Adjudication Reference:  ADJ-00025782

Parties:

Complaints:

Dates of Adjudication Hearings:  12/09/2023, 13/09/2023, 03/07/2024, 04/07/2024, 30/09/2024, 01/10/2024 & 06/03/2025.

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015and/or Schedule 2 of the Protected Disclosures Act 2014, and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015,and/or   Section 6 of the Payment of Wages Act 1991, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The complaints are that the Complainant was penalised for being a ‘Whistle Blower’, that she was unfairly dismissed and that the Respondent unlawfully deducted wages properly payable.

The submissions and evidence which had to be read and reviewed in this case stretched to many 10s of thousands of pages of documents, transcripts and arguments of context and procedures in this complex case.  Hence the delay in issuing the decision.

While the substance of the current case relates to the dismissal of the Complainant, the genesis of the Complainant’s case goes back for many years.

Summary of Complainant’s Case:

The written submissions by the Complainant’s Counsel contain detailed accounts of the history, background and substantive issues in relation to the 3 complaints.  For completeness, the following sections contain some of the actual submissions, followed by the evidence given by the Complainant and her main witness Mr Tom Creedon (who unfortunately passed away before the issue of this decision).

Written submissions

The Complainant was originally (from in or around 2002) employed by the City of Waterford Vocational Education Committee (CWVEC), one the constituent precursor organisations to the Respondent. She was primarily based with the Waterford Youth Training & Education Centre    (WYTEC ).

In or around 2006 the Complainant claimed and was granted a contract of indefinite duration as a qualified teacher employed with CWVEC in the field of literacy and numeracy.

Various documents governing the Complainant’s employment were submitted, including contract of employment, Protected Disclosures Act Section 8, Grievance Procedure for staff employed by ETBs, Relevant DES Circulars governing disciplinary procedures for teachers and Respondent’s terms for teachers including sick leave policy.

Unfair Dismissals and Payment of Wages

2009 - February 2013

The Complainant submits that the Respondent has sought to entirely avoid the context underpinning her refusal to continue working in Subla after in or around 5 years of what was supposed to be a temporary posting. It is submitted that this is key to the unfair nature of the dismissal and the procedures leading to it.

The Complainant submits that the Respondent has continuously and erroneously sought to place these in the category of industrial relations issues . It is fundamental to the Complainant’s case that issues raised by her during this time were fundamental to her terms and conditions of employment. They are relevant to the case of unfair dismissal because they were never resolved by the Respondent to the detriment of the Complainant.

In or around 2009 the Complainant (as well as other employees) sent to the WYTEC board of management, FAS and the Probation Service, disclosures relating to serious issues concerning work practices, funding use and training programmes within WYTEC.

Raising these issues led to a significant period of difficult working conditions between 2009 and 2011 for the Complainant in relation to her employment with the Respondent. In August 2009 WYTEC sought to expel the Complainant by seeking to dispense with the services of CWVEC. The CWVEC maintained the Complainant as an employee and sought to have her (and her fellow employees) restored to their positions in WYTEC. However, in February 2010 WYTEC wrote to the CVEC refusing the return of the Complainant and her fellow employees and requesting alternative personnel.

In June 2010 the then CEO of the CWVEC insisted that the Complainant and her fellow employees address their concerns via nationally implemented VEC grievance procedure. However, it was pointed out by the Teachers Union of Ireland (TUI) (on behalf of the Complainant) that this was not binding on non VEC employees, such as those working for WYTEC and therefore was not appropriate in the instant case. In addition, the Complainant was told that the process would not be initiated for three months.

In September 2010 the Complainant and fellow employees were ordered by the then CEO of the CWVEC to return to WYTEC and work in a segregated part of the Centre. The Complainant was informed that they would be fully reintegrated when all outstanding issues were resolved and that they could use the aforesaid grievance procedure for doing so. The Complainant did this and ultimately the issues progressed to stage four to be heard by the LRC.

The above hearing took place 1 March 2011, before LRC Independent Appeals Officer ( IAO ) Brendan Cunningham, and was attended by the Complainant (as well as fellow employees affected) and Tom Creedon for the TUI. The CWVEC was represented by the CEO, Therese Ennis and Elaine Rohan. At this hearing the CEO committed to integrating and accommodating the Complainant into WYTEC.

A further stage 4 meeting was held at the LRC on 15 March 2011. At this time an agreement was proposed by conciliation ( the March 2011 Agreement ). This agreement presented several difficulties, including that WYTEC was made a party to it without being involved in the process and that mediation was proposed. However, it is submitted that it was notable for the inclusion of clauses acknowledging the commitment to fully integrate the Complainant back into WYTEC. The LRC Independent Appeals Officer also subsequently confirmed that this Agreement constituted his binding determination.

In or around August 2011 the Complainant was, despite the March 2011 Agreement, notified that she would be compulsorily transferred (ultimately to Youthreach). The CEO of CWEVC stated this was temporary pending mediation pursuant to the March 2011 Agreement. However, following a meeting between the mediator, Seamus Doherty and WYTEC staff, Mr Doherty reported that mediation would not be possible. At this time the Complainant went on stress related sick leave.

The Complainant sought to return to WYTEC on 7 November 2011 but was not permitted to do so. At this time CWVEC gave written assurances that the place of appointment of the Complainant was WYTEC. This assurance further stated that in the event of a lack of engagement by WYTEC that CWVEC would use pursue all avenues within its remit to enforce this.

Despite the above, the CWVEC ordered the Complainant to present for work at St. Paul’s Community College on or about 22 November 2011. In light of the aforesaid Agreement the Complainant refused and despite that finding was suspended for Gross Misconduct by the then CEO of CWVEC.

Several disciplinary meetings were held with, inter alia, the CWVEC CEO, at which Tom Creedon of the TUI represented the Complainant (and fellow employees). This included a meeting held 28 November 2011 at which the proposed transfer at that time was referred to by the CEO as temporary.

The Complainant (and fellow employees) were suspended by CWVEC on 13 December pending disciplinary investigation. The allegations concerned the refusal to attend at St, Paul s Community College. Ultimately a single finding (of three allegations) was found against the Complainant that she failed to attend work. The issues of failing to obey an instruction and failing to explain the absence from work were not well founded. The sanction imposed was a written warning to remain in place for nine months.

Both the Complainant and a fellow employee appealed the single adverse finding. The fellow employees appeal was heard first but rejected. However, in its findings the Appeal Panel noted that the soon to be established ETB might facilitate her reengagement into WYTEC. Despite the Complainant withdrawing her appeal the above finding recommended that the same arrangements should apply to her.

It is submitted that it is noteworthy that the suspension of the Complainant during this process was with pay.

March 2013 –

Following the above, the Complainant, represented by the TUI, entered a process to facilitate her return to work. On foot of this a meeting took place on or about 4 March 2013 ( the meeting of 4 March 2013 ) between representatives of the TUI and CWVEC. In the course of that meeting Tom Creedon, branch secretary of the TUI took notes.

In the course of the above meeting it was again acknowledged that WYTEC was the place of work of the Complainant. Notwithstanding this, at this time CWVEC stated that it was not possible to return the Complainant to WYTEC due to what it termed irreconcilable differences between the latter and the Complainant. The CWVEC then insisted on the Complainant attend a meeting on 5 March 2013 to discuss reassignment. At this meeting it was acknowledged that the assignment was temporary and would be subject to regular review. The CWVEC expressed the view that the transfer should not be interfered with by what it referred to as other industrial relations issues.

By way of letter dated 7 March 2013 the acting CEO of CWVEC requested the Complainant to take up a position with Subla. In line with the discussion at the meeting of 4 March 2013, the aforesaid letter expressly stated that the post would be ‘reviewed in detail in 2 months’.

In light of the above the Complainant accepted the temporary position with SUBLA on the above terms. The President of the TUI wrote to the CEO of the CWVEC by way of letter dated 15 April 2013, again noting the temporary nature of the transfer, to arrange the first such promised.

The first formal review meeting was held on 14 May 2013.  In attendance were, inter alia, Tom Creedon (TUI), Gerard Morgan (acting CEO of CWVEC) and Elaine Rohan (CWVEC HR Dept.). The minutes (recorded by CWVEC) note the following of relevance:

Mr Morgan A/CEO outlined that the principle behind this meeting was as a consequence to a previous meeting dated 11th March 2013 in which the A/CEO stated that a formal review of the post would take place 2 months from the date of 11th March.

Mr Creedon enquired as to what CWVEC has done to relocate Ms Dunphy back to WYTEC. Mr Morgan confirmed to Mr Creedon that years has been spent trying to progress the IR situation. Mr Morgan confirmed that he continues to be directed by the LRC letter of 17th November 2011. The only light he could see a present is that some other options may emerge when the new ETB is established .

Mr Morgan A/CEO suggested a further review meeting in late October 2013 .

By way of letters dated 28 August and 16 September 2013 Tom Creedon wrote to the newly established ETB seeking the next review meeting. A reply was received dated 17 September stating that the matter was being dealt with by the HR office and that it would be in touch. A letter of the same date from Elaine Rohan stated that WWETB did not then agree with the TUI version of events. This further stated that as there was no integration between CWVEC and WYTEC the reintegration of the Complainant into the latter was not something fell for consideration at that time.

Despite the above the review mooted by the acting CEO to be held in October 2013 did not happen. These meetings were for the purpose of reviewing the temporary arrangement put in place and to monitor the possibility for reintegration into WYTEC. However, in a letter dated 17 October 2013 a meeting was proposed that involved the Complainant s line manager in her SUBLA role. By way of letter dated 26 October 2013 the Complainant pointed this out and requested that her long standing issue be dealt with.

By way of letter dated 28 April 2016 the Complainant wrote to the then CE of WWETB, Kevin Lewis setting out an account of her situation and seeking to have the matter resolved. She received a reply dated the following day stating Mr Lewis would consult with colleagues and revert . However the Complainant once again did not hear back in relation to the issue.

In or around the end of September 2017 the TUI sought to initiate the grievance procedure in respect of all members working in SUBLA, to include the Complainant s issues but this was not accepted.

By way of e-mail dated 1 June 2018 the Complainant again wrote to Ken Whyte. WWETB director of Further Education & Training, noting the temporary nature of her position and that it was originally outside the allocation made to the co-ordinator and staff of SUBLA. She noted further that this appeared to have changed and sought clarification if the position had become permanent without any consultation. Mr Whyte replied on 29 June 2018 noting that he was unaware of any change and that he would consult with Aislinn Brennan and Mary Walsh. Ultimately by way of e-mail dated 20 July 2018 Mr Whyte stated the issue was a matter for SUBLA management, Aislinn Brennan and Mary Walsh.

By way of e-mail dated 30 July 2018 to Mr Whyte the Complainant agreed that SUBLA allocation was a matter for its management. Crucially she noted that she was not transferred to operate as part of its allocation and had not operated on that basis. On this basis, and in the context of having sought for in or around 8 years to be reintegrated into her position at WYTEC, the Complainant noted that she was available for work but would not be returning to SUBLA.

ISSUES LEADING TO DISCIPLINARY, GRIEVANCE & PROTECTED DISCLOSURE

Mr Whyte then replied 9 August 2018, inter alia as follows:

‘1. You have decided unilaterally that you will not return to your designated place of work

…

3. The legacy issues that you refer to have, I gather, been the subject of considerable IR and legal investigations.

…

5. Effectively, you are announcing your intention to withdraw your service from your employer in breach of your contract of employment.’

This position of claiming that the Complainant’s issues had been finalised in 2013 was confirmed in an e-mail from Anne Marie Jones dated 21 August 2018.

In light of the above by way of e-mail dated 28 August 2018 the Complainant notified the WETB Chief Executive that although she was not returning to SUBLA was available for work. She also stated her wish to raise a grievance in respect of her treatment.

A reply dated 29 August 2018 was received from SUBLA HR manager Anne Marie Jones which included the following:

…you agreed to this transfer which was done in consultation with you and your union representative. As previously advised to you this was not a temporary assignment.

…

You have referred in communications with the Director of FET to issues regarding your transfer to SUBLA and a disciplinary process. As you are aware these matters were fully dealt within accordance with the appropriate procedures and were finalised in 2013 .

In light of the position taken by the Respondent it was noted that a failure to attend at SUBLA would be treated as an unauthorised absence. The consequences of this were noted as a cessation of pay and benefits. In addition it was stated that such action would be ‘investigated in accordance with stage 4 of the Disciplinary Procedures in Circular 71/2014’.

In keeping with her correspondence the Complainant did not attend SUBLA at the beginning of September. On foot of this she received a letter from Anne Marie Jones dated 5 September confirming that her pay was to be stopped. In addition it was stated that the Respondent was investigating the alleged breach of contractual obligations and Aislinn Brennan would prepare a ‘comprehensive report’. The Complainant replied to this letter 9 September 2018 and Anne Marie Jones acknowledged by way of further response dated 12 September that a ‘comprehensive report on the facts of the case’ had been prepared by Aislinn Brennan.

By way of letter dated 6 September 2018 the Complainant’s trade union representative raised a Grievance pursuant to stage 3 B of Grievance Procedures for Staff employed by Education & Training Boards. As appears in the letter this related to the issue of the Complainant’s temporary placement with SUBLA and failure to deal with same. The necessity to deal with the matter under stage 3 B arose because the issues involved the chief executive at the time.

Notwithstanding the above the Respondent replied by way of letter dated 13 September stating that it had determined that the grievance should be dealt with at stage 2 of the process. This was notwithstanding that this stage was inappropriate where the grievance concerned the chief executive.

In light of the above the refusal to deal with the Complainant’s grievance as made she had no choice but turn down the proposed stage 2 meeting. By way of e-mail dated 20 September 2018 she informed the Chief Executive of WWETB that she would be making a protected disclosure to the Minister for Education and Skills. This document, dated 26 September 2018 was sent to the appropriate Minister for the time being, John Halligan.

The Complainant again sought to raise a stage 3. B grievance as the appropriate stage by way of letter dated 7 January 2019 to the Chief Executive but was again told by way of letter dated 17 January 2019 that stage 2 was more appropriate.

SICK LEAVE

By way of a certificate dated 1 November 2018 the Complainant was certified as being unfit to attend work due to work related stress.  Notwithstanding the sick pay scheme forming part of her terms and conditions of employment the Complainant was not paid during her period of illness.

During her period of illness the Respondent took issue with the Complainant’s adherence to procedure for attending medical appointments. However, it is submitted that the Respondent had not from the outset complied with the procedures set out in Circular 53/2015.

DISCIPLINARY & DISMISSAL

By way of letter dated 7 November 2018 from Anne Marie Jones the Complainant, while on sick leave, was notified that allegations against her were being investigated. It also stated that on foot of the ‘comprehensive report’ prepared on the facts by Aislinn Brennan the Chief Executive had decided to progress to a formal disciplinary hearing.

The single page report of Aislinn Brennan contained an account of matters that transpired at SUBLA on the morning of 28 August 2018. This report did not include any context or additional facts.

The Disciplinary hearing took place on 3 April 2019 once the Complainant was deemed fit to return to work.

It is submitted that that the disciplinary process was so fundamentally flawed from its inception (for reasons outlined below, that this could not be cured by the disciplinary hearing or the Complainant.  By that time the investigation referred to by the Respondent had either happened without input of the Complainant or it had not happened at all. In addition, the ‘comprehensive report’ forming the basis for the decision to hold the hearing was (for reason outlined below) no such thing. It was a statement relating to bare facts that transpired on a single morning.

It is submitted that a Complainant is entitled to fair procedures in such a process and there cannot therefore have been an onus on her to cure the defects during the disciplinary meeting. In essence the inherent flaws in the process meant that there was little if nothing that the Complainant could have done to prevent the process resulting in her dismissal at that point.

A letter dated 25 April 2019 informed the Complainant that dismissal was warranted.  This again laid great emphasis on the ‘comprehensive report’ of Aislinn Brennan.

The Complainant notified her intention to appeal by way of e-mail dated 9 May 2019.

The grounds included a failure to carry out any proper investigation, failure to provide the opportunity to cross examine witnesses, that the sanction was disproportionate and that the Complainant was penalised for making protected disclosures. 

It is submitted that the findings of the Appeal were flawed due to it being entirely confined by the parameters of the original disciplinary process which was itself flawed. It was entirely predicated on the assumptions that a stage 4 process was correct and that it was carried out correctly. These issues are addressed with regard to fairness of procedures below.

LAW

UNFAIR DISMISSAL

Section 6(1) of the Unfair Dismissals Act, 1977 reads as follows:

‘Subject to the provisions of this section, a dismissal 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’

Obligation on Respondent to justify dismissal: 

Section 6(6) of the Unfair Dismissals Act, 1977 reads as follows:

‘determining for the purposes of this Act whether or not the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal’.

Obligation on the employer to act “reasonably” if dismissal to be justified based on the employee’s “conduct”.

It is submitted on behalf of the Complainant that the obligation on an employer (including the Respondent) to itself act reasonably in circumstances where it seeks to rely on the “conduct” of the employee as the justification for dismissal, is well summarised in Cox, Corbett & Ryan on Employment Law in Ireland (2009, Clarus Press, at Para. 21.72):

“…in order to justify a dismissal on the grounds of the employee’s  conduct, it must be established by the employer that he acted reasonably in dealing with the employee at all times. This would include carrying out a reasonable and proper investigation into the alleged behaviour and drawing areasonable conclusion from the information unearthed by any such  investigation”.

Obligation on Respondent to afford fair procedures to the Complainant:

It is submitted that it is an axiomatic principle of Irish employment law that an employee enjoys a contractual and constitutional right to fair procedures. As Cox, Corbett & Ryan put it at Para. 21.100:

“ Insomuch as this right will be most keenly enforced by the Courts and the tribunal in circumstances where that employee faces the ultimate sanction of dismissal, a dismissal of an employee may be deemed to be unfair in circumstances where, even though there is no substantive difficulty with the dismissal (that is, where it is for one of the listed reasons contained in the Act for which a dismissal will be deemed fair), the manner in which the decision to standpoint, therefore, it is vital that his or her business have in place a fair set of disciplinary rules and they be adhered to strictly.”

Proportionality of sanction / Consideration of lesser sanctions:

It is submitted that there must be proportionality between the incident giving rise to a disciplinary sanction and the sanction itself if same is to be relied on as a grounds for justifying the dismissal of an employee.

In the case of Bolger v. Dublin Sport Hotel Limited UD 45 / 85, the Employment Appeals Tribunal held that the failure to give any adequate consideration lesser sanctions will, in and of itself, result in a dismissal being unfair.

UNFAIRNESS OF DISMISSAL

Substantive

The dismissal was entirely based on the unjustifiably narrow focus of matters at the end of August 2018. However, this completely ignored a ten-year context to the issue.

The Respondent consistently and continuously from 2009 until in or around 2018 accepted that the Complainant was WYTEC and that other postings were temporary pending resolution of issues with WYTEC.

The Complainant’s position within SUBLA was always intended to be temporary. This was acknowledged by the Respondent as is clear from the facts outlined above. If the position was not temporary then it would beg the question why until 2018 the Respondent consistently acknowledged WYTEC as the place of employment and engaged in processes to try and reintegrate the Complainant.

Equally the Complainant and her representatives always presented the arrangement as temporary pending reintegration into WYTEC. The Respondent ultimately sought to ignore this arrangement and these positions.

It was not reasonable for the Respondent to leave the Complainant in limbo for 9 years. This is particularly so given its acceptance that the arrangement was temporary.

By July 2018, given the prior context, the inaction and then denial of the position on the part of the Respondent, the Complainant was entitled to take steps to bring the matter to a head. It is submitted that, in contrast to the Respondent, the Complainant acted within the confines of the positions of the parties in 2013.

The reference to the ongoing and protracted issues facing the Complainant as legacy whether by design or effect, meant further that the Respondent had, whether by design or effect, moved from the agreed position espoused between 2011 and 2013. In doing so the Respondent confirmed its unilateral alteration the terms and conditions of the Complainant’s employment.

This retrospective alteration of matters was also evident when it was claimed that the Complainant had accepted her transfer. This was not the case as it was done under protest.

Importantly the Complainant stated that she was available to work on the basis that she had always agreed to do so. She was therefore not on leave save for sick leave at the end of 2018 and beginning of 2019.

The failure of the Respondent in 2018 and 2019 to give any consideration to the prior and protracted issues concerning the Complainant meant that its approach to matters were fatally flawed.

In light of the very protracted history of the issue the imposition of the ultimate sanction of dismissal was disproportionate.

Procedurally

Overall the use of procedures was, in the Complainant’s submission, arbitrarily exercised in a manner that was fundamentally unfair and denied the Complainant natural and constitutional justice.

The Complainant raised a Grievance in September 2018 that included issues relating to those who ultimately dealt with her disciplinary hearing. Despite raising this under category 3 (b) of that procedure, which meant it should have been dealt with externally, this was arbitrarily refused. In contrast to the escalation of the disciplinary issue to stage 4 it sought to downgrade this issue to stage 2.

Given the prior context, history and positions of the parties, even on the Respondent there was no basis for initiating stage 4 of the disciplinary procedure. d. In the circumstances all procedures that followed were tainted. e. Even if stage 4 was appropriate, which is not accepted, it was fundamentally flawed due the failure to have any or any proper investigation. An investigation was referred to at various points but was never initiated. If this is incorrect then it failed to involve the Complainant. f. Even on its own case The Report / Statement of Aislinn Brennan does not come anywhere near meeting what is envisaged by stage 4 in that it cannot be said to be in anyway comprehensive. Had this been the case it would have sought to assess matters in context by investigation issues from 2009 to 2013. In the circumstances this Report was in reality a statement of the allegations that brought matters to a head. g. The lack of investigation and report meant that the subsequent process could only be fundamentally flawed because the decision to hold a disciplinary hearing was notionally predicated on the investigation and report . Where both were flawed there was no reasonable basis for the hearing. h. In light of the protracted history of the issue of the Complainant employment the issue warranted a detailed and objective investigation. i. It is submitted that had such an investigation being forthcoming the issue would have been place in context and the Complainant -standing issue properly ventilated. j. In contrast the issue was to all intents and purposes dealt with summarily. k. The Appeal was dealt with within the confines and parameters of the original process and was therefore fundamentally flawed in terms of procedures for the above reasons. Apart from the fact that stage 4 was not correctly applied it was not warranted. Equally the finding that removal of pay was not a sanction is address above. Again reliance was place on the report of Aislinn Brennan meaning any subsequent findings were flawed. Disproportionate a. The incorrect escalation to stage 4 meant that there was wrongly an increased chance of a disproportionate sanction. However, even within the confines of stage 4 it is submitted that the sanction was not in proportion to the issue at hand. There was no consideration or weight given to the matters from 2009 to 2013 and no evidence of any consideration being given to any other sanction.

Protected Disclosures Act 2014

Summary of position

In light of events that took place between 2009 and 2013, the Complainant submits that her subsequent making of protected disclosures in September 2018 led to her penalisation by the Respondent contrary to section 12 of the Protected Disclosures Act, 2014.

Relevant facts

In or around 26 November 2008 the Complainant and a fellow resource teacher attended a meeting with then manager of WYTEC, Mr S. At this time both teachers were employed by the Respondent’s predecessor, CWVEC which then allocated hours to WYTEC via these teachers.

Following the above meeting the Complainant and her colleague had numerous concerns about the manner in which WYTEC was being managed. The concerns were set out in detail by way of a written submission dated 22 December 2008 and sent to Mr S and the WYTEC Board of Management.

On foot of these further concerns, in or around January 2009 the Complainant and her colleague made protected disclosures outlining concerns relating to, inter alia, certification, Contact Hours and Ratios within WYTEC. These disclosures were made to the WYTEC Board of Management and FAS (with the latter organisation having funded the contact hours).

The FAS disclosure included concerns that there were irregularities between information supplied in the business plans, statistical returns, management information systems (MIS) and practice. As part of this, the Complainant (and her colleague) were concerned that hours funded by third party agencies (including FAS) were not being applied correctly.

By way of a written submission dated 6 February 2009 and sent to the Probation Service (‘the PS disclosure’) the Complainant and her colleague made further protected disclosures regarding inaccuracies in the Probation Service Community Based Organisation WYTEC Business Plan 2009 (PSWBP).

On or about 26 August 2009 WYTEC sought to expel the Complainant and her colleague by seeking to dispense with the services of CWVEC. The CWVEC initially sought to maintain the Complainant as an employee and sought to have her restored to her position in WYTEC. However, in February 2010 WYTEC wrote to the CVEC refusing the return of the Complainant and her fellow employees and requesting alternative personnel.

In June 2010 the then CEO of the CWVEC insisted that the Complainant and her fellow employees address their concerns via nationally implemented VEC grievance procedures. However it was pointed out by the Teachers Union of Ireland (‘TUI’) (on behalf of the Complainant) that this could not work because it was not binding on non VEC employees. In addition, the Complainant was told that the process would not be initiated for three months.

In September 2010 the Complainant and fellow employees were ordered by the then CEO of the CWVEC to return to WYTEC and work in a part of the Centre that was segregated to keep them apart from other staff. The Complainant was informed that they would be fully re-integrated when all outstanding issues were resolved and that they could use the aforesaid grievance procedure for doing so. The Complainant did this and ultimately the issues progressed to a stage four process to be heard by the LRC.

In or around August 2011 the Complainant was notified that she was to be compulsorily transferred (ultimately to SUBLA). The CEO of CWEVC stated this was temporary pending mediation pursuant to the March 2011 Agreement. However, following a meeting between the mediator, Seamus Doherty and WYTEC staff, Mr Doherty reported that mediation would not be possible. At this time the Complainant went on stress related sick leave.

The Complainant sought to return to WYTEC on 7 November 2011 but was not permitted to do so. At this time CWVEC gave written assurances that the place of appointment of the Complainant was WYTEC.  Despite this the CWVEC ordered the Complainant to present for work at St Paul’s Community College on or about 22 November 2011. In light of the aforesaid Agreement the Complainant refused and despite that finding was suspended pay for Gross Misconduct by the then CEO of CWVEC.

Several disciplinary meetings were held with, inter alia, the CWVEC CAO, at which Tom Creedon of the TUI represented the Complainant (and fellow employees). This included a meeting held 28 November 2011 at which the proposed transfer at that time was referred to by the CEO as temporary.

The Complainant (and fellow employees) were suspended by CWVEC on 13 December pending disciplinary investigation. In line with agreed procedures this suspension was with pay.   The allegations concerned the refusal to attend at St Paul’s Community College.

Ultimately a single finding (of three allegations) was found against the Complainant that she failed to attend work. The issues of failing to obey an instruction and failing to explain the absence from work were not well founded. The sanction imposed was a written warning to remain in place for nine months.

Both the Complainant and a fellow employee appealed the single adverse finding. The fellow employees appeal was heard first but rejected. However, in its findings the Appeal Panel noted that the soon to be established ETB might facilitate her reengagement into WYTEC. Despite the Complainant withdrawing her appeal the above finding recommended that the same arrangements should apply to her.

Following the above the Complainant entered a process to facilitate her return to work that included a meeting on or about 4 March 2013 at which Tom Creedon took notes [App. PD6]. During that meeting it was acknowledged that WYTEC was the place of work of the Complainant. However, CWVEC stated it was not then possible to return the Complainant to WYTEC due to what it termed ‘irreconcilable differences’.

The CWVEC then insisted that the Complainant attend a meeting on 5 March 2013 to discuss her reassignment. At this meeting it was acknowledged that the assignment was temporary and would be subject to regular review. By way of letter dated 7 March 2013 the acting CEO of CWVEC directed the Complainant to take up a position with SUBLA which was to be reviewed 2 months later.

Having taken up the SUBLA post on a temporary basis on the above terms the first review meeting took place on 14 May 2013. The minutes from this meeting refer to the then acting CEO expressing the hope that “some other options might emerge when the new ETB is established”.

At this meeting a further review was suggested for October 2013. The Complainant through her Union (Tom Creedon of the TUI) sought the second review but this was never carried out.

The Complainant issued a Bullying Complaint against the former CEO in 2012.

In September 2017 the Complainant attempted to raise a formal Grievance with the WWETB regarding failure to deal with a number of situations then subsisting in Subla. This grievance was not dealt with through the appropriate process. This was the experience of the Complainant generally when grievances were raised.

In October 2017 the Complainant noted in correspondence with Ken Whyte director of further education, that Subla was not her place of employment and that she was there under protest. She also noted that the understanding was that her position would be reviewed.

By way of letters dated 26 October 2013, 28 April 2016 and an e-mail of 1 June 2018 the Complainant sought to have her long standing within WYTEC dealt with.

Ultimately, the Respondent’s handling of this led to the Complainant notifying it that she was available to work but that she would not be returning to SUBLA and this is dealt with in her submission relating to her unfair dismissal.

Until this point the Respondent had historically acknowledged that the Complainant’s place of employment was WYTEC and that the issues outlined above remained unresolved. However, the Complainant submits that there was a material and unilateral alteration of these positions when she informed the Respondent that the issue could not persist. This was clear in correspondence from the WWETB CEO on or about 9 August 2018 when he referred to them as ‘legacy issues’.

The hardening of this position was further evident in correspondence from Anne Marie Jones, SUBLA HR manager, on 21 August 2018 when she stated:

‘…you agreed with this transfer which was done in consultation with you and your Union representative.  As previously advised to you this was not a temporary assignment.’

You have referred in communications with the Director of FET to issues regarding your transfer to SUBLA and a disciplinary process. As you are aware these matters were fully dealt within accordance with the appropriate procedures and were finalised in 2013.

The Complainant utterly rejects the assertion that she agreed to the transfer as a misrepresentation. In particular it was never advised to the Complainant that the assignment was not temporary. Contrary to this position the acceptance under protest of the situation was induced by virtue of the fact that the Complainant was assured it was temporary, would be kept under review and that the VEC (as it then was) would work towards her reintegration into WYTEC.

The temporary nature of this was clear from the Order made on 18th April 2013.  The Complainant submits that view of Ann Marie Jones expressed in the letter of 29th August 2018 did not reflect the reality and sought to retrospectively a position that did not and does not accord with the facts of what occurred between 2009 and 2013.

On or about 20th September 2018 the Complainant notified the chief executive of WWETB of her intention to make a protected disclosure to the Minister for Education.

This disclosure was formally made 26 September 2018 in an e-mail to Minister John Halligan at the Department of Education and Skills.

As appears therein the Complainant included allegations of gross mismanagement through inter alia the manner in which appointments were made. In addition an allegation was made that the Respondent attempted to deal with a protected disclosure in a manner that might have disclosed the identity of the relevant person. Issues relating to the health and safety of employees by virtue of their dealings with the Respondent through its grievance process were also raised.

Subsequent to the making of the 2018 Disclosure, and as a result of that, the Complainant was subject to actions by the Respondent that resulted in a detriment to her. This included a refusal to pay the Complainant in November 2018 when she was certified as being unfit for work due to work related stress. Such failure was in breach of the Respondent’s own stated procedures.  On all previous occasions the Complainant had been paid while on sick leave in line with the Respondent’s policy.

In addition to the above, by way of a letter dated 7 November 2018 from Anne Marie Jones, the Complainant was notified that she was the subject of an investigation. This letter further stated that the Chief Executive had also decided on foot of a ‘comprehensive report’ prepared by Aislinn Brennan, decided to progress to a formal disciplinary hearing. The Complainant was ultimately dismissed on foot of this process

The Law

Relevant sections of the Protected Disclosures Act 2014 quoted in support include:

Section 3 and Section 12 (1) re penalisation;

Section 5 meaning of protected disclosure;

Section 8 providing for circumstances where protected disclosure is made to a Minister.

Conclusions

The Complainant made several protected disclosures both before and subsequent to the enactment of the 2014 Act. These had a direct effect on her employment with the Respondent.

In particular the 2018 Disclosure alleged wrongdoings including gross mismanagement and improper use of funds through promotion of unqualified individuals. In addition there was an allegation that the Respondent dealt with a protected disclosure made to the Complainant in a manner that was inappropriate.

The information grounding the 2018 Disclosure came to the attention of the Complainant in connection with her employment and was made to the appropriate Minister where the Respondent is a public body. In the timeline of the Discipline Process the Complainant made three further PDs to the Department with responsibility for ETBs, Department of Education and Skills.

Detriment suffered

The Complainant submits that her treatment by the Respondent after 26 September 2018 was motivated wholly or substantially by the making of the 2018 Disclosure in the context of the issues that had taken place from 2009 to 2013.

The Complainant submits that the Respondent’s attitude to the period between 2009 and 2013 was evidenced in August 2018 when it retrospectively sought to assert that, what it referred to as ‘legacy issues’ in 2013. However, it is submitted that the minutes from the meeting of 14 May 2013 make it clear that when the Complainant took up the position in SUBLA the Respondent was not of such a view.

It is therefore submitted that at the time the Complainant made the 2018 Disclosure the Respondent was resolved not to revisit matters that the Complainant believed were left in abeyance for the previous five years. The Complainant submits that when she took the step of making the 2018 Disclosure, were motivated entirely or wholly by that resolve.

In acting on that resolve the Respondent acted to the detriment of the Complainant in subjecting her to unfair treatment through its disciplinary process, which was based on a flawed report and no investigation. It subjected her to further detriment by refusing to pay her while she was on certified sick leave and ultimately dismissed her.

Payment of Wages Act 1991

The Complainant’s counsel provided a submission regarding the issue of complaints submitted under the Payment of Wages Act 1991.  It is argued that the Complainant lodged a claim in December 2018 under the Payment of Wages Act 1991.  A second complaint was lodged on 28 November 2019.  The Complainant’s solicitors wrote to WRC on the same date requesting that the second complaint be considered with the original complaint CA-00023981.  It is argued that despite the Complainant clearly pursuing her claims, the complaint was struck out in 2023 for failure to pursue.  It is argued that this was an error, and taking into account that the Complainant clearly was pursuing her complaint, together with the absence of an appeal mechanism within the section of the Act, the time period should be extended.

Witness evidence

The Complainant’s evidence

The Complainant gave her evidence on affirmation, summarised as follows:

She stated that she had a degree in Irish and Art History.  She started her employment with WYTEC in or around April 2002. 

She stated:

I was assigned to Subla in 2013 as a temporary measure under protest and pending resolution of my appointment on a permanent basis to a suitable job. All my efforts to engage with the WWETB and to seek consultation on my employment were rebuffed and it was erroneously claimed that I had agreed, as had my Trade Union, to transfer to Subla.

Regarding Protected Disclosures, the Complainant stated:

October. September/October 2018. I had sent correspondence. I had met the Minister with responsibility in Tramore prior to doing so and explained that I was going to send it in.

The Complainant stated in response to questions from her counsel, that she made a protected disclosure to then Minister of State, John Halligan  and that disclosure included in its substance an allegation of bullying and harassment against her employers, and that she notified the ETB that she had made a protected disclosure.  The Complainant further stated:

Well I think ultimately my dismissal and the manner in which the discipline and sanctions were imposed upon me, that they were imposed upon me in a much more robust way than any other teacher or any other employee of WWETB, whereby it wasn't a question of management not knowing how to process these, but they just went and sanctioned me and then made up the rest as they went along.

In relation to the 28 August 2018, the Complainant stated that she went into work to clear out her work station.   In relation to the conversation she had with A Brennan, the Youthreach Co-ordinator, she stated:

Aislinn called me into her office and we sat down and discussed something and I said this is nothing personal, that I have had these protracted difficulties, but if I stay here the proper people won't be hired to come here.

We discussed that I was clearing my desk and going.

She excused herself and went on the phone and came back to me and that happened a few times.

The Complainant stated that A Brennan didn’t want to “get into the nitty gritty of it”.  The Complainant told her that “this is historic, this is stuff that has been going on a long time”.                                  A Brennan repeated what she had been told on the phone “this is your place of work”.  The conversation lasted about ten minutes.

The Complainant confirmed that the first time she saw the comprehensive report compiled by A Brennan was when she was called to a Stage 4 disciplinary hearing.  She stated that at one point, a question was raised from the Chair of the first disciplinary process (Mr O’Dalaigh) was “why did the ETB not process the grievance?”.  She stated that they said they would process it immediately, but they never did process her grievance.

Witness evidence

Mr Tom Creedon gave his evidence on affirmation.  He outlined his experience in TUI as follows:

1980 - Branch Officer and 12 years on the National Executive - representing people in the City of Waterford VEC, County Waterford VEC, South Tipperary, Kilkenny, County Wexford and Wexford town.

He spoke about the joint grievance of the Complainant and another colleague which was dealt with in 2011, culminating in conciliation in the then LRC.  He stated that the Conciliation Officer gave a recommendation that people would go back to work and there would be mediation to mend the fences.

The witness stated that at one point, the then President of the TUI, now Senator Gerard Craughwell asked for review meetings and the purpose of the review was to establish what progress had been  made in getting them back to WYTEC. That was what the President was asking for. There would have been no other reason for the Union to seek a review of any kind, so the President said he wanted that review and the Chief Executive said that he would, yeah, he would review it in two months.

Summary of Respondent’s Case:

Throughout the period of the hearings, the Respondent made many submissions, and evidence was given by oath or affirmation by:

Former Youth reach Co-Ordinator, A Brennan

Former Director of Further Education, K Whyte

Former Chief Executive, K Lewis

HR Manager, Culture & Engagement, AM Jones

Counsel for the Respondent made a number of submissions.  Difficulties in summarising such a complex case inevitably entails having to document in detail some of the submissions.

The following constitutes the initial submission, the supplementary submission and the closing submission, followed by the witness evidence in the Respondent’s case.

The background to the dismissal is summarised as follows:

In June 2018 the Complainant expressed dissatisfaction with the work location to which she was assigned and in which she had worked since 2013.

In July 2018, the Complainant unilaterally advised the Respondent of her intention not to return to work at the location to which she was assigned in the new school year. 

The Complainant was advised in writing that failure to attend for work would be deemed to be an unauthorised absence and a breach of contract. She was told that that pay and benefits would be stopped on the basis that she was absent from work without authorisation and that it would be regarded as a serious disciplinary matter.

Notwithstanding the correspondence the Applicant did not attend for work.

The Respondent pursued its disciplinary policy, under the prevailing Circular.  Ultimately, there was a disciplinary hearing in April 2019[1] which the Complainant attended and was accompanied by a former colleague.

The Respondent made a decision to dismiss the Complainant from her employment on 25 April 2019, on grounds of gross misconduct.

Her unilateral decision not to present for work at Subla was justified by the Respondent’s inaction in relation to her request for “consultation” about her role.

The Respondent does not accept that these contentions have any basis in fact, that they would have justified or permitted the Complainant to unilaterally decide not to come into work in the location she was assigned.

Sequence of Key events

It is common case that since March 2013, the Complainant has worked in SUBLA, which is a Youthreach Centre under the remit of the Respondent. She was assigned to that centre by order of the Respondent’s Chief Executive of April 2013 (C1)[2].

In an emailed letter dated 1 June 2018, the Complainant sought clarification from the Director of Further Education and Training, Mr Ken Whyte, (“Director of FET”) regarding her position at SUBLA (C2) in which she stated inter alia:

“I now feel that my placement in Subla has not only negatively affected my career progression but has also negatively affected Subla... I trust this can be resolved ahead of another school year.”

The Director of FET replied by email of 29 June 2018 advising that he was not aware of any change to the arrangements and that he would consult further in this regard (C2).

There were further emails exchanged between the Director of FET and the Complainant in July 2018 (C2). With regard to work location, the Director of FET asked:

 “Regarding your reassignment to subla; are you seeking a transfer; to another centre within YouthReach, a different provision or a school?

There is a system within the ETB that allow staff members request a transfer.

This request may be facilitated, depending on the needs of the school/centre and whether the requesting staff member is qualified to work in that area of provision.

While the closing date has passed for this year the opportunity will arise again early next year”

However the Complainant’s response included the following:

“I agree that the allocation for Subla is the business for the Co-ordinator and the AEO. My situation however has never been part of that allocationas I have been in a temporary position, under protest since 2013. In order to remedy the situation please be advised that I will not be returning to Subla for the next school year…”

In the Director of FET’s responding email dated 9 August 2018, he noted inter alia that the Complainant had decided unilaterally that she would not return to her designated place of work at the commencement of the next school year. He advised that this would be in breach of her contract of employment and accordingly requested all communications be with the Respondent’s HR Manager, Anne-Marie Jones (the “HR Manager”).

In conclusion the Respondent submits that:

• (i) It had substantial grounds for dismissing the Complainant in circumstances whereby her unilateral and wilful refusal to turn up for work at the place where she was assigned and to refuse to obey instructions to attend and warnings that failure to attend would be regarded as a breach of contract was a patent example of gross misconduct.
• (ii) The Respondent followed the applicable disciplinary procedure which was fair.
• (iii) The Complainant had the benefit of an independent appeal which upheld the decision.

For completeness, the closing submission is recounted here:

We have had six days of evidence, all of which are on transcript and there are three separate claims;

One which is unfair dismissal and;

One payment of wages and;

One protected disclosure.

In relation into the unfair dismissal, dismissal itself is not in doubt or in dispute, so I bear the burden of proving that the dismissal was reasonable under the law.

In relation to the payment of wages and the protected disclosure, the Complainant, bears the burden there.

Unfair Dismissal claim

I am going to deal with the unfair dismissals first if I can. The Complainant was dismissed for being absent from work without authorisation and refusing multiple requests to go to work. It took us a long time to get there but ultimately that was admitted.

As outlined in the transcript, on the last day, I asked her:

"Q: So your employer did not authorise you not to go to work, isn't that right? A. Yes.

1. I am asking you as a matter of fact in August 2018, in September when you absented yourself from work, did anybody authorise you to do that? A. No, they didn't."

There was a lot of argument about when that conclusion could be made. But it is beyond doubt that the Complainant made a deliberate decision to refuse to work and she ignored express requests to go back to work. That, I would say, warrants dismissal.

The test is whether dismissal is within the range of responses or sanctions an employer could reasonably apply. There is no doubt whatever that dismissal was appropriate within the range of those sanctions in this case.

Counsel for the Complainant and his client have raised a number of procedural issues I am going to go into and I am going to say a lot of them amount to red herrings. It is suggested that there ought to have been an investigation a la Braddish -v- DPP, which is a criminal sanction, a criminal clause, and that is just not the procedure which applies. In her evidence the Complainant accepted that the steps laid down in the circular were in fact applied and were given to her. There is a debate about whether the report of AB was a comprehensive report on the facts or not, because it is alleged by the Complainant that it should have gone back into the history of the matter. So that is the allegation.

The Complainant thought that the old policy which predated the ETB would apply and a lot of her arguments were predicated on the fact there ought to have been external investigators, et cetera. That is not provided for in the circular. The circular provided there would be a report. The Complainant would have an opportunity to respond and defend herself. That is inbuilt into the process. The Complainant was given the opportunity to defend herself and she expressly took the view that she didn't want to do that. She says she was stuck in Subla for five years and the employer had to get her out of it. But we knew from day one of the hearing that what actually happened is the Complainant was hanging her hat on her separate grievance against the ETB giving her a positive result. When that didn't give her a positive result, she made a unilateral decision not to turn up for work and to insist that the employer send her somewhere else, or to use the phrase used in her submissions "to bring matters to a head".

Before she decided not to turn up for work, she was told she had to turn up for work, she was asked whether she wanted to submit a transfer, or whether she wanted to submit a grievance. The Complainant accepted in evidence that she knew there was a transfer policy she could have applied for but she didn't do it. She knew there was a grievance policy she could have followed but she didn't do it, and she knew that she if invocated a grievance policy the status quo would have to be maintained while she was doing it, but she didn't do it. This was wilful, self-serving and insubordinate conduct from an employee which, as a matter of law, no employer should be required to take. The Complainant insisted that she was "a stickler for policy". That is Day 6, page 28 and page 65. But the reality is put to her, well she was a stickler for policy when it suited her. She didn't take a grievance and she didn't seek a transfer because she had no faith in those policies. She said she didn't defend herself in the disciplinary process because she had no faith in that process. But I put it to you that it is not open to the Complainant on an appeal like this to make a procedural argument where she has failed to participate in the procedure herself. She took a deliberate decision to say I have done nothing wrong and to not defend herself. All of the points that she makes now were points that she could have made to KL back in March/April of 2019 and she deliberately chose not to do it. This is ironic because the Complainant held herself out as having some ability in this and the Complainant held herself out as a self-employed consultant on LinkedIn. Now when I put that to her, and that is Day 5, the second last day, page 136, she acknowledged that the public website entry on her LinkedIn holding her out as a self-employed business consultant was a lie. The phrase she used was: "I used LinkedIn to annoy certain people." She did accept that she had represented people before the WRC and in the WETB on procedural matters, but she never sought payment for that and was never paid. So the Complainant throughout her complaint and, indeed, subsequently, has held herself out as somebody who knows the procedures and is entitled to be a stickler for the procedure, but she made her own very deliberate, very calculated decisions not to follow them. On that basis, I say she cannot make a procedural argument on the dismissal either. Of course we know why this happened and there are two reasons for it: it was put to the Complainant by her own counsel why did she not defend herself in the disciplinary? And the answer was that she thought she wouldn't be dismissed. The reason for this is, she tried the same thing in 2009, 2010, 2011 and on that occasion she wasn't dismissed. The Complainant erroneously believed; one, that she could simply not turn up for work and never be dismissed, and she also believed that the old procedure prior to the ETB was what actually applied. She took both of those deliberate calculated risks and she lost.

My position on this Adjudicator, is that in substance the dismissal is fair. That is to say the sanction for wilfully refusing to turn up for work and ignoring instructions to turn up for work, the sanction of dismissal is entirely appropriate and was within the range of sanctions which the employer could have applied. I say that the procedure was the procedure followed in the circular. And the steps followed in the circular were followed and the Complainant agreed that they were followed. The point of difference is whether the complaint, whether the report of Ms. AB is a comprehensive report. In that regard I want to refer to. That is the case of Joyce -v- The Board of Management of Coláiste Iognáid. I am just going to refer you to the paragraph. The paragraphs are 72 and onwards.  That is a case in which there was an injunction granted where a disciplinary process under a similar circular had happened and the Board had considered in detail the report before the complainant got an opportunity to respond. But what Mr. Justice Binchy held is that under the circular, the stage or the process at which the complainant gets to get involved, and the complainant gets to participate is after the report is drawn up and then they get to respond to it and after there has been a finding that there is a prima facie case. What was put to you was that Ms. AB was obliged, in compiling the report, to go back into the history and to get the Complainant's version of why she did what she did. That is not what this circular procedure requires. It gives the employee an opportunity, having received the report, to make points about it and defend herself and the decision not to do that was deliberate. So, in relation to the unfair dismissal I say it was substantially fair and it was procedurally fair. If there is any flaw in relation to the procedure which warrants any form of remedy, I say that the Complainant's conduct, which was deliberate, amounted to a one hundred percent contribution to her own dismissal. So there should be no award in any event. In the event of a finding of unfair dismissal, I say that the Complainant has singularly failed to mitigate her loss. She has a legal obligation to indicate her loss, not only did she not do it, it seems she did not even try. I was asking her questions about being a self-employed person because her entry on LinkedIn said she was, but she said, no, I never did that, I never got a payment. There is no evidence before you that the Complainant made any effort of any kind to mitigate her loss, nor is there any evidence in relation to her loss. I say that given the fundamental breakdown between the parties and the Complainant's attitude to her own employer, reinstatement as a remedy would be fundamentally inappropriate. But my case on the unfair dismissal case is: it is substantially fair, it is procedurally fair, any flaws in the procedure don't arise because the Complainant didn't participate in it and she one hundred percent contributed to her dismissal in any event.

Protected Disclosure claim

I am going to turn now very briefly to the protected disclosure claim. And this, Adjudicator, is a complaint of no substance whatsoever. In this context timing is very important. The applicable test is the matter that myself and Counsel for the Complainant are agreed on. The Protected Disclosures Act has subsequently been amended by the 2022 Act. But for the period we are talking about here, for disclosures prior to that amendment and proceedings commenced prior to that amendment, the old law applies. What is known colloquially as the "but for" test set out in O'Neill -v- Toni and Guy. The Complainant has to demonstrate that she would not have lost, she would not have had a deduction in pay, and would not have been dismissed but for the fact that she made the protected disclosure. Not only is that not true, she gave no evidence of it. The only evidence in relation to a contemporaneous protected disclosure is a single e-mail sent on the 20th September 2018 and that is dealt with in cross-examination at page 93 and onwards of Day 6. What that said is; so this, as I say, is an e-mail of the 20th September 2018.  The timing is crucial because the Complainant has absented herself from work in August 2018. She has been told that there is going to be a disciplinary process and she has been told that her payment is being stopped. So when this letter is sent she is already in a disciplinary process and her payment has already been stopped. It says: "I have now made a protected disclosure to the Minister regarding cessation of wages and, therefore, any further victimisation of me is inappropriate."   The processes of which she complained had commenced before she suggested anything about protected disclosures and it simply cannot be the case these processes were caused by her afterwards saying, 'I have made a disclosure you have not seen so don't penalise me any further'.

The uncontroverted evidence of all the witnesses who were asked the question on my side was that they heard nothing more about that disclosure and nobody contacted them from the Department and they were not cross-examined on that. At the end of the examination of evidence to the Complainant, Counsel asked her what she thought were the consequences of the protected disclosure and she said she was dismissed. But it was not put to my witnesses. It was not put to any of my witnesses that the decisions were made because of the protected disclosure and for the reasons I set out, that can't be the case anyway.

Payment of Wages claim

So that brings us then to the payment of wages claim. There are some issues in this claim in law and there are some issues in relation to timing. You will recall the parties delivered separate submissions in relation to that. The final submissions in that -- our submission was delivered in June 2020. So, what I am saying first and foremost is that there is no legitimate payment of wages claim at all. In order for there to be a deduction, in order for there to be a payment of wages claim there must be an unlawful deduction from salary. This Complainant wilfully absented herself from work, refused to come in and therefore was not paid, and I say that is entirely legitimate.

Now, I want to refer you in this regard to an authority called Yap -v-Temple Street. That is a decision of Mr. Justice Clarke of 2006. In particular, I am referring you to paragraphs 7 to 11. What Clarke J, as he then was, says in paragraph 8 is:

"In the ordinary course of events, an entitlement to be paid flows from carrying out the duties of one's employment. There are, of course, some circumstances where, as a matter of the contract of employment between an employer and employee, the employee is entitled to be paid even though not working. Perhaps the simplest example is one which arises in a number of the cases referred to, and that is the case of sick pay. In the case of many contracts of employment, persons are entitled to be paid...

" And there may be other circumstances. At paragraph 10:

"I emphasise those cases for the purposes of stating that. They are exceptions to the general rule. The general rule is that pay follows work..."

In Yap there were some disputes and the complainant gave out about her working conditions and she was out sick. But she was then certificated fit for work but refused to go back for work and she went to court for an injunction to be paid, pending determination of her disputes with her employer. And Mr. Justice Clarke said he wouldn't and couldn't do that. The general rule was that pay followed work and if you don't work you are not entitled.

The Respondent's position is that there was an administrative decision not to pay if the Complainant was not working. Not a disciplinary sanction. That is entirely appropriate and in keeping with the decision of Clarke J in Yap -v- Temple Street. We are dealing, for the purposes of the payment of wages claim, with three distinct periods of what actually happened before we turn to the claim itself. The Complainant absented herself from work in August 2018. Her pay ceased at the beginning of September 2018 and she was not paid from then. In November '18, the end of November '18, a sick certificate was sent in which initially was not picked up. And then there was a lot of byplay about the Complainant going and not going to Medmark. My position is, once she was finally -- once she attended Medmark and co-operated and was finally certified fit, unfit for work, she was then put back on the payroll on 2nd April 2019. Meanwhile, the disciplinary process continued and on the 25th of April 2019 the Complainant was dismissed by decision of the then CE, Mr. Lewis. Now, as you know, the Complainant is entitled to bring an appeal to the Department of Education, DAP, and under the circular the sanction of dismissal doesn't apply or kick-in until the end of a DAP. The Complainant's DAP in this instance was concluded in September 2019 and the conduct and dismissal of the Complainant was upheld by the independent appeal. However, an employee is obliged to keep working if they are instructed to work during this period. So, the Complainant did not go back to work after the Easter break and didn't go back to work after the decision to dismiss. She was written to in April and in May, told to come to work pending the conclusion of the appeal and didn't do so, and so she was off payroll from the 29th April. That was totally lawful. For that period, Adjudicator, there is no issue about sick leave. There is no issue about the disputes. She had been dismissed and she was asked to work pending the conclusion of her appeal and she didn't do so. So I say at no stage was there an unlawful deduction. Therefore, the payment of wages claim doesn't arise at all.

Witness evidence 

Former Youth reach Co-Ordinator Dr A Brennan gave sworn evidence summarised as follows:

She stated that in 2018 she was Youthreach Co-ordinator in Subla, having come to that position in October 2017.  Her Manager was the AEO, the Adult Education Organiser, who in turn reported to the Director of Further Education.   On 28 August 2018 she approached the Complainant to discuss the timetable for the academic year ahead.  The Complainant said she was waiting for her place of work per her emails to the Chief Executive, K Lewis.  The witness said that her hope was to sit down and discuss the timetables like with any other member of staff.  But the Complainant said she was not there for work, but to clear her desk and there was nothing personal.  The witness contacted her Manager and emailed copy to the HR Manager and the Director of Further Education.  In the afternoon she received an email response from the HR Manager, Ms AM Jones requesting that she give a copy of an email sent on 21 August 2018 to the Complainant.  This email said that her place of work was Subla and had not changed.  That email stated:

“In response to your email dated Monday 20th August to Kevin Lewis, I wish to inform you that your designated place of work has not changed and you will continue to be based in the SUBLA Youthreach Centre”.

The witness said she was asked by HR Manager AM Jones to document the details and compile a report of what happened on 28 August 2018.  The report was compiled on 6 September 2018.  The witness said she did not speak to the Complainant after 28 August 2018.

In cross examination, the witness said that the Complainant would have mentioned the historical situation to her in the past but she could not clearly recall the historical situation being mentioned by her on 28 August 2018.  She did remember her saying it was not personal between them.  The witness stated in relation to her report “you endeavour to keep it as factual as you can, you endeavour to be as fair as you can, but ultimately I was the one selecting what to include and exclude”.

The witness also stated that it is beyond any reasonable expectation to expect a report to cover a verbatim account of six hours of events.     

Witness evidence

Former Director of Further Education K Whyte gave sworn evidence summarised as follows:

He was taken through various email correspondence with the Complainant from in or around 2016.  In January 2017, he acknowledged the Complainant’s request for a transfer.  He explained to the hearing that there is a full process that teachers go through if they are looking for a transfer and all teachers would be aware of this.  Any formal request for a transfer would go to the Education Officer.  The witness confirmed that he received an email from the Complainant on 1st June 2018 extract of which stated:

“I have been in a temporary parked position under protest since March 2013…. I now feel that my placement in Subla has not only negatively affected my career progression but has also negatively affected Subla, with required teaching expertise being denied recently due to my presence”.

Further correspondence was referred to including emails of 19th July 2018 in which the Complainant sought ‘remedy’ ahead of another school year.  The witness’s reply advised the Complainant that the allocation to Subla is a matter for management of the centre and senior management and that her comments that she would be outside of the allocation are incorrect.  He asked her if she was seeking a transfer and that while the closing date had passed for that year, the opportunity would arise early the following year.  The Complainant replied on 30th July stating that “In order to remedy the situation, please be advised that I will not be returning to Subla for the next school year”.

The witness stated that he reviewed the files going back to 2012 or 2013 and found that as the Complainant could not go back into WYTEC the Chief Executive at the time had to find somewhere for her to work.  He made the decision to put the person into Youthreach because they had skills that could be utilised there.  There was no mention in his documentation in the letters from the VEC to the Complainant that it was temporary.

The witness’s reply of 9th August 2018 advised the Complainant that she was deciding unilaterally that she would not return to her place of work at the commencement of the school year, that the legacy issues she referred to have been the subject of considerable IR and legal investigations, and that her action is now a matter that belongs in the industrial relations realm and her email was copied by him to the Head of HR.  He requested that all further communications be addressed solely to the Head of HR Ms Anne-Marie Jones. 

The witness confirmed that an employee does not have an entitlement to demand or choose their place of work or instruct their employer to give them a different place of work.  He stated that they can certainly seek a transfer or take a grievance which is quite common if people are unhappy for whatever reason. 

In cross examination, it was put to the witness that in 2009, the Complainant drew up a document relating to how WYTEC was run and this caused a rift between herself and the management and staff within WYTEC.  In 2011, arising from a grievance, conciliation was undertaken by an Officer of the LRC.  That conciliation agreement stated that her place of work was WYTEC. However, a difficulty arose in the implementation of that agreement in relation to mediation being a precursor to reintegration.   

In cross examination, the witness was taken through the events of 2013 when the then President of the TUI was corresponding with the then CEO Mr Morgan.  The witness did not accept that her situation was going to be temporary.  He stated “I need to be blunt about this, I read the file, there is no letter from the City of Waterford VEC at ant time mentioning the word “temporary”, “reassignment” or anything.”

In response to a question from the Adjudicator in relation to a letter from him to the Complainant dated 4 January 2017, in which he stated “The request for a transfer out of Subla is noted”, the witness said “that is bad English, that should have said your request to get out, it was not a formal transfer request”.  He said he would have told the Education Officer to expect a transfer request but he didn’t believe one came in subsequently.

Witness evidence

Former Chief Executive K Lewis gave evidence on affirmation summarised as follows:

The witness said he was Chief Executive in WWETB from February 2016.  The Complainant was dismissed on foot of a decision made by him in April 2019.  The witness was taken through events and documentation from 2013 when an order from the then Chief Executive Mr Morgan stated:

“Due to industrial relations issues, Ms Dunphy’s place of work will be Youthreach Subla Centre from 15th March 2013.  Curricular requirement Youthreach Centre rather than VTOS.  A request for additional allocation to be assigned for this purpose has been made to the Department of Education & Skills”.

The witness confirmed his reading of that as not a temporary assignment.

A letter from the then Chief Executive to the Complainant stated that she was being assigned to Youthreach Subla Centre and “as per the disciplinary appeal of 15th February 2013 in the context of pending legislative or organisational changes for the delivery of vocational education, reallocation may be an option in the future.”

The witness confirmed that the legislative changes to abolish the VECs and to establish the ETBs came into place on 1st July 2013 which did not include WYTEC being merged with the ETB.

On 4th March 2013 a letter from the then President of the TUI confirmed that the Complainant accepted temporary assignment to St Paul’s CC and the Subla Centre under protest because of the threat of dismissal.   A letter from Ms E Rohan on behalf of the Chief Executive stated that WWETB does not accept the version of events outlined and considers that, as there has been no integration between CWVEC and WYTEC under the Education & Training Board, the request that the WWETB consider the reintegration of the Complainant is not a matter which falls for consideration.

The witness was shown the letter from the HR Manager to the Complainant dated 29 August 2018 which outlined the seriousness of her unauthorised absence, that there may be a disciplinary matter and that as previously outlined to her, there is a system whereby staff may seek a transfer.

The Complainant was advised that she could apply for the 2019/2020 academic year and her application would be processed in accordance with the relevant terms of the transfer process.

A further letter of 5th September indicated the disciplinary process was commencing and asked A Brennan to compile a report.

In cross examination, the witness was questioned on what circular did the process of disciplinary action commence.  There was a circular 2014 which was superseded in 2018.  The witness confirmed that the disciplinary process commenced just before the 2018 circular, but the relevant wording was the same in both circulars. 

On cross examination, the witness said that he was made aware of a protected disclosure made by the Complainant in 2018 but “there was nothing for me to do with that” and that it did not form any part of his consideration in how he dealt with the Complainant.

Witness evidence

HR Manager, Culture & Engagement AM Jones gave sworn evidence summarised as follows:

She stated that her current position is HR Manager, Culture and Engagement, a relatively new role.  She held the position of HR Manager for 17 years.  She was familiar with the history of this case, going back as it does since 2011.  In relation to the dispute between the parties as to what happened in 2013, and whether the Complainant’s assignment was or was not temporary, she stated that her view is that it was a permanent assignment.  She stated “there were no documents on file to suggest it was a temporary assignment”.

Correspondence from February and March 2013 between then then President of TUI and the then acting CEO indicated that the Complainant and her colleague accepted temporary assignment ‘because of the threat of dismissal’.  The response from E Rohan on behalf of the then acting CEO stated that “WWETB does not agree with the version of events as outlined in your letter but does not see any merit in reiterating the background to this matter in this letter of response.  Further, as there has been no integration between CWVEC and WYTEC under the education and training board, your request that Waterford and Wexford ETB consider the reintegration of Ms Dunphy and Ms L is not a matter which falls for consideration at this point in time.”   The witness confirmed that this letter was correct and refused integration at that time.  In February 2013, the Complainant withdrew an appeal she made against a disciplinary process and the witness confirmed that this postdated the assignment of the Complainant to Subla.  The witness confirmed that the ‘McNamee report found no bullying against the then CEO and follow on appeal report did not make a recommendation that the Complainant be moved from her place of work.

The witness then was referred to a series of emails between the Complainant and K Whyte, Director of Further Education in which the Director advised her on 9th August 2018 that if she refuses to report for work in Subla she is in breach of her contract of employment.   The letter further told the Complainant that communications should be addressed to the Head of HR AM Jones, and not to A Brennan or himself.  On 20th August 2018, the complainant copied the CEO K Lewis and said “this is incorrect, I’m still available for work and request my employer inform me as to my place of work”.          The response from the HR Manager to that email of 20th August was “I wish to inform you your designated place of work has not changed.  You will continue to be based in Subla.”  The witness confirmed she wrote this following a discussion with K Whyte, Director of Further Education who confirmed with her that there would be no changes made.

The processes of grievances and transfer requests were outlined by the witness.  She explained how a transfer request might come too late to be processed for the upcoming year, i.e. if it comes later than the February cut-off point.  If an employee has a grievance about their place of work, they can request a transfer. 

The witness confirmed that the Complainant was on an absence that was not authorised and therefore a decision was made to cease payment of salary, which was not a disciplinary sanction.  Reference was made to the 2014 circular and the stage 4 sanctions, constituting gross misconduct which it was stated were the same as in the 2018 circular, i.e. refusal to comply with legitimate instructions resulting in serious consequences.  The witness confirmed that it was her decision to cease payment of salary and benefits with immediate effect as contained in her letter of 5th September 2018 to the Complainant.  This letter also stated: “there may be a disciplinary at Stage 4”.     The letter also stated Ms Jones “asked Aislinn Brennan to prepare a report and the facts were recorded.  A copy of this will be sent to the Chief Executive”.

In cross examination by the Complainant’s counsel, Ms Jones stated that the withdrawal of the Complainant’s pay was “an administrative decision.  It wasn’t a disciplinary sanction”.  It was put to the witness that letters she sent to the Complainant in September 2018 indicated contradictions between “unauthorised absence” and “alleged unauthorised absence”.  One letter stated that “your pay is being stopped because you are on unauthorised absence” (5th September 2018) and another stated “it has been alleged that you were absent from work without authorisation” (12th September 2018).  The witness was questioned extensively on what constituted a ‘comprehensive report’ in relation to the report she asked A Brennan to compile of the events of the day on 28th August 2018.  She stated that “the comprehensive report is the investigation, and the comprehensive report was key, was one of the key parts of the investigation”.

Findings and Conclusions:

Introduction

Throughout the 7 hearings which took place in this case, the Complainant and the Respondent made many written and oral submissions.   There was sworn evidence given by the main players in relation to what was inevitably a very difficult number of years.  I note the particular disputes in the early stages between the Complainant, her fellow employee and a number of other employees which led to her removal from her place of work.  This may certainly have given rise to the difficulties experienced by the Respondent in placing the Complainant in a workplace where she believed her qualifications and skills would better suit her.

I note the extremely complex nature and history of the matters which date back some 17 years.  In my attempt to summarise the situation in these findings, it is hoped that on balance, that no misrepresentation of facts have occurred in this decision.

I note the Complainant considers herself a ‘whistle blower’.  Throughout the hearings, many hours were devoted to rehearsing the past 17 years, the processes followed, reports, disciplinary processes and appeals.  The actual detail of protected disclosures was not rehearsed save to indicate that the original protected disclosures appeared to relate to how funding was allocated in the Complainant’s original place of employment and indeed gave rise to significant disputes between the Complainant, a colleague and others in the place of employment.  Another reference was made to a more recent protected disclosure made to the then Minister of State in the Department of Education and Skills in 2018.

The particular focus in this case in relation to dismissal, is concerned with the window of July/August 2018 to the effective date of dismissal 16 September 2019.   I note and accept that the long history in this case must provide some context in which the dismissal took place. 

Temporary nature of appointment?

At the heart of the Complainant’s refusal to continue to work in the Subla centre to which she was assigned is the fact that she submits the assignment was a temporary one.

She relies on a number of documents to support this argument.  One is from the then Chief Executive G Morgan in April 2013 which stated

“Due to industrial relations issues, Ms Dunphy’s place of work will be Youthreach Subla Centre from 15th March 2013  Curricular requirement rather than VTOS.  A request for additional allocation to be assigned for this purpose has been made to the Department of Education & Skills”. 

The Complainant was originally employed by City of Waterford VEC (CWVEC).  I note that on Monday 4 November 2011 it was agreed by CWVEC that the Complainant’s place of employment was WYTEC.  (Waterford Youth Education Centre).  It appears that an integration of CWVEC and WYEC was to take place and did not take place and the entity Waterford and Wexford Education and Training Board became the Complainant’s employer.

The Complainant was subsequently assigned to Subla, from which assignment she sought to transfer on 4 January 2017.   I note the evidence that shows that the Director Further Education and Training acknowledged her transfer request on that date. 

I note that In October 2017 the Complainant noted in correspondence with K Whyte Director of Further Education, that Subla was not her place of employment and that she was there under protest. She also noted that the understanding was that her position would be reviewed.  I find that the position was reviewed on one occasion, but not on the two monthly basis as originally committed to by the Employer.

I note the Respondent’s continued insistence throughout this case that the Complainant’s placement was not temporary.   I note the evidence of the commitment to review the situation in 2013, which was not followed up after one review.  I find that the Respondent’s case that the nature of the Complainant’s placement was permanent is not borne out by the fact that reviews were to be carried out when the placement first came about. The Respondent failed to engage with the Complainant to explore alternatives to continuing to place her in Subla.  I note on 20th August 2018, the Complainant through her representative stated that she wished her grievance to be dealt with through Stage 3B of the grievance procedures.  I note that through arguing back and forth about this, there was another lost opportunity to try and resolve the matter without recourse to dismissal. 

CA-00032570-001           Protected Disclosures Act 2014

The complaint is that the Complainant was penalised for having made a protected disclosure.

The Complainant also submitted this complaint under the Unfair Dismissals Act 1977. 

Section 12 (1) of the Protected Disclosures Act provides:

“12. (1) An employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee, for having made a protected disclosure.”

Section 11 (1) of the Protected Disclosures Act 2014 provides:

11. (1) The Unfair Dismissals Act 1977 is amended –

(a) in section 1 by inserting the following definitions:

 amends the Unfair Dismissals Act 1977 at Section 6 (2)(ba) which deems the dismissal of an employee to be an unfair dismissal if it results wholly or mainly from the employee having made a protected disclosure.

Section 12 of the Act provides:

(1) An employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee, for having made a protected disclosure.

(2) Subsection (1) does not apply to the dismissal of an employee to whom section 6(2)(ba) of the Unfair Dismissals Act 1977 applies.

The Complainant contends that she was unfairly dismissed for having made a protected disclosure.

In accordance with the provisions of Section 12 (2) which provides that subsection (1) does not apply to the dismissal of an employee to whom section 6(2)(ba) of the Unfair Dismissals Act 1977 applies I find this complaint is misconceived under the Protected Disclosures Act 2014 and I declare the complaint is not well founded.

The Complainant further contends that she was removed from post and suffered a detriment to her career progression resulting from making protected disclosures.  She refers to being a ‘whistle blower’ since in or around 2011 and making a protected disclosure to the Minister for Education in 2018. 

The Complainant was placed in Subla which she identified as a detriment to her career on foot of making protected disclosures.  This event occurred in 2013 and I find the complaint to be out of time.  

CA-00032570-002           Unfair Dismissals Act 1977

Definition

Section 6 (1) of the Unfair Dismissals Acts 1977-2015 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.

Section 6 (2) provides:

Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following:

…

(ba) the employee having made a protected disclosure.

In this instant case, the Complainant relies on the fact that she considers herself as a “Whistleblower” who has been penalised in her employment from 2009.  She submitted that she made a protected disclosure in 2018 to the Minister of State of Education and Science and was subsequently penalised and was dismissed from her employment.

At the time of her protected disclosure in 2018 the Respondent was in the process of commencing disciplinary procedures against her.  I note the absence of evidence in relation to the protected disclosure and I note that the Respondent dismissed the Complainant for gross misconduct, failing to follow legitimate instructions and failure to attend work.  I find the Complainant was not dismissed for having made a protected disclosure.  I base that finding on the long established ‘but for’ argument, found in the Labour Court decision in O’Neill v Toni & Guy i.e. but for the Complainant having made a protected disclosure, she would not have been dismissed.    I find that she was dismissed for other reasons.  I now turn to whether her dismissal resulting from her conduct was an unfair dismissal.

Section 6 (4) provides:

6 (4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

…

(b) the conduct of the employee…

The essence of the Respondent’s case is that the Complainant refused to work in the location to which she was assigned and therefore rendered her dismissal to be fair.

In deciding if the dismissal was unfair, it is not for me to establish the guilt or innocence of the Complainant but rather consider whether the Respondent acted reasonably in the matter of the dismissal.  The Employment Appeals Tribunal held, in Looney & Co v Looney UD843/1984 that

“It is not for the Tribunal to establish the guilt or innocence of the Complainant, nor is it for the Tribunal to indicate, or consider whether we, in the employer’s position, would have acted as he did in the investigation, or concluded as he did..to do so would substitute our mind and decision for that of the employer…our responsibility is to consider against the facts what a reasonable employer would have done in the same position..”

In O’Riordan v Great Southern Hotels UD1469/2003, the EAT set out the appropriate test for determining claims relating to gross misconduct:

“In cases of gross misconduct, the function of the Tribunal is not to determine the innocence or guilt of the person accused of wrongdoing.  The test for the Tribunal in such cases is whether the respondent had a genuine belief based on reasonable grounds arising from a fair investigation that the employee was guilty of the alleged wrongdoing”.

In assessing the proportionality of the sanction, Noonan J. in Bank of Ireland v Reilly IEHC 241 stated:

“The question.. is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned”.

In this instant case, I base my findings and conclusions on three key questions

 (1) Did the Respondent have a genuine belief based on reasonable grounds arising from a fair investigation?

(2) Was there a fair investigation? and

(3) was the penalty proportionate? 

I note the Respondent’s reference to the ‘comprehensive report’ compiled by the Complainant’s Line Manager following the engagement with her on the morning of 28 August 2018.  This is dealt with in detail below.  Before examining the procedure around the Complainant’s dismissal, the history and background which was outlined in detail by written submissions and during the hearing, is summarised as follows:

History and background

As stated in the introduction to findings, I note the extremely complex nature and history of the matters which date back some 17 years.   I note the difficulties which seem to have frequently occurred especially with placing the Complainant in a suitable position.  Many of these difficulties appear to have emanated from a dispute between the Complainant, a colleague (LL) and others in her original placement. In the course of a meeting on 4 March 2013 it was acknowledged that WYTEC was the place of work of the Complainant. At this time CWVEC stated that it was not possible to return the Complainant to WYTEC due to what it termed irreconcilable differences between the latter and the Complainant.

By way of letter dated 7 March 2013 the acting CEO of CWVEC requested the Complainant to take up a position with Subla. In line with the discussion at the meeting of 4 March 2013, the aforesaid letter expressly stated that the post would be reviewed in detail in 2 months time.

I note the Complainant’s objection at one point to the sequence of placing her back in position and mediation between the colleagues.  The Complainant’s position being placement must come first and then mediation.  This stalled a solution.  I note that at a formal review meeting held on 14 May 2013, Mr M confirmed that ‘years’ have been spent trying to progress the IR situation. Mr M confirmed that he continued to be directed by the LRC letter of 17th November 2011. The only light he could see at present is that some other options may emerge when the new ETB is established . The Respondent has obviously been somewhat frustrated by the whole situation and lengthy delay in solving matters.   However, in a case of dismissal of an employee which ultimately deprives him or her of their livelihood, extreme care must be taken by the employer to ensure due process and fair procedures are followed. 

I note that by letter dated 4 January 2017, the Director of Further Education and Training noted the Complainant’s request for a transfer out of Subla.  While the Director in his evidence explained that there is a process, I find that the lack of positive action to assist the Complainant in processing a transfer request had a knock on effect.   Further, in October 2017 the Complainant noted in correspondence with the Director of Further Education, that Subla was not her place of employment and that she was there under protest. She also noted that the understanding was that her position would be reviewed.

I note the Complainant’s contention that the Respondent has sought to entirely avoid the context underpinning her refusal to continue working in SUBLA after in or around 5 years of what was supposed to be a temporary posting. It was submitted that this is key to the unfair nature of the dismissal and the procedures leading to it.

I note that in September 2013 HR, by letter dated 17 September stated that as there was no integration between CWVEC and WYTEC the reintegration of the Complainant into the latter was not something that fell for consideration at that time.

This is a significant feature of the early-stage problem in placing the Complainant back to WYTEC. 

I note that by e-mail dated 30 July 2018 to the Director of Further Education & Training, the Complainant agreed that Subla allocation was a matter for its management. Crucially she noted that she was not transferred to operate as part of its allocation and had not operated on that basis. On this basis, and in the context of having sought for in or around 8 years to be reintegrated into her position at WYTEC, the Complainant noted that she was available for work but would not be returning to Subla.

This was a significant statement by the Complainant and an opportunity for the Respondent to bring conclusion to the long running dispute over the Complainant’s placement.

However, the reply on 9 August 2018, advised the Complainant that effectively she was announcing her intention to withdraw her service from her employer in breach of her contract of employment.

I find that the Complainant was told that her assignment to Subla was temporary, dating as far back as 7 March 2013 when the then acting CEO of CWVEC requested the Complainant to take up a position in Subla and this would be reviewed in “2 months”. 

This position changed on 21 August 2018 when she was informed

As previously advised to you this was not a temporary assignment.

The Complainant has consistently resisted the Respondent’s position that she was in a permanent position in Subla.  This resulted in an obviously frustrating position where she felt that the Respondent did not engage in resolving the situation, leading to the position where she vacated her place of employment and was then subject to the disciplinary process resulting in her dismissal.

Was there a fair investigation?

In this section, I examine whether the ‘comprehensive report’ requested by HR and provided by A Brennan was as comprehensive as it was considered to have been by the Respondent.

Matters came to a head on 28 August 2018 when the Youthreach Co-ordinator approached the Complainant to discuss the timetable and the Complainant said she wasn’t there for work, she was there to clear her desk.  The Youthreach Co-ordinator contacted her Line Manager and HR.

The Youthreach Co-ordinator “The Manager” A Brennan gave evidence in relation to her engagement with the Complainant on that date.  The following pertinent facts contained in her evidence and cross examination go to the heart of the question – was there a fair investigation?  The report compiled by A Brennan was repeatedly described in evidence by the Respondent’s witnesses as a ‘comprehensive report’.

On the morning of 28 August 2018, when the Complainant advised the Manager that she was there to clear out her desk, not to work or agree timetables, the Manager consulted with HR and subsequently handed the Complainant an email from HR Manager stating that the Complainant’s place of work was in Subla, and this had not changed.

The report compiled by A Brennan at the request of the HR Manager stated:

“On the morning of Tuesday, 28th August 2018 Una Dunphy arrived at Subla Youthreach.  Aislinn Brennan advised UD that she would like to discuss the timetable for the academic year 2017/2018.

UD advised AB that she was awaiting advice on her place of work, as per her emails to Kevin Lewis, CE.  AB advised UD that her place of work (Subla) remained unchanged and it was her responsibility as Subla Youthreach Co-ordinator to allocate UD’s 22 hours teaching on the timetable for the 2018/19 academic year.

UD responded that although she was in the Subla Cantre, she was not there to work, but rather she was in the workplace with the purpose of clearing out her desk.  UD advised that she would not be returning to work at Subla.

AB sent an email to Mary Walsh (AEO) informing her of the situation and seeking advice.  Ken Whyte (FET Director) and Anne-Marie Jones (Head of HR) were copied on this email.  On the afternoon of Tuesday 28th August, AB received an email response from Anne-Marie Jones.  AMJ requested that AB give UD a copy of an email sent by AMJ to UD on 21st August.  This email advised UD that her designated place of work had not changed and that she would continued to be placed in Subla Youthreach Centre.

AB gave a copy of this email to UD who advised AB that she had already received it.  AB queried whether this might change UD’s confirmed position that that she was not returning to work at Youthreach Subla.  UD confirmed that it did not. 

UD left Youthreach Subla in the early afternoon of 28th August and has not returned.

Signed Dr Aislinn Brennan dated 06/09/2018.  

In considering whether this constituted a ‘comprehensive report’, I have reviewed and taken into account Circular 0048/2018 “Revised procedures for suspension and dismissal of teachers and Principals” which states inter alia:

“Where circumstances warrant, a teacher may be placed on administrative leave with full pay pending an investigation or pending the outcome of an investigation, a disciplinary hearing/meeting, or pending the outcome of a disciplinary hearing/meeting”.

The circular lays great emphasis on ‘presumption of innocence’ and no decision regarding disciplinary action can be made until a formal disciplinary meeting has been convened.

In this instant case, I conclude that in taking immediate action to take the Complainant off the payroll, in concluding she was on ‘unauthorised absence’ without a formal investigation the Respondent has acted in a predetermined manner to dismiss the Complainant.  I note the absence of any input from the Complainant to the ‘comprehensive report’ compiled on 6 September 2018 and I find the report to lack comprehensiveness in that absence. 

Was the penalty proportionate and could there have been an alternative to dismissal?

I note in response to a question from me to the Director Further Education & Training, in relation to a letter from him to the Complainant dated 4 January 2017, in which he stated “The request for a transfer out of Subla is noted”, the witness said “that is bad English, that should have said your request to get out, it was not a formal transfer request”.  He said he would have told the Education Officer to expect a transfer request but he didn’t believe one came in subsequently.

However, a reading of the email dated 4 January 2017, and copied to the Education Officer and the HR Manager also stated:

“I will be consulting with Eilis Leddy, Education Officer, who manages transfers and will be in touch”.

While I note that the Director indicated that the application of a transfer request would be the responsibility of the Complainant, I find that the following up here by Management was a missed opportunity. In a case such as this one, with such a lengthy and complex history, I find that a reasonable employer would make positive efforts to accommodate the Complainant with a transfer or to at least give a fair hearing to her point about suitability of placement.  In that context I find the penalty of dismissal was disproportionate.

Based on the findings here that a) the Respondent failed to carry out a full and fair investigation on 28 August 2018, b) that the Complainant was taken off the payroll rather than be suspended with pay pending an investigation and c) the alternatives to dismissal were never seriously considered.  I particularly note the absence of any positive action on the Respondent’s part to accommodate the Complainant with a transfer or to give her a fair hearing as to reasons why she should have been so accommodated.

For the findings and reasons stated, I find the Complainant was unfairly dismissed.  The remedy of re-instatement or re-engagement is not suitable in this case, for the obvious reason that the employment relationship irretrievably broke down many years ago.  I find compensation to be the appropriate remedy.  Taking into account lack of information on mitigation and a certain degree of contribution by her in relation to the combative nature of exchanges throughout the lengthy period of time, I award the complainant the sum of €55,000 compensation which I consider to be just and equitable in the circumstances.

CA-00032570-003           Payment of Wages Act 1991

Preliminary issue – time limit.

Section 41 (6) of the Workplace Relations Act 2015 provides:

“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

Section 41 (8) provides:

“an adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause”.

The complaint was received on 28 November 2019.  The cognisable time period therefore is from 29 May 2019, unless saved by Section 41 (8) of the Act. 

An incomplete complaint in relation to Payment of Wages Act 1991 was received by WRC on 18 December 2018 (CA-00023981-001) and was returned for completed information to be provided.   No response was received.  The complaint was subsequently struck out as provided for by Section 48 of the Workplace Relations Act 2015 for the reason that it was not pursued within the period of one year before it was struck out. 

Subsequently, complaint CA-00032570-003 was submitted and received on 28 November 2019. 

I note the difficulties caused by the incompleteness of the form for CA-00023981-001.  I note the fact that solicitors for the Complainant advised WRC that the complaint CA-00032570 was a ‘second complaint’ following on from CA-00023981 and should be associated with that complaint to be heard together.  Taking into account the fact that the solicitors put it on notice that there were two complaints being pursued, and where the Complainant could not be considered to have not pursued her complaint, I am willing to extend the time to 28 November 2018. 

I note the Respondent’s position:

The Respondent's position is that there was an administrative decision not to pay if the Complainant was not working.

The period 28 November 2018 to the date of dismissal 16 September 2019 constitutes just under 10 months.

While I accept the Respondent’s right to not pay the Complainant indefinitely when she was absent from work, I do not accept the Respondent’s right to withhold sick pay.

The Complainant’s pay ceased at the beginning of September 2018 when she ‘cleared out her desk’ and left her workplace. In November 2018, a sick certificate was sent in and after she attended Medmark she was put back on the payroll on 2nd April 2019.  Her pay ceased on 29 April 2019.

She had been certified fit to return to work by Medmark on 6 March 2019.  I find that by reason of her being on certified sick leave from November 2018 to 6 March 2019, the Complainant was entitled to paid sick leave and in that 16-week period, she was not paid her contractual entitlement to paid sick leave. 

I make no finding on the period between April and September 2019 as that period is not covered by an obligation to paid leave.

I find the complaint to be in part well founded, and I require the Respondent to pay to the Complainant the sum of 16 weeks’ pay less all statutory deductions. 

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00032570-001           Protected Disclosures Act 2014

The Protected Disclosures Act 2014 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 2 of that Act.

Based on the findings and reasons above, I have decided that the complaint is not well founded.

CA-00032570-002           Unfair Dismissals Act 1977

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

Based on the findings and reasons above, I have decided that the complaint is well founded and I require the Respondent to pay to the Complainant the sum of €55,000 compensation for unfair dismissal.

CA-00032570-003           Payment of Wages Act 1991

Section 6 of the Payment of Wages Act 1991 requires that I make a decision in accordance with the provisions of that Act.

Based on the findings and reasons above, I have decided that the complaint is in part well founded, and I require the Respondent to pay to the Complainant the sum of 16 weeks’ pay less all lawful statutory deductions.

Dated:   24.09.2025

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Key Words: