UD46/2013

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                  CASE NO.

Helena Harrington                                                                                          UD46/2013

                                                -   Claimant

Against

Charlestown Community Childcare Limited T/A Happy Feet (Creche & Preschool

                                                -   Respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Dr. A. Courell BL

Members:     Mr. D. Morrison

Mr. M. McGarry

heard this claim at Castlebar on 27^th August 2014

                                             and 3^rd December 2014

Representation:

Claimant:                    Ms. Laura Reid, Callan Tansey Solicitors, The Law Chambers,

3, Wine Street, Sligo, Co. Sligo

Respondent:                Mr. Michael Forde BL instructed by:

J.V. Geary, Solicitors, Linenhall Street, Castlebar, Co. Mayo

Background

The respondent is a childcare facility / crèche. The claimant was employed as a Childcare Practitioner since 2010.

A preliminary issue was raised regarding the length of reckonable service the claimant had with the respondent in order to file a claim under the Unfair Dismissals Acts, 1977 to 2007. Having heard sworn evidence and submissions the Tribunal determined the claimant had the requested service to take a claim for unfair dismissals as stated in the Act.  

On the 31^st July 2012 it was brought to the respondent’s attention by a mother (M) of children in the respondent’s care that there had been an incident regarding the claimant and her partner (M’s ex-husband) the previous evening. The claimant was called to a meeting with the Manager of the crèche (KD), Treasurer of the Committee, (FH) and the Chairperson of the crèches Management Committee (ML). The claimant was dismissed. There had been no previous issues with the claimant.

Respondent’s Case

FH gave evidence. She stated that she was made aware of an alleged incident on the 30^th July 2012 regarding the claimant and the mother of 2 children who attended the respondent’s crèche. KD had been informed by the mother of two of the children that a conflict had taken place. FH received a call from KD to attend a meeting with ML. They met and discussed the matter. It was decided that it had not been acceptable behaviour on behalf of the claimant. She was employed to care for these and other children on the respondent’s premises. The claimant was called to the meeting, which only lasted minutes. The claimant was advised she was to be let go from her employment. When she asked why, she was told she knew why. The claimant proceeded to discuss her partner’s issues with his children and their mother. She finally said she was leaving. The claimant went to collect her belongings and told people she was sacked.

On cross-examination FH told the Tribunal that she did not know if the claimant knew the purpose of the meeting before she attended it. Nor was she aware the claimant could bring someone with her. When asked she said that it had been the correct decision to dismiss the claimant.

KD, the crèche manager gave evidence. In January 2011, prior to the alleged incident in July 2012, the children’s mother alerted the respondent to the fact that her husband (the children’s father) was sending an excessive amount of text messages to a childcare worker in the respondent. This lead KD to ask the staff were they receiving texts (up to 1,500 during working hours) from the father of the two children. The claimant admitted that she was and that she was concerned that the children’s mother had decided that the claimant and her husband were in a relationship. This lead to a ban on mobile phones in the play room and KD requested the claimant to apologise to the children’s mother and ‘consider her position.’ At this point the respondent believed the claimant, that the children’s mother ‘had gotten it into her head’ that they were having an affair. The children’s father was on the Board of Management, due to the conflict, KD requested that he resign which he accepted.

KD outlined the 16 standards of a childcare worker which the claimant was fully aware of and had received training in. The standards were breached by the claimant and in particular - ‘professional practise and duty towards parents.’   The claimant, by her actions, breached the trust with the mother of the two children and failed to maintain ‘an open, honest and respectful’ relationship with a parent. The claimant also, by her conduct, damaged the reputation of the respondent in a small community.   Gross misconduct is defined in the staff handbook as ‘deliberately bringing the organisation into disrepute.’

At the board meeting to discuss the matter in July 2012, the decision to dismiss the claimant was made before the claimant arrived. She had the opportunity at the meeting to give her side of the story even though the decision was made. KD never mentioned the childcare standards to the claimant even though the relationship between the father of the children and the claimant was known from July 2011.  There are no witness statements or notes of any of the events that took place, the claimant was not given reasons for her dismissal or the opportunity to be represented or appeal the decision.

Claimant’s Case

The claimant had a great relationship with the respondent up until her summary dismissal in July 2012.   In January 2011 she had been asked if she was texting the two children’s father; the claimant said she was as they were friends. As a result mobile phones were banned from the playroom. There was never any further mention of the claimant’s relationship.

The claimant refutes that any altercation took place between her and the children’s mother; words were exchanged.  No evidence or witnesses were ever produced by the respondent to substantiate the respondent’s position. The claimant has looked after the children since and maintains a good relationship with their mother and had done for the 1.5 years prior to the alleged July incident.

The claimant was working one week on and one week off. In July 2012, during her week off she was called into the respondent premises. The claimant had no prior notice of the meeting or the content. When she arrived she was told she was being let go. When the claimant asked for a reason she was told ‘you know why.’ The claimant asked for a reason in writing. She was told her P45 and any holidays due would be sent out in the post, KD then escorted the claimant to collect her belongings and off the premises.

The claimant was not afforded any fair procedures or the right to reply. The first time the claimant was given an allegation was 2 months post dismissal.

The claimant gave evidence of her loss and her attempts to mitigate her loss.

Determination

The Tribunal are satisfied that the claimant’s dismissal was wholly unfair both procedurally and substantially. The Tribunal find that the claim under the Unfair Dismissals Acts, 1977 to 2007 succeeds and awards the claimant €22,224.00 in compensation.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)