EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD1884/2011
WT762/2011
CLAIM(S) OF:
Laura Johnston
- claimant
against
Letterkenny Community Playgroup Childcare Centre Limited
- respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
ORGANISATION OF WORKING TIME ACT, 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. E. Daly B.L.
Members: Mr. D. Morrison
Ms R. Kerrigan
heard this claim at Letterkenny on 2nd May 2013
and 23rd January 2014 and 24th January 2014
and 22nd September 2015 and 24th September 2015
and 3rd December 2015 and 4th December 2015
and 9th March 2016 and 10th March 2016
Representation:
Claimant: Cathal Quinn, Quinn Dillon & Co, Solicitors, 34, Lower Main Street, Letterkenny, Co. Donegal
Respondent: Terry McNamara, IR/HR Executive, Irish Business and Employer’s Confederation, 3rd Floor, Pier One, Donegal Town, Co. Donegal
At the outset the claim under the Organisation of Working Time Act, 1997 was withdrawn
Preliminary Issue:
This is a claim for constructive dismissal. A question arose as to whether the Tribunal had jurisdiction under Section 8 (2) of the Unfair Dismissals Acts, 1977 to 2007.
The claimant commenced employment with the respondent on the 2nd January 2007 as a Child Care Assistant.
An alleged incident occurred in March 2011. An investigation was carried out and a meeting took place on the 5th April 2011. It was decided that the incident amounted to gross misconduct. The claimant was dismissed as and from the 8th April 2011.
She was given 7 days in which to appeal the decision to dismiss. The claimant was very upset and attended her doctor.
An appeal hearing was scheduled for the 18th April 2011. The decision to dismiss was rescinded as the incident was seen by the appeals panel as serious misconduct. She was issued a final written warning and was informed it would stay in place for a period of 12 months. Mediation was offered to the claimant as she rejected the finding that a final written warning was issued.
The claimant continued to attend her doctor as was, and still is on the first date of the hearing, unavailable for work. She lodged medical sick leave certificates to the respondent. Correspondence passed between the claimant’s solicitor and the respondent. Mediation remained on offer to the claimant during this time.
On the 14th September 2011 the claimant was requested to attend the company’s doctor on the 22nd September 2011 to assess if she was fit to return to work. A second letter dated the same day was sent to the claimant’s solicitor confirming the claimant’s employment status and that the claimant had been off on a period of sick leave from the 27 April 2011 to the 25th September 2011.
On the 21st September 2011 the claimant signed a T1A form to make a claim under the Unfair Dismissals Acts, 1977 to 2007 for constructive dismissal. On the 22nd September 2011 the claimant’s solicitor wrote to the respondent stating the claimant’s doctor felt she remained medically unfit to return to work. It also stated:
“Finally, (the claimant) has now been forced to initiate constructive dismissals proceedings against the company, she can no longer, pending her reinstatement on the above basis, be considered an employee of the company, and therefore all further communications should be directed to us”.
A reply was sent on the 29th September 2011 wishing to clarify the claimant’s position concerning the impression given in the letter of the 23rd September 2011 as to whether it was a letter of resignation.
The claimant in sworn evidence stated she had continued to submit medical certificates from the 27th April 2011 to date and had not informed her employer previously that she was terminating her employment but felt she had been constructively dismissed since April 2011.
Verbal Preliminary Determination:
The Tribunal has carefully considered the submissions made and evidence adduced in this case.
By a majority decision the Tribunal finds they had jurisdiction to hear the substantive issues in the case.
Substantive Issue:
Claimant’s Case:
The claimant alleged constructive dismissal in circumstances where she had no alternative but to resign from her position as child care assistant with the respondent. The claimant had been employed by the respondent since 2nd January 2007 and resigned by way of solicitor’s letter on 23rd September 2011.
The claimant told the Tribunal that she had been unfit for work due to illness from the date of termination of her employment until June 2015 when she was said to have made a full recovery. It was the claimant’s contention that during that time she was unfit to go back to her job with the respondent and that she had set out terms under which she was willing to go back to work.
The claimant was suspended with pay from 23rd March 2011 pending an investigation into an incident that occurred on 22nd March 2011. A disciplinary meeting was convened on 5th April 2011 and a decision to dismiss the claimant was relayed to her by letter dated 8th April 2011.
The incident of 22nd March 2011 involved a young child under the care of the crèche being left unattended and alone in an enclosed play area attached to the crèche building. On the day in question the claimant was in charge of 12 toddlers in the outside play area. The only other adult in the play area was a student who did not count as a qualified adult according to regulations governing the operation of creches. There were two other qualified adults on the premises at the time but neither of them were in the play area when the child was left behind. When it was time to bring the children back in-doors they all lined up at the entrance except for one toddler who did not join the line. The claimant went to get this toddler and when she came back with him/her the line of other children had already gone back indoors. The normal routine when bringing the children in from the play area is to do a head count but on this occasion it was not done because the claimant was the only qualified adult in the play area at the time and when she returned with the stray toddler the rest had already been taken in for lunch. The procedure, insofar as which door the children were brought through, had also recently been changed and this had compounded the confusion. It was approximately 20 minutes before it was discovered that one of the children who had lined up to come in for lunch had left the queue and was still outside in the play area. This child was then brought back into the crèche.
It was put to the claimant that she had asked a colleague not to mention this to the manager but the claimant denied having made such a request. The claimant had left and gone home on 22nd March 2011 without reporting the incident to the manager but this was because it was busy and she did not have the opportunity to do so. It was her intention to inform the manager next morning but before she had the chance to do so the manager placed her on suspension pending investigation.
The claimant subsequently appealed the decision to dismiss her and an appeal hearing was convened on 18th April 2011. The decision of the appeal board was to rescind the decision to dismiss and instead to issue the claimant with a final written warning in relation to the incident. Confirmation of this was sent by letter dated 20th April 2011 to the claimant.
The claimant returned to work on 26th April for one day and then began to submit sick notes to the respondent. Correspondence ensued for some months after this between the respondent, the claimant and the claimant’s solicitor. This correspondence culminated in the claimant’s solicitor informing the respondent that the claimant had been forced to initiate constructive dismissal proceedings against the respondent.
In cross-examination the claimant said that she was not qualified to supervise the children and staff in the playroom but management had left her to do it.
On the day in question the claimant said she had been left outside in the yard alone with the children. Her colleague (GB) asked her to bring the children inside to the playroom. Another colleague (BB) was inside folding laundry. The claimant lined the children up at the door. One of the children was not in the line, the claimant called to him but he would not come to her. She went over to get him and on their return to the other children in the line she found the children had already gone inside to the playroom. The claimant agreed that she should have carried out a headcount but she could not as she was on her own and got distracted. When asked she said she had not asked any other colleague to assist her and had not complained to anyone that she had been left to do the task on her own.
When asked the claimant said that she had not informed GB that day what had occurred as she had not had the time or the opportunity to do so but had intended to do so the next morning. When put to her the claimant refuted she had told BB not to tell GB what had occurred on the day.
The claimant told the Tribunal that she had returned to work on the 26th April 2011 and met GB who informed her she would not be returning to work in the toddlers room as one of the toddler’s parents did not want her minding their child. The claimant worked for the day and did not return to work again. She attended her doctor who certified her unfit for work.
When asked why she had not attended mediation to try and resolve matters she replied that she was not “fit for work” because of the stress of the situation.
When asked by the Tribunal, the claimant agreed she continued submitting her medical certificates into 2015. The claimant stated that her doctor “kept giving me certificates as he felt I could not return to that job.”
When asked by the Tribunal when she had deemed herself as constructively dismissed, the claimant replied, after some consideration, it was the 26th April 2011, her last day of work.
The claimant’s sister (PJ) gave evidence.
On the 26th April 2011 the claimant left the respondent’s premises in a distressed state. PJ told the Tribunal that the claimant rang their mother and herself and was very upset. PJ went directly to the claimant’s home and on seeing her state of mind she contacted to local Now-Doc.
PJ said she explained to the nurse on the phone the distressed state her sister was in and she was advised to keep an eye on her, not leave her alone. The claimant told PJ what had occurred at the respondent’s premises. She advised her sister to contact her solicitor. PJ had to speak to the solicitor herself as the claimant was too distressed to talk.
The claimant was distressed and crying for most of the day. Later that day the nurse rang to see how the claimant was and advised if she became any worse PJ was to contact her immediately. PJ remained with the claimant until about 11.00 – 11.30pm as by then the claimant had calmed down due to exhaustion.
An Inspector from the HSE (now Tulsa) gave evidence. She explained the childcare industry was regulated by the 2006 Regulations and these were explained an explanatory guide (this was not available at the hearing for the Tribunal’s perusal)
The witness explained the Adult - Child ratio as set out in the Regulations:
Age: Adult Number: Child Number:
1-2 years 1 5
2-3 years 1 6
3-6 years 1 8
The witness stated the 12 children and 1 adult (the claimant) present in the yard on the day in question was against the Regulations. A student present in the yard, although with level 7 training, was employed as a student and therefore did not count as an experienced adult to assist the claimant supervising the 12 children on the day in question. The student herself had to be supervised; she was there to observe and ask questions.
The witness explained that children at the age of those present on the day in question required two adults, they were “at a very vulnerable age”. If only one adult was present and a problem occurred with one child requiring the only adult present to leave the area the remaining children would be at risk.
On cross-examination the witness explained that the respondent was inspected by the HSE in April 2011 as a matter of course. The HSE were unaware of the incident involving the claimant the previous month. The respondent was again inspected in February 2015 when the HSE became aware of a court case involving the respondent and the claimant. CCTV cameras had been installed and checklists were used to count the number of children returning from the outside play area.
When asked, the witness said the correct Adult : Child ratio was correct on the day in question as the correct amount of experienced adults were present on the respondents premises in total, as per the regulations. However, the required number of experienced adults were not present in the outside play area with the 12 children.
When asked by the Tribunal if a recommendation made by a HSE Inspector could be enforced, the witness replied that the facility in question would be brought to court. She agreed that situations did arise when two experienced adults were supervising children and one adult may need to leave the area for one reason or another but it would only be for a few minutes. The witness stated that it would be best to avoid this kind of scenario.
The claimant’s legal advisor gave evidence. She stated that she had been present with the claimant and her solicitor taking notes at the investigation, disciplinary and appeals hearings.
(It should be noted these minutes were not agreed by the respondent)
Respondent’s Case:
BB a childcare assistant at the time of the incident told the Tribunal of a fire drill on 22nd March. She said that the assembly point is outside of the building. After the drill the children then returned to the paly area. A mother (of J) asked BB to check if there were enough nappies which she did and then brought food trollies to the table where the children were already seated. She was not folding laundry as the claimant had suggested. A child SJ was upset and she took her out of the room to the play area. The door was locked and that was when she found J, it was approx. 12.05 and the children would have been brought into the room at approx. 11.50am.
BB she could not have done a head count when the children were being brought inside as she wasn’t there. It is standard procedure that a head count is done and the claimant said it was her fault at the time but asked MB not to say anything. BB later asked Grace, (her leader) if the claimant had reported the incident, she hadn’t. BB said that she had nothing to gain by highlighting the incident, it’s what she was trained to do.
GB manager of the facility gave evidence of being concerned when not notified of the incident by the claimant which should be standard practice. She approached the claimant the following morning 23rd after she had walked passed her office to go to the toddler room and advised her of the need to discuss the incident. The claimant asked GB “what incident?” and was told of the one concerning J on the previous day. She then said sorry that she had forgotten about it and that it was her fault.
GB explained that the matter would have to be investigated and that the claimant would be suspended on pay until statements were taken from the other employees working on the day.
She then took written statements from BB and GB who were working with the claimant on the day. She then wrote to her on 24th proposing an investigatory meeting on 28th where she could give her version of events and affording her the opportunity of being represented.
At the meeting the claimant was given copies of the statements and questions were directed to her. She didn’t reply to most of them, it was her solicitor who spoke on her behalf. She denied saying it was her fault to BB and seemed to be saying that everybody else was to blame.
A disciplinary meeting was held on 5th April and again the claimant attended with her solicitor. It was put to her that she had neglected to check the play area or do a head count and that she had failed to report the incident to a supervisor. No new information was provided by the claimant or her solicitor and she was dismissed by way of a letter as and from the 8th April. She was given leave to appeal. GB said it was a difficult decision but that it the claimant had offered to tell her story herself it would have been better for all as the true picture might have emerged.
The claimant appealed the dismissal and the parents committee reduced the sanction to serious misconduct with a final written warning to be placed on her file for one year. GB told the Tribunal that she, along with Ms O D, met with the claimant on 26th April her date of return to work. She was asked to sign a document that she understood the conditions as stated in the letter from of the parent’s board and the seriousness of the situation. They went through her role and responsibilities and the claimant was advised that she would be working with Ms OD in the pre-school room. Initially the meeting was friendly.
GB left the room to speak with a parent and when she returned the claimant handed her a letter stating that she did not accept the final written warning and that she intended to peruse the costs she had incurred through her solicitor. GB told her it was her choice she also told her that all meetings from then onwards would be documented.
The claimant worked for the day of 26th and then went on sick leave citing stress. She was offered mediation which she turned down. The respondent then received a letter from the claimant’s solicitor on 29th April rejecting the outcome and the final written warning and asking that the parents of J be informed that the claimant was blameless. GB said that the claimant continued to send sick certificates to the respondent until July 2015.
Determination:
Dissenting opinion Mr Morrison
It is common case that there was a disciplinary process that resulted in the dismissal of the claimant. The dismissal was overturned on appeal and the sanction was reduced to a final written warning. The claimant returned to the workplace on 26th April 2011, met with her manger and signed a document of understanding. She continued to work throughout the day (her last day of work). The claimant then began submitting sick certificates to the respondent which continued until June of 2015. Correspondence from her legal advisor also remained ongoing, requesting certain conditions to be met for her return to work. One of the conditions was that the final written warning be rescinded and removed from her file.
As a case for constructive dismissal the question for the Tribunal was whether the claimant left her employment in circumstances in which, because of the conduct of her employer, she had no reasonable alternative but to resign her position. The following facts are taken from the sworn testimony of both claimant and respondent.
1 The claimant continued to submit sick certificates to the respondent until July 2015, this suggests that she still considered herself as an employee.
2 Through her legal advisor she continued to vigorously seek a return to work under her own conditions, another condition being that the parents of the toddler left outside be advised in writing that she was “blameless”.
3 The respondent acted entirely within its remit and the terms of employment in advising the claimant (on her return to work on 26th April) as to the room and group of children that she was required to work with.
4 The claimant attended the company doctor (as arranged by the respondent) to assess her fitness for work on 22nd September 2011.
5 She declined an offer of mediation to assist in her return to work.
6 The claimant failed to report the incident at any time to her supervisor, this in itself could have been enough to warrant the dismissal of the claimant.
A T1A complaint form was submitted to the Tribunal on 22nd September 2011 stating that dismissal took place on 23rd March 2011, citing constructive dismissal and requesting re-instatement as a remedy. The claimant stated during her sworn testimony that the date of her constructive dismissal was 26th April 2011 but her sick certificates continued until June 2015.
The ongoing vigorous attempts by the claimant to seek a return to work under her own conditions and the continuation of her medical certificates does not sound like the position was so intolerable as to prevent her returning to work for the respondent. There is no doubt that a child was left unattended in the playground for a period of time and that the claimant accepted she did not take a head count at the time.
It would be impossible for the respondent to withdraw the final written warning that was given by an independent appeal body. The demands of the claimant were unreasonable in a situation where if some responsibility had been accepted by her the situation may not have developed. I therefore disagree with the remedy and the quantum of compensation.
Majority Decision:
Procedures:
The majority find that the procedures that led to the original decision to dismissal were unfair. These are as follows:
- Child (B), who was relied upon by the Claimant, during the investigation, as a reason for her distraction, was believed, by the Respondent, not to have been in the room at the time of the incident. However, this belief, which supported their view that the Claimant was not being entirely honest during the investigation process, was never conveyed to the claimant during the investigative process.
- The Claimant was advised that some things would be discounted from the findings, namely that she tried to cover up the incident. However these were not discounted.
No other staff member was scrutinised or investigated, this led the claimant to believe she was scapegoated. This belief is not without basis considering there were a number of staff directly involved in the events of that day.
Substantive issue:
The claimant was left in charge of 12 children at a material time, when they were being taken from outside to inside the building.
Regulation 5.16 states “the total number of childcare staff in the service, as opposed to the per room allocation, should be taken into account, once the immediate safety of the children is not compromised”.
The majority consider that even though there may have been compliance with the ratio requirement on a per building, as opposed to per room basis, a breach of the regulation occurred because the immediate safety of the children was compromised. As a result of the design of the room and the staff present being inside the room, they could not get a full view of the children outside. The staff needed to be outside and not inside, to mind the children when the children were outside. There were insufficient staff numbers present at the material time to ensure that the children came back inside safely. The staff on duty and where they were located should have taken account of distractions that could arise, e.g., a child being upset or un-cooperative, which did in fact occur, and which distracted the claimant from doing the head count properly.
The claimant was not solely guilty for a child being left outside, therefore the decision to dismiss was unfair.
However this was not the end of the issue.
On appeal the dismissal sanction was lifted but some of the findings against the claimant remained. Therefore the return to work meeting of 26th April was a significant event and how that meeting was conducted and whether the terms of re-engagement amounted to the constructive dismissal.
The claimant felt that she returned to work under a shadow of fault which was only partly justified. At the meeting GB her manager communicated the following:
(a) That the full extent of the original findings against the claimant were still valid. This was untrue. The appeal accepted that the claimant was not wholly to blame for what occurred.
(b) That she got off on a technicality. This was unfair, given that the respondent, through its staff, had contributed to a breach of the ratio requirement.
(c) That her terms of re-engagement were that she be moved to another room. This was fair, given the partial fault of the claimant and the legitimate concerns of a parent.
(d) That all meetings (not only HR issues) would be documented. This was unfair as it could only mean that her work was to continue under a cloud of suspicion and mistrust. The majority accepts the claimant's evidence in terms of what she understood was meant by meetings, as meaning all meetings and not only HR meetings.
(e) That the finding of gross misconduct was upheld. This was unfair as the sanction had been reduced, on appeal, to serious misconduct.
(f) That she was guilty on all counts. This was unfair given that the respondent, in part, also caused these events
The majority finds that this meeting and the comments made by GB at the time made it clear to the claimant that all faith and trust in her had been lost. It is hard to imagine any circumstances that the employment could have continued when the above was communicated in such clear terms, to the claimant.
Contribution
Section 7 (2) (b) as amended provides that in determining compensation regard shall be had to
“the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee”.
The Tribunal considered evidence as to the contribution of the claimant towards the dismissal, (in failing to do the head count and in failing to report the incident as soon as possible).
Taking all the evidence into consideration the Tribunal finds the claimant contributed 50% towards the dismissal.
The Tribunal, taking into account the claimant’s illness assessed into the future, loss at €9,000.00. In light of this finding the Tribunal considers that the claimant would be in a position to return to work within an 8 month period. By deducting 50% the Tribunal award compensation to the claimant in the amount of €4,500.00 under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)