AD1277

"I am completely satisfied that fair procedures were fully observed by the Employer in this matter, which fully respected and protected the Claimant's rights.

I consider that the decisions of the Employer were fair and reasonable in all the circumstances of the case- they certainly fall well within the range of reasonable responses of a reasonable employer when considered against the facts and evidence available to them. Indeed I note that the Employer could have reasonably chosen to dismiss the Claimant, but chose not to do so in view of the long service and previous good record of the Claimant, this too was a reasonable decision/position to adopt. The Employer behaved eminently reasonably in all the circumstance.

I can see no merit whatsoever in the claim and it is rejected".

On the 5th August, 2011, the Worker appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act 1969. A Labour Court hearing took place on the 9th February, 2012. Subsequent hearings took place on the 23rd and 24th July, 2012.




WORKER'S ARGUMENTS:

3. 1. The Worker previously held an exemplary unblemished work record for a period of over thirty years.

2. The investigation carried out by the Employer following the workplace incident was flawed and incomplete.

3. The sanctions imposed on the Worker were unfair and unwarranted in this instance.



EMPLOYER'S ARGUMENTS:

4. 1. The investigation into the workplace incident was conducted in a fair and consistent manner and was carried out wholly in line with internal procedures and with the principles of natural justice.

2. The findings of the investigation led to the conclusion that the Worker's actions were deemed to be those of gross misconduct.

3. The Employer is of the view that the sanctions imposed on the Worker were lenient in nature, as gross misconduct would, in line with the Employer's internal disciplinary procedures, ultimately lead to dismissal.



DECISION:


The matter before the Court concerns the employee’s appeal of a Rights Commissioner’s Recommendation, which found against her claim that she had been subjected to a disproportionate disciplinary sanction when she was issued with a final written warning, demoted to the grade of Social Care Worker, reassigned to a different work location and required to undertake re-skilling and re-training.

The disciplinary sanction was issued following an investigation which found that the Appellant’s actions had given rise to a serious breach of trust between herself and other staff and that she had breached her duty of care and obligations to services users and to the organisation itself. The matters investigated concerned (i) an alleged reported incident which occurred on 1^stApril 2010 and (ii) a complaint made on 15^thApril 2010 by three members of staff into the conduct of the Appellant.

The Appellant had been employed by the Respondent since September 1979 as a Nurse. In 1987 she was appointed in charge of running St. Hubert’s Day Centre. Following the reporting of the alleged incident and the complaint made by three members, the Appellant was suspended from her position on 16^thApril 2010, pending the outcome of an investigation.

The Appellant submitted that the investigation was flawed as it used the ‘balance of probabilities’ standard instead of a fact finding investigative process. Therefore, it was submitted that the sanction imposed was substantially and procedurally unfair and had significant adverse consequences for the Appellant.

The Respondent submitted that the investigation was conducted in an appropriate manner and the sanction imposed was reasonable in light of conclusions of the investigation team.

The investigating team comprising of an external investigator and the Regional Services Manager, East Western Care Association reported their findings on 25^thAugust 2010 and due to a lack of direct evidence did not come to any conclusion on the reported incident which occurred on 1^stApril 2010. However, it found on the balance of probabilities that the Appellant had exerted undue influence on the three members of staff in an attempt to undermine the due process of the investigation into the reported incident.

As outlined earlier the investigation concluded that the actions of the Appellant gave rise to a serious breach of trust between herself as manager and the staff of St. Hubert’s. It also concluded that the Appellant’s actions breached duty of care obligations to service users and to the Western Care Association.

As a result of the findings of the investigating team a disciplinary hearing was held on
8^thSeptember 2010. On 6^thOctober 2010 the disciplinary sanction was issued to the Appellant. The Appellant disputed the findings of the investigating team and on 12^thOctober 2010 she submitted an appeal. She denied exerting any undue influence or inappropriate pressure on any member of staff. She contended that the three members of staff in question had corroborated with one another and she submitted that there was no evidence against her to substantiate such a finding. She accepted that she may have misjudged how much she discussed the forthcoming investigation with the staff however, she emphatically denied asking them to lie or placing them under undue pressure.

The investigation report did not find against the Appellant in relation to the 1^stApril 2010 reported incident and consequently no formal sanction was issued to the Appellant in respect of this aspect of the investigation. However, as a manager her duty of care was brought to her attention to ensure that the incident did not re-occur.

At the disciplinary hearing on 8^thSeptember 2010, the Appellant while denying that she had asked the staff to lie or exert undue influence pressure on them however did accept that she asked them “to stick together”. The disciplinary sanction imposed on the Appellant on 6^thOctober 2010 was imposed for“Attempting to undermine the due process of an investigation is unacceptable behaviour of a Manager charged with the responsibility for day to day management of services”and it deemed such actions as gross misconduct. However, due to the fact that she had almost thirty years’ service, it declined to dismiss her and instead it issued her with the following disciplinary sanctions:

• •final written warning
  •regrading from a manager position to a Social Care Worker position with appropriate pay and conditions
  •relocation to Castlebar
  •requirement to undertake a series of re-skilling and re-retraining to develop awareness of her own style and how it impacts on others

• i.Following a preliminary fact finding exercise by a Social Worker into the 1^stApril 2010 alleged incident, it was decided to carry out an investigation under the Respondent’s Protection and Welfare Guidelines. However, the Social Worker’s findings did not form any part of the investigation exercise and she was not interviewed as part of the process. The Court notes that it was based on this fact finding exercise that the status of the complaint was elevated to a formal investigation in accordance with the Guidelines.

• ii.The investigation process did not contain a statement from or an interview with the Regional Services Manager, Western Care Association. Yet it was based on her meeting with the three members of staff that a decision was made with other members of management to suspend the Appellant and to include this complaint in the investigation process.
  iii.It is unclear why two members of staff were interviewed as part of the process into the alleged incidents on 1^stApril 2010 when they had no involvement in the matter.
  iv.There was an inordinate delay between the completion of the investigation report on 25^thAugust 2010 and the imposition of the disciplinary sanction on 6^thOctober 2010, during which time the Appellant was placed on continuing suspension from her employment. In addition, the Appellant was demoted prior to the outcome of the appeal process.