CORRECTING ORDER
EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Paula Fox UD49/2012
against
Clevercloggs Full Day Care Nursery 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 M. Carr
Mr O. Nulty
heard this claim at Monaghan on 10th March 2014 and 4th June 2014
Representation:
Claimant: Mr Sean Rooney B.L. instructed by Shane Kennedy & Co., Solicitors, 38 Dublin Street, Monaghan, Co Monaghan
Respondent: Peninsula Business Services (Ireland) Limited, Unit 3, Ground Floor, Block S,
East Point Business Park, Dublin 3
Determination:
This order corrects the original Order dated 17th July 2014 and should be read in conjunction with that Order.
Representation for the claimant should read:
Mr Sean Rooney B.L. instructed by Shane Kennedy & Co, Solicitors, 38 Dublin Street, Monaghan, Co Monaghan
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)
EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Paula Fox UD49/2012
against
Clevercloggs Full Day Care Nursery 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 M. Carr
Mr O. Nulty
heard this claim at Monaghan on 10th March 2014 and 4th June 2014
Representation:
_______________
Claimant: Mr Shane Kennedy, Solicitor, 38 Dublin Street, Monaghan, Co Monaghan
Respondent: Peninsula Business Services (Ireland) Limited, Unit 3, Ground Floor, Block S,
East Point Business Park, Dublin 3
Background:
The claimant began work with the respondent (a crèche) in September 2007. Her employment was largely uneventful until Friday 11th March 2011. On that particular day a number of incidents (5 in total) were outlined to the Tribunal. These incidents lead to the claimant’s dismissal. The claimant did not deny that the incidents occurred but contended that ratio policies were not adhered to by the respondent.
Respondent’s case:
SM, the proprietor and service manager for the facility outlined the alleged incidents stating that initially heard a child crying, she observed it lying beside a radiator. SM picked up the child, checked it in case it was hurt and said that the claimant was nearby holding another child. She felt that claimant should have picked up the child to comfort it, and told so. SM also stated that on the day in question she was actively working, checking the sleeping room and administered medication to a child with a temperature.
SM was advised on the following Monday of other events that lead to the dismissal and took statements from the persons making the allegations. She was told that later on, on the same day, a wobbler made its way into the toilet area and was paying in a toilet bowl. The same child again left the room unaccompanied on at least two occasions. That evening a child was left on its own, a parent complained, and SM considered that such an incident would damage the reputation of the crèche.
Under cross examination SM agreed that the claimant babysat for her children and that there was no previous warnings of or incidents recorded against the claimant. There were no incidents recorded in the incident book but she considered the incident where a child was able to make its way into a toilet major and said that it could have led to anything from e-coli to the drowning of the wobbler.
PD told the Tribunal that, regardless of staff days off or sick-leave, there is always cover taken from a relief panel and at no time would the claimant have been over ratio. She held an investigatory meeting with the claimant on 15th March and advised her of the allegations made. The claimant was advised to go home and write out her version of events. Statements were taken and the claimant was suspended on full pay pending a full investigation. She didn’t challenge the allegations but did outline her version of events in a letter.
A formal disciplinary meeting took place on 5th April. The claimant was advised to bring a representative but didn’t do so. Statements were read to her and she didn’t refute any allegation but said that it had been a stressful day and if someone had been working with her none of it would have happened.
SF(assistant manager) was the appeals officer and heard the appeal on 29th June. She told the Tribunal that everybody works as a term, nobody is left isolated and if you say you need help there is always somebody there to come to your assistance. She checked ratios for the day in question and the claimant’s figures didn’t add up. The claimant lost the appeal as there were too many incidents on the one day.
Under cross examination SF said that she didn’t recall the claimant expressing unease on the day because of a lack of numbers and didn’t recall telling her to “get on with it”. She agreed that the claimant was given no opportunity to challenge the people who made statements against her.
Claimant’s case:
The claimant gave evidence of arriving at work on the morning in question and being told of people being off. She expressed her dissatisfaction with the situation. A girl AM was brought in as cover but the children didn’t know her very well, she was therefore under a lot of pressure. The incident with the child going to the toilet did occur when AM was on her break, it was neglectful but she stated that someone should have been in the room with her at that stage as she had 5 children in the sleeping room and 4 awake. She denied that SM was helping and said that she left the building at 2.40pm, probably to do the shopping.
Under cross examination she agreed that she signed minutes of the meetings but didn’t know that the statements given about her could be challenged. She said that doors had to be left open to keep an eye on the babies when she was changing nappies and toddlers also could leave doors open. She never considered that she might lose her job and was devastated by the entire incident.
Determination:
In considering the evidence given in this case regarding the incidents involving the claimant the Tribunal finds that the dismissal of the claimant was unfair. It noted that the respondent had failed to provide any or any adequate childproof door closing mechanism to assure that the children could not escape from the rooms in which they were present. The Tribunal also noted that the respondent did not bring the matters to the attention of the parents even though they viewed them as very serious incidents. The Tribunal determines that in each incident to much blame was apportioned to the claimant and her part in each matter did not individually or collectively amount to misconduct. The Tribunal finds that the claimant did contribute to her dismissal to a moderate degree. The most appropriate remedy in this case is compensation and the Tribunal awards the claimant the sum of €15,000 (fifteen thousand euro) under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)