ADJ-00005286

Complainant

Respondent

Anonymised Parties

A Childcare Worker

A Community Crèche

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-00007412-001

5^th October 2017

The Complainant was employed by the Respondent from 2nd June 2004 to 22nd July 2016 and her fortnightly rate of pay was €533.32c.

The Complainant was submitting that she had been unfairly dismissed from her employment by the Respondent and the Respondent was denying the complaint and stating that the dismissal was fair, was for good and just cause and was effected with fair procedure that fully respected her rights.

The Respondent was submitting that the dismissal was fair and fully justified by the facts and circumstances of the case and that fair procedures that fully respected the Complainant’s rights was observed by them in this matter.

The Respondent showed CCTV coverage at the Hearing in support of their position.

The Respondent said that the Complainant was employed by them as a childcare worker from 2^nd June 2004 to 22^nd July 2016, when she was dismissed by them on the grounds of gross misconduct.

The Respondent said that the Complainant admitted to witnessing two separate child protection incidents on 4^th and 18^th May 2016 and failed to take any action to intervene in respect of either incident and failed to report either incident in breach of her obligations under her Contract of Employment and in accordance with Service and National Childcare Procedures.

The Respondent said on 4^th May 2016, in the Toddler Room at 10.01am a young child was isolated, and while being visibly upset, she was placed and left in the adjoining bathroom unsupervised for 6 minutes, despite being clearly upset/traumatised.     The Complainant was in the Room with one other employee looking after 10 children.       The Respondent said the child involved in the incident on this day arrived upset and the Complainant is seen on CCTV holding the child briefly, before putting her down and the child is then shown lying face down on the couch with no intervention from either employee.     The Respondent said it is alleged that the other employee said “let the child cry it out and stop her carryon” and that the child was crying and upsetting other children.  

The Respondent said that the named Supervisor who is also the Deputy Child Protection Liaison Person came into the Toddler Room to allow for employee staff morning breaks at which point the Room was over adult-child ratio.   At 10.01am the other employee, in the presence of the Deputy Child Protection Liaison Person and the Complaint, took the child to the adjoining bathroom isolating her in the bathroom/change Area, where the child was alone, while visibly upset.     The Respondent said the CCTV footage then show another childcare worker, GM, enter the Room at 10.04am to allow for employee break and hearing the child crying expressed her concern to the Deputy Child Protection Liaison Person and the Complainant.   At 10.06am the CCTV footage shows the Complainant and other employees leave the Room for their break, having made no intervention whatsoever in relation to the upset child and at 10.07 the child is removed from the bathroom by the Deputy Child Protection Liaison Person.

The Respondent said that it is alleged by the Respondent throughout the Investigation that the Deputy Child Liaison Person told her to go on her break and that she would “deal with it”, but this is denied by the Deputy Child Liaison Person.       The Respondent said that it was also alleged by the Complainant that the Deputy Child Liaison Person should have done something to intervene in relation to the child and also said that she had assumed that the Deputy Child Liaison Person had reported the incident to Management.

The Respondent said that from 5^th May to 17^th May the Complainant was not at work due to illness and annual leave.

The Respondent said on 18^th May 2016 in the Toddler Room the same employee mentioned earlier and the Complainant were present with 10 children, when a young boy arrived upset.   The Respondent said the Complainant comforted the child, but she was told by the other employee to put the child down and the other employee then proceeded to subject the child to emotional / abusive / intimidatory behaviour for 45 minutes threatening the child with isolation if he did not stop crying.     The Respondent said that at approximately 9.50am the child was excluded from the classroom in the presence of the Complainant who took no action whatsoever to protect the child.

The Respondent said the Complainant was the Keyworker for both children, has cared for them since they started at the Crèche; she moved into the Toddlers Room with them.     The Respondent said the Complainant knew or ought reasonably to have known that the isolation of both children constituted a serious child protection breach, where both children upset and traumatised were left also and unsupervised away from employees.   The Respondent again failed also to report the incident to Management and when questioned in the course of the Investigation stated that she had noted the second incident in her private diary.     The Respondent said that however this incident only came to the attention of Management on 20^th May 2016, when informed by the other employee referred to earlier.

The Respondent said that on 23^rd and 24^th May 2016, fact finding meetings were conducted by two named persons.   The two set of parents were conducted and informed of the incidents on 23^rd May 2016.    The Respondent said that on 24^th May 2016 during a fact finding Meeting the Complainant disclosed her knowledge of the incidents.   The Respondent said that 6 named persons were interviewed.   On 25^th May 2016, the Respondent reported the matter to Tulsa.     On 26^th May 2016, the Complainant made a statement about both incidents to the Manager.

The Respondent said that on 30^th May 2016, the Complainant and her Representative viewed CCTV of the two incidents along with two other named persons.

The Respondent said that between 1^st June to 6^th June the investigative process took place.   Five employees were met with.   It was originally intended to meet with six employees, but the other employee mentioned earlier resigned.

The Complainant along with her Representative attended an Investigation Meeting on 1^st June with the Chairperson of the Respondent and MT of an Independent HR Company and another named person as notetaker.

The Respondent said that on 17^th June 2016, MT completed the Investigation Report.    

It recommended that the Complainant had a case to answer and that disciplinary proceedings should commence against her.   The Respondent said that similar conclusions were reached in respect of two other named employees.   The Management Committee of the Respondent unanimously accepted the recommendations in the Report.

The Respondent said that the Disciplinary Hearing for the Complainant was held on 28^th June 2016 and it was conducted my named person from outside the employment and two named persons from the Respondent and the Complainant attended along with her Representative.     The Complainant was suspended on administrative leave and this was confirmed in writing to her on 30^th June 2016.

The Respondent said that due to medical concerns for the Complainant they organised for her to have an occupational medical assessment with a named Doctor on 7^th July 2016.   On that date she was deemed fit to return to work; her suspension was lifted, but she was placed on administrative leave with full pay, pending the outcome of the Disciplinary Process.

The Discipline Outcome Report was delivered on 21^st July 2016, which recommended that the Complainant be dismissed for gross misconduct.     On 22^nd July 2016, the Respondent wrote to the Complainant dismissing her for breaches of:

1. The Respondent’s Protection Policy 2008 – 2015
2. Her duty of care as a Respondent childcare worker, in particular Regulation 9 Behaviour Management
3. Both children’s dignity
4. Incident/Accident Reporting - Regulation 14, Records 14(1)(m)
5. Contract to abide by Respondent Policy and Procedures specifically;
6. Company Positive Behaviour Management Policy
7. Respondent’s Code of Behaviour Policy
8. Duty to the children under her care as she demonstrated a lack of appropriate supervision in breach of Regulation 27.

The Complainant lodged her appeal against her dismissal on 29^th July 2016.

The Respondent said that on 16^th August 2016 the Appeal was heard by a named Independent HR Consultant and on 19^th August 2016, he dismissed her appeal and upheld the original dismissal decision.

The Respondent said they are relying on the case of O’Connor   -v- Brewster [1992] ELR 10 as that Complainant was similarly dismissed for neglect of duties amounting to gross misconduct.   The Respondent said that the Complainant’s actions amounted to substantial neglect of her duties that amounted to gross misconduct.

The Respondent also referred to the case of Nugent   -v- CIE [1990] in support of their position.

The Respondent said that given the specific industry of childcare that the Complainant was employed in, they are entitled to have special standards from their employees and they said the High Court endorsed this view in Flynn -v-   Power [1985] IR 648.

The Respondent submitted that the procedures observed for the dismissal was fair complied with general principles and disciplinary procedures and they quoted from Mary Redmond’s ‘Dismissal Law in Ireland’ in that respect.

The Respondent said that it was always explicitly clear to the Complainant what her duties were including reporting incidents, preventing any child protection issues, etc.   They further said a number of fact finding meetings were held with all the relevant personnel.   They said the Complainant was entitled to representation at all stages and she was accompanied by her named Representative.   They said the Complainant was treated as an individual at all stages and of particular note they had concerns about her health and they organised an occupational medical assessment for her.

In further submissions said that in general the constitution insists that decisions should not be made by persons who are in effect prosecutors, or who might be suspected of bias.   They said that however in reality as Mary Redmond notes in ‘Dismissal Law In Ireland’ 2007 thus rule is rarely invoked in employment law largely because of the exception to the rule, namely the principle of necessity, applies.   The Respondent said that in the instant case issue has been taken with the fact that the Chairperson of the Management Committee assisted the Investigation and thereafter was present at the Meeting that adjudicated and determined the outcome of the process.     The Respondent said in Mooney -v-   An Post [1994] 5 ELR 103 it was submitted that the Constitution of the Committee and of the Board of An Post amounted to a breach of the principle of nemo iudex in causa sua in that the third party, who had prepared the Report on which the Committee and the Board ultimately acted, was present at the Committee Meeting and that a fourth party, who signed the Report was also present at both the Committee Meeting and the Meeting of the Board.     The Judge (Keane) reiterated that the concept of nemo iudex is imprecise and said:

“……..the nemo iddex requirement cannot be literally applied to every employer confronted with a decision as to whether or not he should dismiss an employee, since he would always be an interested party in the decision”.

The Respondent said that in this instance the Chairperson did not prepare the Report, an entirely independent third party did, MT.   The Chairperson’s role was to assist the investigatory process.     Thus her participation in the meeting does not raise the issue of nemo iudex causa sua.     Furthermore the decision taken by the Management Committee to dismiss the Complainant was a unanimous decision.   In the circumstances, the Chairperson was only one of Committee of six who decided to dismiss the Complainant and therefore an issue of conflict of interest does not arise.

The Respondent said that this line of authority has been more recently approved by Judge Hogan in the Court of Appeal decision of Kelleher -v-   An Post [2016] IECA 195.       In that case an employee of An Post was kidnapped and ransom paid for return - as a result that Branch of An Post was audited and thereafter the Post Master was investigated.   That Post Master raised a number of issues on appeal, including that the procedure adopted during the Investigation was entirely inappropriate.  

Judge Hogan determined that that Complainant was debarred by his own conduct, of knowingly participating in the process, from challenging the validity, or appropriateness of the procedure.

The Respondent said similarly the Complainant never raised any issues of how the procedures were conducted until it was raised by the Adjudicator; she did not raise it during her appeal.   The Respondent said that while such an issue does not arise in this instance it was submitted that if it did arise then the Complainant would be debarred from raising it at this stage.

The Respondent said that in the case of Aisthorpe   -v- Marx Childcare Direct Limited [2011] UD 341/2010 the Employee was dismissed following allegations she had hit a child.   There were no witnesses to the allegation.   The Employee appealed the decision and the Appeal was heard by the owner and the decision was upheld.   The EAT (Employment Appeals Tribunal) determined this did not follow fair procedures as the same parties were involved at the investigation stage and the disciplinary stage and appeal stage, breaching nemo iudex in cause sua.   The Respondent said that this is entirely different to the instant case as different parties acted as each stage, investigatory, disciplinary and appeal and further, independent third parties acted in each stage.

Two persons gave evidence on behalf of the Respondent.

Witness 1:   The Witness said that she was Chairperson of the Management Committee of the Respondent.   She said she was in regular contact with the Crèche, the employees and the Manager of the Crèche.

The Witness said that on 20^th May 2016, The Manager sought an immediate urgent Meeting with her and at the Meeting the Manager informed her (the Witness) of the allegations involved in the instant case.   The Witness said it was decided to suspend, on full pay, the two persons centrally involved in the allegations.

The Witness said that they (the Respondent) decided to bring in named outside independent qualified specialist in HR Childcare to conduct the investigation and they were advised by these specialists throughout the matter.

The Witness said that the Investigation was conducted and the Investigative Report drawn by a named HR Specialist.   The Report was presented to the full Committee, which the Complainant confirmed included her.     She further confirmed in answer to questions that she participated in the decision to accept the contents of that Report.   She said that the decision to accept the Report was unanimous.

The Witness referred to the Disciplinary Procedure, who it was conducted by, her involvement in it and the outcome of it.

In relation to the decision on foot of the Disciplinary Report she said that the Committee spent two hours considering the alternatives to dismissal before finally deciding to dismiss the Complainant, but believed in view of the fact and circumstances they had no real alternative but to dismiss the Complainant.

The Witness said that Complainant was very well qualified for the job she performed and referred                 to her having achieved FETAC Level 5 & 6.

The Witness answered detailed questions from the Complainant’s Representative.

She agreed what occurred was an act of omission rather than an act of commission.   She further agreed that what occurred was out of character for the Complainant.

She further confirmed that despite the involvement of other more senior members of staff the Committee considered the Complainant was responsible for her own actions or lack of actions and that they had no reasonable alternative but to dismiss her from the employment.

In answer to questions from the Complainant’s Representative in relation to the regulations of 2006 and 2016 cited by her and the Respondent in letters to the Complainant and as part of the reason for her dismissal that these regulations applied to the Provider of the Service Provider, i.e. the Respondent and not to the Complainant, the Witness said if was her understanding that the Complainant also had obligations under those Regulations.

The Witness answered questions in relation to training provided by the Respondent to the Complainant.   She agreed that training had been provided in 2007 and she said that their Child Protection Policy had been updated since then.

The Witness emphasised that a major concern for them had been the failure of the Complainant to report the incidents.

Witness 2:   The Witness said that she was the Manager of the Crèche.   She said that she had 21 years experience.

The Witness referred to when and how she became aware of the two incidents that led to the dismissal of the Complainant.  

The Witness said the Complainant recorded the second incident in her personal diary at home but did not report it at that time.

The Witness said that the Complainant could have, when she left the Toddlers Room, informed her as Manager, what had happened, but she did not do so.

In relation to the Deputy Liaison Person, who was present when the child was isolated, the Witness said that this person did report it casually to her.

The Witness confirmed that she was involved, along with another named person, in the initial fact finding that took place prior or preliminary to the Investigation and she said the result or outcome of this was emailed to the Committee.

The Witness referred to the Disciplinary Hearing of 28^th June, at which she said that 3 investigators and a notetaker were present.     The Witness said that at the end of that Meeting the Complainant was verbally informed that she was suspended on full pay and the reasons for same and she said this was subsequently confirmed in writing to the Complainant.

The Complainant was submitting that she had been unfairly dismissed by the Respondent in breach of her rights and entitlements under the 1977 Act.

The Complainant said that prior to the matters that led to her dismissal she had worked for the Respondent for 12 years without any problem or discipline.

The Complainant gave direct evidence and she referred in some detail to the two incidents that led to her dismissal    

The Complainant said that on 4^th May 2016, she was working in the Toddler’s Room with the other named employee, who she said had many more years experience than she.     She said that the other employee took a female child to the Changing Room and left the Child there for a short period.   She said that the named person, who was her Supervisor and she understood and had been informed was the designated Child Protection Liaison Person was present (she said that it is only now that she has been made aware that that person is the Deputy Child Protection Liaison Person) was present and had observed what happened and accordingly she reasonably believed that she did not need to report further or do anything further in relation to the incident.   She said that she was then off work for almost 2 weeks from 5^th to 17^th May 2016.

In relation to the incident on 18^th May 2016, the Complainant said she was again working in the Toddler’s Room with the same other employee.   She said that the male child came into the Crèche crying as he did most days and he had a head cold. She said (as is obvious from the CCTV coverage) that she tried to comfort the child.   She said that the other employee threatened to put the child in the bathroom if he kept crying.   She said that this employee said to her while she was holding the child and trying to comfort him to put him down that his behaviour was only nonsense.     She said that subsequently, this employee picked up the child and put him in the bathroom and left him there for one minute, the other employee stood at the bathroom door for that one minute and she the took him out of the bathroom and back to the Toddlers Room.

The Complainant said that she knew what the other employee did was wrong but that she was unsure what to do about it.   She said she took a note of what had happened in her Diary at home, without any names, but with the date and time.   In response to questions she said that she wished to have a contemporaneous record in case anything happened again.     In response to questions as to why she did not report or speak to the Manager she said that she was reluctant to deal with the Manager because of serious difference she had with the Manager in relation to what she described as the Manager wishing/instructing to leave children to cry themselves to sleep.

The Complainant said that when she was called to the fact-finding Meeting on 24^th May 2016 she fully informed of the two incidents, she said that she volunteered this information.   She said that she was asked to write up two separate reports in relation to the two incidents, which she said she did on 26^th May 2016.

She said that by letter of 27^th May 2016 she was requested by the Respondent to attend an Investigatory Meeting on 1^st June 2016.   She said that she viewed the CCTV on 30^th May 2016.

The Complainant said that at the Investigatory Meeting on 1^st June 2016, she answered all the questions asked of her.   She said that she felt very stressed at the Meeting and she told the investigators that she could not sleep because of what was happening.

In response to questions the Complainant confirmed that before this Meeting she had spoken with her Legal Advisor.

The Complainant said that by letter of 28^th June 2016, it was confirmed to her that she was on paid suspension and the reasons for same.

The Complainant referred to her appeal against the decision to dismiss her, which she said was rejected.

In her letter of Appeal the Complainant stated inter alia that her Supervisor, the Designated Liaison Person for Child Protection was present and a witness to the events and instructed her to go on her break stating that she (the Supervisor) would deal with the situation and that the Complainant had no reason not to her trust in the Supervisor.       She further said that in her contract of employment it states that she is responsible to and reporting to the Childcare Supervisor.

In relation to the second incident she stated that it had come as a shock to her as she had assumed that this matter would have been followed up by her Supervisor/Designated Liaison Person.

She stated that it had been 9 years since she had completed Children First basic training in 2007.   She further stated she did not believe that the Respondent’s Policy Aims on training for employees had been followed.  

She also referred to her previous clear/clean record in the 12 years she had worked for the Respondent.

She stated her belief that a more appropriate sanction would have training, guidance and updating for herself and other colleagues to prevent such incidents occurring in the future.

The Complainant submitted that that procedurally the dismissal was intrinsically flawed and that this rendered the dismissal as unfair.

The Complainant said that the Respondent was, from the very start, in possession of professional advice, but regardless did not observe fair procedures that respected the Complainant’s basic rights to fair procedures.  

The Complainant said that she was dismissed for allegedly been in breach of regulations that did not apply to her, but rather applied to the Respondent as the Service Provider.

The Complainant said that the involvement of both the Manager and the Chairperson of the Management Committee in the fact-finding process, the investigation process, the disciplinary process and the decision making process offended against all principles of natural justice and fair procedure and rendered the dismissal unfair.

The Complainant said that in addition the dismissal decision was totally disproportionate, particularly in view of the Respondent’s failures in relation to up to date training and information for all employees.

The Complainant gave evidence in relation to her efforts to secure alternative employment and mitigate her losses; she said that because of the circumstances of her dismissal it was impossible for her to secure work in the Childcare Area.

For all the foregoing reasons the Complainant sought a finding and decision that her complaint was well founded and that she had been unfairly dismissed.

I have carefully considered the evidence and the submissions made and I have concluded as follows.

In relation to the question of whether or not fair procedures were observed by the Respondent I note the following.

I am concerned with the involvement of both the Manager and the Chairperson of the Management Committee in the process.   I note that from the very beginning of the process the Respondent was in possession of independent expert professional advice and that accordingly would have been fully aware of what was required to ensure fair procedures, but I am not completely satisfied that this occurred.

I note that the Manager was the person who made the complaint to the Management Committee. I note that she then went on to, along with another named person to conduct the initial fact finding process the result of which she emailed to the Management Committee, who on foot of this Report decided to instigate a full and formal investigation;, she was one of 3 Discipline Officers who completed and who signed the Report of the Discipline Officers on 21^st July 2016, which concluded the Complainant had: (a) failed in her duty of care to the children (b) did not ensure the children were safe while in her care (d) was more concerned with self-preservation than protecting the children in care and (d) there was a significant breach of trust between her and the children; between her and the parents, and between her and her employer.    It would have been more appropriate and in line with best practice that the Manager should not have been involved in any investigating in relation her own complaint and it does offend against fair procedures and principles of natural justice.    I further note with concern the very serious finding at (c) above that the Complainant was “more concerned with self-preservation than protecting the children in her care.”   I was presented with absolutely no evidence to support such a serious finding and it was not subsequently pursued in the process or at the Hearing.   I am concerned that such a subjective view of the Complainant’s motives with no reason or evidence should be contained in a Discipline Report that informed the remainder of the proceeding.   I find that this was breach of fair procedures.

The Chairperson of the Management Committee was involved and actively participated in the Investigation and in particular she along with another named person actively conducted and made the recommendation to the Management Committee that the Complainant be dismissed.   She then fully participated in the decision of the Management Committee to accept her own recommendation to dismiss the Complainant.       This offends against every concept of fair procedure and natural justice and indeed as stated by the Employment Appeals Tribunal (EAT) in relation to such it would require “Olympian Impartiality” to be in a position to do this.   The Chairperson was in effect, investigator, prosecutor, judge jury and executioner in these matters.    Is it to be expected that the Chairperson could be seriously expected to consider rejecting her own recommendation to the Management Committee?   It is also to be expected that she as Chairperson would be influential on the Management Committee and it is also to be expected that a report from her would be influential.   I find that this was a breach of fair procedures.

I find that for the above procedural fairness reasons the Complainant was unfairly dismissed.

I further note that part of the reason for the Complaint’s dismissal was her alleged failure to comply with certain regulations at least some of which did not apply to her directly, but rather applied to the Respondent as the Service Provider.   I find that this was unfair to the Complainant.

In relation to the substantive reasons for the Complainant’s dismissal I note the following.  

The Complainant was not dismissed for any alleged direct action but rather for her alleged failure to report abusive behaviour by another employee.   Indeed, I note based on the CCTV footage shown by the Respondent, the Complainant’s direct behaviour was quite proper and appropriate.     She is seen repeatedly comforting the upset male child.

In relation to the first incident, I note that the Deputy Child Protection Liaison Person (whom the Complainant understood was the Child Protection Liaison Person) and who is also the Complainant’s Supervisor was present.   Leaving aside the disputed evidence in relation to any discussion between these two women, I accept that it was perfectly reasonable for the Complainant to conclude that as the person to whom she reported and to whom such matters should be reported was present, there was no need or requirement for her to report further or do anything further in relation to that matter.   Accordingly I find and have concluded that it was not fair to take that incident into account and this too renders the dismissal as unfair.

In relation to the second incident I fully accept that the Complainant was wrong and in breach of her duty and responsibility to both the child involved and the Respondent in her failure to report this matter.   I also accept that the Complainant was fully aware of her responsibilities and obligations in relation to that incident and chose not to so do and this is supported by her recording it in personal Diary.     However it was not solely for this incident that the Complainant was dismissed, it was for two alleged incidents and as I have found and concluded that the Complainant did not have responsibility for the first one I must find and conclude that the Complainant was unfairly dismissed by the Respondent.   However I have also concluded that because of the Complainant’s culpability in the second incident she contributed to her own dismissal and that fact is taken into account in the redress awarded.

Based on the foregoing findings and conclusions I have decided that the Complainant was unfairly dismissed by the Respondent.   Accordingly, I declare that the complaint under Section 8 of the Unfair Dismissals Act 1977, is well founded and it is upheld.   However as noted above I have also concluded that the Complainant contributed to some degree to her dismissal and that fact is taken into account in the redress awarded.

In considering the appropriate redress in the instant case I have taken into account all matters, including the views of the parties as expressed at the Hearing and I have concluded that there is a complete absence of the minimum level of trust necessary to sustain an employer/employee relationship and that accordingly the only appropriate redress in the instant case is compensation.

The Complainant was unfairly dismissed by the Respondent and in accordance with the provisions of Section 7 of the 1977 Act I require the Respondent to pay him compensation in the sum of €9,500.00c.