EMPLOYMENT APPEALS TRIBUNAL
CLAIMS OF: CASE NO.
Luana Lucchesi – claimant 1 (LL) UD55/2014
Imelda Brennan – claimant 2 (IB) UD56/2014
against
Holy Family Parish Community Crèche Limited - respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms V. Gates B.L.
Members: Mr G. Mc Auliffe
Mr C. Ryan
heard this claim at Dublin on 4th March 2015
and 11th May 2015 and 13th May 2015
and 6th July 2015 and 7th July 2015
and 13th October 2015 and 14th October 2015
and 19th January 2016
and 26th January 2016
and 29th February 2016
and 18th April 2016
Representation:
Claimants : Ms Kiwana Ennis B L instructed by:
Paul MacArdle & Co, Solicitors, 10 Roden Place, Dundalk, Co Louth
Respondent : Mr Owen Keaney B L instructed by:
Sherwin O'Riordan, Solicitors, 74 Pembroke Road, Dublin 4
Background:
At the outset of this hearing and prior to evidence being adduced the Tribunal was shown some thirty minutes of closed circuit television silent footage of certain incidents that occurred in the respondent’s Baby Room on Thursday 27 September 2012 from approximately 09.25am onwards.
Certain employees including the claimants were named as being on that footage. According to the respondent the alleged behaviour of one of those claimants eventually led to her dismissal. The second claimant was also dismissed for other reasons which were linked to these events.
While the claimants’ dismissal circumstances were different the parties agreed there was sufficient overlap between them to merit their cases being effectively treated as one for the purposes of evidence. Both claimants were team leaders and worked directly with the infants and children. LL was based in the Baby room and IB in the Waddler room.
Respondent’s case:
The respondent provides crèche and child care services. Those services are divided into different age groups and are labelled as Babies, Waddlers (ie older than babies and younger than toddlers), Toddlers, and Pre-School. This company is a not for profit enterprise and is staffed by up to thirty five people many of whom are not full time. Its main funding comes from the State and it is bound by current health, safety and child welfare legislation and guidelines.
The dismissal of both claimants arose from a series of incidents that occurred in the Baby Room on the morning of 27th September 2012. LL (claimant 1) was in charge and DMA was working with her. IB (claimant 2) came into the room with art supplies. Later IB complained to PQ, an administrator, that LL (claimant 1) used inappropriate language while talking to a particular child. Then PQ repeated the concern to ID and this conversation was over-heard by the manager CB. When CB spoke to PQ about the allegations, PQ told her to look at the CCTV footage. CB asked IB (claimant 2) for a statement, IB replied ‘about what’ claiming she has not seen or heard anything.
The manager CB spoke to a member of the board of management and followed his advice to suspend LL with pay pending an investigation. LL (claimant 1) was suspended on 28 September 2012 shortly after she arrived for work. Her suspension letter gave the reason ‘because of the need to investigate the alleged matter thoroughly’.
Later that morning CB met with IB (claimant 2). ID was present as a note taker. The claimant’s representative regarded this meeting as an occasion when IB was threatened and put under pressure to make a statement about an event she had no knowledge of. The respondent’s representative suggested that IB was evasive and uncooperative and that IB was uncomfortable saying anything about LL (claimant 1) because she was frightened of her.
In viewing several still photographs from the footage in the baby room on 27 September 2012 the senior child care worker (TT) with the respondent gave a description and commented on what she believed those stills were showing. This witness was on leave that day and was unaware up to lunchtime on 1 October 2012 that one of the claimants had been suspended on 28 September 2012. She had no memory of meeting the manager (CB) on 8 October 2012 to discuss the contemporary situation within the respondent and no recall of discussing the case of the suspended claimant 1 (LL) with her. A note dated 26 October 2012 of a meeting between the non-suspended claimant 2 (IB) and that manager was probably taken by this witness (TT). She recalled that meeting and described it as “short and sweet”. During that meeting IB aired grievances against the manager (CB). TT maintained she was not questioned by the respondent as part of its investigation into the conduct of either one or both of the claimants. She commented that on 1st October 2012 both IB and DMcA left work early that day without her authorization.
The company secretary (ID) who worked in the accounts department had no direct working relationship with the claimants. However, she was familiar with them and described them as good friends. Through a series of events and comments this witness and the manager learned of reported events in the baby room that morning involving inter alia the claimants. According to this witness the administrator she shared an office with (PQ) told her that IB stated that LL had mishandled and used bad language to a child earlier that morning. The manager (CB) also heard this tale and began to query it.
The next morning, 28 September, ID received a phone call from the Manager stating that following a viewing of certain video footage that she needed to suspend one of the claimants (LL) from duty. This witness subsequently attended a number of meetings that morning between the Manager and several staff. ID took what she described as accurate minutes of those meetings.
Those notes, together with a commentary on them by the witness were presented to the Tribunal. ID recorded that the suspended claimant (LL) was very upset at being notified of that development. The general reason given was for alleged breach of child protection rules. However, neither specific details nor a copy of relevant video footage were furnished to her. Two meetings between the manager and the other claimant took place that morning. IB sought an explanation for the ongoing events stating that her colleague (LL) is most distressed following her suspension. A couple of hours later this claimant was clearly upset at how matters were proceeding and refused to make a statement about incidents relating to 27th September 2012.
It emerged that the statements of PQ and DMcA were written by ID but read and signed by both employees.
On 1st October 2012 both PQ and DMcA sought to retract their statements on the grounds they had not actually written them.
In evidence to the Tribunal DMcA admitted that in interviews with an official from the Health Service Executive/TULSA and an independent investigator she gave confusing, conflicting, and contradictory versions of her experience of this incident on 27 September 2012.
An official from the HSE/TULSA who conducted an investigation and issued a report into this and other subsequent incidents told the Tribunal that it was not an important factor that the this child care assistant gave at least two versions of an incident she was involved in on 27 September 2012. It was also her belief that this child care assistant might have heard LL utter expletives to a child. This witness did not accept it was unfair to present LL with new fresh allegations against her when they met on 19 December 2012. She had viewed the CCTV several times and it appeared to her that LL had her hand over a child’s mouth and this neither gave assurance nor comfort to that individual. However, it was possible this team leader was saying something comforting to the child. By that date LL had not seen that footage and the witness stated that she (LL) should have. There was insufficient evidence to conclude that LL applied physical abuse in any of the reported incidents.
The independent investigator issued three letters to the respondent’s solicitor between 20 June and 5 July 2013. She wrote that both claimants should be subjected to disciplinary procedures. The disciplinary issues relating to IB were:
- Alleged failure to comply with a child protection investigation.
- Failure to provide adequate safeguards for children by non-compliance with investigation.
- leaving the workplace without permission.
In relation to the last issue the investigator agreed that she did not interview TT whom IB claimed had allowed her to leave work early on 1 October 2012. It was the investigator’s strong view that since IB did not submit a written statement on her involvement in this saga that ipso facto she had not complied with the investigation. However, she accepted that IB verbally stated on occasions to her that she had nothing to say on the matter.
Claimants Cases:
LL, (claimant 1), gave evidence. She worked for 17 years in the crèche, 10 years as a team leader and before that as a child care worker. Before the incidents complained of there had only been a single incident. In 2004 a child left the room unaccompanied. The claimant was at lunch so it was not her mistake but she was the team leader and it was her responsibility and therefore she accepted the written warning.
The claimant recalled 27 September 2012. She arrived at work at 8.30 am and was left on her own in the Baby Room until 12.30 pm. She phoned upstairs for staff but nobody came. She was not told about any incidents that day.
The next morning LL was told to come to the manager’s office. CB suspended the claimant and told her that the HSE would be informed. The claimant was upset. CB would not talk to the claimant beyond saying that she had cursed at a child. The letter of suspension given to the claimant informed her that she would be interviewed but the reason was not set out. She phoned CB and was told ‘you will know everything on Monday’. LL also wrote to CB expressing outrage at not being offered support and also requesting full details of the allegation. She was not given copies of statements from the crèche.
On 19 December 2012 the claimant and her solicitor met with LR of the HSE. At that meeting there were allegations of physical abuse made against the claimant. She was shocked as up to that point the only allegation made to her was of cursing at a child. Now she was accused of putting her hand over a child’s mouth and putting a blanket over a child’s face. The claimant was told that the Gardaí had been notified but they never spoke to her. The claimant was clear that she did not put her hand over a child’s face and neither did she put a blanket over a child’s face.
The claimant was given a copy of the HSE report in January 2013. The report was inconclusive on the issue of whether the claimant swore at a child but raised serious concerns about inappropriate handling, hand over child’s mouth and blanket over child’s face.
On 7 February 2013, CB wrote to the claimant raising 4 allegations that had not been put to her before. The claimant was horrified, shocked and distressed. The claimant attended an investigation meeting with CB on 10 April 2013. The claimant was shown the picture of the child covered by a blanket. When asked about picking up a crying child from behind, the claimant said manual handling training she had received encouraged bending at the knees and not bending her back when picking up. She did not place her hand over his mouth but was putting a dummy in his mouth.
Two days after the meeting CB wrote to the claimant and raised new allegations relating to her performance.
LL accepted that she had 17 years’ experience in child care and was aware of the standards of care required. She was a team leader and in that role was aware of all policies and procedures in place, indeed that was part of her role to ensure that all the policies and procedures were followed.
She was also aware that the baby room was monitored by CCTV.
LL said that the CCTV stills shown to the Tribunal looked bad. She also said that she needed to be more careful. However at all stages of the proceedings she denied wrongdoing.
LL agreed that the allegation that she put her hand over the face of a baby was a serious one and if found to be true would warrant dismissal. However she insisted that she did nothing wrong.
She said in evidence that she dropped a blanket over the side of a second baby’s head. Yet in the still picture his head is covered by the blanket and no other person is present at the time.
She expected to be disciplined as a result of the incidents but felt that her dismissal resulted from a conspiracy of several of her former colleagues against her. She could offer no reason for such a conspiracy.
IB, (claimant 2), gave evidence. She started work with the respondent in 2001 in a part-time role. She progressed to a full-time position and from there to the role of team leader in the Waddler room.
As a team leader IB agreed that she had a higher level of responsibility for the welfare of all the children than a child care worker would have. She was aware of the Behaviour Management policy and was aware of the reporting responsibilities. She was also aware that failure to comply with reporting obligations could result in dismissal.
On the day of the incidents in the baby room involving LL, she was in the Baby Room for a short time to lay out art materials. Later she was asked for a statement but she hadn’t seen anything so she could not make a statement. She was aware of her obligations as a team leader.
On 4 October IB had a meeting with CB. CB went through all policies with her. IB believed that the purpose of the meeting was to get up to date with paper work. She thought that CB did this with everyone and not because she was unhappy with her cooperation. IB said that she was not initially asked for a written statement but as soon as she was asked for one she immediately supplied one.
Determination:
The claimants each submitted claims to the Tribunal which, by agreement with the respondent were heard together over eleven separate days with the Tribunal hearing evidence from a number of witnesses.
The respondent is a not for profit organisation providing childcare facilities to the local community. Prior to dismissal; LL was employed by the respondent for 17 years at which time she held the position of Team Leader of the Baby Room. Prior to dismissal IB was employed by the respondent for a period of 12 years and held the position of Team Leader in the Waddler Room. The dismissal of both claimants arose as a consequence of events which took place in the workplace on the 27th September 2012. By letters dated 15th July 2013 both claimants were dismissed on the grounds of gross misconduct and both claimants lodged appeals against the decisions, which following a hearing, the Appeal Panel, by letters dated the 4th December 2013 upheld the decisions to dismiss.
LL was dismissed on the grounds that her words to and actions towards children in her care on the 27th September 2012, as set out under 5 separate headings in the letter of dismissal constituted gross misconduct warranting dismissal.
IB was dismissed on the grounds that she left the workplace without permission on the 1st October 2012 and that she failed to comply with a Child Protection Investigation and accordingly failed to provide safeguards for children, as set out under 3 separate headings in the letter of dismissal and that such behaviour constituted gross misconduct warranting dismissal.
Prior to oral evidence being given, the Tribunal viewed approximately 30 minutes of closed circuit television silent footage of the events which took place in the Baby Room from in and around 09:25am onwards on the 27th September 2012. The Tribunal was also referred to still photographs of the footage throughout the course of the hearing in order to examine the individual incidents more closely.
In embarking upon an investigation the respondent was alerted to the behaviour of LL in the Baby Room on the 27th September 2012 by a conversation which took place between IB and another staff member. In reaching it’s decision to dismiss the respondent concluded that the incidents which took place on the 27th September 2012 in the Baby Room and in the days following in the course of the subsequent investigation constituted a serious breach of child protection procedures by both claimants amounting to gross misconduct.
It was common case that both claimants were experienced childcare workers and had been employed for many years by the respondent. Both claimants accepted, in the course of cross-examination, that they had been fully trained in relation to and were aware of child care employees’ ongoing reporting obligations and the necessity of complying with any investigation into child protection issues.
The Tribunal has carefully considered the evidence adduced by all witnesses, the documentary evidence and the oral and written submissions. It is not the function of the Tribunal to adjudicate about the factual inconsistency of certain witnesses’ version of events but rather to determine whether the respondent observed fair procedures and came to a fair and reasonable decision in all the circumstances to dismiss LL as a result of her behaviour on the 27th September 2012 and to dismiss IB as a result of her behaviour on the same date and on the days following.
In concluding that the respondent acted fairly and reasonably the Tribunal notes in particular;
- Having viewed the CCTV footage and the still photographs the Tribunal has no doubt that it was entirely reasonable for the respondent to conclude that the incidents shown therein revealed potential child protection issues requiring investigation and report to the HSE.
- That the respondent undertook a thorough investigation, conducted in accordance with fair procedures by promptly interviewing and requesting statements from all employees alleged to have heard comments or overheard comments and/or conversations of and between staff members in relation to the events which took place in the Baby Room on the 27th September 2012.
- That each claimant was given an opportunity to present a defence to the allegations made against her and to be accompanied at all stages of the investigation, disciplinary and appeal processes by a representative and to cross-examine witnesses in relation to their evidence and statements.
- That the appeal against the decision was heard on three separate dates by an independent appeal panel when witnesses were called and cross-examined and following the hearing the decision to dismiss was upheld
- The documentary evidence adduced by the respondent and the acknowledgements, under cross-examination of each claimant that she was aware of all Statutory and Regulatory Child Protection Obligations and the requirement of employees to implement the same.
In all the circumstances the Tribunal finds that neither claimant 1, LL nor claimant 2, IB were unfairly dismissed and accordingly the claims under the Unfair Dismissals Acts, 1977 to 2007 fail.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)