The Labour Court (the “Court”) case of Scoil Aine Naofa v Michael Hughes ADJ00025-23 concerned an appeal by both parties of a decision of the Workplace Relations Commission (“WRC”). The Complainant was dismissed on 14th June 2019 and brought a claim under the Unfair Dismissals Act 1977 – 2015 (the “Acts”) to the WRC. The WRC Adjudicator found that the Complainant was unfairly dismissed and awarded him compensation of €10,000. The Complainant appealed and sought reinstatement, and the Respondent appealed the level of award made to the Complainant.
Facts: The Complainant initially commenced part-time employment as a Special Needs Assistant (“SNA”) in the Respondent school in February 2017. In the summer of 2018, the Complainant was offered a full-time position at the school. The Respondent is a mainstream school with an autism unit attached to it.
In March 2019, the Complainant was placed on a Performance Improvement Plan (“PIP”) which included a suggestion that he manage his time differently and take toilet breaks outside of class time. According to the Complainant, he had no input into the PIP.
There is conflicting evidence of what occurred next, in relation to an incident on 20th March 2019. The Respondent insisted that the Complainant appeared at the principal’s office with a wet crotch and a bottle of water and that there was no smell of urine. The Complainant claimed that he genuinely wet himself. On appearing at the principal’s office he stated “look what happened” suggesting that he had wet himself. The incident escalated and an ambulance was called due to the Complainant acting strangely. The Respondent sent the Complainant to Medmark and their medical report that there was no medical reason for the Complainant’s behaviour.
In accordance with the Department of Education and Skills Circular number 72/2011 (the “Circular”), the Board of Management (the “Board”) requested that the principal compile an investigation report on the incident and report back to them. In May 2019 the Board deliberated on the report compiled by the principal. The principal was not involved in those deliberations. The Complainant attended a meeting of the Board however behaved strangely- eating sweets, walking around and singing the Fields of Athenry rather than engaging in the meeting. The meeting was concluded immediately after a break, which caused the Complainant to stand up, rip up documents and shake water in a glass screaming “I can’t even p**s around here”.
The Complainant and principal left the meeting and the Board deliberated, concluding that the Complainant should be dismissed for gross misconduct.
After his dismissal, the Complainant demonstrated further concerning behaviour which necessitated the Gardai being called to the school on more than one occasion. The Respondent had grave concerns about this behaviour particularly due to the vulnerable children who, as an SNA, he would have regular interactions with.
Decision: The Court considered the landmark decision regarding the constitutional right to fair procedures in In Re Haughey [1971] 1 IR 271. The right to fair procedures was applied in an employment context in Glover v BLN Ltd. [1973] IR 388 which the Court also considered. In that decision, the Supreme Court (Walsh J) stated that:
“The obligation to give a fair hearing to the guilty is just as great as the obligation to give a fair hearing to the innocent”.
The Court noted that “It is clear from these authorities that, in law, there is no such thing as an open and shut case. No matter how hopeless it may seem, a person accused of wrongdoing is entitled to a fair hearing in accordance with the rules of natural justice.”
The Court noted that there were deficiencies in the Circular and that, because the Respondent followed the instructions set out in the Circular, it breached the rules of natural justice, resulting in a denial of fair process to the Complainant.
The Court found that, in conducting an investigation about the 20th March 2019 incident in respect of which she was the complainant and the main witness, she was in breach of the principle of nemo iudex in causa sua, i.e. that one cannot be a judge in one own’s case. This was the case notwithstanding that she was acting in accordance with the Circular in doing so. The Court also noted that the investigation report had been compiled without any input from the Complainant and no proper investigation had been carried out. This it found was in breach of the principle of audi alteram partem i.e. the right to be heard.
The Court noted that the breach of fair procedures arose mostly due to the Circular which did not provide for a situation in which the principal was the complainant and the main witness.
The Court was at pains to point out that the failing lay mainly with the Circular and not the principal or the Board of Management.. However, this could not negate the breach of natural justice and fair procedures towards the Complainant.
“The proper and only role of the Principal in the circumstances of the instant case should have been that of a witness. She ought not to have been put in a position due to a poorly constructed set of procedures, where she was the source of the complaint, chief witness, sole investigator and an attendee at a disciplinary hearing in her official capacity, rather than as a witness albeit without her having input into deliberations on possible sanctions.”
The Court was critical of the reference in oral evidence on behalf of a Board member that a significant or main reason for the Complainant’s dismissal was the Complainant’s behaviour at the Board meeting on the basis that this was never put to him which exacerbated the treatment of the Complainant and was a failing on the part of the Respondent.
The Court concluded that the Complainant was unfairly dismissed.
The Court was satisfied that reinstatement and re-engagement were not appropriate remedies in this case.
“The procedures used in this case denied the Complainant his rights and rendered his dismissal unfair. However, they do not diminish the right of the Respondent to have very understandable concerns about the Complainant’s behaviour; concerns that have irretrievably severed the essential bond of trust between the parties and, in the view of the Court, make it impossible to determine that re-instatement or re-engagement would be appropriate.”
In considering the appropriate amount of consideration, the Court moved on to consider the Complainant’s financial loss, attempts to mitigate his loss, and the extent to which the Complainant contributed to his own dismissal.
“By far the biggest consideration for the Court, in considering the scale of compensation on the facts of the case, is the extent to which the Complainant contributed to his own dismissal.”
While the Court considered the possibility that the Complainant contributed 100% to his dismissal, it found that the “scale of breaches” of the Complainant’s rights was such that it could not find that he contributed 100%. Instead, the Court reduced the award made by the WRC from €10,000 to €2,000, representing four weeks’ pay.
Takeaway for Employers: This case demonstrates that an employer must ensure that fair procedures and natural justice are adhered to in a disciplinary process, particularly where the outcome is dismissal, and notwithstanding a defect in the relevant procedure. An employer will be unable to hide behind any procedural failings in the relevant procedure. This is the case even in circumstances where an employee’s dismissal may be warranted and may be substantively fair.
Authors – Nicola MacCarthy, Jenny Wakely and Anne O’Connell
Link – https://www.workplacerelations.ie/en/cases/2023/august/udd2330.html