Case Number: ADJ-00016048. Workplace Relations Commission

• Docket Number: ADJ-00016048
• Hearing Date: 23 January 2019
• Date: 29 April 2019
• Court: Workplace Relations Commission
• Parties: A Special Needs Assistant V Board of Management of a School

Procedure:

In accordance Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

This case involves a claim for Unfair Dismissal on behalf of a Special Needs Assistant against the Board of Management of a School. Both parties were represented, the complainant by her Union and the Respondent by their Solicitors. Both parties made helpful written submissions. I received a copy of a Doctors letter referred to at hearing. Neither party were able to locate the complainant’s contract of employment.

Summary of Respondent’s Case:

The Respondent is the Management of a Primary School. The Complainant commenced work as a Special Needs Assistant in November 2006. She availed of a career break during the school year 2015/2016 which she extended into the subsequent school year of 2016/17. However, the complainant changed her mind and sought to return to work. The Respondent permitted her return on reduced hours which were then normalised to the 32-hour week full time position in September 2017. The Complainant resumed work in September 2016. On 6 February 2017, the complainant commenced on pregnancy related sick leave, which was changed a few weeks later to work related stress. Her absence continued until the conclusion of her protective leave in October, where her absence continued but the reasoning for same reverted back to work related stress. In March 2017, the complainant initiated a grievance against Mr. A, the Principal at the school, based on her reduction in hours. He in turn offered to meet with the complainant, only to learn from her that she intended meeting the Chair of the Board, Fr B. The Respondent allocated an extern to hear the grievance, Ms C, who concluded that there were no grounds for the grievance. This was confirmed to the complainant on 25 September 2017. The Union wrote to the Respondent in November 2017 raising a reference to an earlier grievance, clarification was sought by the respondent, but nothing further was heard from the Union until the parties met surrounding the complainants ongoing absence from work in June 2018. The Respondent submitted that the complainant was expected back to work on 9 October 2017. By then the complainant had disengaged and missed notification of sick deadlines, causing a delay in sourcing substitute cover. She refused to engage in the Garda Vetting Procedure. The Respondent referred the complainant to their Occupational Health Advisors on 10 November 2017. She was reviewed on 5 February 2018 and deemed medically unfit for work but fit to participate in a process to try and resolve any perceived work-related difficulties. She was to return in 6 weeks. The Complainant disengaged from the process and missed three subsequent scheduled appointments. A letter dated 12 June 2018 followed from Respondent to Complainant which summarised the status of her employment as” at risk” due to her non compliance with Occupational Health and her failure to communicate with the respondent .The Complainant was invited to be heard at a meeting of the Board of Management set for Thursday, June 21 , the purpose of which was to consider the extent of the complainants absence and the termination of employment .The Meeting was rescheduled to June 28 to facilitate the complainants availability . The meeting proceeded as planned but was unsatisfactory due to the complainants failure to give explanations for her absence or indicate a return to work date .The Respondent re-affirmed their position on the lack of any information from the complainant on why she had been non-compliant with Occupational Health Dept and non-communicative with the respondent , who had no idea of her intentions regarding return to work. The Respondent submitted that they had no medical evidence on the complainant’s potential to resume work. They issued notice of termination of employment. The Respondent submitted that this was a fair, reasonable and proportionate measure by the Board in response to the complainant’s disengagement at Board and Occupational health level. The Respondent had honoured the principles of fair procedures and natural justice. The respondent ha followed the Circular 0054/2015. In addressing the complainant’s submission on loss and mitigation, the Respondent relied on jurisprudence in Coyle V Tipper house ltd, in the case of an Unfair Dismissal, where the complainant had been unfitting for work since the date of termination through redundancy. The EAT did not make an award of compensation due to the omnipresent disability payments. The Respondent relied further on O Sullivan V O Sullivan UD941/2007(2009) where continuous receipt of disability payments caused an award of 4 weeks pay by the EAT. The Respondent disputed the claim for Unfair Dismissal and any claim for compensation as a result. Evidence of Mr A, Principal Mr A confirmed that he referred the complainant to Occupational health in the aftermath of her grievance. This was a discretionary referral. He subsequently increased her hours to 32 hrs pe week at his earliest opportunity. She had submitted certs for a range of conditions from Pregnancy, Pneumonia and Work-related stress. He confirmed that the complainant had disengaged from OccupatioanlHealth and the Garda Vetting process. Replacement cover was haphazard because of her disengagement. She continued unpaid leave. He took advice on process from the Schools advisory service. During cross examination Mr A confirmed that replacement SNAs couldn’t be sought due to the lag in the complainant’s medical certificates. The Complainants mother spoke on her behalf when she was away from home in April 2018. Mr A had no intention of actioning the Disciplinary procedure against the complainant, his main issue was that she would not engage with Occupational Health Department. The Board of Management believed that dismissal was the correct measure taken, as the complainant had presented substantial grounds for her dismissal. This was the first dismissal undertaken at the school and the Board genuinely believed that they were acting on proper external advice. The Respondent was emphatic that they had never “received or been given “the Doctors letter dated 20 June 2018.

Summary of Complainant’s Case:

It was common case that the Complainant had been employed as a Special Needs Assistant since November 2006 until her dismissal on 5 July 2018. The Union, on behalf of the complainant submitted that this constituted an Unfair Dismissal in disregard for the provisions of Section 14 of the Unfair Dismissals Act, 1977. The Union argued that the presiding circular to be observed and followed by the Respondent was circular 0072/2011. This Circular evolved from the Department of Education and Science dated 15 December 2011 and was titled: Grievance and Disciplinary Procedures for Special Needs Assistants in Recognised Primary and Post Primary Schools The Union submitted that this circular was never invoked or referred to by the school during the dismissal process. When the Union attended a meeting concerning the complainants attendance record on June 28, they raised the “procedural mis fit “and sought compliance with the Circular. The Respondent confirmed that the School was acting on its own advice and the Department was not the employer in the case. The Union representative stated that he was personally rebuked by Mr A for his submissions and repeatedly referred to as “a disgrace “. The Union wrote in response the following day date June 29, an extract of this email follows. This letter was directed as the Chair of the Board, Fr B. “….. the letter of June 12 noted that the matter to be discussed pertained to the Sick leave Circular (0054/2015) However, notwithstanding this, Mr A brought up other matters that were not flagged in the letter, including a reference to a grievance that had been taken against him by the complainant and a reference to a career break matter. ……. these statements were made in front of the Respondent. It is the responsibility of the school to give a fair and impartial hearing, in accordance with 071/2011….it is unclear how the school, as her employer, could ever give her an impartial determination. ….. we ask that you immediately clarify how you wish to proceed with the complainant’s case...