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-00006652-001

25/08/2016

The complainant contends that he was unfairly dismissed following an incident in the workplace and that due process and proper procedures were not followed.

The complainant was employed as a Health Care Assistant since 17^th April 2012. He   holds a number of qualifications including Health Care Support and Primary   Food Hygiene, and he attended a course on Management of Actual and Potential   Aggression.   On 29^th   September 2015, an allegation of physical abuse by the complainant towards a   resident was made and the complainant was immediately suspended with   pay. The complaint made related to the   complainant pulling and dragging a service user to his feet.   An independent investigator was appointed   to conduct an investigation.   The   investigation concluded in November 2015 and on 10^th December   2015, the complainant was dismissed.     He appealed the decision on the basis of severity of sanction and   procedural errors.   A decision issued   on 28^th January 2016, stating that he should be re-instated   retrospective to 10^th December 2015. Although he was put back on the payroll,   despite repeated communications to the respondent from his union, he was not   facilitated with a return to work.   He   also co-operated with a psychologist report which was positive in his   favour. However, a new Board of   Management then reversed the decision to re-instate the complainant.    On   12^th August 2016, a few days before an Adjudication hearing into   loss of premium pay over the extended period of his enforced absence from his   workplace, the respondent terminated his employment.   It is submitted that the original   investigation report recommended that the complainant could be relocated and   that the Board rectified the decision to dismiss when that decision was   appealed. It is argued that once the   decision was made on 28^th January 2016, by the Board of Management   to re-instate the complainant, there was a clear agenda by Management to   undermine this decision. Under FOI and   Data Protection legislation, the union became aware of correspondence between   the Board of Management and the most senior Manager in which it is submitted,   that Manager displayed an unbalanced approach. It is submitted that despite the decision   to re-instate the complainant, the Operations Manager pressurised the   Chairperson of the Board of Management to make an alternative decision, and   when that filed, he involved the funders to put further pressure on the   BoM. Finally, despite the   recommendations of the Independent Investigation Report, and the report from   the Psychologist, the new Board of Management agreed to uphold dismissal of   the complainant. It is argued that in   all of the circumstances, the complainant was unfairly dismissed.

A background to the young resident who was the subject of   the complaints made against the complainant was outlined. The background to the incident, which it is   stated constituted verbal, physical and psychological abuse was also outlined. Due to the services that are provided by the   respondent, and the serious nature of the allegations, the complainant was   suspended with pay from 29 September 2015.     He declined to make an initial response to the allegation, and   requested a written copy when he was invited to a Trust in Care meeting in   October 2015.   The respondent engaged   an Independent external investigator to examine the allegations made. During the course of the investigation, the   complainant met the investigator three times.   It was only at the final meeting that the complainant accepted that   the allegations made against him were true.   The investigation report was concluded in November 2015 and found “The confirmed allegations and behaviours – psychological, verbal and   physical abuse – displayed by (the complainant) constitute inappropriate   practices within the sphere of major misconduct and the organisation should   consider this in deciding on appropriate courses of action”.

The respondent considered the situation in its entirety   and decided that there was no option but to dismiss the complainant. This decision was due to the zero tolerance   of abuse as well as being a sanction in its Serious Misconduct policy. The complainant appealed the decision and   the then Chairman of the Board heard the appeal on 8^th January   2016 and recommended that the complainant be re-instated. He was put back on payroll with effect from   10 December 2015.

A new Board of Management held its first meeting in April   2016. Due to there being grave   concerns over the safety and welfare of people with disabilities in the   organisation, the new board found that “in   compliance with the ethos and stated policy of zero tolerance of abuse, the   Board considers that the above named gentleman is not suitably qualified to work   with residents of…Centre” and determined that the complainant be removed   from the payroll. This decision was   made at its meeting of 28 June 2016.   The complainant’s employment was terminated with effect from 12 August   2016.

The complainant was dismissed in line with Section 6 (4)   of the Unfair Dismissals Act 1977 which states that:

“the dismissal of an   employee shall be deemed, for the purposes of this Act, not to be an unfair   dismissal, if it results wholly or mainly from one or more of the following…   the conduct of the employee..”

There are a range of policies and procedures governing the   treatment of vulnerable persons and the national policy “Safeguarding   vulnerable persons at risk of abuse” outlines that the key to safeguarding   vulnerable persons “is an open culture   with a genuinely person-centred approach to care/support, underpinned by a   zero-tolerance policy towards abuse and neglect”.  

The respondent acknowledges that normal procedures were not followed in the matter (as outlined by the appeal report). However, central to every action carried   out by management was the safety and wellbeing of a vulnerable child. Crucially, the complainant did, at the end   of the investigation, admit the abuse and would have been aware of the ‘zero   tolerance’ position of the respondent.   In the circumstances the respondent was left with no alternative but   to dismiss the complainant and it is submitted the dismissal was fair.

The original decision to dismiss the complainant was taken following an independent external investigation. As the respondent did not follow their own   procedures when dealing with the matter, the complainant’s appeal succeeded   and he was restored to payroll. Subsequently   that decision was rescinded by a new Board of Management. The case was re-opened without any input   from the complainant or his representatives.  There is no doubt about the seriousness of the allegation made against   him, and he did not help his case by not admitting to it until the last   minute.  However, I find that the   respondent employer acted unreasonably in subjecting the complainant to  ‘double jeopardy’ without the right to due process. In the circumstances, I uphold his claim of unfair dismissal.   In considering a remedy, I find that given the nature of the original complaint against him,   and the complete breach of trust and   confidence, re-instatement or re-engagement are not appropriate   remedies. I have taken into account   the complainant’s claim in Adj-00003297 for loss of premia and the complainant’s employment situation and I have decided that the complainant has contributed 50% to the situation in which he found himself.   I require the respondent to pay to the complainant the sum of €8,000 compensation.