A special needs assistant at a Co Galway primary school who engaged in bizarre behaviour at a disciplinary meeting including singing The Fields of Athenry and doing exercises after asking to go to the toilet, has been awarded €2,000 for being unfairly dismissed from his job.
The Labour Court overturned an award of €10,000 compensation made by the Workplace Relations Commission to the SNA, Michael Hughes, although both bodies agreed that he had been unfairly dismissed from his job at Scoil Áine Naofa in Loughcutra, Gort, Co Galway.
Mr Hughes appealed the WRC ruling on the basis he wanted to be reinstated to his former role, while the school had cross-appealed the finding that it had unfairly dismissed him.
Serious misconduct
The SNA had been fired by the school on grounds of serious misconduct following a disciplinary investigation that followed a statutory procedure set out in a circular issued by the Department of Education.
It related to an incident of self-wetting by Mr Hughes in the principal’s office on March 20th 2019 which was considered by the school as a reaction by him to a performance improvement plan being put in place for him.
The plan included a request that he utilise designated breaks to go to the toilet like other staff.
The school’s then principal, Lorraine Power, said Mr Hughes, who was holding a near empty bottle of water and had no smell of urine, presented as if he was having a panic attack which resulted in an ambulance being called to the school.
She claimed his eyes were rolling, and he sat outside a classroom which had resulted in children being frightened and kept in their classroom during a break for safety reasons.
A medical report sought by the school advised that the SNA was not suffering from any disability and was fit to work.
The Labour Court heard that Mr Hughes refused numerous requests to give a response to a report written by Ms Power about the earlier incident at a disciplinary hearing before the school’s board of management on June 10th 2019.
The former principal gave evidence that the SNA walked around the room, ate sweets and asked to be allowed to go to the toilet but then said he did not need to go.
She claimed he began singing The Fields of Athenry “very loudly” at one board member which she claimed was “intimidating” and it appeared that he was “putting on an act.”
Evidence was heard that the meeting was terminated after he became agitated and ripped up documents stating: “I can’t even p**s around here.”
Dismissal
The board subsequently informed the SNA that he was being dismissed on grounds of serious misconduct with effect from August 31th 2019.
An appeal by Mr Hughes against the decision which was heard by an independent party was unsuccessful.
The Labour Court heard that on another occasion when he arrived at the school to collect his belongings that he would not leave the premises.
He was eventually persuaded to leave, but gardaí were called to the school when he tried to re-enter the building.
Gardaí were called again on Ms Power’s last day as principal in December 2022 when Mr Hughes arrived at the school and again engaged in strange behaviour.
The Labour Court heard a file on the case was sent to the DPP, but no further action was taken.
Ms Power said she would not go unaccompanied into the school at night because of the SNA whom she regarded as unsuitable to work with children, particularly vulnerable children.
Lawyers for the school told the Labour Court that it believed the dismissal of the SNA was fair in the circumstances and reinstatement was not appropriate as the relationship of trust and confidence with Mr Hughes had broken down.
Mr Hughes, who had worked at the school since February 2017, told the Labour Court that he had written to the school in 2018 about concerns that pupils were being exposed to aggression and shouting.
The Labour Court heard that the SNA was informed in January 2019 that Tusla had no child protection concerns about issues he had raised.
Mr Hughes gave evidence of loving his work but had failed to find employment since his dismissal despite applying for hundreds of SNA positions.
He claimed a reference provided by Ms Power had not helped his situation.
Mr Hughes said he “wet his pants” in the incident in March 2019 and denied having made it up but accepted his behaviour was “uncharacteristic.”
He claimed he just wanted to go home to change his trousers but the school had created a drama by not just allowing him to do that.
The SNA also disputed evidence about his conduct at the disciplinary meeting but accepted his behaviour could be described as “extraordinary.”
Ruling
In its ruling, the Labour Court said it was evident that there are deficiencies in the circular issued to schools by the Department of Education which resulted in the school breaching the rules of natural justice as Mr Hughes was denied a fair process.
The court’s deputy chairman, Tom Geraghty, pointed out that the principal was both the chief witness to the complaint about the SNA and the person who investigated the incident.
Mr Geraghty noted that Ms Power was acting in accordance with the Department’s instructions, but it was “wholly inappropriate” in the circumstances for her to carry out an investigation.
He said the principal should not have been put in such a position due to “a poorly constructed set of procedures.”
Mr Geraghty said it was clear the circular needed “some revision to deal with situations where the principal is at the heart of a complaint and/or a witness.”
He added: “The proper and only role of the principal in the circumstances of the instant case should have been that of a witness.”
The Labour Court also criticised Ms Power’s investigation report for containing no account of the SNA’s version of events which it claimed represented another breach of natural justice.
However, it stressed it was not criticising Ms Power as she had acted to the best of her ability and in good faith in fully following the Department’s instructions.
It also accepted the school’s board of management acted in good faith and noted that “the fault lies firmly in the deficiencies” of the instructions from the Department.
Mr Geraghty said the school had also breached natural justice by not advising Mr Hughes that the main reason for his dismissal was his conduct at the disciplinary meeting.
The Labour Court expressed concern the Department’s circular letter also allows a role for a school’s board of management to consider the outcome of any independent appeal into a disciplinary matter.
Mr Geraghty said it meant a board could decide not to honour the outcome of an appeal process.
Notwithstanding such deficiencies, the Labour Court said it was difficult to see how the board could have anything other than the gravest concern about Mr Hughes’ behaviour.
It noted the SNA accepted claims about his general behaviour at the disciplinary meeting even if there was disagreement about specific details.
Mr Geraghty said any decision to reinstate the SNA would be quite justifiably a cause of concern for the staff, parents and children in the school.
The court ruled that compensation was the appropriate remedy and fixed the award at €2,000 in recognition of his “very considerable contribution to his own dismissal.”
