EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Kabir Mohammad, UD1109/2013
against
Focus Ireland Limited,
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr P. O' Leary B L
Members: Mr J. Horan
Ms M. Mulcahy
heard this claim at Dublin on 9th October and 4th December 2014
Representation:
Claimant : Mr John Wilde Crosbie B L instructed by
Doyle & Company, Solicitors, 1 Main Street, Blanchardstown, Dublin 15
Respondent : Mr Peter Flood IBEC, 84/86 Lower Baggot Street, Dublin 2
The determination of the Tribunal was as follows:
Respondent’s Case
The respondent is an organisation that primarily serves those who are either homeless or facing into such a situation. It offers advice and information and seeks to provide assistance to those without a home or in danger of losing one. Its Outreach section particularly targets people referred to as rough sleepers. A team leader in this section told the Tribunal that these people greatly mistrust others and could be challenging when directly interacted with. It may take time, perseverance, and considerable effort to adequately deal with those sleepers. The main aim of Outreach is to source and provide accommodation to its “customers”.
The Outreach team worked on a shift pattern. Apart from certain circumstances such as day shifts members of the team worked in pairs. When one shift handed over to the next, certain procedures had to be followed. This included filling in and acting on the contents of a shift overview sheet. In February 2012 the claimant joined the Outreach team subsequent to him spending ten years elsewhere with the respondent. The claimant was given an induction course together with full practical training on how to perform his role within the team.
By April 2013 the claimant was on a final written warning. This witness met with him on 15th of that month and placed him on suspension pending an investigation into an incident earlier that month. The witness treated the reported incident very seriously as he felt the customer`s life was potentially at risk. A bed had been reserved for the night of the 9th. for the customer and this had been lost however another bed was later secured for the customer in the afternoon. However, he never suggested that the claimant put a rough sleeper’s life at risk due to his apparent mishandling of a situation. The witness also accepted that the claimant felt unsafe in singly dealing with this particular customer. On 22 April 2013 the witness met with a human resource consultant engaged by the respondent to conduct an investigation.
In giving evidence the consultant referred the Tribunal to his terms of reference and overall remit as he undertook an investigation into an allegation that the claimant neglected to properly and professionally carry out a specified work task on 9 April 2013. The purpose of the investigation was to establish the facts of the case and to make findings, and to submit recommendations. He was directed to perform this task by the respondent’s human resource manager who earlier, and unknown to the witness, had instructed that the claimant be placed on suspension. As part of this investigation this consultant interviewed the complainant, the claimant, and the claimant`s team leader. He also spoke briefly to other outreach workers linked to this case.
The claimant was afforded and indeed utilised the services of a representative and almost all statements from other people were furnished to him during this process. At the conclusion of this investigation a final report detailing the main issues, findings, and recommendations was sent to the human resource manager. The witness felt the key issue revolved around the claimant’s lack of communication with the respondent in dealing with a high priority homeless person.
On 31 January 2013 the human resource director issued the claimant with a final written warning. The reason for that sanction was his unfounded allegations made against two colleagues including the service manager. The claimant was unable to justify or substantiate his allegations. A notice came with that warning that should there be further misconduct on his part his employment with the respondent might be terminated. The respondent did not receive an appeal from the claimant for that sanction. Up to 2012 the claimant also expressed disappointment and frustration that his applications for promotion and further training went unrewarded.
On hearing a complaint about the claimant’s work a director confirmed she asked the team leader to suspend the claimant and engaged a consultant to investigate the matter. At the conclusion of the investigation this witness met with the claimant in June 2013 and “took on board all he had to say”. On receipt of the investigation report which she read thoroughly, and in conjunction with the service manager they decided to dismiss the claimant. This witness concluded that the claimant’s behaviour on the morning of 9 April 2013 was unprofessional and amounted to gross misconduct. The respondent then paid the claimant six weeks’ notice and advised him of his right to appeal the decision.
This witness felt that her earlier involvement in this case and the input of the service manager into the decision to dismiss the claimant were not compromising issues in this case.
The appeal hearing was held on 12 July. It was chaired by an acting chief executive officer (ceo) in the company of the respondent’s director of services and housing. This acting ceo told the Tribunal that he had no criticism of the findings and recommendations of the investigation report and the subsequent disciplinary sanction imposed on the claimant. While he considered the three grounds of appeal namely the severity of the sanction, mitigating circumstances and procedural issues this witness upheld the original decision to dismiss the claimant. He concurred with the view that the claimant failed to take corrective or credible action regarding a customer’s welfare on 9 April 2012. This witness accepted, however, that staff were not obliged or expected to approach a difficult client alone. The claimant had failed to call his superior on the morning of that date and seek assistance. He commented that there was no need to interview a colleague from the Simon Community on whose behalf the claimant had been working during the morning of that day.
Claimant’s Case
The claimant was a qualified and experienced social worker when he commenced employment with the respondent in 2000. Up to 2012 he had not been subjected to any disciplinary sanctions and all his work appraisals were positive. However, his applications for promotion and further training were consistently unsuccessful and it was in that context he levied complaints and grievances with the respondent naming the service manager as a person who appeared to conspire against him. By early 2013 the claimant had withdrawn his allegations. Since the respondent treated his allegations as unfounded and damaging to other staff its human resource director issued him with a final written warning in February 2013. The claimant did not appeal that warning.
Together with two colleagues the claimant was on duty as a part of an Outreach team on 8 April 2013. Two colleagues told the claimant that they were going to Dunlaoghaire on the morning of the 9th. and they were unavailable up to lunchtime on that day. That morning and working alone the claimant read and noted a log book entry regarding the aforementioned customer. That entry related to a rough sleeper who was part of the cold weather intuitive and was to be offered certain options under that programme. When contemplating that task the claimant made an assessment of the situation and opted not to take action that morning as he considered it dangerous in this instance as he judged the task unsuitable and inappropriate for himself as a single operator. He also decided not to attempt to contact his two colleagues as they were otherwise engaged. Besides, the claimant felt he had not the means then to communicate with them. In addition he did not contact his team leader as he concluded that the latter would not be available and even if he was he would not assist in treating that rough sleeper.
The claimant soon received a call from a colleague in the Simon community and spent most of the morning assisting her on another case necessitating his absence from the office. On returning to the office at lunchtime he met with his two colleagues and another Outreach worker who was commencing a shift. That incoming worker raised the topic of the rough sleeper and soon a row erupted between the claimant and that worker over this customer. According to the witness this worker became abusive and aggressive towards him. The following week he was summoned to a meeting with the team leader to explain why he did not carry out instructions as relayed on the handover sheet on 08/09 April. The claimant found the team leader’s approach and tone aggressive as he was placed on suspension.
On reading the consultant’s report the claimant attached corrections, clarifications and additions to it. He did not always receive what others were saying about him during that investigation process and disagrees with the findings and subsequent sanction. The claimant was also unhappy with the service manager’s role in his case. He did not accept his behaviour in managing this rough sleeper was less than professional or lacked any degree of competency. He knows and understands what the clod weather imitative entails and did not deliberately ignore this rough sleeper as portrayed by the respondent.
Determination
The Tribunal finds that the claimant has been unfairly dismissed in this case. The claimant’s decision not to directly deal with the rough sleeper on 9 April was not unreasonable due to the perceived danger. The elevation of the loss of an overnight bed by the inaction of the claimant by the respondent was an overreaction. The delay in the contact with the customer by the staff does not amount to gross misconduct. However, his delay in communicating that decision to his colleagues was a mistake but did not amount to a dismissible offence.
In the interests of transparency and natural justice the input of the service manager in the dismissal decision was flawed as it gave an impression of bias and prejudice. The respondent’s handling of the claimant’s various promotion applications lacked adequate explanations which undermined the claimant’s confidence in the fairness of his treatment regarding same by the organisation and had this been handled differently he may never have make the allegations against the managers would not have been on a final written warning.
The claim under the Unfair Dismissals Acts, 1977 to 2007 succeeds and the claimant is awarded €20,000.00 as compensation under those Acts.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)