EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Sandra Gilger UD746/2015
- Claimant
Against
Brid Jackson T/A The Mulberry Tree Learning Centre
- Respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms B. Glynn
Members: Mr. D. Morrison
Mr. M. McGarry
heard this claim at Castlebar on 8th February 2017
Representation:
Claimant: Christine Jensin, 9, Headford Grove, Churchtown Dublin 14
Respondent: Damien Tansey Solicitors, Castle Chambers, 5-8 Castle Street, Sligo
The determination of the Tribunal was as follows:-
Background:
The claimant was employed as a Childcare Assistant in the respondent’s childcare facility from the 22nd of September 2009 until her employment terminated on the 15th of June 2015. The respondent facility had a staff of 25 looking after over 100 children between the ages of 5 months to 8 years of age. The facility was governed by various policies, procedures and legislation relating to childcare. All staff had contracts of employment, including the claimant, and all were given yearly training and were aware of company policies and procedures.
In 2010, the respondent states, an incident occurred relating to an infant and the claimant. The claimant refutes this incident occurred. The respondent states she spoke to the claimant. The incident resulted in CCTV cameras being installed on the premises.
On the 7th of May 2015 an incident occurred involving the claimant, her colleague (SML) and a child “C” being left alone in the toddlers room for a period of time. The claimant and SML took the remaining 11 children out to the garden. Some time later CM (the Assistant Manager), who was looking after children in a nearby room, brought “C” outside to the claimant and SML having found her alone in the room.
On the 8th of May 2015 CM went to the claimant to discuss the issue. The respondent arrived some time later and the claimant told her what had occurred with “C”. CM also informed the respondent what had occurred the previous day. It was decided a meeting would be held with the claimant and SML. However, due to the respondent being absent this meeting did not take place until the 20th of May 2015.
On the 21st of May 2015 the respondent asked all staff involved to write a statement regarding the incident on the 7th of May. The claimant firstly refused but later agreed. A meeting later that day between the respondent and the claimant became heated. (Both the respondent and the claimant stated to the Tribunal that each other were the irate and aggressive person).
On the 27th of May 2015 the claimant was called to the respondent’s office. CM was also present.
The claimant was then absent of pre-booked annual leave, returning on the 9th of June 2015.
On the 12th of June 2015 the claimant was invited to a meeting on the 15th of June 2015. She was told she could bring a witness with her.
On the 15th of June 2015 the claimant attended the meeting with her witness (who represented her during these proceedings). At this meeting the claimant was informed her employment was terminated. A letter of dismissal was received by the claimant on the 19th of June 2015.
Respondent’s Position:
The owner / respondent, CM and an employee (MS) of the respondent gave evidence.
The respondent stated that she was 24 years in the childcare business which was governed by various polices, procedures and legislation relating to the care of children. She explained all staff were in receipt of contracts and were aware of company polices and procedures and received yearly training.
On the 8th of May 2015 the claimant approached the respondent informing her an incident had occurred the previous regarding the child “C”. The claimant told her “C” had been causing problems and having temper tantrums. The respondent said she told the claimant that there were supportive procedures for dealing with disruptive children. The respondent told the Tribunal that this was the first time she had heard there were any issues with “C”. The claimant then said she “put her hands up” to the incident and said “she had done something she shouldn’t”.
Later the same day CM informed her what she had witnessed the previous day when she found a very distressed “C” in the toddler room alone. The respondent said CM’s version of evets was quite different to the claimant’s. The respondent decided meeting had to be held with the claimant and SML regarding the incident as it was a total breach of company polices and procedures. Due to unforeseen circumstances the meeting was not held until the 20th of May 2015.
On the 20th of May 2015 the respondent and CM met with the claimant and SML. The claimant said that she was very frustrated with “C” and the room in general regarding staff changes. The respondent told the Tribunal that she complemented the claimant for “keeping the show on the road” but this did not excuse what had occurred. The respondent said she felt the claimant did not acknowledge the seriousness of the situation.
The following day the respondent called the claimant and told her she required a statement from her regarding the incident on the 7th of May. The claimant relied that she felt she was being singled out. The respondent told the claimant that all staff involved had been asked to write a statement. The claimant called the respondent a liar. The respondent said she felt intimidated and asked CM to joining them. CM told the claimant she had written a statement and showed the unfinished document. The claimant wanted a copy of it. The respondent told her she could get a copy later. The respondent then brought up the incident in 2010. The claimant “lost it” saying it never happened and asked for a copy of the report. The claimant was very irate and annoyed, shouted she was not making a statement and left.
Ten minutes later someone banged on the office door, the respondent and CM were inside. The respondent told the Tribunal that she knew it was the claimant. She wanted CM to stay in the room but CM left through another door as she was upset. The claimant then rang the respondent informing her she had changed her mind, had sought advice and would write the statement. The respondent asked her to do it at reception. When ready, the claimant brought her statement into the office. The respondent told the Tribunal that it was a modified version of what the claimant had originally told her.
The claimant then raised an issue of the incident in 2010. The claimant continued to come across as hostile and aggressive stating she had a right to see the report and would help the respondent look for it. The respondent said she told the claimant was out of line. The claimant banged on the desk telling the respondent she was lying and to admit to it. The claimant then came around the desk, behind the respondent and took a piece of paper out of the printer. Then taking the pen from the respondent the claimant told the respondent to write a note to say there was no report.
The respondent said she again told the claimant she was out of line and told her to get out. The claimant replied stating “you think I’m stupid but I know what I’m doing and I’ll get you and I’ll get you on the wages thing.” The respondent told her to get out of her officer or she would call the Gardai. The claimant “smirked” and left stating “You have no record on me.”
The respondent then took this opportunity to explain to the Tribunal that a clerical error concerning PRSI that had been made in all the staff wages and that it had been rectified.
On the 26th of May 2015 the respondent told the claimant that a meeting was to be held the following day to discuss the incident. The respondent told the Tribunal that at this meeting the claimant did not explain herself, had no remorse for what had happened and gave no apologies. Following this meeting the claimant was on pre-booked annual leave returning on the 9th of June 2015.
On the 12th of June 2015 the respondent informed the claimant there would be meeting held on the 15th of June and advised her she could bring a witness with her.
On the 15th of June 2015 the claimant attended with her witness (who also represented her at these Tribunal hearings). At this meeting the respondent informed the claimant her employment was terminated and read out the contents of her letter of dismissal. The claimant replied that she was going to sue her and take an unfair dismissal claim.
Under cross-examination the respondent explained that she had dismissed the claimant for gross misconduct following the incidents on the 7th and 21st of May 2015.
When asked, the respondent stated that all staff, including the claimant was aware of company policies and procedures.
When asked, the respondent stated that the claimant had been the key person for “C” on the day in question.
When put to her that SML had said that she had suggested to leave “C” in the room alone, she replied that when she had spoken to the claimant initially she, the claimant, said “I put my hands up”. SML had been very remorseful over the incident, the claimant had not. The respondent explained that SML remained working for her and there had been no further issues with her.
When asked if the claimant had been given a warning in 2010 in relation to the incident she replied that that she had told the claimant at the time then she had been in breach of company policies and procedures. Following this incident CCTV cameras were installed. She had made a note of the incident.
When asked by the Tribunal when she had made the decision to dismiss the claimant she replied that it was after the meeting in her office.
When asked why she had not dismissed her after the meeting on the 21st of May she replied that she had wanted to give the claimant a chance.
CM gave evidence. She told the Tribunal that the same clerical error had occurred in her wages regarding PRSI. When she had noticed the error she realised she was not owed any extra money from the respondent and had not raised any issue with her.
CM explained to the Tribunal what she had seen happen on the 7th of May 2015. She had been in another room supervising a group of children. She had gone to the toddler room to retrieve something she had left there earlier. She found “C” inside the room alone trying to open the door. He was upset. She took him out of the room and brought him outside to the garden to the claimant and SML. CM said she thought it had been a mistake leaving him behind. She was surprised by SML and the claimant’s reaction. The claimant leaned down to “C” telling him “this is what you get for not listening.”
The following day she informed the respondent what had occurred the previous day, it was the first opportunity to do so.
On the 20th of May 2015 she attended the meeting with the respondent, the claimant and SML. SM told the Tribunal that she was surprised the claimant had said “C” had been troublesome as she had not informed her and on the day in question she and SML would have passed by her room to go to the garden and could have told her then.
The following day she was asked to make a statement of the events on the 7th of May 2015. The respondent called her to reception where she and the claimant were talking. The claimant was angry. CM showed the claimant her unfinished statement and when the claimant asked for a copy of it she replied that she would give it to her when it was completed.
Some time later she went to the respondent’s office. The respondent was inside and very upset saying she had never been treated like that before. A banging came to the door. The respondent said she was not answering it. The claimant then rang the respondent from outside stating she had changed her mind and was writing a statement. CM left the room through another door.
On the 26th of May 2015 the respondent asked her to attend a disciplinary meeting with the claimant. The meeting was hostile. The respondent read the contents of the claimant’s letter of dismissal. CM told the Tribunal that either the claimant or her witness raised the issue of unfair dismissal.
Under cross-examination CM again stated the claimant had never before discussed “C”’s behaviour with her.
MS, an employee of the respondent, gave evidence. She stated that the respondent had informed her of the incident with the claimant shortly after she commenced employment in 2010. CCTV was then installed on the premises.
Claimant’s Position:
The claimant gave evidence.
She stated that on the 7th of May 2015 it had been SML’s suggestion to leave “C” alone in the toddler’s room. She refuted she had admonished “C” when CM had brought him out to the garden, she had been dealing with another child at the time.
On the 8th of May 2015 she informed the respondent what had occurred. The respondent had replied “no bother”. The respondent then spoke to CM. Following this the respondent told the claimant that a meeting would be held but “not to worry” and said she “just needed to clear a few things up.” This meeting did not take place until the 20th of May even though the respondent was back at work before this.
At this meeting the claimant told the respondent that “she was putting her hands up” to the incident but said she did not have enough experience to be left in the toddlers room. The claimant told the Tribunal there was no issue raised concerning child protection at this meeting.
That afternoon the respondent agreed to meet the claimant to discuss the wages issue. The claimant told the Tribunal that they had discussed this issue before.
On the 21st of May 2015 the respondent asked her to write a report concerning the incident on the 7th of May. The respondent was very irate. The claimant said that she was shocked and felt targeted. She asked the respondent could she make a call. The respondent got mad and said she was contacting the HSE. The claimant later told the respondent that she would write the statement. When she gave the statement to the respondent she, the respondent, threw it back at her telling her to take what she had written at the bottom out of her statement. The respondent then raised the issue of the alleged incident in 2010. The claimant told the Tribunal “it came out of nowhere.” It had never happened, she said. The respondent said she had a report on it. The claimant asked to see it and asked the respondent was this all because of the “wages thing.” The respondent shook her head and said she did not have it. The claimant said she gave the respondent a pen and paper and asked her to write down that there was no report. The respondent told her to get out or she would call the Gardai. The claimant left.
Following this meeting the claimant was absent of pre-arranged leave and returned on the 9th of June 2015. On her return she said the atmosphere had changed. The respondent would not talk to her and CM was cool towards her. SML was absent on leave at the time.
On the 12th of June 2015 she was asked to attend a meeting on the 15th and was advised she could bring a witness with her.
She attended the meeting with her witness (and representative during these proceedings). The respondent placed the letter of dismissal on the desk and said “that was it”, to take her belongings and “it was all in the letter”. She was not given the right to appeal the decision to dismiss her.
The claimant gave evidence of her efforts to mitigate her loss of earnings since the termination of her employment.
Under cross-examination she stated that she had received several contracts with different wage rates during her employment.
The claimant refuted she had ever acted aggressively or abusively towards the respondent. She disputed the respondent had asked her four times to leave her office on the 21st of May and said the respondent’s version of events were incorrect. The respondent had said that she would call the Gardai but this was only to get her out of the office.
The claimant agreed she had been the key person for “C” on the day in question.
She agreed she had received yearly training while working for the respondent.
When asked by the Tribunal the claimant said she had written a record in the Duplicate book of “C”’s behaviour.
Determination:
The Tribunal have carefully considered the sworn evidence and submissions adduced in this matter.
The Respondent and her Manager stressed, in their sworn evidence, the seriousness of the incident which occurred on the 7th May 2015 when a very young child was left locked in a room on his own. At the time the Claimant was in charge of this group of children along with another qualified employee, although this employee did not have the working experience of the Claimant. The Tribunal notes that regardless of the seriousness of this incident, the Claimant was allowed to continue in her employment
Following a request to the Claimant to submit a written report of the 7th of May 2015, an altercation took place between the Claimant and Respondent which resulted in the Respondent being left shaken and fearful for her safety. This was corroborated by her Duty Manager who witnessed some of the behaviour of the Claimant. Again, the Respondent stressed the seriousness of the behaviour of the Claimant in this incident including the fact that she feared for her safety, but, again, regardless of same, the Tribunal notes that the Respondent took no action in relation to the matter and the Claimant was allowed to continue in her work following her return from annual leave.
In the circumstances, the Tribunal find the dismissal of the Claimant was, substantially fair, but, procedurally flawed.
Accordingly, the Tribunal award the sum of €1,600 (one thousand six hundred euros) under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)