ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000822

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 09/08/2016

Workplace Relations Commission Adjudication Officer: Michael Hayes

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and the abovementioned Acts, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Respondent’s Submission and Presentation:

The respondent submits that the complainant was dismissed for sleeping on duty while in the care of profoundly vulnerable service users. The complainant was responsible for six adults with complex needs and associated physical and sensory disabilities during her shift commencing on the night of Saturday 4^th of April 2015. All were non verbal with significant medical needs. The night supervisor who found her asleep at 4.20am on Sunday morning the 5^th inst. on this occasion, had previously found her sleeping on February 22^nd 2015. She took a photograph and made a recording of the fact as it relates to the April incident. The matter was reported to the manager on call contemporaneously and a written report of the matter was made on the 7^th inst. The complainant was suspended with pay on foot of a meeting on the 9^th inst. at which she was presented with a copy of the grievance and disciplinary procedure (HSE May 2004), copy of two statements made by the night supervisor (one in relation to February and the other to April) and a copy of the photograph taken by the night supervisor. She was informed that a full investigation of the matter would ensue. An external chair was appointed to enquire into the allegation of gross misconduct under the grievance and disciplinary procedure. The complainant and the night supervisor were interviewed, additional evidence relating to an audio recording on the 5^th of April was introduced and considered and the allegation was upheld. A disciplinary meeting took place on the 10^th of July and having considered the report and the representations of the complainant’s trade union she was dismissed by letter of the 14^th inst. The appeal process provided for in the procedure is external. The complainant lodged a complaint with the Data Protection Commissioner in respect of unlawful capture and use of her personal data. In response it was submitted that the complainant had significant responsibility for the vulnerable service users in her care. The supervisor was not requested to photograph or record the complainant. She was concerned for the welfare of the service users on the one hand and that she might not be believed on the other. In comment in the Aras Attracta case Juge Devins stated that “The disability of the residents was such that they were completely dependent on their carers. They had no voice except through their carers” is particularly apt in the instant case. The Data Protection Commissioner confirmed by letter of the 3^rd of February 2016 that the matter was closed.

Complainant’s Submission and Presentation:

The complainant submits that the herein dismissal is flawed procedurally and that the sanction applied was disproportionate. She has worked with the respondent without blemish for 12 years. The supervisor who reported her made an unsubstantiated report against her some years earlier and had only recently (approximately 5 weeks earlier) resumed working with her. The report of the investigation which upheld the allegations that she was sleeping on duty on the 22^nd of February and 4^th of April 2015 failed to take into account the fact that the supervisor has herself admitted to the investigation that her own eyes were heavy and her head nodded on the occasion of the first report. With regard to the second allegation the claimant asserts that the evidence relied upon (both photographic and audio) was illegally obtained and that in any event it does not of itself prove beyond reasonable doubt that the complainant was asleep on that occasion. The photographic evidence is blurry and does not show that the complainant was asleep and the audio evidence does not prove conclusively that it was the claimant who was actually snoring.

Decision:

In advance of arriving at a decision in this case I wish to make some observations in respect of the submissions and evidence adduced at hearing. Firstly I take the point made by the respondent that the nature of the alleged infringement in the particular case demanded that it admit the photographic and audio evidence captured by the supervisor in her own right and I agree with the abovementioned observations of the Judge in the Aras Attracta case. The evidence adduced was not illegally obtained as submitted. In my opinion the circumstances of the procurement thereof must be weighed in the ultimate favour of the service users who are in the care of the respondent and its agents and employees. Such consideration places a high level of responsibility on management to ensure that robust systems (inclusive of defined support and supervision systems for employees) are in place and upon its employees to ensure that their care is of the highest standard possible.        There are a number of procedural issues arising in this case which give cause for concern. I am concerned that the reports verbal and written together with the photo and audio evidence relied upon were either furnished piecemeal or in a less than timely fashion. A number of leading questions were raised prior to moving to the investigation phase which was inappropriate. The respondent was in possession of relevant detail which should have been furnished in advance of those questions.

I am particularly concerned that “sleeping on duty” which is classified as a serious misconduct was not explicitly the subject of mandatory reporting by all staff as a matter of policy and operational imperative at the very least. The fact that the supervisor was in a position to overlook the infringement of the 22^nd of February would indicate that a tolerant policy rather than its opposite existed.

I am satisfied that the policy concerning sleeping on duty was not sufficiently robust and that the sanction of dismissal was disproportionate in those circumstances.

Therefore the complaint is well founded. However I find that the complainant made a substantial contribution to the dismissal and that the appropriate redress in all the circumstances is one of compensation in the amount of €4,000 (say four thousand euro).

Dated:  24/01/2017