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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Montgomery v McBain & Ors [2005] NIIT 759_03 (11 January 2005)
URL: http://www.bailii.org/nie/cases/NIIT/2005/759_03.html
Cite as: [2005] NIIT 759_3, [2005] NIIT 759_03
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- The first issue for the tribunal was whether the applicant had been dismissed or constructively dismissed. The next issue, if he was so dismissed, was whether that dismissal was fair.
- There was no real dispute about the basic facts. The applicant was employed as a teacher at Omagh Academy starting at the beginning of the academic year 1997/98. In June of 1999,
- It was the applicant's case that he had no choice but to resign in the circumstances or, in the alternative, that he had been constructively dismissed. In the tribunal's view the matter was not a 'resign or be dismissed' situation. On the contrary, the Governors had reached a stage in the procedures when they could have commenced the termination procedures, and, indeed, had indicated that they were considering doing so. They had, however, withdrawn from that position following representations made by and on behalf of the applicant, and had suggested to the applicant that his contract would continue, though subject to conditions. As his employers the Governors were entitled to monitor the quality of the applicant's work, to take steps to improve it, and, in appropriate circumstances, to attach conditions to his continued employment. On the basis of the facts as they appeared at first sight there was nothing unreasonable about the introduction of the various competentency procedures nor about the conditions attached to the applicant's continuing employment. Indeed, the applicant himself stated in evidence that, on the basis of the evidence presented to them, the Governors could hardly have taken any other action than they did. The position is, therefore, that, while the Governors did eventually say that if the applicant would not accept the conditions he would be taken to have resigned; the conditions were not such as amounted to a breach of contract thereby entitling the applicant to resign in anticipation of that breach.
- The situation would be different if it could be shown that there was no factual basis for the original questions over the applicant's competence or if the procedure was tainted by malice. This was, in fact, the applicant's case. At the beginning of his submission to the tribunal the applicant stated 'It was my experience that in spite of hard work producing good results in public exams, and in extra curricular areas, a number of people lead by the Headmaster, began a series of trivial reports that lead to a competency procedure. While objecting to its invocation I addressed the terms of the procedure in full measure. This lead to encounters with subject advisers, one of who was unusually negative when a 'technicality' arose. A subsequent inspection was failed under mysterious circumstances'.
- In the tribunal's view the applicant has failed to discharge that burden. The circumstances, as laid out to the tribunal, do not, in the tribunal's view, lead to an inescapable conclusion that there was a concerted effort, as the applicant put it on a number of occasions, to remove him from the school. There was an immense amount of evidence given to the tribunal which cannot all be recorded here. An example would be that of Mrs Clarke, the head of the school's ICT Department at the relevant time, and the applicant's superior in that discipline. The tribunal found Mrs Clarke to be a patently honest witness who described having difficulties with the applicant, worthy of recording in departmental meeting minutes and raising with the Headmaster, as early as August/September 1998. Those difficulties related to course work in respect of which pupils received accreditations from outside bodies. Mrs Clarke described continuing difficulties with which she had to involve the headmaster both before and after the competency procedure had been invoked. A feature of these difficulties was the applicant's unwillingness to work in accordance with agreed schemes for all pupils at the same level, reluctance on the applicant's part to admit to any error and unwillingness to accept any advice. Mrs Clarke described one occasion when the applicant refused to discuss a particular piece of work and was so angry that she felt unable to raise the matter with him further though she remained available to discuss it. These difficulties were mirrored by evidence from the two other department heads with whom the applicant worked with similar difficulties of failure to adhere to agreed schemes, falling behind in agreed schemes, unwillingness to accept advice, and doing his own thing, being the principal areas of complaint.
- An inspection of the applicant's work was carried out towards the end of the formal stages of the competency procedure by a member of the Education & Training Inspectorate. This same individual had, prior to the competency procedures being invoked, advised the Headmaster on how it could be done. Immediately prior to the inspection taking place, the inspector came to the school and saw the Headmaster. In evidence to the tribunal the Headmaster stated that he approached the inspection with some apprehension. Specifically he stated that he was concerned that the inspection might find the applicant's teaching to be satisfactory. The applicant suggested that the inspector's prior involvement in the process, his meeting with the Headmaster, coupled with the Headmaster's admitted concern about the inspection must vitiate the inspection. The tribunal does not consider that the inspector was involved in any way significantly with the matter before the actual inspection itself and finds that there was no connection between the two things. Nor does the tribunal consider it inappropriate that an inspector should report to the school principal before entering a school. The tribunal accepts the evidence of both the Headmaster and the inspector that there was no discussion of the inspection itself. While the Headmaster's apprehensions about the inspection seem at first sight somewhat unusual the tribunal can see that, given that the Headmaster and a variety of other persons had already expressed significant misgivings about the applicant's performance, it would have presented a considerable problem in management had the inspector concluded that they had all been wrong. The applicant's submission was that the inspectorate itself was involved as a part of the concerted effort to remove him. His reference, at the beginning of his submission to the tribunal, to the inspection being failed under 'mysterious circumstances' meant that he could not attach any notion of failure with any circumstance which arose in the classroom while the inspector was present. He went on to explain that he could not accept the inspection as being correct since his own assessment of his performance differed so significantly from that of the inspector.
- Accordingly, the application falls to be dismissed. The tribunal will reconvene on a date to be agreed between the parties or, in default of agreement, to be fixed by the tribunal on the application of either party, to dispose of any outstanding issues.
CASE REF: 759/03
APPLICANT: John Montgomery
RESPONDENTS: 1. James McBain
2. Board of Governors of Omagh Academy
3. Bill Reilly
4. Arthur Rainey
5. Cynthia Gamble
6. Western Education & Library Board
The unanimous decision of the tribunal is that the application be dismissed.
Appearances:
The applicant appeared in person.
The respondents were represented by Mr A Colmer, Barrister-at-Law, instructed by the Solicitors for the Education & Library Boards.
REASONS
the school's headmaster ("the Headmaster") indicated his intention to invoke the procedures laid down by the authorities for teachers whose work is considered to be unsatisfactory. On 30 June 1999 the applicant agreed in writing to the commencement of the first stage of this procedure, known as in the informal procedure. This was to be operated by the applicant's line managers, the headmaster and officials from the Western Education & Library Board ("the Board"). At the conclusion of that stage of the procedure the school principal reported to the Board of Governors ("the Governors") with a recommendation that the next stage of the procedure, the formal procedure, should be put in train. A sub-committee of the Governors met on 12 January 2000 to consider the matter. The applicant and his trade union representative were invited to attend this meeting and did so.
Immediately after having indicated his formal agreement to the procedure being implemented the applicant suggested that the matter was an impasse and that the only practical way out of it was for an independent review of his teaching to be carried out. He was advised that such an inspection would not normally be granted by the Inspectorate until the latter stages of the formal procedure, the stage after the informal procedure.
The report to the Governors contained a brief report from the applicant's line managers together with the records of the various meetings held under the procedure, a report from the school principal and reports from both the officials of the Board who were concerned with the procedure. At the meeting with the sub-committee the applicant had made a lengthy written submission and also had the opportunity, along with his union representative, to make representations. The sub-committee decided that the applicant's work remained unsatisfactory and that the formal part of the procedure should be invoked. The applicant sought to appeal this decision and a fresh panel was appointed by the Governors to hear that appeal. That panel unanimously agreed that the appeal be not upheld.
In March 2000, the applicant agreed to participate in the next stage of the programme. At this stage the applicant enquired further about the possibility of an independent inspection and was further advised that such an inspection is usually conducted at the end of the formal stage since the Inspectorate took the view that a teacher whose work improved significantly during the formal stage might not require to be inspected at all. A meeting took place to agree the details of the programme for the formal stage and this was finalised in May 2000. The programme continued throughout the summer term. The applicant sought leave for family reasons in the autumn term, during which time the formal procedure was in abeyance. On the applicant's return to teaching in November 2000 it was decided to defer the operation of the formal procedure until the beginning of the post-Christmas term. It was also suggested that the applicant's time-table commitments should be reduced. The applicant preferred to retain his existing time-table and that was agreed. It was arranged that one of the Board officials who had assisted in the informal part of the procedure should attend to agree with the applicant the final stages of the formal procedures. At that meeting the applicant expressed the wish that the procedure should be stopped or otherwise quickly concluded. It was arranged that he should have the opportunity to make representations to the Governors in this regard. The applicant also indicated, at that time, that he wished to apply for a post in a school in India. The Headmaster agreed to write a supporting reference for this application and did so.
The applicant's trade union representative wrote indicating his belief that it would be appropriate that the applicant should receive an independent examination of his teaching through the Education & Training Inspectorate. A meeting was arranged with representatives of the Governors to enable the applicant to put forward his views as regards the formal stage of the procedure and the proposed inspection. The sub-committee decided that there were no grounds for the cessation of the procedures or for a request for the involvement of the Education & Training Inspectorate. In advising the applicant of this decision the Governors' representatives also reminded him that it was a teacher's responsibility and obligation to ensure that he fully availed of such opportunities for support and training and that if a teacher did not co-operate with such a programme then disciplinary action would have to be considered. The applicant's trade union again sought an inspection, complaining at the same time that the applicant felt that the number of visits made to his classes by the headmaster was excessive. In response to this letter the Governors pointed out that only two visits had been made during the period covered by the complaint, both in the same week at a time when the formal stage of the procedures had re-started. Under the terms of the agreed programme under the procedure two visits per week had been agreed to by the applicant. The formal stage of the procedures continued. An inspection was requested and took place on 10 and 11 May 2001. On 14 May the Inspector visited the school and reported verbally to the principal and also interviewed the applicant. The inspector's report on the applicant's teaching, when formally delivered, was unsatisfactory.
As the formal procedures had been completed a report on those procedures was submitted to the Governors who considered the report and found that the applicant's work remained unsatisfactory. Accordingly, the applicant was advised of his right to make representations to them at a meeting to be held on 19 June 2001. The applicant was also advised of his right to be accompanied by his trade union representative or a teaching colleague. The applicant, accompanied by his union representative, attended the meeting. The applicant made a lengthy presentation and the union representative also addressed the meeting. A number of points were raised in relation to the various reports which had been made to the Governors at the conclusion of the formal stage and in relation to the Inspectors' report. The Governors sought clarification of many of these matters and held a further meeting on 2 July 2001.
The report was in a format not dissimilar to that at the end of the informal stage, with reports from all persons concerned with the operation of the programme together with supporting minutes and the Inspectors' report. Following the 2 July meeting the Governors wrote to the applicant indicating that they were of the opinion that the applicant's work remained unsatisfactory and that an improvement to a satisfactory standard was considered unlikely. They indicated that, accordingly, they had decided to initiate the procedures to terminate the applicant's contract of employment. In that regard they invited representations from the applicant and further indicated that he was entitled to be accompanied by a trade union representative or teaching colleague. He was also told that if he chose not to attend the meeting but wished to make representations in writing the submissions should be made available by the end of July.
The applicant by this time had departed for India and made a video presentation to the panel established by the Governors to hear his representations. The applicant's union representative attended the meeting. The panel sought further clarification from a number of persons regarding the matters raised by and on behalf of the applicant. The panel then reported to the Governors who wrote to the applicant to state that the panel were satisfied the procedures followed at all stages by those involved in assessing his performance had been strictly in accordance with procedures. The panel also reported that, while the applicant's union representative had acknowledged the existence of deficiencies in performance, he had expressed the belief that the applicant would benefit from experience of teaching in India, and had requested that the applicant be allowed a further short period of time on his return to Omagh Academy to prove himself. The letter went on to state that the Governors had taken full account of the panel's report and viewed the evidence of the applicant's unsatisfactory work with the utmost seriousness. However, the Governors decided not to proceed to make a determination that the applicant's contract be terminated. Instead they proposed:-
(i) that the applicant's present career break would not be extended and he would be required to present himself for work at the commencement of the 2002/03 academic year;
(ii) that he would be required to undergo and co-operate fully with a further detailed programme of support, following which a further inspection would be requested;
(iii) that if the report of the inspection and the reports from those involved with the support programme were unsatisfactory the Governors would have no option but to recommence procedures leading to termination.
The letter went on to say that they also believed that the applicant had a case to answer in relation to an unwarranted complaint made against the headmaster and that they proposed that the matter should be addressed by the reconstituted Board of Governors when the applicant returned.
The applicant indicated that he looked forward to returning to Omagh Academy. He suggested that he might choose to ask for an extension of his career break. While he expressed himself as happy to discuss any matter that continued to cause concern he did not see the need for any formal arrangements. He also suggested that the disciplinary matter be dropped. There then followed a series of letters in which the Governors reiterated their original position and the applicant stated that the conditions attached to his potential return were unacceptable. At the beginning of April the applicant sent an e-mail to the Governors. In that communication he questioned why, when he had done no wrong, he would return on any other terms than a positive welcome. The Governors responded saying that if the applicant was not prepared to return on the terms detailed in their original letter the Governors would consider that he did not wish to continue to be employed by them. They also confirmed they were not prepared to extend his career break. The letter concluded by stating that if the applicant failed to confirm his intention to return by mid-day on 7 May 2002 they would be obliged to consider his position as being that he did not wish to return. In response the applicant said that he and his union representative were considering the matter. The applicant then wrote to suggest the matter might be dealt with on the basis of a quick classroom evaluation, an inspection, a clean sheet and resignation from Omagh Academy in the latter half of June. He followed that up after a few hours with a further provisional offer to attend Omagh Academy from the start of the autumn term to address the outstanding issues. The applicant's communication indicated a strong feeling that the circumstances were thrust upon him and his previous requests were fair and mutually beneficial. He stated that he recognised the weakness of attending a grammar school with a primary purpose of completing an 'administrative chore' and concluded by stating that the e-mail represented his resignation from Omagh Academy, hopefully with a clear record. In response the Governors stated that their original conditions still applied and were not negotiable. They noted that the applicant's e-mail contained a declaration of the applicant's resignation, although there appeared to be some inconsistency between that declaration and the earlier paragraphs of the same e-mail. They requested an unequivocal written assurance that the applicant would comply fully with the original conditions, failing which it would be assumed that it was indeed the applicant's intention to resign. They wrote again asking for confirmation whether or not their understanding of the applicant's intention was correct, failing which they would assume that it was. At the end of May the applicant responded that he found the Governors position unreasonable and that he was withdrawing his original offer and hoped to resume his position in Omagh Academy without any conditions attached. The letter also asked for an apology. In response to this the Governors wrote to confirm an arrangement to meet the applicant's union representative. They also confirmed that the applicant was expected to attend at Omagh Academy at the end of August, but on the basis clearly set out in the Governors original letter and subsequently reconfirmed. In June a meeting was held between the applicant, his union representative and the Chairman of the Governors. Following that meeting the applicant wrote to the Chairman of the Governors in the following terms, 'On the assumption that a second inspection report by the ETI can be arranged as soon as practicable in the autumn term, and in any event before the onset of internal examinations disrupts lesson delivery, I confirm my intention to resign from my teaching post with effect from 31 December 2002'. This letter was sent to the Chairman of the Governors by the applicant's union representative who indicated that the possibility of the further inspection had been raised with the Inspectorate who had stressed that such a request would have to be put by the Board of Governors. The applicant's representative indicated that the applicant had assured him most emphatically that the applicant was very happy to co-operate positively on any innovative approach which was determined and said that it would be helpful if the duration and frequency of visits to the applicant's classes could be kept to a reasonable minimum. The applicant's letter of resignation was acknowledged by the Governors on 2 July 2002. Their letter confirmed that the applicant would commence at Omagh Academy on 26 August for the start of the first term of the 2002/03 academic year and that the relevant department of the Western Education & Library Board had been asked for a concentrated support programme to be put in place during the autumn term. Their letter also contained an undertaking to request formal inspection of the applicant's work to take place in mid-December.
These allegations, if they could be established, would clearly amount to conduct liable to damage the relationship of trust and confidence between an employee and his employer, contrary to the terms in that regard readily implied in employment contracts. There was no direct evidence linking together the 'number of people lead by the headmaster'. The tribunal was asked by the applicant to infer this linkage by reference to the circumstances. The applicant accepted that the test in relation to the nature of the conduct likely to damage the relationship of trust and confidence would have to be an objective test. It is also for the applicant to show the circumstances are such as to amount to a breach of that implied term thereby justifying him in terminating his employment. The burden of proof, in fact, is on the applicant.
There was documentary evidence from the two members of the Western Education & Library Board who had been appointed to assist in the informal stage of the competency procedure one of whom was also involved in the formal stage. This evidence tended to support that set out above. There was also evidence in the shape of complaints from parents etc.
The applicant characterised these various concerns as trivial. The tribunal does not find them so. It seems to the tribunal entirely reasonable that pupils at the same stage of development should be able to compare their performance with other pupils in the school carrying out the same work even if they are carrying it out under different teachers. This will clearly require an overall scheme of teaching and an overall scheme of marking. To describe failures to comply with these schemes as trivial seems to the tribunal to be perverse. Nor can complaints from parents be ignored or dismissed. The applicant also suggests that his deficiencies, if there were any, should have been made more clear to him. In that regard the tribunal accepted the evidence from his superiors that the difficulty was getting the applicant to listen to advice rather than from any failure to give it.
In the tribunal's view there was ample evidence to justify the Headmaster's concern about the applicant's competence, and the Headmaster's report in that regard to the Governors, and ample evidence to justify the Governors in invoking the competency procedure and, ultimately, the inspection.
The tribunal does not accept that the inspection was flawed or tainted and it finds the applicant's principal reason for rejecting the inspection report wholly unconvincing. It may well be that the applicant considered that he performed well but the whole purpose of an inspection is to subject performance to external and impartial assessment. If the applicant wishes to question the validity of that assessment he must do more than merely state that he disagrees with it. The tribunal considered this to be a feature of the evidence in the case.
The applicant's perception of events differed from that of others. He found some complaints to be trivial: others did not. He considered some complaints to have been satisfactorily explained or dealt with: others did not. He considered his lessons to have been delivered satisfactorily: others, including the inspector, did not. The tribunal accepts the genuineness of the applicant's views but prefers the evidence given on behalf of the respondent and finds that, in the circumstances of the case, there was no unreasonable behaviour on the part of the Governors or any of their employees or representatives or of the Board or any of its employees or the inspectorate; there was no breach of any term of the applicant's contract including the implied term relating to the relationship of trust and confidence; consequently, there was no constructive dismissal.
Chairman:
Dates and place of hearing: 6 and 7 January 2004, 4, 5, 6, 7, 10 and 11 January 2005, Belfast.
Date decision recorded in register and issued to parties: