UD691/2014

EMPLOYMENT APPEALS TRIBUNAL

APPEAL OF:                                                                                                 CASE NO.

Rita Donoghue                                    -Appellant                                    

                                                                                                                      UD691/2014

against the recommendation of the Rights Commissioner in the case of:

Dublin West Home Help Limited      -Respondent

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:       Mr. P. O'Leary B L

Members:       Mr. D. Moore

Mr. J. Flannery

heard this appeal at Dublin on 28th July 2015

Representation:

Appellant:      Mr. Vernon Hegarty, SIPTU, 8th Floor, Liberty Hall, Dublin 1

Respondent:  Ms Aideen Keane BL instructed by Ms Joanne McInerney,

                       Able Solicitors, 199 Emmet Road, Inchicore, Dublin 8

Background:

This case came before the Tribunal by way of an employee appealing a Recommendation of a Rights Commissioner ref: r-139076-ud-13JW, under the Unfair Dismissals Acts, 1977 to 2007.   The employee herein referred to as appellant and the employer as respondent.

The appellant was employed as a home help/carer with the respondent since 2006 and she greatly enjoyed her work. The respondent is fully funded by another entity and that entity’s code of governance requires Garda clearance for both employees of the entity and any organisations funded by it. A service level agreement was formed between the respondent and the funding entity in 2009. As part of that agreement Garda vetting of new employees commenced in 2009 and of existing employees in 2010.

Summary of evidence:

The manager for the respondent provided Garda vetting forms to existing staff in 2010 and gave instructions to staff to complete the forms in full and in detail. She found that she had to remind staff to return the forms. The appellant did not return hers until September 2011. The manager recalled the appellant being concerned that “something” would be on the form that she had not outlined. The manager reiterated that she should complete the form in full and they would consider the matter when it was returned. It was the appellant’s evidence that she became upset when speaking to the manager and told her that more items would be returned on the form than she had outlined but this was refuted by the manager.

It was the appellant’s evidence that she genuinely could not remember the details of the convictions she held such as dates and relevant years. However, the appellant answered honestly on the form that she had received convictions and she outlined two offences that she could remember the details of. Despite her fears of losing her employment the appellant listed all of the addresses at which she had resided in the knowledge that the vetting form would be returned with details of all of her convictions. The appellant outlined to the Tribunal that when the convictions occurred she was suffering domestic violence and the actions associated with the convictions occurred under duress from her husband. She has since become divorced.

The Garda vetting forms were returned to the respondent in May 2012 and the appellant’s form detailed ten convictions which she had not disclosed. On 6^th November 2012 the appellant confirmed in a meeting with her line manager that the convictions correctly related to her. The manager reported the matter to the respondent’s Board and a decision was taken to place the appellant on suspension pending an investigation. The manager was requested to conduct a risk assessment and the appellant was advised of this.

In conducting the risk assessment the manager considered the vulnerability of the clients visited by the appellant. Although she was cognisant that the appellant had had a difficult life she found that she had to consider the vulnerability of the clients as the central issue. The risk assessment found that the appellant would not pose a risk if supervised but she was entering clients’ homes unsupervised. A letter written by the appellant during November 2012 was taken into account by the manager when conducting the risk assessment. She also had sight of a letter written by the appellant to the funding entity during May 2012 when the vetting form was returned. Unfortunately, the manager felt that trust had broken down by virtue of the fact that the appellant did not disclose all of the convictions and she noted that three of the convictions were received during the tenure of the appellant’s employment. The manager could not recommend the appellant continue in the employment due to the nature of the work environment.

The manager’s risk assessment was provided to the Board. A member of the Board gave evidence of a meeting conducted with the appellant in January 2013. At the meeting the appellant was informed that the non-disclosure of convictions would have to be considered. The notes of this meeting were opened to the Tribunal.

A further meeting on 4 February 2013 was held and the notes from this meeting were opened to the Tribunal wherein the appellant outlined the circumstances around the convictions and reasons why she had not listed all of the convictions: such as not remembering dates, not enough space on the form and that she had been upfront with the manager that more would be returned on the form that she had included.

Following this meeting the Board member and her colleague (D) considered all of the documentation including the risk assessment, representations made by the appellant and written correspondence from a number of sources in support of the appellant. There was a particular concern surrounding the issue of non-disclosure on the part of the appellant and they found it was not credible that she did not remember the dates she received the three most recent convictions. They were also cognisant of the nature of the appellant’s role. Other options were examined such as controls that could possibly be put in place but these were not feasible from an expenditure point of view. In addition there were few occasions when the respondent required two members of staff to work together. A decision was taken to dismiss the appellant due to the non-disclosure of the convictions. This decision was taken by the Board member and her colleague (D) but their findings were also discussed with the Chairman of the Board. There was another issue which related to the appellant visiting a client while on suspension but this was not taken into consideration as part of the decision to dismiss. It was acknowledged that the appellant may not have been informed that she could not visit clients during the period of suspension.

An appeal of the decision to dismiss was offered to and accepted by the appellant. An outside individual was sought by the Board and a lecturer in human resource management was selected with the agreement of the union representing the appellant. The appeals officer did not give evidence to the Tribunal but the member of the Board confirmed that she was present at the appeal and the decision to dismiss was upheld. During cross-examination she confirmed that as well as being present at the appeal she was also questioned by the appeals officer as part of the appeal process.

Representation on behalf of the appellant raised an issue with the appeal process because two witnesses were interviewed together by the appeals officer. Representation on behalf of the respondent stated that it was evident from CCTV footage of the appeals process that there was no crossover between the witnesses despite them being interviewed together.  

Determination:

In the course of hearing evidence in this case, it became apparent to the Tribunal that the situation which the appellant endured during her married life and the pressure exerted on her by her husband, was such that her life was made a misery during that period and that her future life will be marred by the record established through no real fault of her own. The Tribunal is of the opinion that there should be some remedy for people in her position to expiate such a record when the influence exerted on her ended.

The Tribunal having heard the evidence in this case determines that the appellant was not unfairly dismissed. The Tribunal came to this conclusion reluctantly but finds that the employer acted reasonably in all the circumstances despite some procedural difficulties in relation to the appeal. This was a very difficult decision for the Tribunal to come to knowing that the appellant had undergone difficulties in the past not of her making and that it was natural and reasonable for her not to disclose the offences she had been convicted of. The Tribunal upholds the Recommendation of a Rights Commissioner ref: r-139076-ud-13JW, under the Unfair Dismissals Acts, 1977 to 2007.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)