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denied rights Special Needs Assistant awarded €55k after being unfairly dismissed over allegations of mistreating pupil

There was 'litany of deficits' in the disciplinary procedures adopted by the school’s Board of Management (BoM), the hearing was told.

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A Special Needs Assistant (SNA) who “was physically sick” when told of allegations concerning her care of a special needs pupil has been awarded €55,000 for her unfair dismissal. 

This follows Workplace Relations Commission (WRC) Adjudicator, Emer O’Shea ordering a national school to pay the €55,000 to the unfairly dismissed SNA.

Ms O’Shea found that the dismissal was unfair as the SNA was denied her rights under natural justice; was not put on notice that her job was in jeopardy and was excluded from the investigative process.

Ms O’Shea also found that there was a “litany of deficits” in the disciplinary procedures adopted by the school’s Board of Management (BoM).

FORSA represented the SNA in the case and Ms O’Shea said that based on a written report by the school principal to the BoM on the SNA that the union’s allegations of bias on the part of the principal are “well founded”.

In the report, the school principal variously accused the SNA of making ‘very vindictive comments’; displaying ‘negativity and sour moods’ and having an ability ‘to divert and create smokescreens’.

According to the school submission, in November 2017 the school principal initiated the emergency protocol in the school’s child protection procedures to place the SNA on administrative leave.

At the time, the pupil’s parents alleged that their son had been bullied, harassed and manipulated by the SNA.

The SNA spoke to the special needs student on the matter one day after the school principal had made her aware of his concerns.

In her decision, Ms O’Shea found the actions of the SNA in engaging with the student on the matter “were inappropriate and contributed significantly to her dismissal”.

In her findings, Ms O’Shea stated that it is evident that the SNA remained unclear about what she was being accused of.

She stated: “This was unfair to the claimant and a fundamental flaw in the procedure.

The woman was employed as a SNA from 2002 before her dismissal on August 31st 2019.

The pupil in the SNA’s care at the time of the complaint suffers from a rare debilitating condition and has complex physical disabilities.

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In November 2017, the SNA was called to meet with the chair of the Board of Management where she was told that she was being dismissed and advised that she was facing allegations of mental and physical abuse towards the pupil in her care.

The SNA was also told that she was a risk to children and the woman told the WRC that she was physically ill when she was presented with the complaints.

The school principal referred the matter to TUSLA and made allegations concerning the SNA’s alleged bad attitude to the student and her alleged emotional browbeating and bullying of the student

However, TUSLA found that the allegations did not meet the threshold for it conducting an investigation.

On behalf of the SNA, FORSA stated that TUSLA investigated the matter on three occasions and that should have been the end of the matter.

FORSA stated that as best as it could understand the complaint made by the pupil’s parents appears to centre on whether or not the SNA should have carried the schoolbag of the child to whom she had been assigned.

However, FORSA stated that the SNA was dismissed for an alleged breach of confidentiality concerning her conversation with the pupil.

Advancing the case that the dismissal was unfair, FORSA stated that the investigation did not call the SNA as a contributor;

TUSLA had dismissed the matter three times; the matter that lead to the dismissal was not defined and the matter for which the SNA was dismissed was at variance with the initial reason contained in the report to the BoM.

The school argued that the complainant’s dismissal was justified, that fair procedures were followed and that the sanction of dismissal was proportionate.

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