ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00004952

Parties:

	Complainant	Respondent
Anonymised Parties	An Employee	A Local Development Company

Complaint:

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-00007007-001	14/09/2016

Date of Adjudication Hearing: 13/07/2017

Workplace Relations Commission Adjudication Officer: Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, 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.

Background:

The complainant contends she was unfairly dismissed following an incident in November 2015.

Summary of Respondent’s Case:

The Respondent is a local development company which delivers programmes on behalf of the State and the EU. It has full time and part time staff and approximately 190 on various schemes throughout the country. The Complainant worked as a Childcare Assistant and latterly as an Assistant Co-ordinator at a centre which provides after school support. On 24^th November 2015, an incident took place where the Complainant got involved in a heated situation involving a vulnerable child, his foster mother and the Complainant herself. The Complainant allowed this situation to develop, in full view of the other children in the room, and other parents who had come to collect their children. A colleague had to ask the Complainant to remove herself and the foster mother from the room due to the affect it was having on the children. Subsequently, two members of staff made complaints about the Complainant’s behaviour to the Line Manager, Ms C. The Line Manager, having conducted a meeting with the parties, declined to investigate, on the basis that once she had met with the parties and she had to suspend the Complainant pending investigation, she could not start an investigation, so an independent external investigator was appointed to investigate the situation. The investigator met with all the parties separately, and the Investigation Report was presented to the CEO on 25^th February 2016. In line with the recommendation in the Report, the respondent’s disciplinary procedure was invoked and a disciplinary meeting was held on 23^rd March 2016. The Complainant was accompanied at this meeting and submitted notes she had prepared. The CEO advised that she would take time to consider the notes submitted and the content of the discussion at the meeting and make her decision. On 19^th April 2016 having taken into consideration all of the facts, the CEO confirmed her decision to dismiss the Complainant. The decision to dismiss was based on the facts that:

- The Complainant did not professionally manage the interaction between a child and his foster mother in the centre and

- That she herself did not interact in a professional manner with the children.

In the letter confirming her dismissal the Complainant was advised that she was being paid eight weeks notice as per her contract of employment and she was also advised of her right to appeal the decision. The Complainant appealed the decision and in her appeal made a number of points, such as she did not believe the external investigator was independent as she had been paid by the company, that she (the Complainant) had over 16 years’ experience working in childcare, that some members of staff had refused to sign statements, and that the Complainant felt bullied and ignored by her Supervisor. The appeal was heard by the Chairperson along with another member of the

The Respondent’s position is that the Complainant was fairly dismissed for a substantial reason following a full and thorough investigatory and disciplinary process. It is argued that the Respondent’s decision to dismiss was in accordance with what a “reasonable employer” would have done in the circumstances. (Ref Looney & Co Ltd v Looney, UD 843/1984). It is also argued that the Complainant’s actions amounted to a breach of the trust between the parties to the employment relationship and that it is imperative that the Respondent can trust its employees to act with integrity and in accordance with policy, and not to damage the Respondent’s reputation and business. (Ref Audrey Burtchaell v Premier Group International Ltd T/A Premier Group, UD1290/2002).

Summary of Complainant’s Case:

The Complainant has worked in childcare for approximately 16 years having completed FETAC levels 5 and 6 in Childcare. She was asked to take on the position of Centre Co-ordinator in October 2015, a position she did not herself request. On 24^th November 2015, there was an incident involving the Complainant, a child in the after school homework room and the child’s foster parent. The conversation with the foster mother did not go according to plan and the Complainant admitted from an early stage that she could have handled it better. She subsequently apologised to her colleagues for not acting quickly enough to diffuse the situation. She also called her Supervisor Ms R and sought guidance. Matters escalated when the colleagues filed complaints against the Complainant. The Line Manager Ms C requested the Complainant to provide a written statement without warning her of the implications. Ms C met with the Complainant and suspended her with pay pending an investigation. An investigation was held and it is submitted that there were flaws, including the fact that statements were taken from staff who either subsequently withdrew or refused to sign, and yet these were still used and included in the Report. It should be noted that the allegations levelled against the Complainant in the letter of suspension were different than the allegations contained in the Investigation Report and different again in the letter of dismissal:

The allegations in the suspension letter were:

(A) Inappropriate behaviour (verbal) towards a child in the afterschool and

(B) Allowing a (foster) parent to come into the homework room and shout at a child in the presence of the other children and the CE participants.

The allegations in the Investigation Report were:

(A) On Tuesday 24^th November 2015 at approximately 4.45pm (The Complainant) did not professionally manage the interaction between one of the children and his foster mother (named).

(B) (The Complainant) did not interact in a professional manner with the children.

(C) On Wednesday 25^th November 2015 (The Complainant) did not act in a professional manner in front of children and parents.

The allegations/grounds in the letter of dismissal were:

(A) That you did not professionally manage the interaction between a child and his foster mother in the centre and

(B) That you yourself on the same day did not interact in a professional manner with the children.

It is submitted that in summary, the flaws in this case are disproportionate sanction (ref McCrann v Marks & Spencer (2014) UD 3/2013 and Fitzpatrick v Dunnes Stores (2014) UD 196/2012), failure to adhere to the Respondent’s own disciplinary procedures in that the Complainant was given two disciplinary procedures – the first enclosed in the letter dated 4^th December 2015 which is different from the procedure she signed in May 2011 along with her contract of employment. Further, it is submitted that nowhere in the suspension letter, invitation letter, Report or the termination letter is the word “misconduct” used.

Findings and Conclusions:

Having reviewed the evidence and submissions I find as follows:

The respondent carried out a full and thorough investigation following what was a difficult incident. I have reviewed the external investigator’s report. I find that a flaw in the process is that the statements or interview notes from two staff who, in one case would not sign the notes of interview, and in the other case wished to withdraw from the process, should not have been relied upon. I find, however that this is not a fatal flaw and that the report is a comprehensive document which clearly sets out recommendations that (a) the Complainant should be supervised at all times in the workplace and (b) that the disciplinary procedure be invoked. The disciplinary procedure was invoked and the result was that the Complainant was dismissed from her employment. I find that in the process, sufficient account was not taken of the fact that (a) the Complainant was apologetic immediately following the incident and (b) she had long service in Childcare. I find that other sanctions could have been considered, e.g. coaching and counselling and a written warning may have been more appropriate in the circumstances. I also note that warning signs of the Complainant’s difficulties with taking on a senior, more responsible role in the organisation were not acted upon by the Respondent employer who had a duty of care to employees.

I conclude that there was a lack of proportionality with the decision to dismiss given the circumstances of the case and the personal background of the Complainant. I conclude that, in all the circumstances, the dismissal of the Complainant was unfair.

Decision:

I find that the Complainant has been unfairly dismissed by the Respondent. I acknowledge that re-instatement or re-engagement are not appropriate as the employment relationship has obviously broken down. I find that compensation is the appropriate remedy. I note that the Complainant was given 8 weeks pay in lieu of notice, and thereafter was on disability benefit. She stated that she was not available for work, having suffered from the affects of her dismissal. Section 7 of the Unfair Dismissals Act 1977 provides that future loss may be taken into account as follows:

“financial loss, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts 1967 to 1973, or in relation to Superannuation”.

Section 7 (2) provides that the extent of the loss attributable to the act, omission or conduct of the employee may also be taken into account. I consider that the Complainant in this case contributed at least 50% to the situation in which she found herself in the particular incident which led to her dismissal. Taking into account all the circumstances I require the Respondent to pay to the Complainant the sum of €4,200 as the appropriate compensation.

Dated: 18 August 2017