Complainant

Respondent

Anonymised Parties

A teacher

A school patron

Representatives

In person.

Ms Cathy McGrady BL instructed by Mr. Lorcan Maule, Mason Hayes and Curran

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00051726-001

18/07/2022

The complainant is a teacher. Employment commenced on 24th August 2018 and is ongoing.

This complaint was received by the Workplace Relations Commission on 18th July 2022.

It should be noted that the named respondent is not the complainant’s employer.

Due to the very large number of documents submitted (circa 6000 pages) the decision has taken much longer than normal to complete and for this delay I apologise and thank the parties for their patience.

The complainant’s specific complaint reads as follows (as submitted on complaint form submitted to the Workplace Relations Commission on 18th July 2022):

During the course of my employment, I have brought a number of wrongdoings to the attention of my employer, and I have been penalised as a result. The wrongdoings to which I refer are in respect of the actions of my employer and/or staff employed by my employer and include inter alia, a failure by my employer to protect employee Dignity at Work, a failure by my employer to follow correct procedures, policies and a failure to apply the principles of natural justice, a failure by my employer to accept or acknowledge a report regarding the safety of a child attending the school, a failure to investigate the said report regarding the safety a failure to investigate of that child, a failure to investigate and/or acknowledge and/or act on issues reported regarding health and safety in the school, a failure to investigate and/or acknowledge and/ or act regarding breaches of GDPR, a failure to investigate  and/or acknowledge and/or act on reports of threatening behaviour, a failure to implement appropriate supervision and substitution to protect employees health and safety, a failure to protect employees against bullying and harassment in the workplace. Since I made the disclosures outlined above, I have been penalised on several occasions, the most recent of which denied me the right of appeal on 28th January 2022.

By letter dated 12th September 2023 the complainant outlines his complaint as follows:

·        Penalisation for Protected Disclosures made through the principals interviewing of him (1-66).

·        Penalisation for Protected Disclosures made through my school patron failing in their role and responsibilities to him and the whole school community (67-92)

·        Penalisation for Protected Disclosures made through the Board of Managements actions and omissions (93 – 165)

·        By not acting upon proof of former principle and colleagues lying and otherwise misleading a school investigation my Board penalised me for protected disclosures made (appendix 13.08)

·        Penalisation for Protected Disclosures made by denying me acknowledgement for leadership roles I fulfilled.

·        Penalisation for Protected Disclosures made through timetabling. (222 – 274)

·        My 3 Assistant Principle 1 interviews ( & processes) as penalisation for Protected Disclosures Made (275 – 334).

Extract from complainant’s submission on protected disclosures.

It is at this point that I would like to request that our Adjudicator increase the time limit for consideration from 6 months to 12 calendar months for this case, as is within their power to do, under “reasonable cause” for the delay. Throughout this whole dreadful experience, I have acted with professional integrity and trust in the professional integrity of others, adhering to advice given to me and progressing through each stage, as it was presented to me. As I look back over my case however, I see that the actions/inactions taken by others have seriously impinged upon my rights, amongst these being my right to legal protection. My Board of Management have taken an unfairly protracted amount of time, in dealing with my case. In every instance where timelines existed, they have pushed out to the final day possible for their response. Further, where clear timelines did not exist, instead of an expectation to progress “as quickly as possible” existing, an unfair amount of time was taken, and this time has now, if our Adjudicator does not address it by allowing the scope for consideration to be extended to 12 months, been allowed to directly impinge upon my legal rights, and allows me to be victimised. I first lodged my “Dignity at Work Complaint” 23rd March 2020. My final presentation to the Board of Management was not allowed to take place until April 2022 (approx.). My Appeal Hearing was not until 9th November 2021 – I received invitation to meet on the 4th October 2021 – with the earliest date on offer being the 6/7/8/12th October, which were too short notice for me. Due to delays from my (redacted) IRO availability to advise, the hearing did not happen until 9th November, with the report being issued on 18th November. I was then given a “written only” option to present to the Board of Management, with the closing date being December 6th (3 weeks). Upon submission of my written presentation to the Board of Management, I outlined how my rights had been impinged upon as per our Dignity at Work, procedures document, I was given the option of addressing the Board in mid-April 2022 (a further 4-month delay). Within 60 days of these meetings/hearings findings I had employed a legal team and due to the existing, then timeline, had until July to lodge my appeal, as the activities of September to December were already outside of my 6-month window. If the Adjudicator would take the delay of not having my appeal looked at in September 2021 (1 month); adds the month lost in October 2021 due to planning issues in getting the meeting set up (I am including the mid-term break here also) (1 month); Adds the unreasonable delay of February/March/April 2022 (3 months including Christmas Mid Term/ St Patricks Day/Bank Holidays), I got Covid, the total time delay, beyond my control tally runs to at approx. 5 months. If these 5 months are then subtracted from my timeline, that would then reasonable move (all things being equal) my date of complaint to the Workplace Relations Commission to sometime in February. All things being equal then, delays that were beyond my control being removed, that puts the actions and activities of my first interview, for the 1st AP1 position, 17th September 2021, well within the 6-month scope of my investigation.

Furthermore, as my case outlines, there has been, I believe, a continuous and clear move against me in my place off work in the run up to these vital interviews (central to my school’s future). Actions, (active and inactive), and statements from those outlined in my complaint, show how a clear animus exists towards me. While my second appeal ended in January of the year of my complaint, within the 6 month expressly allowed time-limit for the scope of this case – I argue that in fact February was the end point of a protracted singular recruitment event – one where clear breaches to my rights occurred, and I ask that this court see the three events as one, as each event had a clear and definite bearing on the next. If my rights were protected and my protected discloses investigated in the first instances and procedure followed without bias, the landscape of September 2021 and June 2022 would have been very different. My now Principal could not have interviewed me due to a clear conflict of interest. If my complaint against him, containing several protected disclosures, had been validat3ed he would not have been deemed suitable, for reasons of character, to occupy the position of Principal or any other management post in a school. As such my appeals would never have occurred. That is not to say I believe I would have been given a fair opportunity in these interviews. I believe that due to the existence of a clear bias and animus against me, I would not have, but that is to say process, procedure and due diligence would have been, and as such my work place made in some way safer and legitimate by it. I ask that February 2022, where the appointment of AP1 occurred be considered as the end of the first round of a highly controversial and inappropriate recruitment process – a process whose illegitimacy, I reiterated in my closing statement to the Board of Management in March of 2021. Up until their final decision, even at that late stage, the Board could have addressed matters, instead they failed in their duty to the members of their school community.

Finally, I would ask that our Adjudicator takes into account the seriousness of the breaches of my rights in this period between September 2021 and December 2021. There are serious breaches of the Articles of Management for a Catholic school by my Board of Management; Serious breaches by my Patrol by not ensuring the Board and then Acting Principal were acting in accordance with the Education Acct 1998; Articles of Management amongst others; breaches in my rights to a fair interview, without bias (suggested or actual); the ignoring of protected discloses; and all of these when combined causing me very serious penalisation and prejudice. I believe, if my Board, then Acting Principal; Patron had performed their roles as legally tasked, I would not be here before you today, but the reality is that they didn’t as a result serious laws were broken, and a cascade of decisions and promotions were made on a non-legally sound even illegal basis and foundation. This is a further Protected Disclosure that I make to this Court. To recognise this, I believe, is to force a “reset” on the whole promotions’ activities of my school. The promotions that have occurred are, by the breaches in practices and procedures, akin to being as legally binding as a signature on a contract of sale for the Eiffel Tower, written by a conman (I used this work as this event, as with the “Golden Gate Bridge” actually occurred).

Furthermore, I would like it noted that I would like the “Appeal Hearing Report” against my “Investigation Report” stricken out and removed from consideration as it, as a process, was not contained in my school’s Dignity at Work policy document at the time when I lodged my Dignity at Work Complaint. Its existence is misleading, (especially when you consider that it not a review of evidence, but instead a very limited area of procedure), is prejudicial to my case and adds a validation to the “facts” of my investigation that I refute, by virtue of its misleading title – it is preventative of natural justice, and as it is not an appeal in a very real way. Without its existence, I believe that the Board of Management in their deliberation would have had no option but to seek a new investigation by an unbiased (whether implied or actual) agreed upon investigator, armed now with clear evidence.

The complainant’s submission.

Part of the written submission from the complainant included a booklet of what he believed to be his protected disclosures.

I have read the booklet and address the points made in my Findings and Conclusions.

Contained within a letter to the WRC dated 24/10/22 the following statement is included:

As a Trust body we are not directly involved in the employment of teaching staff and so are at somewhat of a loss regarding our involvement in this case.

BACKGROUND

·        The Complainant commenced employment with the Respondent on or about 24 August 2014 as a teacher.

·        The Complainant claims that during the course of his employment, he brought a number of wrongdoings to the attention of his employer, in respect of the actions of his

employer and/or staff employer by his employer, as follows:

a. an alleged failure by his employer to protect employee’s dignity at work;

b. an alleged failure by his employer to accept or acknowledge a report regarding the safety of a child;

c. an alleged failure to investigate the said report regarding the safety of the child;

d. an alleged failure to investigate and/or acknowledge and/or act on issues reported regarding health and safety in the school;

e. an alleged failure to investigate and/or acknowledge and/or act on issues regarding breaches of GDPR;

f. an alleged failure to investigate and/or acknowledge and/or act on reports of threatening behaviours;

g. an alleged failure to implement appropriate supervision and substitution, to protect employee’s health and safety;

h. an alleged failure to protect employees against bullying and harassment in the workplace.

·        The Complainant has failed to provide any details of the alleged matters or that they constitute relevant wrongdoings and/or how/when it is alleged that they were disclosed

to the Respondent, and the Complainant is placed on full proof thereof.

·        Without prejudice to the foregoing and in an effort to put potentially relevant matters before the Adjudication Officer, it is acknowledged that on or about 22 March 2021, the Complainant made a Dignity in the Workplace Complaint against the former Principal. It is further acknowledged that the said complaint contained a matter that could come within 4(g) above.

·        The said complaint, among others, was fully investigated by (name redacted) who furnished his report on 7 June 2021. He concluded therein that the Complainant’s complaint regarding supervision and substitution was unfounded. The Complainant’s overall complaint of bullying and intimidation was found to be unsubstantiated and unsustainable. The Complainant’s subsequent appeal was not upheld.

·        The Complainant further alleges on his complaint form that since he made the alleged disclosures outlined above, he has been penalised on several occasions, the most recent of which denied him a right of appeal on 28 January 2022.

·        The Respondent denies penalisation on ‘several occasions’ and is unaware of what the Complainant refers to in this regard.

·        It is however within the Respondent’s knowledge that by letter dated 28 January 2022, the Respondent, was advised by way of a letter, that the Appeal Board Secretariat, could not process an appeal lodged by the Complainant against the result of a competition to fill an Assistant Principal in (name of school redacted). 1. It was specified in the letter that this was because the Appeal Board Secretariat had not received an appeal form from the Appellant and the appeal date of 17th December had long since passed.

·        The Complainant was informed by the Respondent in a detailed letter dated 8 December 2021 on the procedures how to appeal the decision of the competition to fill an Assistant Principal 1 position. It is further submitted that the Complainant had previously appealed a prior Assistant Principal 1 position and was familiar with the procedures and strict timeframe that was required.

·        The Appeal Board referred to in the letter of 28 January 2022 had been established pursuant to Circular 0003/2018 and consisted of a nominee of the Complainant’s trade union, a nominee of the management body and an independent chairperson and was entirely independent of the Respondent.

LEGAL SUBMISSION

The Protected Disclosures Act provides at Section 5 as follows:

5. (1) For the purposes of this Act “protected disclosure” means, subject to

subsections (6) and (7A) and sections 17 and 18, a disclosure of relevant

information (whether before or after the date of the passing of this Act) made

by a worker in the manner specified in section 6, 7, 8, 9 or 10.

(2) For the purposes of this Act information is “relevant information” if—

(a) in the reasonable belief of the worker, it tends to show one or more relevant

wrongdoings, and

(b) it came to the attention of the worker in connection with the worker’s

employment.

(3) The following matters are relevant wrongdoings for the purposes of this

Act—

(a) that an offence has been, is being or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal

obligation, other than one arising under the worker’s contract of employment

or other contract whereby the worker undertakes to do or perform personally

any work or services,

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d) that the health or safety of any individual has been, is being or is likely to

be endangered,

(e) that the environment has been, is being or is likely to be damaged,

(f) that an unlawful or otherwise improper use of funds or resources of a public

body, or of other public money, has occurred, is occurring or is likely to occur,

(g) that an act or omission by or on behalf of a public body is oppressive,

discriminatory or grossly negligent or constitutes gross mismanagement, or

(h) that information tending to show any matter falling within any of the

preceding paragraphs has been, is being or is likely to be concealed or

destroyed.

In the case of Irish Prison Service v Noel McGree1 (Appendix 7), the Labour Court

set out the requirements to determine a complaint of penalisation as follows:

In order to determine a complaint of penalisation under the Protected

Disclosures Act 2014 it must first be established that a protected disclosure had

been made and in the within matte it is common case that the Complainant made

a protected disclosure within the meaning of the Act on 7thMarch 2016.

In order for the Complainant to succeed in his complainant under the Act, the

Court must decide if the Complainant was penalised for having made such a

protected disclosure. The provisions of the Act regarding penalisation are

broadly similar to those provided in the Safety Health and Welfare Act, 2005

(the Act of 2005). As this Court pointed out in a decision made under that Act

in O’Neill v Toni and Guy Blackrock Limited [2010] E.L.R. 21, it is clear from

the language of Section 27 of the Act of 2005 that in order to make out a

complaint of penalisation, it is necessary for a complainant to establish that the

detriment of which he or she complains was imposed “for” having committed

one of the acts protected by Section 27(3) of the Act of 2005. Thus, the detriment

giving rise to the complaint must have been incurred because of, or in

retaliation for, the Complainant having committed a protected act.

This suggests that where there is more than one causal factor in the chain of

events leading to the detriment, the commission of a protected act must be an operative

cause in the sense that “but for” the Complainant having committed

the protected act he or she would not have suffered the detriment.

The principles enunciated in that decision can be applied to the within

complaint under the Act. Thus, the Complainant in the within matter is under

the burden of establishing that any detriment which he alleges amounts to

unlawful penalisation under the Act, occurred because he had made a protected

disclosure. In essence, that the detriment would not have occurred but for a

protected disclosure having been made.

·        It is submitted accordingly, that the Complainant must establish in the first instance that he made a Protected Disclosure within the meaning of the Act and he is placed on full proof thereof.

·        As confirmed by the Labour Court on many occasions, including in the Irish Prison Service case mentioned above, the Complainant must also show that he suffered a detriment, which constituted unlawful penalisation within the meaning of the Act, and that the detriment would not have occurred but for the protected disclosure having been made.

·        As appears from the communication of 28 January 2022, relied upon by the Complainant as penalisation, it is important to note the following:

a. The Complainant was not denied a right of appeal. In accordance with the said letter of 28th January 2022, it is abundantly clear that he was afforded a right of appeal against the result of a competition to fill an Assistant principal 1 position 1, and he did so lodge an appeal, which he failed to progress;

b. The Appeal Board Secretariat is separate to and entirely independent of the Respondent and included a representative of the Complainant’s trade union, who wrote the letter referred to;

c. The Complainant failed to furnish an appeal form to the Appeal Board Secretariat by the date required or at all.

d. Due to the Complainant’s said failure, the Appeal Board Secretariat could not process the Complainant’s appeal. This was not a decision of the Respondent who was merely informed of the Appeal Board Secretariat’s decision.

·        It is submitted that this could not amount to an unlawful penalisation under the Act. Firstly, it is not clear that it was a detriment at all in the circumstances. Given his failure to pursue his appeal, it could be assumed that the Complainant did not wish to do so. In addition, the decision not to process the appeal was not a decision of the Respondent, but rather was the decision of a third-party body, with no knowledge of the complaint made by the Complainant in relation to substitution and supervision or any complaint. Furthermore, it is clear that the operative reason for the third-party body’s decision that it could not process the Complainant’s appeal, was the Complainant’s failure to lodge the required appeal form. This was the sole reason for the Appeal Board’s decision. It simply cannot be said that but for Complainant making a protected disclosure, the appeal would have been processed. This could not have occurred without the Complainant lodging the necessary form.

·        It is submitted that the Complainant’s claim is without foundation and should be dismissed.

The role of a school patron may be described as follows:

THE PATRON/TRUSTEES DETERMINE THE ETHOS OF THE SCHOOL.

The patron/trustees determine what kind of school they will run. They decide what their purpose is in establishing or maintaining the school, and what they expect it to achieve. Decisions as to whether a school will be fee-charging or within the free education scheme, single sex or co-educational, a day or boarding school, are matters for the trustees. Decisions which might change the ethos or status of the school are matters for the trustees alone. Thus, decisions with regard to amalgamations, closure of boarding sections, payment of fees by pupils etc., can be made only by the patron/trustees. Neither the Department of Education (DE), nor the board of management, has the power to alter the fundamental nature of the school, as determined by the trustees.

It should be noted that the patron does not become involved in the day-to-day management of the school, that task is left to the Principal and the Board of Management.

The Board of Management as an employer must ensure the following:

·        The BOM appoints full-time members of the teaching staff on the advice /recommendation of a Selection Committee set up by the BOM.

·        Appointments of temporary and/or part-time teachers shall be made by the Principal and ratified by the BOM.

·        Appointments to Middle Leadership and Management positions shall be made by the Board in accordance with the terms of the relevant DES Circulars.

·        The Board shall approve the appointments of all members of the non-teaching staff made by the Principal.

·        In the event of redeployment, the Board will decide on areas where surplus staff exists in accordance with the curricular needs of the school.

I am satisfied that the Patron (named as the Respondent) is not involved in the day to day management / running of the school and as such has no case to answer. The complaint as presented is not well found.

I am satisfied that the Patron (named as the Respondent) is not involved in the day-to-day management / running of the school and as such has no case to answer. The complaint as presented is not well found.