UD26/2012

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                   CASE NO.

Mary Mc Nulty,          –          claimant                                                         UD26/2012

Against

Ballyheane Community Sports Club Limited             -           respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:        Dr. A. Courell B.L.

Members:        Mr. D. Morrison

                        Mr. T. Gill

heard this claim at Castlebar on 12th September 2013 and 12th March 2014

Representation:

Claimant: Ms Martina Weir, SIPTU, Member Information &, Support Centre,

                 Liberty Hall, Eden Quay, Dublin 1

Respondent: Mr. Gary Mulchrone, Gilvarry & Associates, Solicitors,

                     Unit 9, N5 Business Park, Moneen Road, Castlebar, Co Mayo

Background:

The respondent operates a community childcare facility. The claimant worked there as a childcare practitioner from May 2008 to May 2011. The claimant contends that she was unfairly dismissed. The respondent contends that the claimant was dismissed for gross misconduct. Complaints were made against the claimant and the complaints were investigated and this led to a disciplinary process during which the claimant was represented by a trade union official. The disciplinary hearing resulted in her summary dismissal.

Respondent case:

The Tribunal heard evidence from a witness for the respondent. She explained that the respondent is a community childcare facility and has other amenities attached. They provide two prescriptions-school services and an after school facility. It is state funded and receives grant aid. There is an ECC scheme which is a free pre-school year and a subvention scheme (affordable childcare) run by the respondent.

The organisation is overseen by a board of directors and run by a voluntary management committee (VMC). The witness had been on the VMC and she was the link between the employees and the VMC. She is a trained counsellor and trained as a social worker. The claimant is a childcare worker who worked in the toddler area that is children from 18 months to 3 years.

Initial concerns were communicated to her by a supervisor (KH). KH told her that other staff voiced concerns to her about the behaviour of the claimant.   She told KH that she had nothing specific. She spoke to KH the next day and was told that the claimant was rough with the children andthat she was not giving the children food or drink. Three staff had voiced concerns that the claimant was withholding food and drink from the children.   She did not speak to the claimant about this because the allegations were “quite vague”.   She did say to KH that they would have to speak to the claimant so they set a date of 4^th March 2011 to meet the claimant. They also asked the staff who made allegations to provide written statements.

The witness and KH met the claimant. The witness put the allegations to the claimant that a child in the claimant’s care had no coat on when it was a cold day, that the she put a child in the vicinity of a hand drier and the child was upset with the noise and that she had shouted at a child. Other allegations put to the claimant included that on a number of occasions her tone was loud and sharp with the children and that she placed children in a corner if they misbehaved.

A board member (PK) explained his role in the appeal process. The claimant having been dismissed by the respondent was offered a written appeal and this witness was appointed with PB to consider the appeal. Prior to his appointment he was not involved or consulted during the investigation process or involved in the decision to dismiss the claimant. In his appointment to review the case he was provided with the respondent’s handbook, the claimant’s contract of employment and the statements provided by other employees. The claimant failed to engage in the process and no written submissions were received on her behalf. He and PB met and reviewed all the relevant documents over a number of hours.

In circumstances where the claimant failed to deny the allegations, offered no explanation and no reason given by her as to why several colleagues made such statements the witness upheld the dismissal and agreed it was gross misconduct. The claimant had not objected to his role in the appeal process and had she done so he would have considered his position. The witness did not believe it was unfair not holding oral hearing with the claimant. He was guided on the appeal process having had no experience in such matters prior to this appeal. He was satisfied that the correct procedures were followed.

Two further witnesses for the respondent AJ and PC both provided written statements to the respondent during the investigation process. AJ described the claimant’s demeanour as moody and often difficult to work with. She witnessed the claimant leaving a child crying and failing to console the child. She expressed regret that she had not brought that particular incident to the immediate attention of management and accepted that she only reported it when asked by the respondent if she had any concerns around the claimant’s work.

PC described the claimant as moody and how one child was visible terrified of using the bathroom because of the hand dryer. The claimant admitted to PC that she used the hand dryer as a threat when the child would not use the toilet. She witnessed the claimant lift and drag children on occasion. She witnessed the claimant withdraw drinks and on another occasion record a child crying and played the recording for other children to view. PC agreed that she reported these matters in her statement following a request from management and accepts that it was wrong of her not to report the incidents at an earlier stage. The witness did send a text message of support to the claimant when she learned of the investigation. She described the process as very upsetting. PC denied that she and others colluded in any way against the claimant.

Claimant’s Case

The claimant when first employed was assigned to the baby room but moved to the toddler room in August 2010. The ratio of one childcare worker to six toddlers applied in the facility. On occasion the ratio was breached and she recorded that when this occurred. The toddler room had no dedicated supervisor however the crèche manager KH regularly walked about the premises monitoring and supervising activities. The claimant’s evidence was that she did not see eye to eye with AJ and got on very well with PC. She described her own personality as generally quiet and believes that this contributed to her downfall.

On the 4 March 2011 KH approached the claimant and requested a meeting. Although she was unaware of the purpose of the meeting and who was attending she attended the meeting that day. FT was present at the meeting and the claimant had no knowledge of her role in the organisation. The witness was informed that allegations had been made against her. She was not told who made the allegations and struggled to take in what she was being told. She later returned to work as the crèche was under staffed that day.

That evening a parent whom she was due to babysit for contacted her to cancel the arrangement. She returned to work on Monday and was presented with minutes of the meeting held on the 4 March and asked to wait for FT. That day she reluctantly signed the minutes without being afforded time to consult her union representative. She was sent home with pay and requested to attend the following day. On Tuesday she arrived at work and was asked to wait in the office. Having waited over an hour KH arrived and handed her an envelope and walked away. The letter informed her of her suspension and invited her to attend a disciplinary meeting. The letter was opened to the Tribunal. The disciplinary meeting took place on the 25 March 2011 and was attended by FT, MC and J.McG. The allegations were each put to the claimant and she responded.

The claimant denied ever threatening a child or deliberately setting off the hand dryer. She explained that her comment regarding the hand dryer was taken out of context. She never refused to give a child a drink or deliberately store the drinks away from the reach of the children. In relation to the allegation of putting a child in an area between shelving units she explained that on occasion she would remove a child from a situation for a short period of time to allow them calm down. It was not a method of punishment. The claimant denied dragging children but described how she in a sweeping movement would remove a child from a fight in order to prevent injury to a child. She denied ever recording a child crying on her mobile but accepted she had her phone in her possession on occasion. The witness denied snapping at children and only raised her voice when organising activities or going outside. The claimant denied deliberately hitting a child with his bag.

The next meeting took place on the 5 May 2011 and she was informed of her dismissal. She also received a letter signed by PB dated the 3 May 2011 advising her of her dismissal. The claimant wished to avail of the appeal process and understood would be invited to attend an oral appeal hearing. An oral appeal was not offered to the claimant.

The claimant believes that members of staff did not like her and colluded against her by making the statements which led to her dismissal.

Determination

The claimant’s case is that she was unfairly dismissed by the respondent. The issue of the unfairness, or otherwise, of the dismissal is a matter which has to be determined by the Tribunal. The law requires the Tribunal to determine whether, or not, the respondent’s decision to dismiss was reasonable having regard to the nature and extent of the enquiry which was carried out by the respondent, and the conclusion which was reached by the respondent following this enquiry. While, it could well be the case that the Tribunal may have come to a different conclusion, this is not the issue. The matter for the Tribunal to decide is whether, or not, the decision to dismiss could be labelled as an unreasonable one in light of the facts gathered.

Having carefully considered the evidence presented to the Tribunal, the Tribunal concludes that the Respondent’s decision to dismiss was not unreasonable in all the circumstances of this case. Given the nature of the allegations and the information gathered by the respondent during the course of its investigation, the Tribunal is of the view that the respondent had no alternative but to dismiss the claimant.

The claimant further submitted to the Tribunal that the procedures followed by the respondent leading up to its decision to dismiss were unfair. In particular, the claimant challenged the failure of the respondent to offer the claimant an oral appeal hearing as opposed to an appeal by way of review. In this regard the Tribunal notes that it is best practice to provide for an appeal by way of an oral hearing. However, the respondent’s failure in this regard does not necessarily, in and of itself, render the decision to dismiss unfair. The Tribunal has taken into account the evidence of PK and has assessed the appeal procedure as a whole in light of the nature of the respondent organisation, the position adopted by the claimant and the high quality of the procedures adopted by the respondent in the context of the disciplinary process up until the time of the appeal.   Having considered all of the relevant issues and the submissions made by both legal representatives the Tribunal concludes that the claimant was fairly dismissed.

Accordingly, the Tribunal finds that the dismissal was not unfair and the claim under the Unfair Dismissals Acts, 1977 to 2007 fails.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)