The Department of Education says it is “considering the wider implications” of a Labour Court decision in which the disciplinary procedures set out in one of its circulars were held to have contributed to a special-needs assistant being denied his rights and unfairly dismissed.
The circularsets out guidelines for the handling of disciplinary procedures in cases of alleged misconduct by SNAs and is often also relied on in cases involving school secretaries.
The recently published decision by the court related to an appeal by an SNA, Michael Hughes, against the decision by Scoil Áine Naofa in Loughcutra, Gort, Co Galway, to dismiss him due to what was described as persistently bizarre behaviour.
The management of toilet breaks had been among the issues that had given rise to a process, and Mr Hughes was said to have arrived at a meeting where he was to be given a performance improvement plan claiming to have wet himself and to be suffering a medical emergency.
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The school principal, however, said there was no smell of urine and when an ambulance arrived Mr Hughes was said to have recovered.
Among the other incidents cited was a later meeting that included members of the board of management. The court heard Mr Hughes asked could if he could leave to go to the toilet and then said he did not need to but instead walked around the room, eating sweets and at one stage sang the Fields of Athenry at one of those in attendance.
The school was ordered to pay €10,000 for unfair dismissal by the Workplace Relations Commission. Both sides appealed to the Labour Court with Mr Hughes seeking reinstatement.
Instead, the award was reduced to €2,000 with the court finding that “he made a very considerable contribution to his own dismissal” by giving the school’s management just cause for concern due to his behaviour.
The court, nevertheless, found the procedures undertaken had not been fair because the school principal had been involved at more than one stage of the investigation. It said, however, that this did not breach the department’s recommended procedures.
“The court notes that the failure to afford the complainant his rights derives largely, if not wholly, from a lack of clarity in the circular letter of the department,” the court said in its decision.
“Proper and fair procedure requires a truly independent investigation of events. This cannot and must not involve the principal in such an investigation if he/she is the source of complaint and/or a significant witness to the relevant alleged events.
“In the instant case, it is evident to the court that there are deficiencies in the circular letter issued by the department to schools and that, by following the instructions set out in that circular letter, the rules of natural justice were breached by the respondent and, as a result, the complainant was denied fair process.
“It is clear that the circular letter, with which, to be fair, the principal complied, is in need of some revision to deal with situations where the principal is at the heart of a complaint and/or a witness,” the court said.
Andy Pike – head of education at Fórsa, which represents many SNAs – said: “What the court has said in the recommendation is that there is an issue where the principal is raising the complaint then investigating it and then also making a report to the board.
“We’ve asked the department to look at it and what we would hope will happen is that the procedure is tightened up and modernised to make it clear than an investigation needs to be independent.”
It also highlighted another anomaly in relation to appeals, Mr Pike added. He said “a few hundred employees are affected by disciplinary cases each year” but only a handful reach the dismissal stage.
A spokesperson for the department said it is “actively considering the wider implications of this case for the current procedures and will be engaging with education partners at the appropriate juncture when these are clearly understood”.
