A Workplace Relations Commission official has recused herself from hearing a set of victimisation claims, after a barrister said there could be a perceived bias in her having taken a phone call from opposing counsel.
It happened as an adjudication hearing into claims by two teachers at Templeogue College in south Dublin under the Employment Equality Act was set to resume on Wednesday afternoon.
Patricia O’Connell and Bríd Stack claim they were victimised by the senior management team at the school after taking complaints of ageist discrimination to the Workplace Relations Commission, along with claims under the Payment of Wages Act, over the withdrawal of a “top-up” allowance previously paid by the school for their duties at assistant principal grade.
The tribunal was told that they withdrew their discrimination and pay claims after the matter was “resolved” by the school’s board of management.
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However, they maintain that they were subjected to exclusionary treatment for making the complaints.
Adjudicating officer Niamh O’Carroll Kelly began by apologising for an earlier “mix-up” which had delayed the opening of the matter since 10.30am on Wednesday morning.
However, the teachers’ barrister, Conor Duff BL, who appeared on the instructions of Siobhán O’Neill of Connolly O’Neill Solicitors, sought that the adjudicator recuse herself.
He said that after the parties were told of the situation, they were offered the options of either a remote hearing at 12pm or an in-person hearing at 2pm.
He said the secondary school’s barrister, Claire Bruton BL, said she was “going to ring Niamh [O’Carroll Kelly]”, the adjudicator assigned to the case.
“I outlined to Ms Bruton at least four times that it was not appropriate,” he said.
“That’s not correct. That is not correct. I made a phone call in front of you,” said Ms Bruton, adding that she thought the claim “outrageous”.
“I wasn’t privy to the phone call between yourself and Ms Bruton. I have no idea of what was said,” Mr Duff told Ms O’Carroll Kelly.
Ms O’Carroll Kelly rose to consider the matter before returning to the hearing room a short time later to state: “I have considered the application made by Mr Duff. While I don’t personally agree [and] I believe same to be factually incorrect, when counsel makes an application for recusal that exposes the adjudicating officer to other matters. I don’t think I’ve any option but to recuse myself.”
Ms O’Carroll Kelly’s withdrawal meant the hearing had to be abandoned and the matter re-heard from the start on Wednesday afternoon.
Following another short recess, adjudicating officer Kevin Baneham entered and formally opened the matter.
Guidance counsellor Patricia O’Connell, the first claimant, said she had been teaching at the school for the last 21 years and was the eldest on the staff – and that she had held an Assistant Principal 1 post from 2009 up to her normal retirement date.
She said that after lodging her complaint, she and her colleague, Ms Stack, had not been invited to a series of meetings of the assistant principals at the school in April, May and June 2021, which she said she ought to have been attending.
After an allegation was made by a parent in an email that three students had been found smoking cannabis resin, she said the school’s “critical incident” policy ought to have seen her assigned a significant role in the matter as school guidance counsellor.
Ms O’Connell said she went to the school’s principal, Niamh Quinn, about the matter and received a “quite dismissive” response.
When she inquired about the matter again, Ms O’Connell said Ms Quinn told her that “due to the sensitive nature of the email [she] was restricted under GDPR and she would inform [me] when we came back after Christmas”, Ms O’Connell said.
This was in contrast with the school’s response to a tragic incident before she and Ms Stack lodged their discrimination complaints, in which she said she had been involved “from the very beginning” in accordance with the policy, she said.
“I was frozen out. I was excluded. I’m assuming the reason I was frozen out was because of victimisation for taking my complaint,” Ms O’Connell told the tribunal.
Ms O’Connell’s evidence was that, historically, teachers were usually appointed to the assistant principal grade AP1 and paid by a top-up from the Department of Education by virtue of their seniority.
However, she said some staff of the college who were eligible to take up this leadership role, setting policy and participating in the management of the school, indicated they would prefer other duties, such as sportsmaster.
Ms O’Connell said she and others were appointed to the grade to fill the leadership gap, and were paid the top-up from school funds, rather than by the Department. Mr Duff put it to her that it would be the school’s case that the three AP1 meetings were arranged for those AP1s whose positions were paid for by the Department of Education only.
The complaint’s evidence was that no distinction had ever been drawn between those assistant principals paid the top-up by the Department of Education and those paid the top-up from school funds.
Adjudicating officer Kevin Baneham has adjourned the matter to Friday.