Facts:
The Complainant was employed as a school Principal in Gaelscoil Moshiolog (the School) from September 2002 to November 2015 when he was dismissed.
In summary, in 2012 the Complainant was the subject of a HSE investigation into an incident referred to as the “single child incident.”
In November 2012, the HSE confirmed to the Board of Management of the school (“the Board”) that the incident did not require child protection intervention, however, it seems the HSE requested the Respondent to conduct its own investigation into the matter. The Complainant who had been placed on administrative leave following the incident in question was then informed his administrative leave would be extended to enable the Board to conduct such investigation. However, that investigation never took place.
Instead, the administrative leave continued without any investigation commencing and on 13th March, 2013 the Board wrote to the Complainant’s union, the INTO, indicating its intention to investigate a range of additional disciplinary matters other than the single child incident. It appears that only one of these other matters i.e. an issue regarding enrolment figures, proceeded to disciplinary. The Board wrote to the INTO on 29th May, 2013 stating that it was instituting disciplinary proceedings in respect of the said enrolment matter. At this time the Complainant’s administrative leave came to an end and the Board moved him to a suspension on full pay pending the outcome of the disciplinary investigation and the conclusion of any appeal process.
It seems that in relation to the various other allegations that had been levelled against the Complainant none of these proceeded any further and evidence was given at the hearing to the effect that the Complainant was considered to have a “clean slate” in relation to those allegations. It would appear this clean state extended to the single child incident and all matters other than the enrolment issue.
In terms then of the enrolment issue, this was first raised with the Chairperson of the Board of Management as an issue in January 2013 and it was investigated by the Chairperson over the following months. However, the allegation does not appear to have been put to the Complainant until May 2013.
Ultimately the Complainant was dismissed over the enrolment issue. The dismissal was upheld on appeal and the Complainant’s employment terminated on 30th November, 2015. The Complainant subsequently brought an unfair dismissal claim to the WRC. The WRC’s decision in relation to that claim issued on 28th April, 2018. The WRC determined that the dismissal was unfair and ordered that the Complainant be re-engaged. The Board appealed that WRC decision to the Labour Court.
In summary, the Respondent’s case before the Labour Court was that the Complainant was dismissed on grounds of serious misconduct comprising of fraud and deliberate falsification of enrolment returns to the Department in October 2009 with a view to obtaining access to resources the Respondent’s School was not lawfully entitled to. The Respondent submitted that the disciplinary procedures applicable to the Complainant’s employment provide that the normal consequence of such misconduct on the part of the Principal Teacher, when established, is dismissal. It was the Respondent’s case that those procedures were applied fairly and reasonably in the course of the process which culminated in the Complainant’s dismissal. The Respondent further submitted that the decision of the Disciplinary Panel appointed by the Board of Management was upheld by an independent Disciplinary Appeal Panel and that the decision met the band of reasonableness test articulated by Lord Denning MR in British Leyland UK Ltd v Swift [1981] IRLR 91 and subsequently endorsed by the Irish Superior Courts.
According to the Labour Court’s determination a central plank of the Complainant’s case was that the Board in place in 2009 was informed of, and approved of, his conduct in relation to the enrolment figures and that although he was dismissed for the actions he took in 2009 by a subsequent and differently constituted Board, the Board is a single legal entity and is designated by statute as “a body corporate with perpetual succession”. He therefore called into question the reasonableness of his former employer’s decision to dismiss him for conduct which it condoned and actively participated in.
The Complainant also sought to impress upon the Labour Court that the impugned conduct was widespread at the time it was committed, and has come to be regarded as wholly unacceptable since the introduction of certain elements of the Croke Park Agreement in 2011 and the 2013 Circular leading to changes of practice and to a considerable raising of standards.
It is also worth pointing out at this juncture that the Complainant did not personally benefit in any way – including by way of a salary increase – from the alleged overstatement of returns.
The Complainant argued that there was a significant delay both in initiating the disciplinary process and bringing it to conclusion and that those delays, coupled with the protracted period for which he was maintained on administrative leave and then suspended, were highly oppressive and prejudicial, particularly in light of the fact that the wrongdoing complained of was known to the Respondent at the time it occurred in 2009.
On a related point, the Complainant submitted that the Respondent’s decision to place him on administrative leave initially, and then to continue it after he had been exonerated by the HSE’s investigation into the single child incident, was unwarranted and disproportionate. He submitted that the decision to then suspend him with effect from 29th May, 2013 caused him further prejudice and reputational damage and in this regard he relied on the dicta of Noonan J in Bank of Ireland v Reilly [2015] IEHC.
With regard to the issue of redress, the Respondent submitted that if its appeal failed the appropriate redress should be compensation as the Complainant’s conduct had undermined the Respondent’s trust and confidence in him. The Complainant, however, sought reinstatement or re-engagement.
Decision:
The Labour Court commented that the “Combination of the Respondent’s failure to carry out any internal investigation into the single child incident while ostensibly retaining the Complainant on extended administrative leave for that purpose, the Respondent’s surreptitious investigation into a totally separate allegation over a period of some five months of which the Complainant had not been informed and hadn’t been given an opportunity to participate in, the raising in the letter of 29th May 2013 of a total of eight additional allegations against the Complainant that were said to require a further comprehensive report to the Board of Management and the placement of the Complainant as of that date, on an indefinite period of paid suspension strongly suggests, in the Court’s view, a determined intention on the part of the Respondent to find a basis for removing the Complainant from his employment in circumstances where the HSE had concluded that his conduct on 11January 2012 did not constitute physical abuse of a child.”
The Court confirmed it was reinforced in this view having regard to evidence given to the effect that all of the allegations against the Complainant listed in the letter of 29th May 2013 – bar the one that gave rise to the within proceedings (i.e. the enrolment figures allegation) – “were not investigated by the Board, have been dropped and are no longer extant”.
The Court further observed that no explanation was provided in the letter of 29th May, 2013 as to why it was necessary to put the Complainant on paid suspension in May 2013. The Court stated that this decision raised further concerns in the Court’s mind about the appropriateness of the Respondent’s conduct of the disciplinary process overall having regard to the fact that the investigation into the enrolment issue had been ongoing for some four months at that stage.
The Court found the evidence given by certain witnesses in relation to the Board being aware of enrolment figures and the steps taken by the Complainant to present those figure in the best light so as to ensure the ongoing viability of the school was credible and consistent.
The Court was also critical of delay in the process in a number of respects. For example, there was a delay in the region of four months from when the concerns regarding enrolment returns were first raised in January 2013 before the Complainant was advised of this allegation on 29th May, 2013. There was then a delay of over two years from that point until the disciplinary hearing concluded and the Complainant was dismissed. The Labour Court also made express reference to the fact that the Complainant was on administrative leave firstly, and then on suspension for the best part of four years combined.
Proportionality
The Court accepted that the Complainant was not acting without the support or encouragement of the Board. The Court found that this called into question the proportionality of the sanction imposed.
The Court stated “It is beyond dispute that dismissing a person from an education post, particularly at the level of school principal, is to give the “kiss of death” to that person’s career as an educational professional” The Court went on to state “It follows, therefore, that the bar is set very high for the Respondent in this case in terms of demonstrating that its decision to dismiss the Complainant was a proportionate response to his admission of making an inflated return of the 2009 enrolment numbers to the Department.”
On this point the Court had regard to an acknowledgement on the part of the Respondent that, when arriving at its decision to dismiss, it erroneously believed that the Complainant had himself benefited from the inflated returns in 2009. The Court also had regard to its finding in relation to the Board’s ongoing and informed support for the Complainant’s practice in relation to making the annual returns and the very strong evidence put forward by another witness at the hearing about the prevalence of similar practices in the sector prior to 2013. Having regard to all of this the Court found that the sanction of dismissal was disproportionate and not within the band of reasonable responses open to a reasonable employer in the circumstances.
Redress
The Court found that the appropriate redress was an award of re-engagement from September 2017 and held that the period from his dismissal in August 2015 until September 2017 was to be determined as unpaid suspension, therefore maintaining his continuity of service for all purposes.
Takeaway for the Employers:
This case demonstrates a number of important takeaways for employers including:
Link – https://www.workplacerelations.ie/en/cases/2022/june/udd2235.html
Authors – Anne O’Connell, Laura Killelea and Hannah Smullen
08 July 2022
Anne O’Connell Solicitors
19-22 Lower Baggot Street, Dublin 2
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