EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD483/2015
CLAIM OF:
David Atkinson
against
Cope Foundation
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr J. Lucey
Members: Mr D. Hegarty
Mr D. McEvoy
heard this claim at Cork on 14th June 2016
Representation:
Claimant : Ms Jane Ann Rothwell B L instructed by James A Sheridan & Co, Solicitors, The Mall, Riverside Way, Midleton, Co Cork
Respondent : Mr Eoin Clifford B L instructed by O'Flynn Exhams, Solicitors, 58 South Mall, Cork
The determination of the Tribunal was as follows:
Respondent’s Case
The respondent is an organisation that provides support services to people with various levels of physical and intellectual disabilities. It operates out of several centres in the city and county of Cork. Most of the events in this case occurred in its residential premises in the Montenotte area of the city where it employed the claimant as a health care assistant.
Together with a colleague a full time accountant with the respondent conducted an investigation into allegations of inappropriate behaviour against the claimant towards a resident. While he was not fully aware of the proper procedures in handling such a resident this witness felt he had the competencies to address the allegations. The investigation team concluded that the claimant had a case to answer and the case progressed to a disciplinary issue.
A disciplinary hearing was held in January and March 2014 and the respondent’s issued its decision in mid-May. The sanction imposed on the claimant was a final written warning and he was also obliged to undergo a personal improvement plan. During this process the claimant was suspended from duty and accepted the imposed sanction. However, the respondent only provided him with work commencing on 18 August 2014 and one of the decision makers was unable to fully explain the time gap between the sanction and the return to work. The claimant was located to another premises but in early October suspended again pending a court appearance relating in an incident involving that resident which took place in October 2013. This decision maker stated that the respondent was aware of this pending court case prior to returning the claimant to work. That court case consisted of a prosecution against the claimant for assault. In such a scenario the respondent was compelled to terminate the claimant’s employment.
The head of human resource division wrote to the claimant on 8 October 2014 placing him on suspension due to his forthcoming court appearance. Once that case is concluded “matters will be reviewed”. That letter was sent in the knowledge that once a charge of assault was proceeded with then the respondent could no longer maintain the claimant in employment. This witness was unable to explain the respondent’s ongoing stance in this case as it continued to employ the claimant.
It was indicated by the presiding judge that the claimant would be convicted of assault when the case came before the court on 25 November 2014. According to the witness the board of the respondent met that evening, decided to dismiss the claimant and communicated that decision to her. She in turn penned a letter to the claimant early next morning notifying him that his offence and conviction warranted summary dismissal. This human resource manager told the Tribunal that the contents of her earlier letter to the claimant dated 8 October was incorrect.
The respondent upheld its decision on the claimant’s appeal against his dismissal. The claimant did not appeal his conviction.
Claimant’s Case
The claimant commenced employment with the respondent in 2001 and up to October 2013 had no adverse issues with his employer. Later that month he was suspended from duty pending an investigation into an incident between him and a client which occurred on 22 October. The claimant accepted he made physical contact with a disruptive resident. Despite giving mitigating reasons for that contact and following that investigation and an external report the claimant received a final written warning in May relating to that incident. While he was shocked at that sanction the claimant nevertheless accepted it and felt that was the end of the matter.
This incident was reported to the relevant authorities and this resulted in the listing of a court case. By July the respondent was informed of this development. The following month he recommenced his work with the respondent in a different location and co-operated with an improvement plan. This issue came back to trouble him again in early October when he was again suspended from his duties for the same incident. That suspension was related to his court case. While he did not receive a recorded conviction at the conclusion of his case it was clear that this was the outcome.
The next morning the human resource manager issued him with a written notice of his immediate dismissal.
An experienced manager who was the claimant’s supervisor gave some background to the staffing levels and training of the staff. She had not been invited to participate in the investigation into an incident between the claimant and a resident.
Determination
The division carefully considered the evidence adduced by both the Claimant and the Respondent over the course of an entire day. The respondent’s service users are, in the main, vulnerable people.
Inter alia the Claimant sought to rely on the sanction of the Respondents being a final written warning to maintain his employment within the Respondent organisation yet he had his legal representatives make enquiry of the Respondent’s in writing on his behalf as to whether or not dismissal could be an eventual outcome.
This division finds as a matter of fact and require it to be noted that the disciplinary procedures utilised by the Respondent and the manner in which it was applied fall far below acceptable standards and were at best contradictory in nature as for example it was stated in evidence on behalf of the Respondent that as an organisation the Respondent could not maintain someone in employment charged with or convicted of a criminal offence yet the Claimant was permitted to return to work and did so from August 18, 2014 to October 8, 2014, albeit at a different facility but in direct contact with clients and service users.
Furthermore the human resource manager on behalf of the Respondent gave evidence that the communication of the direction of the board to dismiss the claimant on November 25, 2014 was made to her by the then CEO, who herself was the person who apparently was to have had no involvement at all in the dismissal process yet was the person who heard the appeal of the dismissal in what seems to be a contravention of the basic tenets of the respondent’s disciplinary procedures and process.
This division notes that the Claimant withdrew his appeal of conviction to the Circuit Court, which was a tacit acceptance of his conviction.
Notwithstanding the foregoing this division finds that the decision to dismiss, on balance, was within the range of reasonable responses and in the circumstances the dismissal is fair. The claim under the Unfair Dismissals Acts, 1977 to 2007 therefore fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)