EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
EMPLOYEE UD1072/2012
against
EMPLOYER
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr T. Taffee
Members: Mr W. Power
Ms. E. Brezina
heard this claim at Dublin on 15th October 2013
Representation:
Claimant :
Respondent :
Respondent’s Case
The operator and owner of this crèche told the Tribunal she had fifteen years’ experience running a childcare business. While she gave the claimant policies and procedures on aspects of the business this witness did not provide her with disciplinary procedures. Issues between the claimant and the owner were informally and verbally dealt with. The respondent also neglected to submit the claimant with a contract of employment or terms and conditions of her employment. The claimant was employed as a childcare assistant.
On 1 May 2012 the owner observed the claimant being rough and unruly with a two-year-old child. At that time the claimant was the only childcare employee in a room of up to nine toddlers. Surprised and shocked at the claimant’s behaviour the owner shouted at her to stop treating the child in such a violent fashion. At the same time she instructed the claimant to go to her office. The claimant offered no response or explanation for the way she manhandled that child but did comment on the tone and volume of the owner’s voice. The owner told her to leave the office and that the matter would now be dealt with. This was the owners first experience of dealing with such an incident and she wanted to get the procedures right. The claimant returned to work following their encounter in the office.
According to the owner there was no need for an investigation as she saw what she saw. She spoke to the claimant’s supervisor and also contacted an official with Health Service Executive (HSE). The witness was uncertain whether the latter contact occurred prior to or post her decision to dismiss the claimant two days later. The claimant continued to work up to around midday on 3 May when the owner handed her a letter of dismissal. She justified that sanction on the grounds of gross misconduct and added that she had lost trust in the claimant as an employee. The owner’s main concern was for the health and safety of the children and she felt that was comprised by the action of the claimant. The owner was unaware that a subsequent HSE investigation into this reported incident of 1 May exonerated the claimant.
Claimant’s Case
The claimant commenced employment with the respondent in May 2008. Up to this incident on 1 May 2012 she had no problems with the owner notwithstanding two reprimands over her appearance. On that she assisted a child who had fallen from his chair. While gently picking him up and placing him back there and moving the chair closer to a table the owner entered the room shouting and roaring at her. The owner was accusing her of inappropriate behaviour and would not allow the claimant to comment on that behaviour. Following that loud outburst from the owner the claimant returned to her role with the same group of children and continued working there for the next two days. She told the owner that she had treated the child properly.
She described as normal her working day of 2 May but the owner refused to address the incident with her despite her attempts to raise it. The next morning she was shocked to learn of her immediate dismissal. The owner on that occasion told her she could continue to work the rest of the day. The claimant told the Tribunal that the child in question was neither difficult nor disruptive and that she had been calm and gentle with him.
Determination
The Tribunal carefully considered the evidence adduced both verbal and written and the submissions made. It is common case that:
(a) the claimant’s alleged unfair dismissal arose as a direct result of an incident that took place in the workplace. It is asserted by the respondent that the behaviour of the claimant in the course of this incident amounted to gross misconduct justifying summary dismissal. This behaviour was denied by the claimant.
(b) no contract of employment was provided or entered into between the parties and additionally no written code of conduct or grievance procedure was put in place in respect of the claimant’s employment. So as to enable it to determine this matter the Tribunal is reduced to both consider and address firstly whether a proper procedural process was engaged in by the respondent, and secondly whether as alleged the claimant’s behaviour amounted to gross misconduct.
Having examined this disciplinary process the Tribunal is satisfied there was present in it a procedural deficit in that the respondent (1) failed to fully and thus properly investigate the incident referred to by providing the claimant with the opportunity to take part in it; (2) failed to inform the claimant that consideration was being given to dismiss her and subsequently dismissed the claimant without any notice; (3) failed to adhere to established practice and to provide for and inform the claimant of a right of appeal; (4) failed to inform the claimant of her right of representation.
(c) The Tribunal is not satisfied that the claimant in the course of the discharge of her duties was guilty of gross misconduct as was alleged and therefore finds and determines that the respondent’s response to the claimant’s behaviour in summarily dismissing her was disproportionate to the circumstances.
It is therefore found and determined that the claimant was unfairly dismissed. In considering the discharge by the claimant of her duty to mitigate her loss the Tribunal finds and determines that the claimant made unsuccessful attempts to obtain alternative employment in the immediate locality to her place of residence. The Tribunal awards the claimant €7,500.00 as compensation for her dismissal under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)