ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003999

Complaint for Resolution:

Date of Adjudication Hearing: 29/11/2016

Workplace Relations Commission Adjudication Officer: Seán Reilly

Procedure:

In accordance with Section 80 of the Workplace Relations Act 2015 and Section 8 of the Unfair Dismissals Act 1977 and following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:  

The Complainant was employed by the Respondent from 4th November 2014 to 6^th July 2016 when he was dismissed by the Respondent. His weekly rate of pay was €349.50c per week.   The Complainant was submitting that he had been unfairly dismissed by the Respondent and the Respondent was denying the complaint.

Summary of Respondent’s Position:

The Respondent said the Complainant was employed by them as a Lifeguard/Swimming Instructor.  

The Respondent said the incident that caused the eventual dismissal of the Complainant occurred in the Swimming Pool Area of the Respondent’s Premises on Wednesday, 3^rd February 2016.   On that day, during a primary school coaching session, the Complainant picked up an 8 year old male child, spun him in the air and then threw the boy into the swimming pool in the deep end, where other children were swimming.   The incident was captured on CCTV and it was witnessed by others.

On Thursday 11^th February 2016, the Chairperson/Director of the Respondent was informed by telephone by the named Acting Manager of the incident.   The Chairperson viewed the CCTV footage of the incident that same afternoon.

The Respondent said the CCTV image clearly shows the Complainant lift a young boy over his head, spin him in the air and throw the boy into the swimming pool in the deep end where other young children were swimming.   Having viewed this the Chairperson asked that the Complainant be removed from teaching duties and assigned to lifeguard and cleaning duties.   On the same day the Complainant received a Written Report from the Acting Manager.   When he read this Report he issued a letter to the Complainant suspending him from work on full pay until the incident was investigated.   When he was issued with the suspension letter the Complainant said “I know it is my fault, I am sorry.”   On 12^th February 2016, the Chairperson received an additional Written Report from the named Duty Manager.

On 15^th February 2016, the Chairperson met with the parents of the boy and the Principal of the School the boy attended: they were extremely unhappy that the incident had occurred and were fearful that it could possibly happen again.   The boy’s Father believed that any adult should understand instinctively that throwing a small boy into deep water was not a correct way to behave.

The Respondent said that under their Grievance and Disciplinary Procedures it was considered that the Complainant’s action could possibly constitute gross misconduct on a number of counts:

• Physical violence

• Breach of child safeguarding protocols

• Serious negligence

• Infringement of health and safety policies

• Bringing the Leisure Centre into disrepute

The Respondent said that to ensure that a fair process was followed it was decided that a full independent investigation would be carried out, while the Complainant was suspended on full pay.   The Investigation was carried out in accordance with the Respondent Grievance and Disciplinary Policy and Procedure by a named Independent Investigator.   Ultimately the Investigator found that the Complainant’s behaviour constituted gross misconduct.

The Respondent said they are satisfied that the Investigation was carried out in accordance with their Grievance and Disciplinary Procedures and in accordance with their Policy for the Protection of Children and in accordance with the principle of Natural Justice.

The Respondent said that in summary the Report concluded:

• The Complainant failed in his duty of care

• He put children at risk of physical injury

• He put the particular child at risk of psychological damage

• He breached best practice in relation to child protection

• He placed the Board of the Respondent at risk of being vicariously liable for his action

Having received the Report, the Chairperson circulated it to the Complainant for his information.   Prior to making any decision the Chairperson invited the Complainant to a Meeting at which he was afforded the opportunity to provide any additional information and put forward any mitigating circumstances that should be taken into consideration prior to a decision on what sanction, if any, would be applied.

Following this Meeting and having given careful consideration to the Investigation Report the Chairperson decided that the appropriate sanction was a recommendation for dismissal and the Complainant was informed of this by letter of 11^th May 2016.   This letter also informed the Complainant of his right to appeal and how and to whom to so do if he so chose.    

The Complainant exercised his right of appeal and the Appeal was heard by a named Director of Services with the Local Authority, who has overall responsibility for swimming pools in the County.   The Appeal Hearing took place on 1^st June 2016 and the Complainant was represented by his Solicitor at this Hearing and on 6^th July 2016 the Complainant was informed that having fully considered his Appeal the Appeals Officer had rejected it and she had upheld the decision to dismiss the Complainant.   The Appeals Officer confirmed in detail the reasons for her rejection of the 5 grounds of appeal.   The Respondent said that the Appeals Officer dealt with Complainant’s Appeal in accordance with the Respondent’s Grievance and Disciplinary Procedure and her decision was based on the evidence and the facts of the case.

The Respondent said that the general approach of the Employment Appeals Tribunal (EAT) to cases of dismissals for conduct was set out in Hennessy -v- Read and Write Shop [UD 197/1978] and they also referred to the case of Frizelle -v-   New Ross Credit Union [1997] IEHC 137 both of which the Respondent quoted from in support of their position.

The Respondent said these require the Adjudicator to consider whether the employee was made aware of all allegations and complainants that formed the basis of the proposed dismissal, whether the employee had adequate opportunity to deny the allegations or explain the circumstances before the decision to dismiss was taken; whether the employer believed that the employee had conducted herself or himself as alleged, whether the employer had reasonable grounds to sustain that belief and, if so, whether the penalty of dismissal was proportionate to the alleged misconduct.   It was submitted by the Respondent that the Complainant was fully aware of the allegations against him and he had the full opportunity to be represented and to respond to the allegations.

The Respondent also referred to and quoted extensively from the case of Turner -v- East Midland Trains Ltd. [2012] EWCA Civ 1470 Elias in support of their position.

The Respondent said that in this instant case the duty of care to users and employees of the Leisure Centre must be the overriding concern - and they said the Complainant lifted a vulnerable child and threw him in the water.   The Respondent said that the physical ramifications for the child were potentially significant, the incident caused significant distress.   The Complainant was in a position of trust in terms of the care of children in his care and that trust has been eroded.   The Complainant was responsible for the safety of that child and that duty of care was breached.   The consequences of the Complainant’s actions could have been much more serious had the child hit against another child or the bottom of the pool and/or panicked in the water.   The Respondent said that these were the risks that were taken into account during the investigation based on their own rules in relation to conduct around the pool.   The Respondent quoted from Investigation Report.

The Respondent said that they must be completely confident that they can trust their employees implicitly, in particular with regard to the protection of children.   The Respondent said the Complainant is a qualified and experienced Instructor and he had been vetted and trained in child protection.   The Respondent said that nevertheless, this unfortunate incident occurred and following due and fair process the Complainant was dismissed from his employment.   The Respondent submitted that the Complainant’s behaviour constitutes serious misconduct and recklessness in his role as a Swimming Coach, where he was entrusted to instruct young children.   The Respondent said they hold their responsibility to deliver goods and services to their users and there is a no-tolerance approach taken towards their users in terms of conduct such as engaging in horseplay, infringing on others enjoyment of the facilities and showing respect to all, including employees - and they said that therefore it is imperative that an example is set by employees.

The Respondent said that the confidence and trust in the Complainant was broken by his actions, in addition, confidence and trust in the Respondent was seriously undermined in the eyes of the School and the parents in using the facility.

The Respondent said they are satisfied that the sanction applied in this instant case was appropriate in the nature of the matter that occurred and they therefore were seeking a finding in their favour and that the complaint be rejected.

Summary of Complainant’s Case:

The Complainant was submitting that he had been unfairly dismissed by the Respondent.

The Complainant said that the Independent Report did not recommend his dismissal and that in his findings the Independent Investigator stated the following: (the Complainant is referred to as him or he and the Respondent as the Respondent by me for the purposes of this quote).

“Notwithstanding the above, I believe that it is important to note that this was the first time that any incident of this type was recorded against him.   I am of the opinion that as this was during play time that he let his guard down and neglected to continue to work in a professional manner.   I believe that he got carried away with the playtime and forgot his role as an instructor and his requirement to uphold good practice in relation to the safety and welfare of children.   I believe he is aware that he did wrong on that day and that is highly unlikely that he would do something like this again.   However, it is up to the Respondent to satisfy itself if it can place such trust and confidence in him and it is this that will ultimately decide the disciplinary action that it considers needs to be taken in this matter.   I would ask that consideration also be given to his record to date before deciding on any disciplinary sanction.   However, the seriousness of the breaches of safety and welfare cannot be ignored and must be taken into consideration in deciding on the appropriate disciplinary sanction.”

The Complainant said that Independent Report only made one recommendation, which was that it might be considered useful for the Respondent to check out the content of Child Protection Training provided to ensure that it covers the elements outlined in the Report.

The Complainant submitted that the decision to dismiss him was disproportionate to what had occurred.   The Complainant said that it is clear from the Independent Report that it does not support a decision to dismiss and that this decision was excessive.   The Complainant said the Respondent had gone for the ‘nuclear option’ of dismissal, despite the findings of the Independent Report and said it is clear that no lesser disciplinary sanction was considered (the Respondent denied this and said other options were considered but were not felt to be appropriate in all the circumstances).

The Complainant also said that no account was taken of his genuine contriteness, his apology, his assurance that there would be no repetition and the fact that he had ‘owned up’ immediately.

The Complainant said that the complainant was initially made by a co-worker of the Complainant and not by the child or his parents and submitted that it was not fair or legally safe to proceed with a dismissal on that basis.

The Complainant submitted that the appeal of the dismissal decision was heard by a person of a similar grade and that this was not appropriate for a person hearing an appeal.   (The Respondent denied this and said that the person hearing the appeal was at a higher grade and more senior level than the person who made the original decision/recommendation for dismissal, Level 9 compared to Level 8).   However the Complainant said that as the Appeal was heard by a person who was a colleague of the person who made the original dismissal decision, there was a perception that there could have been a bias.

In relation to some of the submissions made by the Respondent the Complainant said there was no evidence of any injury to the child, nor was there any evidence that the child was a ‘vulnerable child’ as asserted and the Complainant submitted the reverse was the case.

The Complainant in his direct evidence said that the child in question was well known to him and he was fully aware of the child’s swimming abilities.   He said that while he accepted that what he did was wrong, the child was not at any stage in danger from his actions.   He said the child was a very proficient and experienced swimmer (Level 8).   He said that he felt it was safe to lift the child and to throw him into the deep end of the pool.   He said there was a depth of 2 metres of water and there was no danger of the child hitting the bottom of the pool.   He said that he had also checked to make sure there was nobody else in the part of the pool he threw the child into.   In relation to the fact that the CCTV coverage clearly showed the child resisting and struggling, the Complainant said it was only fun, the child was laughing throughout, did not appear scared, did not shout ‘stop’ and did not indicate that he did not want to be thrown in the pool.

The Complainant submitted that the decision to dismiss him was excessive and disproportionate and was not justified by the facts and circumstances of the cases and was not in accordance with the findings and recommendation of the Independent Report, also it did not take into account his previous unblemished and excellent record within the employment, nor did it take into account his genuine contriteness, nor his immediate acknowledgement of his wrongdoing and his assurances that there would be no repetition of the offending behaviour.

Based on the foregoing the Complainant submitted that he had been unfairly dismissed in breach of his rights and entitlements under the Act and he sought a find and decision to that effect.

The Complainant gave evidence of his efforts to secure alternative employment and mitigate his losses.

Findings and Decision:

Section 80 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8 of the Unfair Dismissals Act 1977, requires that I make a decision in relation the unfair dismissal complaint, consisting of a grant of redress in accordance with Section 7 of the 1977 Act.

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

At the wish and with the consent of both parties I viewed the CCTV coverage of the incident that led to the dismissal of the Complainant.   This footage is very accurately described by the Independent Investigator in his Report as follows (again the Complainant is referred to as he or him by me is these quotes):

“The footage is taken from the shallow end of the pool up to the deep end.   Some children in the foreground can be seen playing with toys etc.   At the deep end of the pool we can seen him organising the children under his care to line up to play the game that is known as dominoes.   The children line up with backs to the pool and then on his instruction they fall into the pool it is clear that there is one boy who does not go in and he remains standing at the edge of the pool.  

The footage shows him grabbing the boy around the waist.   The boy is seen struggling with him and he moves away from the pool towards the wall.   He the lifts the boy up and brings him over to the edge of the pool.   The boy is seen kicking as he lifts him.   He then lifts the boy up in the air and throws him into the pool backwards.   The boy lands in the pool quite a distance away.   He swims towards the edge and gets out of the pool as he arranges the children to repeat the game.”

I accept the above as an accurate description of the CCTV coverage, it is clear the child is resisting the Complainant and is kicking out with his feet.   The Complainant lifts the child above his head and throws him in the pool.   It is difficult to understand how anyone could consider this to be other than extremely irresponsible, potentially dangerous and totally inappropriate behaviour; no reasonable person could consider otherwise.   The behaviour is actually made much worse by the fact that it occurred in swimming pool, where because of the inherent safety risks, safety and safe behaviour is paramount.   Even worse again it involved children in a swimming pool, where the safety risks are even greater and the duty of care towards the children is much greater, and in addition it involved forcing a child against his will and in the face of his resistance and struggling against, to do something he plainly did not wish to do.   By any standard this would be a matter of the most grave concern to any employer in the position the Complainant found itself in and who has a particular duty of care to customers and most particularly to child customers.

I am completely satisfied that the Respondent observed scrupulously fair procedures that fully respected the Complainant’s rights and indeed went further than normal practice by commissioning a totally independent investigation and by allowing the Complainant to be legally represented as part of the internal disciplinary process.

I note that in accordance with numerous decisions or determinations of the Employment Appeals Tribunal (EAT) that it is not for the EAT or me to substitute my judgement for that of the employer, but rather to consider whether or not the decision of the Respondent was the reasonable decision and reasonable action of a reasonable employer in light of the facts and evidence of the case available to the Respondent when they made their decision - and I am completely satisfied that the Respondent has met that burden of proof in the instant case.   Accordingly, I must find and declare that the Complainant was not unfairly dismissed by the Respondent.

The Complainant was not unfairly dismissed by the Respondent and accordingly I find and declare that the complaint under Section 8 of the Unfair Dismissals Act 1977 is not well founded it is rejected and is not upheld.

Seán Reilly, Adjudication Officer.

Dated:   2^nd March 2017