ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00000330
Complaint(s)/Dispute(s) for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 |
CA-00000509-001 |
29/10/2015 |
Date of Adjudication Hearing: 02/03/2016
Workplace Relations Commission Adjudication Officer: Shay Henry
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8(1B) of the Unfair Dismissals Act, 1977, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Complainant’s Submission and Presentation:
I have been unfairly dismissed from my employment as a child care worker. The punishment was too severe. Procedures were not fair. |
The claimant was employed as a childcare worker by the respondent. In May 2015 a number of communications were made to the respondent from a mother of one of the children enrolled in the nursery. These communications were in the nature of complaints against the complainant relating to inappropriate physical contact. An investigation followed conducted by a nominee of the respondent. CCTV footage of the day in question was accessed. The footage shows the Montessori room downstairs and the child in question being disruptive and throwing chairs about. The claimant attempted to pick him up to bring him away from the other children for their safety and for his. All the staff members had sought some instructions from the Manger of the Montessori as to what they were to do if the child became disruptive but these were not forthcoming. This would happen on a regular basis and the child’s mother had told the complainant that she herself removed him to another room when he became disruptive. No such option was available to the claimant. Unfortunately, the child’s left arm slipped from the complainant’s grasp and he began to fall to the floor. In an attempt to prevent him falling and causing injury, she held onto his right arm. This was an isolated incident and there was no intention to hurt the child. She was simply trying to prevent him from suffering injury.
It was the claimant herself who sought to have the CCTV viewed, despite being initially told it had been written over. The claimant worked with the respondent for 11 years and never received a written warning.
An investigation into the incident took place. In the terms of reference for the investigation it was stated that the investigation only related to the emails received from the child’s mother. However, the preliminary report of the Investigator introduced further allegations not contained in the terms of reference as follows;
A further CCTV clip of the 11 May 2015 between 9.20 a.m. and 9.30 a.m. where (the claimant) appears to be on her mobile phone for this entire period should also be reviewed under the disciplinary process…
This incident was included in the final report of the Investigator as warranting review under the Disciplinary Procedure. The disciplinary hearing took place on 7th August 2015.
Subsequent to the hearing, on 19th August, the complainant wrote concerning the use of the phone and stated that she was not using her phone for personal use but rather was looking up arts and craft ideas for children. Normally this is done at the end of each day. However, due to the child’s behaviour the week before all of the staff’s time was taken up with him during these periods and they had fallen behind.
On 24th August 2015 the respondent wrote to the claimant stating that she her actions amounted to gross misconduct and that she had been summarily dismissed. She was advised of the right of appeal and that if she chose to do so she should write to the manager within seven days giving the full reasons as to why she believed the disciplinary action taken was either inappropriate or too severe. The complainant appealed by letter dated 27th August. On 28th September this letter was acknowledged by the Manager and the claimant was informed of the intention to use a named barrister as the Appeals Officer. The letter also stated that
I have reviewed the contents of your letter and note that it does not set out your ground for appealing the decision. To ensure that (The Appeals Officer) can adequately prepare, you are invited to submit your reasons in writing as to why you believe the decision to be unfair. Your appeal should be forwarded to (address of Appeals officer) within seven days of receipt of this letter. If you have any queries regarding the contents of this letter
On 28th September the complainant wrote to the Appeals Officer enclosing her letter of 27th August and stating that ‘we await to hear details of appeal hearing’. The Appeal s Officer did not acknowledge this letter but delivered his findings by letter dated the 28th October upholding the respondent’s decision. The claimant submits that there was a clear breach of fair procedures in that clearly the respondent engaged the Appeals officer and would have fully instructed him about the matter, yet the claimant was not given an opportunity to be heard at the appeal hearing. The claimant also believes that the punishment was too severe.
Respondent’s Submission and Presentation:
The claimant was employed as a Childcare Worker by the respondent in which she held a position of the utmost trust and responsibility where young children were entrusted into her care. She was fully trained and qualified in this area.
Following the complaints received on 14th and 15th May 2015 an investigation was carried out. At the claimant’s suggestion the CCTV footage was accessed and shown to the claimant in the presence of her solicitor and the investigator. On foot of the report of the investigator a disciplinary meeting was convened on 7th August 2015 to deal with two issues; firstly, the alleged failure to follow company rules and procedures, namely, care standard procedures in respect of the care of a child in the care of the respondent which resulted in a complaint from a child’s mother. Further particulars being that the claimant was rough with the said child and was alleged to have manhandled the child. Secondly, the alleged use of a mobile phone on 11th May and not paying due care to the child in her care. The claimant was advised of her entitlement to representation and that the matters were regarded as potentially constituting gross misconduct which could result in summary dismissal.
Following the hearing the respondent wrote on 25th august to the claimant to advise that it had determined her actions to constitute gross misconduct and she was being summarily dismissed as a result. She was advised of her right of appeal within seven days providing the full reasons as to why the disciplinary action taken was either inappropriate or too severe. By letter of 27th August the claimant submitted a notice of appeal. By later dated 27th September the respondent acknowledged the said appeal and advised that the claimant detail her grounds of appeal for the Appeals Officer. The appeal was a grounds based appeal and did not involve any hearing.
In his report which issued on 28th October the Appeals Officer concluded that having reviewed all the relevant law and facts, that the decision by the respondent to dismiss was reasonable one in all the circumstances.
It is submitted that the claimant was dismissed for reasons of misconduct. Section 6(4) (b) of the Unfair Dismissals Act states that a dismissal that is wholly or mainly related to conduct will not be deemed to be unfair. Conduct for these purposes covers a wide range of activities and behaviour. The one common thread is that conduct must have destroyed the relationship of trust and confidence between the employer and employee. It is submitted that the actions of the claimant constituted gross misconduct warranting summary dismissal. The claimant was afforded all fair procedures in advance of the decision being made. It is submitted that the sanction of dismissal was appropriate and proportionate.
Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Issues for Decision:
There are two issues to be decided; firstly, whether or not the disciplinary procedures applied were fair and; secondly, if the decision to dismiss was proportionate.
Legislation involved and requirements of legislation:
Section 1 of the Unfair Dismissals Act 1977 defines a dismissal as follows;
“dismissal”, in relation to an employee, means—
(a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,
Section 6 (6) of the Act states;
(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal
The burden is therefore on the employer to demonstrate that the dismissal is fair.
The Code of Practice on Disciplinary Procedures (Declaration) Order 1996 (S.I. No 117 of 1996) includes the following advice on the principles of natural justice to be applied in any disciplinary case;
That details of any allegations or complaints are put to the employee concerned
That the employee concerned is given the opportunity to respond fully to any such allegations or complaints
That the employee concerned is given the opportunity to avail of the right to be represented during the procedure
That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, circumstances.
Conclusions:
The general facts in relation to the incidents which occurred are not in dispute.
In the EAT decision in Walker v Maplin Electronics Ltd the relevant test to be applied for determining whether a dismissal for alleged misconduct is fair was stated to be as follows;
‘Did the employer have a genuine or reasonable belief, based on reasonable grounds arising from a fair and adequate investigation that the employee is guilty of the alleged misconduct and finally whether the penalty of dismissal was proportionate to the alleged misconduct’
Also of relevance is the judgement of Linnane J in Allied Irish Banks V Purcell ([2012] 23 ELR 189) where the relevant test for determining if an employer’s actions are reasonable in the context of disciplinary sanctions was stated to be as follows;
‘Reference is made to the decision of the Court of Appeal in British Leyland UK LTD v Swift and the following statement of Lord Denning MR
The correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness within which one employer might reasonably take one view, another quite reasonably take a different view.
It is clear that it is not for the EAT or this Court to ask whether it would dismiss in the circumstances or substitute its view for the employer’s view but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the court would have taken.
The complainant as argued that there was no intention on her behalf to cause harm in her interaction with the child. However the requirement to follow the correct care standard procedures is to avoid the possibility of harm being caused whether intentional or otherwise and it is the failure to follow the correct procedure that is the root cause of the allegations giving rise to the disciplinary process. The same applies in relation to the prohibition in the use of mobile phones during work as this could result in lack of due care and attention to the children.
In the disciplinary hearing the respondent had the advice of the manager who was suitably qualified to assess the appropriateness or otherwise of the complainant’s actions, and if inappropriate whether or not this was at a level constituting gross misconduct. If, as in this case, the conclusion was that it was at a level of gross misconduct, the previous good record of the employee, need not be a mitigating factor. I believe that it was reasonably open to the respondent to reach the decision that the actions of the complainant constituted gross misconduct and I therefore conclude that the decision to dismiss was reasonable.
The complainant contends that she was not afforded fair procedures insofar as she was not given an appeal hearing. In this regard I note that the respondent’s disciplinary procedures make no reference to an appeal. The Grievance Procedure does provide for an appeal and refers to the use of an independent third party. No mention is made of the format of such a process. Nonetheless an appeal process was provided through a third party albeit not by way of a hearing.
In considering the appropriate format of an appeal the employer must consider the grounds when deciding the extent of any new investigation or re-hearing in order to remedy any possible previous defects in the disciplinary process.
In his decision dated 28th October 2015 the Appeals Officer states that
The terms of reference of this appeal are that this appeal is limited to the information and to a view and reading of the documents available to both employer and employee at the time of the disciplinary hearing. The appeal is not proceeding by way of an oral hearing but is proceeding on a review of the said information supplied and the letter of appeal received from the appellant. This will include a viewing of the CCTV footage of the allegations the centre of this matter after conducting the research and review of the material used in the disciplinary process.
The above terms of reference were not communicated to the complainant in advance of the appeal and it is clear from her letter dated 28th September to the Appeals Officer in which her representative stated ‘we await to hear details of appeal hearing’ that there was an expectation of such a hearing. The basis of the appeal was set out in the complainant’s letter of 27th August to the respondent which the complainant subsequently forwarded to the Appeals Officer. In order to determine whether or not a hearing was required it is necessary to look at the details contained in this letter to see if they could reasonably be considered without such a hearing and if they were in fact considered by the Appeals Officer.
The first issue contained in the appeal letter related to the severity of the punishment. The key question in considering whether the punishment was appropriate is dependent on whether or not the behaviour constituted gross misconduct. The complainant contends that she was not intentionally rough with the child. The Appeals Officer reviewed this aspect of the appeal in detail and I do not see what could have been added at a hearing.
The complainant states that she sought directions, as did other staff members, on how to deal with the child if he became disruptive but these were not forthcoming. While the Appeals Officer did not specifically address this issue in his decision, the procedures for managing challenging behaviour are detailed in the Service Handbook and the complainant was a fully qualified child care worker who should have known that the manner in which she attempted to deal with the problem could not be acceptable.
The complainant points out that she said that the CCTV coverage looked horrendous rather than saying that it was horrendous. The Appeals Officer considered this clarification in his decision.
The Appeals Officer also considered the submission by the complainant regarding the use of the mobile phone.
I am therefore satisfied that the Appeals Officer had access to the relevant evidence on which to consider the claimant’s appeal and that nothing could have been added by way of an oral hearing and therefore there was no failure in relation to procedure.
Decision:
I find that the Respondent's dismissal of the Complainant was, in the circumstances, fair and reasonable. Therefore, the Complainant's complaint of unfair dismissal is rejected.
Dated: 30th June 2016