EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD1699/2014
MN848/2014
CLAIM OF:
Philip Doyle
against
Three Steps
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. P. O'Leary B L
Members: Mr. N. Ormond
Mr. J. Dorney
heard this claim at Dublin on 4th February,19th, 20th April 2016
Representation:
Claimant: Mr. John Wilde Crosbie BL instructed by: Doyle & Company Solicitors, 1 Main Street, Blanchardstown, Dublin 15
Respondent: Ms. Mary Paula Guinness BL instructed by : O'Mara Geraghty McCourt, Solicitors, 51 Northumberland Road, Dublin 4
The determination of the Tribunal was as follows:-
Background:
The respondent is an organisation that offers medium to long term services to young people who experience emotional, behavioural and family problems. It provides clinical neuropsychological assessment and therapeutic intervention for young people with complex needs who experience emotional, behavioural and family problems.
The claimant was employed as a Social Care worker until his dismissal in May 2014. The letter of dismissal read in part as follows:
Alleged physical harm of a young person (SLOB) in our care, namely use of unnecessary and excessive force and unauthorised physical restraints on the young person on Saturday 26th April 2014.
Alleged breach of trust and confidence in you in your position of Social Care Worker in respect of the above allegations
Respondent’s Case:
The Director of Social Care (BB) gave a detailed description of the structure and operation of the respondent’s facilities. BB also explained how their clients / service users were assessed and monitored and how a risk assessment plan was put in place for each service user as required by their individual needs.
The Manager (CC) of the facility where the claimant was employed at the time in question gave evidence. CC explained the training all staff, including the claimant, received to carry out their duties. On such form of training was MAPA – management of actual and potential aggression. Staff were fully supported by management and the clinical team. Regular meetings were held with the staff. CC held supervision meetings with the claimant, the most recent being on the 4th April 2014. She also explained that if staff had any issues she and the rest of the management team were available for consultation and / or advice. When put to her, CC said the claimant had never made any complaints of not being supported in his duties.
When asked CC explained that at the time in question there were 16 staff and 5 services users / clients in the facility. On the day of the incident in question there was 6 staff on duty.
CC explained J (the service user in question) was autistic and prone to outbursts. On the weekend in question J had spent a night with his family in their family home. The following day J returned to the facility and his mother approached a colleague (RW) of the claimant and told him J was apprehensive of returning to the facility and told him what J had told her what happened with the claimant. RW spoke to CC and gave a statement of what had said to him by J’s mother.
CC spoke to her Line Manager, the Deputy Head of Social Care (TOB) and the Child Protection Liaison Officer (EC). At this time the claimant did not work alongside J as the investigation into the allegation took place.
J told CC the claimant had pushed him after he, J, had hit him. CC explained that this was a very serious allegation. J had made allegations in the past which he been recorded and looked into. A decision had been made that any further allegations made by J would be investigated. CC explained to the Tribunal that this was the first time J had admitting to hitting anyone. She viewed the CCTV footage of the time in question. On the 29th April 2014 she interviewed the claimant regarding the incident. (These unsigned minutes were opened to the Tribunal)
On cross examination CC said support plans were in place and all staff were advised of these plans regarding the service users. If any plans were updated or altered all staff were advised of these changes. CC told the Tribunal that she had discussed J’s behavioural plan, the claimant was well advised and was a very experienced member of staff.
When asked CC refuted the claimant had raised any issues of the staff: service user ratio, including that with J. When put to her that J had been bullying other service users she replied that she had not known but was aware J had broken a staff member’s nose. CC told the Tribunal that J did have a tendency to hit out and staff had been kicked and hit by him in the past.
When asked CC said that later in 2014 the respondent reviewed the staff ration in respect of J’s case and it was decided to change the practice with him.
The close circuit television silent video footage of up to a fifteen minute interaction featuring the prominent characters of the claimant and this child was screened a number of times during this hearing. It concentrated on a time span from just after 09.00 on 26 April 2014 and was shot from two cameras showing certain movements in two adjoining rooms. The operator of this video felt the images presented showed the claimant using excessive force towards that child. This witness attended a risk management meeting where it was decided to suspend the claimant.
An experienced child protection liaison officer compiled and signed off on her report into allegations made against the claimant. This report dated 9 May 2014 was presented into evidence. As part of that lengthy report this witness interviewed and spoke to several staff members including the claimant. Under the heading Outcome that report read in part: This allegation has hence been upheld. It was then forwarded to the human resource section for review.
This liaison officer told the Tribunal that based on her report and a viewing of certain video footage she concluded that the claimant had not acted in an appropriate manner. This witness had earlier been involved in the decision to suspend the claimant pending an investigation by the company into his behaviour on the morning of 26 April 2014. It was her conviction that she had no involvement in the subsequent disciplinary process.
The former human resource manager wrote to the claimant summonsing him to a disciplinary hearing. That letter contained relevant documentation and a notice that in the absence of providing a satisfactory explanation his job could be in jeopardy. That hearing held on 19 May began with a screening of certain video footage involving the claimant and a juvenile among others. This was the first time this footage had been shown to the claimant. Following that ninety minute hearing and upon reflection and consideration this manager again wrote to the claimant on 28 May 2014. That letter notified the recipient of his immediate dismissal as the writer concluded that the claimant’s behaviour towards the twelve year old boy on the day and time in question amounted to gross misconduct.
In reaching that decision the witness said that he could not find support for the claimant’s version of events. In addition he relied on and accepted the contents of the report presented by the child protection liaison officer.
Claimant’s Case
The claimant commenced employment with the respondent as a social care worker in October 2010. While he received some training and had acquired certain qualifications for this role he was not completely up to date on all aspects of child protection. There was an almost one –to –one ratio of staff to residents at the facility where he worked apart from the overnight shift. Over time the claimant had established a close and challenging working relationship with a particular male resident who at times was disruptive and violent.
Shortly after day break on 26 April 2014 a serious incident developed involving this resident, the claimant and other staff. The claimant described in detail what transpired from 07.00 that morning up to 09.00. He believed he acted in a responsible manner and never exceed using minimum but necessary force to contain and control the situation. The claimant added that the male resident was capable of injuring others and indeed was physically aggressive to him during that incident. This resident’s behaviour on this occasion was not uncommon and the claimant was satisfied he acted proportionately and professionally in dealing with him.
Determination
The Tribunal have carefully considered the sworn evidence and submission adduced in this matter.
The Tribunal finds the dismissal of the claimant to be unfair because he had not acted aggressively but had reacted to the actions of the young person. This reaction was of a manner that was understandable in the circumstances.
Accordingly, the Tribunal awards the sum of €31,000 (thirty one thousand euro) under the Unfair Dismissals Acts, 1977 to 2007.
Loss having been established the Tribunal also award the sum of €1,195.74, this being two weeks wages, under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)