Extraordinary Delay in Investigation Leads to €40,000 Constructive Dismissal
Background
The Complainant commenced her employment with the Respondent school in September 2009. Her employment terminated in September 2024.
The Complainant referred a complaint to the WRC pursuant to the Unfair Dismissals Act alleging constructive dismissal.
The Respondent rejected the claim.
Summary of Complainant’s Case
The Complainant submitted that she reported a number of serious child protection incidents. This led to a dispute with a colleague who then made false allegations against the Complainant in a meeting. The Respondent took it as an issue between friends. However, it was very much work-related. The Complainant’s concerns were child protection and a bullying and harassment complaint involving her colleague.
The Complainant submitted that she spoke with the Principal who witnessed the treatment of the Complainant by her colleague in public meetings. He advised the Complainant to raise a complaint. The Complainant decided to separately raise the child protection issues and the bullying and harassment matter.
The Complainant noted unsatisfactory attempts to resolve the interpersonal issues by the Principal. The Complainant said that when she applied for a career break, the Principal instructed her not to indicate that it was because of the complaint as it could impact the decision.
The Complainant decided to notify Tusla and the Teaching Council of her concerns. The Teaching Council reverted to her stating that they were waiting for a report that was due the next month to be furnished by the school.
The Complainant said the Teaching Council replied to her that the school knew nothing about the child protection issue. The Chairperson responded that the Board of Management was aware of the child protection concerns.
The Complainant said that she received no reply or acknowledgement to her stage 1 grievance against the Principal. She then initiated stage 2 and sent her complaint to the Principal by registered post and by email. The Complainant then initiated stage 3 and brought her grievance to the Board of Management. She was told that the board would not address the matter as it happened so long ago. The Complainant stated that the school delayed the process on purpose. She proceeded to stage 4 but received no reply. Her grievance against the Principal was never investigated.
The Complainant said that in August 2024, she received a copy of the report into the grievance. There was no appeal option for her.
Summary of Respondent’s Case
The Principal said that his role is to ensure that all policies are understood and applied. He said that he was disappointed to hear that the Complainant had some concerns regarding his role. He said that he was accessible to any teacher. The Principal said that the Complainant did an excellent job.
The Principal stated that it was not true that the Board of Management deliberately delayed the investigation process. He said that the Complainant’s colleague was absent and there were periods when nobody could do anything.
The Principal said that the terms of reference were explained to both parties and once agreed, the board stepped away and the investigation was passed to the independent third party.
The Principal referred to correspondence from the investigator stating, ‘I fully accept that any delay in finalising the report is mine and has nothing whatsoever to do with the Board. Any suggestion that the Board has intentionally delayed in this regard is completely incorrect.’
It was suggested that this email disproved that the delay was deliberate.
The Principal said that his time was consumed with the data requests, complaints against staff, Tusla, etc. It took him weeks to go through all the material. He ignored nobody and took it seriously. The issue was a grievance against a staff member and it was dealt through the grievance procedure.
The Principal said that the school had the highest level of policies and procedures in the context of child protection and he credited the Complainant for playing her part.
The Principal rejected the suggestion that he did not want the Complainant to return from a career break. He acknowledged that any delay in responding during the summer was regrettable but maintained that the school replied to all correspondence. He also confirmed that the Complainant had his phone number but did not call him.
Findings and Conclusions
The Adjudicator addressed three matters at the core of this complaint.
Child Protection Procedures
It was clear that the Respondent never addressed the Complainant’s serious concerns appropriately. The Complainant clearly felt very strongly about the matter, to the extent that she resigned from her Designated Liaison Person position. She felt misled by the Principal and, particularly after the correspondence of the Chairperson to the Teaching Council, she felt that nothing had been done regarding the matters she had raised. At the hearing, as in the correspondence to the Complainant, it was suggested that additional training was provided to staff and the Chairperson gave evidence that the matter was left in the Principal’s capable hands. However, no evidence was put forward to suggest that the alleged failures by the Complainant’s colleague were investigated or that any action was taken to address them other than the alleged additional training. Regrettably, no evidence of any such training was provided to the Complainant at the relevant time or at the adjudication hearing.
Bullying and Harassment Complaint Against Colleague
In this case, the delay of nearly five years was an extraordinary one which is inexcusable and unacceptable and represented a clear violation of fair procedures on the part of the Employer. The Adjudicator did not accept the Respondent’s proposition that the matter was with the external investigator whom the Respondent had no control over. It remained the Respondent’s responsibility to deal with the complaint in a timely manner. The Complainant’s relationship remained with the Respondent and not with the investigator and the Respondent failed her on a fundamental level. This delay in itself and the way the investigation was conducted was sufficient to undermine the Complainant’s confidence and trust in the Respondent.
Grievance Concerning the Principal
The Adjudicator did not accept the Respondent’s assertion that it was not aware the Complainant’s absence was due to the ongoing investigation. The Complainant could not have been clearer in her communication to both the Principal and the Board of Management in that context. In fact, it was the Respondent who suggested “options” such as “leave/career break” until the matter was concluded. It is understandable that the Complainant considered her options. It was up to the Complainant to make decisions as to what she wished to do with her time during her career break.
Conclusion
Having regard to the circumstances, the Adjudicator found that the way the Respondent dealt with the Complainant’s complaints was inadequate and the Respondent’s conduct fell well short of the reasonableness required under the Unfair Dismissals Act and the principles of natural justice. While the standard for workplace investigation is not perfection, the Respondent’s response the Complainant’s concerns was lacking to such an extent that the Complainant was justified in resigning her employment.
The Complainant utilised procedures available to her and gave the Respondent every opportunity to address the concerns she had raised. While the Adjudicator accepted that some unsatisfactory attempts were made to deal with the bullying and harassment complaint, there seems to have been no meaningful action, if any, taken regarding the Complainant’s two other complaints.
Having carefully considered the matters above, the Adjudicator found that the way the Respondent conducted itself in relation to the matters concerning the Complainant’s complaints was so unreasonable, it made the continuation of her employment intolerable.
Decision
The Complainant was unfairly dismissed and awarded compensation of €40,000.
Recommendations
The Complainant teacher who made this claim raised a number of complaints with her Employer including a child protection concern, an allegation of bullying and harassment and a grievance against the school Principal. As there appeared to be no resolution to her grievances, she ultimately resigned and made a constructive dismissal claim.
As the Respondent’s procedures for handling each complaint failed to reach reasonable and timely conclusions, the Adjudicator found that the Employer’s response to the concerns raised was so deficient that the Complainant was justified in resigning her employment. The Adjudicator noted in particular a delay of nearly five years in connection with the bullying and harassment complaint which represented a clear violation of fair procedures on the part of the Employer.
This decision and the high level of compensation underline the importance of having robust grievance and disciplinary procedures in place and to ensure they are followed in a timely manner that complies with fair procedures.