

The Chairperson said that she there was nothing that would lead her to believe that the environment was not safe for the Complainant’s return.

Summary of cross-examination of the Chairperson of the BOM

The Chairperson confirmed that the issues were explained to her at the BOM meeting. She said that the Principal did not explain to her that the complaints were made in the Complainant’s DLP role.

The Chairperson agreed that she communicated to the Teaching Council that the report would be completed by a certain date. The Chairperson confirmed that she was aware of the child protection complaints but not of the specifics of the Complainant’s complaint to the Teaching Council.

It was put to the Chairperson that the Complainant raised a complaint against the Principal and received no response. The Chairperson said that sometimes she could have overlooked the correspondence but it was never intentionally ignored.

It was put to the Chairperson that in her correspondence she referred to the Complainant’s complaints against a number of staff. The Chairperson said that the correspondence was drafted by her and the Respondent’s solicitors. She then changed it to her liking and kept the draft. While the solicitors drafted it in error, the corrected letter was sent to the Teaching Council. The Chairperson said that she could understand why the Complainant was concerned about misrepresentation and why she sought clarification.

The Chairperson said that she never intentionally ignored the Complainant’s emails, she said that her emails came to her work email and sometimes could have been overlooked.

The Complainant put it to the Chairperson that she was told that there were no relevant BOM meetings minutes but there were some. The Complainant said that she asked for information/ data from which it was concluded that she had made complaints about other staff members.  The Chairperson said that she did not have this information, she did not work in school. She said that it was not a deliberate attempt not to give the Complainant information.  The Chairperson said that she has other obligations and found it difficult to manage the Complainant’s correspondence.

The Chairperson agreed that the word “investigation” should be used in place of “arbitration”. The Chairperson said that the Principal did use the word “arbitration”.

The Complainant put it to the Chairperson that there was no record in the minutes that she had raised a formal complaint and that she had reported child protection concerns which, in her view, suggested that these were not taken seriously.

The Chairperson said she did not know why the Complainant received no response to her complainant about the Principal.

The Complainant put it to the Chairperson that she requested a copy of the report but did not get a response. The Chairperson said that she responded that, it was part of the terms of reference that Ms A was entitled to a copy. She did not know when the Complainant would get a copy. The BOM did not have it at the stage the Complainant sent her query.

The Chairperson agreed that when the Complainant referred her dispute regarding the delay to the WRC, the Respondent objected to an investigation by the Adjudication Officer.

Regarding the investigator’s finding that Ms A had a case to answer, the Chairperson said that so much time passed that it would be impossible to address at that stage.

The Chairperson said that the decision regarding the redaction of the report and the three months time frame that it would take was made on the basis of legal advice. The Chairperson said that she sought legal advice every time she wrote to the Complainant.

The Chairperson said that it was untrue that the report was held off from the Complainant until her solicitor wrote to the Respondent. It was a coincidence, as the report was being redacted.

With regard to the Complainant’s question whether there has ever been an investigation of the child protection concerns that she had raised, the Chairperson said that it was decided to deliver a training to everybody in the school. The Complainant disputed this.

It was put to the Chairperson that she was told by the Principal that when the number of incidents reached 10, they would contact Tusla. However, when that happened, she was told not to do so. As a result, she stepped down from her DLP role. She said that further incidents occurred between September and December 2020, but it was not her role to deal with them as she was no longer a DLP. She asked the Chairperson if the BOM was advised to have a separate investigation into the child protection issues. The Chairperson replied that it was left in the Principal’s capable hands.

The Chairperson said that she did not think the Complainant appreciated the time it took to gather all the information for her. The Complainant put it to the Chairperson that when Ms A failed to follow procedures, the Complainant reported it to the Principal, then to the Chairperson, then to the Teaching Council. She then went to the WRC. The Chairperson suggested that the Complainant should have allowed to investigate one issue, then, if not satisfied, proceed with the next one. As it was, the Respondent had to deal with bullying and harassment, child protection, and Teaching Council complaints. The Chairperson said that, if the Complainant had genuine child protection concerns, she should have gone to Tusla. The Complainant clarified to the Chairperson the threshold applicable in the context of Tusal complaints and the reason why she had complained to the Council.

When prompted, the Chairperson said that it was difficult to answer whether the Complainant could be characterised as a serial compulsive complainer. She said that she did not think the Complainant was a bad person, but she said that her actions have potential to damage the Principal’s reputation.

In redress, the Chairperson said that in her letter of 12 June 2024 summarising the outcome of the investigation, she noted that the Complainant could contact her directly, if she had any queries. The Complainant did not contact her.

Concluding remarks

In his concluding remarks, Mr McGreal said that the WRC cannot be used as an appeal of the Complainant’s initial complaint that was investigated by Mr Lowey. Mr McGreal suggested that there was a complaint after a complaint, and then additional complaint. The Respondent dealt with the first open first and the other complaints had to wait. Dealing with the matter of the February 2019 meeting first was the only logical way.

Mr McGreal said that the Complainant crystallised her case as the deliberate delay by the Respondent. She now realised that there was an answer to it. Mr Lowey, in the email that was introduced during the third day of the hearing, took all the responsibility.

Mr McGreal suggested that it was an enormous case and enormous body of correspondence which did not help to move to the next stage and, while the Complainant was not a lawyer and might not know that, in the Respondent’s view, first it had to deal with the first complaint.

Mr McGreal questioned why the Complainant dd not return to work. He suggested that if the Complainant came back to work, she would not have the safety net of her new job after she received the report that did not vindicate her. Mr McGreal suggested that the Complainant pursed a different career, she committed to Cork University, then let them down by going to Limerick. She confirmed the end of the employment relationship in January 2024. It was suggested that the Complainant said things that were irreconcilable with her return to school and her narrative was “you are conspiring, you are a liar”. It is fictious that she had any intention to return. She was afraid that if she resigned, she would not receive the report.

Mr McGreal submitted that the Respondent passed the contract test with flying colours. Regarding the reasonableness test, Mr McGreal said that he had to cross-examine the Complainant for 7 hours. He said that the Complainant had an answer for everything. He had to look at her position at the beginning of the cross-examination and look how it changed. It was suggested that the Complainant maintained that she resigned because of Ms A, then that she resigned because of the report, and that then she moved to the delay. The Respondent accepted that it took a very long time to conclude but the Respondent questioned what would happen if it engage someone else to start the process from beginning.

Mr McGreal said that he was not sure if the Complainant would rest her case on the Respondent fabricating the delayed delivery of the report and for that reason he did not initially include in his book of documents Mr Lowey’s email explaining the delay. Mr McGreal said that then the Complainant moved that maybe it was not the main problem. He argued that it was not open to her to move from one reason to another when she pitched her case (delay) and then she discovered that that was not true. The pleadings have to be extremely specific. In the Complainant’s case, the Respondent never deliberately delayed, it had to deal with the first complaint first and the Respondent was not responsible for the delay. The Respondent was terrified to respond to the Complainant in fear of further claims.

Mr McGreal suggested that the Complainant repeatedly left an open allegation against the Principal that he did not protect children but did not clarify that it was six years ago.

Mt McGreal said that the Complainant could not answer when she lost trust in the Principal. She knew that if she lost her confidence in 2020, 2021 that would be the time the relationship ended. It was suggested that the Complainant knew for months that the report would not vindicate her. When a person accepts another job, they accept repudiation of the contract and cannot claim a constructive dismissal.

M McGreal said that it was not about the delay but about vindication and Ms A. Therefore, the delay and escalation of her complaint are irrelevant. It was wholly or mainly because of the contents of the report. 

Loss mitigation

The Respondent was not in a position to provide any details of the Complainant’s remuneration.

In response to the Complainant’s post-hearing submission of 8 June 2025, the Respondent asserted that the document provided by the Department of Education (DOE) did not confirm what the Complainant was earning in January 2021. It was asserted that nowhere in the document did it state what the figures given represent – did they record the Complainant’s salary in January 2021 or what she would have been earning if she was still employed as a teacher? Additionally, it is not clear if the figure given for the scale salary (of €60,571) includes or is in addition to the allowance qualification (which is stated to be €5,177). At any rate, it was asserted that neither the scale salary nor the sum of both figures amounts to what the Complainant herself stated her salary was in her Complaint Form (which was €62,545).

In their correspondence of 25 July 2025, the Respondent’s solicitor stated that the Respondent reviewed the payslip previously submitted by the Complainant, which shows a total gross pay of €47,277.67 for 2020. The Respondent was of the view that this figure is most likely correct in circumstances where the Complainant was out on sick leave for a protracted period and would have been on reduced pay for a portion of the year in question. The Respondent did not receive any reply from the DOE.

As the Complainant is claiming constructive dismissal, the burden of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such to justify terminating her employment.

The term “constructive” dismissal is not specifically provided for in the Unfair Dismissals Act 1977. However, it is a term commonly understood to refer to that part of the definition Section 1(b) of the Act which provides that:

“dismissal”, in relation to an employee, means—

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer.

Section 6(1) of the Act states:

“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 date of dismissal is defined as

“date of dismissal” means—

(a) where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment Acts 1973 to 2005, the date on which that notice expires,

(b) where either prior notice of such termination is not given or the notice given does not comply with the provisions of the contract of employment or the Minimum Notice and Terms of Employment Acts 1973 to 2005, the date on which such a notice would have expired, if it had been given on the date of such termination and had been expressed to expire on the later of the following dates—

(i) the earliest date that would be in compliance with the provisions of the contract of employment,

(ii) the earliest date that would be in compliance with the provisions of the Minimum Notice and Terms of Employment Acts 1973 to 2005.

(c) where a contract of employment for a fixed term expires without its being renewed under the same contract or, in the case of a contract for a specific purpose (being a purpose of such a kind that duration of the contract was limited, but was, at the time of its making, incapable of precise ascertainment), there is a cesser of the purpose, the date of expiry or cesser;

It was suggested by the Respondent that the claim was misconceived and the Complainant had not worked for the Respondent for a period. I have to disagree with this assertion. Clearly, the Complainant remained in the Respondent’s employment while on an approved career break.

It was further suggested that the Complainant made up her mind long before she resigned and sought alternative employment with the intention of resigning from the Respondent’s employment. As a result, it was argued, the date of dismissal was not 14 September 2024 but January 2024, at the latest. It was suggested that the dismissal occurred when the Complainant elected to accept repudiation of her contract on 21 January 2024 (at the latest). I note that it was clarified at the hearing that the Respondent’s assertion that the Complainant was precluded from undertaking other work while on a career break was incorrect. The Complainant was fully entitled to work for another employer during this period.

I find that it is somewhat unrealistic to suggest that the Complainant showed no intention to come back to work for the Respondent because, having found herself in the circumstances that she could not remain without income for an extended period, she sought alternative employment as a means of financial support.

In Shinkwin v Millett EED044, the Labour Court held

“A resignation is a unilateral act which, if expressed in unambiguous and unconditional terms, brings a contract of employment to an end. The contract cannot be reconstructed by the subsequent unilateral withdrawal of the resignation. Where adequate notice is given, the contract is generally terminated in accordance with its terms and since there is no repudiation the acceptance of the resignation by the employer is not required in order to determine the contract.”

Applying the Labour Court authority in Shinkwin v Millett and the statutory definition of dismissal, I find that the date of dismissal was 14 September 2024. I do not accept the Respondent’s proposition that by virtue of the fact that the Complainant contemplated, or decided she wished to resign her position, or even when she undertook another employment while on a career break, when she was permitted to do so, she resigned her position in January 2024 or any other date. The Complainant had been left waiting for an investigation to conclude for years. It would be surprising if, during that time she had not considered her options.

The legal test in respect of constructive dismissal was provided by the UK Court of Appeal in the case of Western Excavating (ECC) Ltd v Sharp [1978] IRL 332. It comprises of two tests, referred to as the ‘contract’ and the ‘reasonableness’ tests.

Denning J summarised the ‘contract test’ as follows: ‘If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.’

The reasonableness test assesses the conduct of the employer and whether it ‘…conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.’

According to the Supreme Court in Berber v Dunnes Stores [2009] ELR 61: ‘The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.’

In Berber v Dunnes Stores the Supreme Court held that

‘There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee.’

The distinction between the two limbs was summarised by the Labour Court in Paris Bakery & Pastry Ltd v Mrzljak DWT 1468. The Court held that the first applies where “an employer behaves in a way that amounts to a repudiation of the contract of employment”. The Court noted that not every breach of contract will give rise to “repudiation”. The second applies where “the employer conducts his or her affairs, in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer”. Accordingly, an employer's conduct may not amount to a breach of contract, let alone a repudiatory breach of contract, but may nonetheless be capable of being regarded “as so unreasonable as to justify the employee leaving there and then”.

In both situations, the conduct must be of sufficient gravity so as to entitle the employee to terminate the contract or render it reasonable for them to do so. Therefore, the question which I must decide in the present case is whether, because of the conduct of the Respondent, the Complainant was entitled to terminate her contract of employment.

It is well established and a generally accepted proposition that employees who claim that they have been constructively dismissed must show that they have initiated and exhausted the company’s internal grievance procedures, in an effort to resolve their grievance, prior to resigning from their employment. Whilst there are exceptions to this, such exceptions are extremely rare. This is clearly set out in Reid v. Oracle EMEA Ltd.UD1350/2014 where the EAT stated:

‘It is incumbent on any employee to utilise and exhaust all internal remedies made available to him or her unless he can show that the said remedies are unfair.’

In the case of Conway v Ulster Bank Ltd UD 474/1981 the Employment Appeals Tribunal found that: “the appellant did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints.”

Similarly, in Travers v MBNA Ireland Ltd UD720/2006 the Employment Appeals Tribunal stated:

‘We find that the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case. In constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair.’

In Murray v Rockabill Shellfish Limited UD1832/2010 the EAT affirmed that:

“It has been well established that a question of constructive dismissal must be considered under two headings, Entitlement and Reasonableness. An employee must act reasonably in terminating his contract of employment. Resignation must not be the first option taken by the employee and all other reasonable options including following the grievance procedure must be explored. An employee must pursue his grievance through the procedure laid down before taking the drastic step of resigning”.

Desmond Ryan aptly describes the onus on employees in this respect in Redmond on Dismissal Law (2017) at paragraph 19.14: “There is something of a mirror image between ordinary dismissal and constructive dismissal.  Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance.  The duty is an imperative almost always in employee resignations.  Where grievance procedures exist they should be followed: Conway -v- Ulster Bank Ltd UD474/1981.  In Conway the EAT considered that the claimant did not act reasonably in resigning without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints.’” 

The burden of proof in constructive dismissal cases is firmly on the Complainant. In Nicola Coffey v Connect Family Resource Centre Ltd. UD 1126/2014 it was held by the Employment Appeals Tribunal that ‘the bar for constructive dismissal is very high.’

There was no dispute that the Complainant commenced her employment with the Respondent on 1 September 2009. The Complainant resigned her employment on 14 September 2024.

The Complainant, in her resignation letter, alleged that she was unable to return to work due to the impact Ms A’s unchecked behaviour had upon her; the failures of the Principal and the Board of Management (BOM) to deal with her complaints in accordance with policy and the Working Together document; and the manner in which the Principal and the BOM operated in managing her complaints.

The Complainant noted inordinate delays of the investigation. She asserted that every effort was made to prevent her from accessing the final report and it was only released after she engaged legal representation. The Complainant stated that the Working Together document provides for a copy of the report to be furnished to both parties simultaneously and advise them of the appeal process. She was provided with neither. The Complainant further noted that the investigator did not include testimony from any of the witnessed she had proposed, and documentary evidence was also excluded. The investigator provided no rationale for these decisions, she, therefore, challenged the validity of the findings.

The Complainant alleged that her stage 4 grievance against the Principal has not been investigated and was still being ignored.

The Complainant believed that she was bullied and harassed by Ms A because she carried out her role as DLP and the Principal and the BOM not only failed in their duty to protect her but frustrated her attempts to protect herself and ensure the safety of students of the school. The Complainant said that her trust in the ability and willingness of the BOM to protect her at work has been irrevocably damaged and she did not feel she could return to work.

The Respondent rejects the claim. It was suggested that the Complainant resigned on her own volition to pursue her career in psychology.

The complaint centres on complaints and grievances raised as far back as 2019. Despite the Respondent’s assertion that the Complainant’ complaint “broadened to many others” and “on certain broader issues”, the kernel of the Complainant’s claim remains the same. The Complainant raised three separate issues. Two of them in 2019, one regarding the alleged bullying and harassment against Ms A and another one regarding her child protection procedures concerns in relation to Ms A. Both were raised initially with the Principal. She then, in August 2023 raised a grievance against the Principal in the context of the management of her child protection procedures concerns the Complainant had raised in relation to Ms A in late 2018 and throughout 2019 and in relation to how her bullying and harassment case was dealt with. At the same time, in August 2023, the Complainant reiterated her ongoing concerns in relation to the child protection concerns she had expressed and which she believed were not addressed by the BOM.

The Complainant’s complaints to the Teaching Council and to Tusla, while apparently related to the same concerns, are separate to this investigation.

For the purposes of this decision, I do not intend to address every detail of the engagement between the parties or every detail of the extensive submissions of the parties. However, I will briefly address the three matters that are at the core of this complaint.

Child Protection Procedures

The Complainant in her capacity of the DLP raised her child protection procedures concerns with the Principal in writing by a letter dated 7 March 2019.

In May 2021 the Complainant submitted separately a single complaint to the Teaching Council in relation to Ms A's bullying behaviour towards her and failure to follow child protection procedures.

The Chairperson, in her letter to Teacher Council of 7 December 2022, confirmed that “in general terms there is no local ongoing process in relation to any alleged failure on [Ms A’s] part to follow child protection procedures.” She further stated that “There is no ongoing process of any kind however in relation to any complaint made by [the Complainant] in relation to [Ms A] in this regard.”

The Complainant then wrote to the Principal on 24 August 2023, again outlining her concerns regarding the alleged failure to follow the child protection procedures by Ms A. The Complainant noted that, initially (in early 2019), the Principal advised her that these matters would be addressed as part of her bullying and harassment investigation against Ms A. The Complainant stated that “considering it has been almost 4 years since the Stage 4 investigation began, I have no faith that child protection concerns will be addressed as part of this process.” The Complainant formally submitted her grievance against Ms A for her repeated failure to follow child protection procedures.

In the absence of any reply, the Complainant wrote to the Chairperson on 4 October 2023 again outlining her concerns. The Complainant stated in her letter that she was formally submitting her complaint against Ms A for her repeated failure to follow child protection procedures. The Complainant emphasised that the complaint was separate to her bullying and harassment complaint. The Complainant further noted that to her knowledge, no formal investigation or actions have been taken to address these concerns formally submitted by her in her capacity of the school DLP.

On 5 October 2023, the Chairperson reverted that the Principal has decided that the child protection concerns would be addressed by way of further training for the staff. The Complainant disputed that any training was provided after she had raised her concerns. She made it clear to the Chairperson that in her capacity of the DLP at the relevant time, she was not aware of any further training for staff that was introduced to manage Ms A’s ongoing failure to follow procedures. The Complainant furnished the Chairperson with her records regarding those failures and suggested that the Chairperson’s lack of concern regarding these failures would suggest that full information was not shared with the Chairperson.

On 13 November 2023, the Complainant initiated stage 2 of the process. On 11 December 2023 the Complainant wrote to the Chairperson and gave the BOM more time before she initiated stage 3. On 15 December 2023, the Chairperson reverted to the Complainant.  She reiterated that while not minuted, the child protection issues were discussed by the BOM and the BOM was happy with the Principal’s approach (i.e. the provision of further training). The Chairperson noted that the bullying and harassment claim was dealt with by the external investigator. The Chairperson stated further that, as the matter raised occurred as far back as 2018, the BOM was not in a position to take any further steps.

On 8 January 2024, the Complainant initiated stage 3 of the grievance policy in relation to the management of the child protection concerns and she progressed to stage 4 on 17 February 2024.

It appears, from the evidence before me, that the Complainant took her role as a DLP very seriously. The Principal held the Complainant in high esteem and valued her work in child protection in school. He credited her for her part in the child protection procedures in the Respondent’s school.

It is clear, however, that the Complainant’s serious concerns were never addressed appropriately by the Respondent. The Complainant clearly felt very strongly about the matter, to the extent that she resigned from her DLP position. She felt misled by the Principal and, particularly after the correspondence of the Chairperson to the Teaching Council, she felt that nothing has been done regarding the matters she had raised. At the hearing, as in the correspondence to the Complainant, it was suggested that additional training was provided to staff and the Chairperson gave evidence that the matter was left in the Principal’s capable hands. However, no evidence was put forward to suggest that the alleged failures by Ms A were investigated or that any action was taken to address them other than the alleged additional training. Regrettably, no evidence of any such training was provided to the Complainant at the relevant time or at the adjudication hearing.

Bullying and harassment complaint against Ms A

There was no dispute that having exhausted stage 1 to 3 of the Working Together Procedures and Policies, the Complainant escalated her complaint to stage 4 on 18 October 2019. The Complainant commenced her sick leave in October 2019.

The Complainant remained on sick leave until March 2020. On 2 March 2020 Medmark reported that she was fit to return to work in a safe work environment. However, in the context of the difficult relationship with a work colleague, Medmark recommended that the Principal met with the Complainant to address her concerns and to facilitate her return to a safe place of employment. The Medmark doctor felt that a return in the absence of addressing the Complainant’s work concerns may result in a relapse in her health.

At that stage, the Principal contacted the Complainant and suggested that she returned to work. He explained that Ms A was on a long-terms absence and, in any event, due to Covid-19 restrictions, staff were not presenting at school. The Principal made it very clear in his letter of 20 March 2020 that he held the Complainant in very high esteem and greatly valued her significant work in child protection in school. It was also clear that the Principal was conscious that the Complainant had exhausted her paid sick leave and the suggested return would allow her to be put back on payroll.  I note that in the letter the Principal also suggested that this solution would allow time “to explore other options to bridge the period between now and the conclusion of the investigation. This could include allowing parties applying for leave/career break until this matter is resolved”.

The Complainant returned to work for a brief period and then applied for a career break. The Complainant applied for and was granted consecutive career breaks from 6 January 2021 until her resignation in September 2024.

In or around December 2019 the BOM engaged Mr Lowey BL to conduct an investigation into the bullying and harassment complaint. The Terms of Reference were not drafted until the end of January 2020. On 7 August 2020, the Principal informed the Complainant that the investigator was ready to start his investigation and the Complainant met with the investigator for the first time on 27 August 2020. There has been no update and on 15 January 2021, the Complainant wrote to the Chairperson of the BOM stating clearly that she remained available and eager to participate in the investigation process while on a career break.

There was ongoing frequent communication between the parties regarding the Complainant’s complaints.

On 21 February 2024 the Chairperson wrote to the Complainants saying that the report was sent to Ms A for comments giving her 10 days to revert.

The Complainant asked for a copy of the report on 22 February 2024. She also submitted a DSAR regarding any personal information the Respondent had specifically related to the Complainant allegedly raising concern about multiple staff not following child protection procedures.

On 11 March 2024 the Chairperson reverted that the BOM was unable to identify any records regarding her SAR. It was not until 8 April 2024 that “further searches” were conducted and minutes regarding some 12 meetings of the BOM between 10 February 2021 and 9 January 2024 were discovered at which the Complainant’s concerns were discussed. The Chairperson expressed her willingness to meet with the Complainant at that stage.

At this point, by letter dated 9 April 2024, the Complainant pointed out that the Chairperson would have ratified the minutes but, at the same time she claimed she “had understood that there are no Board minutes of relevance to your request”.  The Complainant further pointed out that the consistent use of the word “arbitration” was unlikely a transcription error, as suggested but rather indicated that the Principal intentionally mislead the BOM regarding the nature of the complaints she raised. The Complainant confirmed that she would be most pleased to meet with the Chairperson.

On 12 June 2024, the Complainant still had not received the report and she reminded the Chairperson that she was awaiting a response.

On 17 June 2024 the Complainant got a summary of the report from the BOM (dated 12 June and posted to her on 14 June).  While the BOM accepted “all recommendations in the report”, the Board did “not feel it [was] appropriate to engage in a formal disciplinary procedure in relation to allegation 3”

On 18 June 2024, the Complainant emailed the Chairperson informing her that she was entitled to view the report and submitted a DSAR in that context.

On 25 June 2024, the Chairperson responded that it would be “necessary to redact portions of the Report. This is likely to take a substantial amount of time and will render the Report less clear as large portions of the Report would be redacted.”

The Complainant was informed that both her and Ms A were asked to consent to their personal data being released to each other.

The Respondent confirmed in its correspondence that Ms A was provided with a draft or “portions of the draft report as [the investigator] considered necessary to comply with fair procedures and provide her with a right of response”. It was stated in the Respondent’s correspondence that the “recommendations” or the “final section” of the draft were not released to Ms A.

Later, on 8 July 2024 the Chairperson informed the Complainant that as Ms A did not consent to her personal data being released to the Complainant, the parties would receive a redacted version, which “could make the document you eventually receive unintelligible”. The Respondent further informed the Complainant that she would not get a copy of the redacted report until 17 September 2024. In the same letter the Chairperson informed the Complainant that the school would be closed and would not reopen until 26 August 2024. The Complainant was asked not to email or send any correspondence during this period, as no one would be available to attend to same. The letter went on to say that the first meeting of the Board of Management for the academic years commencing autumn 2024 was scheduled for 30 September 2024 and the Board could respond to any queries the Complainant might have thereafter.

The Chairperson then wrote to the Complainant on 31 July 2024 confirming that Ms A did consent to her personal data being released, although she was yet to sign a relevant consent form. The Complainant was asked to sign and return the consent form to the Chairperson.

On 7 August 2024, the Complainant’s solicitor wrote to the BOM expressing concerns regarding the length of time the investigation took and seeking reasons for the delay. The solicitor further expressed the more pressing concern in the context of the failure of the BOM to furnish the Complainant with the completed investigator’s report. The Respondent was asked to provide legislative basis for the redaction that it proposed and for the consent sought, particularly in circumstances where the Complainant had no sight of the information she was asked to consent to be released. It was pointed out that, at that time, the Respondent was in breach of its obligation to furnish a reply to the Complainant’s SAR request.

The Respondent’s solicitor replied with a letter dated 12 August 2024, where it was stated that both Ms A and the Complainant submitted a SAR. It was suggested that both should consider consenting to the disclosure if their personal data.

On 15 August 2024, the Complainant applied for an emergency career break. In her cover letter, the Complainant made it clear that

“It is regrettable that I am in this position for a fourth year following extensive delays in the completion of Mr Lowey’s investigation and the school’s refusal to furnish me with a copy of he completed investigation report. I have previously taken three career breaks between 2021 and 2024 in order to allow time for my complaint to complete. I did not seek an additional year’s career break for this school year as I was advised that the report would be to hand at Christmas 2023. I am still awaiting a copy of this report.

In addition to this, I was advised not to make contact with the principal during the school holidays. It was in this time that it became apparent that the report would not be furnished. I have repeatedly stated in my correspondence to the board throughout the year that I would need to read the completed report in order to make a decision regarding my return to school, a statement that never acknowledged or addressed by the board. The school did not reach out to me in the interim toa ascertain if I intended to return and it was only on receipt of a solicitor’s letter that contact was made, I can only assume that it was believed I would not return.”

The Complainant separately emailed the Principal explaining the reasons for her application. The Complainant explained that when the Respondent refused to furnish her with a copy of the report, she submitted a DSAR to try to gain access. The Respondent informed her that the report would be redacted to the extent that it would be illegible. When she submitted a complaint to the Data Commissioner, the BOM agreed to release a semi-redacted report on completion of a consent form. The Complainant disagreed with the Principal that the Respondent had no control over the delay and noted that it was the BOM responsibility to take action to ensure that an investigation of this nature is completed within a reasonable timeframe.

The Complainant furnished her signed consent form on 22 August 2024, and she received a redacted copy of the report on 26 August 2024 in response to her Article 15 access request.

The Complainant submitted her resignation on 14 September 2024. In her resignation letter, the Complainant stated that she was unable to return to work due to the impact Ms A’s unchecked behaviour had on her, the failures of the Principal and the BOM in dealing with her complaints in accordance with policy and the Working Together document, and the manner in which the Principal and the BOM operated in managing her complaints.

The Complainant noted inordinate delays of the investigation. She asserted that every effort was made to prevent her from accessing the final report and it was only released after she engaged legal representation. The Complainant stated that the Working Together document provides for a copy of the report to be furnished to both parties simultaneously and advise them of the appeal process. She was provided with neither. The Complainant further noted that the investigator did not include testimony from any of the witnessed she had proposed and documentary evidence was also excluded. The investigator provided no rationale for these decisions. She, therefore, challenged the validity of the findings.

The Complainant went on to say that her stage 4 grievance against the Principal has not been investigated and was still being ignored.

The Complainant concluded by saying that it was her belief that she was bullied and harassed by Ms A because she carried out her role as DLP and the Principal and the BOM not only failed in their duty to protect her but frustrated her attempts to protect herself and ensure the safety of students of the school. The Complainant said that her trust in the ability and willingness of the BOM to protect her at work has been irrevocably damaged and she did not feel she could return to work.

From the sequence of events as outlined above, it is clear that the Complainant’s bullying and harassment complaint raised in October 2019 took over 4 years to investigate. It took until 26 August 2024 for the Complainant to receive a redacted copy of the investigation report.

In Irene Ogbulafor v Laois County Childcare Committee Limited UD1479/2013, the Employment Appeals Tribunal held that “In circumstances where an allegation of bullying is made an employer is obliged to act expeditiously.”  While in that case, the period from the end of April 2013 to the 13 July 2013 was suggested by the Respondent to be “a relatively short period”, the EAT felt that “such a generalisation is not appropriate in the context of an allegation of bullying. What effect would the passage of such a period without meaningful action on the part of an employer have on a reasonable employee in such circumstances? “

In this case, the delay of nearly five years was an extraordinary one which is inexcusable and unacceptable and represents a clear violation of fair procedures on the part of the employer. I cannot accept the Respondent’s proposition that the matter was with the external investigator whom the Respondent had no control over. It remained the Respondent’s responsibility to deal with the complaint in a timely manner. The Complainant’s relationship remained with the Respondent and not with the investigator and the Respondent failed her on a fundamental level.

In my view, the delay in itself and the manner in which the investigation was conducted was sufficient for to undermine the Complainant’s confidence and trust in the Respondent. This was followed by the difficulties the Complainant faced to obtain a copy of the report. The Respondent and its legal advisers were aware from the outset that they would process personal data as part of the investigation and from the outset there should have been a clear legal basis identified to process. The Respondent should have determined how it intended to use the report and assessed that against the GDPR principles at the time rather than undertake a lengthy and likely costly process only to conclude at the end that the report could not be disclosed due to data protection concerns.

It is also of concern that despite the Respondent acceptingin its letter of 12 June 2024 “all  the recommendations” in the report, the Respondent did “not feel it is appropriate to engage in a formal disciplinary procedure in relation to allegation 3” without any clarification, despite the report recommending precisely that, and without any opportunity for the Complainant to appeal this decision, or indeed the findings of the report itself.

I note that the Respondent adopted its own Policy of Dignity in the Workplace, Incorporating Anti-Bullying, Grievance Procedures and Staff Relations on 31 January 2022. While I accept that the Policy was put in place after the Complainant raised her concerns, it is worth noting that the Policy provides for, inter alia, copies of records be provided to the complainant and the person complained about. The Policy also provides for an appeal of the findings of the investigator.

Grievance against the Principal

On 24 August 2023 the Complainant formally submitted a Stage 1 grievance against the Principal regarding the alleged failure to act on child protection concerns raised by the Complainant in her capacity of the DLP and his management of the Complainant’s case.

The Complainant received no response to her complaint, and she wrote to the Chairperson of the BOM on 2 or 5 October 2023 submitting her formal complaint against the Principal solely in relation to the management of the child protection concerns she had raised.

On 13 November 2023, the Complainant progressed to stage 2 of the grievance procedure and wrote to the Chairperson again outlining her concerns regarding the handling of the child protection concerns she had raised by the Principal. The Complainant pointed out that she was assured by the Principal that, if Ms A failed to follow the procedures for a tenth time, the Principal would follow the Complainant’s recommendation as the DLP and call Tusla for advice. However, on the tenth incident, the Principal refused to do so and the Complainant resigned from her role as the DLP. The Complainant was of the understanding that the BOM was not informed of the serious, extensive and repeated nature of Ms A’s failures to follow procedures.

The Complainant received a reply from the Chairperson on 15 December 2023, as outlined above.

On 28 January 2024, the Complainant initiated stage 3 of the grievance procedure. The Complainant was worried that concerns raised by her in her capacity of the DLP of the school related to repeated, serious failures by a staff member to follow child protection were not minuted at the board meetings. She was also concerned that it was not minuted that the bullying and harassment raised by her in her capacity as a DLP was directly related to het attempt to address and manage these child protection concerns. The Complainant further noted that, in her capacity of a DLP at the time, she was not aware of any training provided post January 2019 (post-raising her concerns with the Principal).

In her correspondence, the Complainant repeatedly pointed out that she believed the delay in dealing with her concerns was intentional to avoid dealing with the matter to the point where no action could be taken. The Complainant also clarified that her grievance is related to the failure to deal with her concerns at the time.

On 6 February 2024, the Chairperson emailed the Complainant in response to her stage 3 complaint and stated the investigator “has promised we will have his report by the end of this week. When we have this report, I will be in a better position to respond to your Stage 3 letter”.

As the Complainant receive no response, on 17 February 2024, she initiated stage 4 of the procedure. The Complainant noted that at no stage was she extended an opportunity to meet with the Chairperson to discuss her grievance as per the INTO procedures. The Complainant noted that she was unclear what was reported to the BOM in relation to the concerns she had raised in her DLP role, particularly in light of the BOM statement to the Teaching Council that the BOM “were not aware of the substance of the complaint, what is alleged to have occurred, what failures are alleged or when this is alleged to have occurred.”

While the Complainant had some concerns regarding the BOM’s knowledge of the matters raised by her, I accept that the interpretation of the Chairperson’s letter to the Teaching Council of 7 December 2022, could be consistent with the Chairperson’s evidence at the adjudication hearing that it was related to the substance of the Teaching Council complaint and not the child protection issues as such. However, it is apparent that it was not clarified at the time.

Regarding, the matter of the Complainant allegedly raising complaints against other staff members, I accept the Chairperson’s evidence that this was stated in error in a draft letter to the Teaching Council. However, again, the lack of clarification and the need for the Complainant to seek an answer through a DSAR was unhelpful to say the least.

It was confirmed at the hearing that the Complainant’s complaint against the Principal had never been investigated by the Respondent.

I will briefly address some of the assertions made by the Respondent during the adjudication hearing. I found some of these assertions to be, at the very least, disrespectful.

It was suggested that the Complainant sought vindication and Ms A acted appropriately or did “the right thing” by not filing a formal complaint against the Complainant. It was also, somehow remarkably, suggested to the Complainant that perhaps she might fall into the category of a “persistent complainant” or “serial compulsive complainer” on the basis of an article in a British Journal of Psychiatry. The Complainant raised her valid concerns with the Respondent. It was the Respondent’s role to investigate them, regardless its non-expert view on the Complainant’s personality.

It was also suggested that, through her DSARs, the Complainant placed an additional burden on the Respondent, contributed to delays, and, in any event, had no genuine intention of remaining at the school. However, it is evident that the Complainant faced significant difficulty in obtaining information from the Respondent unless she made formal requests via DSAR.

Furthermore, I cannot accept the Respondent’s assertion that it was not aware the Complainant absence was due to the ongoing investigation. I find it disingenuous for the Respondent to assert that the Complainant chose to pursue her career in psychology during her career break. The Complainant could not have been clearer in her communication to both the Principal and the BOM in that context. In fact, it was the Respondent who suggested “options” such as “leave/career break” until the matter was concluded. It is understandable that the Complainant considered her options. It was up the Complainant to make decisions as to what she wished to do with her time during her career break. Equally, it was up to the Complainant to decide whether or not she wanted to commence a course or indeed drop out of the course on her return to work and pay back all fees, if necessary.

It was also suggested that the Complainant should have stayed in employment and submitted a dispute to the WRC pursuant to the Industrial Relations Act, 1969. However, it was confirmed at the hearing that the Complainant did exactly that in 2024 when she referred a dispute, albeit against the Department of Education (DOE) and not the BOM regarding the delay in the investigation process to the WRC. It was confirmed at the hearing, that in line with the Act, an investigation of the dispute by an Adjudication Officer of the WRC was objected to by the Respondent’s solicitors wo at the time acted for the DOE. The Respondent (BOM) suggested, somehow incredibly, that the Respondent expected an appeal to the Labour Court to proceed with the matter.

Conclusion

Having regard to the circumstances, I find that the manner in which the Respondent dealt with the Complainant’s complaints was inadequate and the Respondent’s conduct fell well short of the reasonableness required under the Act and the principles of natural justice. While the standard for workplace investigation is not perfection, I am of the view that the Respondent’s response the Complainant’s concerns was lacking to such an extent that the Complainant was justified in resigning her employment.

The Complainant utilised procedures available to her and gave the Respondent every opportunity to address the concerns she had raised. While I accept that some attempts, albeit in my view unsatisfactory, were made to deal with the bullying and harassment complaint, there seems to have been no meaningful action, if any, taken regarding the Complainant’s two other complaints. I disagree with the Respondent’s assertion that it had to conclude one matter to move to the next one. These were three separate issues and should have been addressed as such.  As of the date of the Complainant’s resignation, there have been no material attempts to deal with the Complainant’s child protection concerns and her grievances against the Principal. The Respondent’s suggestion that, due to the passage of time it could not address these matters, supports the Complainant’s case that the delay in this case was unreasonable.

Having carefully considered the matters above, I find that the manner in which the Respondent conducted itself in relation to the matters concerning the Complainant’s complaints was so unreasonable such as to make the continuation of her employment intolerable.

Redress

I find that the Complainant was unfairly dismissed by the Respondent within the meaning of section 6 of the Unfair Dismissals Act. Accordingly, I find that the complaint is well founded.

Section 7 Redress for unfair dismissal of the Act provides:

(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 adjudication officer or the Labour 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)

(i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (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) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,…”

Section 7(2) of the Acts provides: -

“(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid….”

Section 7(3) of the Act provides that future loss may be taken into account as follows: “financial loss, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts 1967 to 1973, or in relation to Superannuation”.

Unfair Dismissals (Calculation of Weekly Remuneration) Regulations 1977 S.I. No. 287 of 1977 Regulation 4 specifies that

“In the case of an employee who is wholly remunerated in respect of the relevant employment at an hourly time rate or by a fixed wage or salary, and in the case of any other employee whose remuneration in respect of the relevant employment does not vary by reference to the amount of work done by him, his weekly remuneration in respect of the relevant employment shall be his earnings in respect of that employment (including any regular bonus or allowance which does not vary having regard to the amount of work done and any payment in kind) in the latest week before the date of the relevant dismissal in which he worked for the number of hours that was normal for the employment together with, if he was normally required to work overtime in the relevant employment, his average weekly overtime earnings in the relevant employment as determined in accordance with Regulation 5 of these Regulations.”

In accordance with the provisions of section 7(1) of the Act, I am obliged to determine which of the three forms of redress open to me is most appropriate having regard to the circumstances of this case. In the circumstances, and in light of the fundamental breakdown of the relationship between the parties, I take the view that any form of redress involving a return to work on the part of the Complainant would be unworkable and inappropriate in the circumstances of this case. Accordingly, I deem an award of compensation to be the appropriate form of redress.

Regrettably, despite giving the parties an opportunity to furnish evidence of the Complainant’s salary while in the Respondent’s employment, it was impossible to obtain an exact figure that was acceptable to both parties.

In the absence of any other reliable source of information, I accept that, as per the payslip furnished by the Complainant, in December 2020 the Complainant was paid some €2,006.06 gross fortnightly (approximately €52,236 per year). The Complainant submitted that she was on point 12 on the scale for a teacher who entered teaching in 2009 (i.e. before 1 January 2011). This figure corresponds approximately with the salary of point 12 on the scale of a publicly available revised incremental salary scale for teachers who entered teaching before 1 January 2011 that applied with effect from 1 October 2020. The Complainant was also in receipt of €198.43 in qualification allowance per fortnight (approximately €5,159.18 per annum).  Consequently, I find that the Complainant’s weekly remuneration in the latest week before the date of the relevant dismissal in which she worked was approximately €1,202.25.

As of 4 June 2025, the Complainant’s salary in line with the increases under the public service pay agreements would be €60,571 gross as per the Statement from the DOE. This, again, corresponds with the revised incremental salary scale for primary teachers who entered teaching before 1 January 2011 that applied with effect from 1 March 2025. The Complainant would also be in receipt of an allowance of €5,177.

The Complainant secured new employment with the HSE while pursuing her doctorate from September 2024. Her salary, as per the contract of employment was € 42,973 in year 1 (2024/2025), € 45,163 in year 2 (an increment date of 2 September 2025) and € 48,925 in year 3. It is clear that, despite securing alternative employment, the Complainant’s salary is significantly lower than that she had enjoyed when in the Respondent’s employment and she suffered and continues to suffer an ongoing loss of earnings on foot of the same.

I cannot accept the Respondent’s assertion that the Complainant chose to pursue career in psychology. I accept that it might have been the Complainant’s long-term goal but, with the Complainants’ unique skillset and her area of expertise, I accept that she was limited in the options she could pursue.

I have regard to the Labour Court decision in the case of Obasanjo Olajubu v Wasdell Europe UDD 2449 where it was highlighted that: 

”An award of compensation must be in an amount that is ‘just and equitable in all the circumstances”. These words provide the Court with some latitude in considering both mitigating and aggravating factors in the circumstances surrounding the dismissal”.

I find that the Complainant was unfairly dismissed. Considering all of the foregoing, I award the Complainant compensation of €40,000 which I deem to be just and equitable having regard to all the circumstances.

Unfair dismissal