UD1613/2014

EMPLOYMENT APPEALS TRIBUNAL

APPEAL OF:                                                                                                   CASE NO.

Concepta Brebner – claimant                                                                         UD1613/2014

against the recommendation of the Rights Commissioner in the case of:

Clann Mor Residential and Respite Limited - respondent

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr. T. Ryan

Members:   Mr P. Pierson

                   Mr N. Dowling

heard this appeal at Mullingar on 16 November 2015 and 23 & 24 February and 17 May 2016.

Representation:

Appellant:     Ms Doireann Ni Mhuircheartaigh B.L instructed by Mr. Anthony Murphy, Regan McEntee & Co., Solicitors, High Street, Trim, Co. Meath

Respondent:    Mr Paul Rochford, IBEC, Confederation House, 84/86 Lower Baggot Street, Dublin 2

Summary of Evidence

This case came before the Tribunal by way of the employee appealing against the recommendation of the Rights Commissioner under the Unfair Dismissals Acts, 1977 to 2007 reference number R-145338-UD-14/JT.

Respondent’s Evidence

The respondent organisation operates as a residential and respite care facility for adults with intellectual disabilities. The service manager (RH) gave evidence of providing support services for both full time users and respite users. RH has responsibility for the overall management of frontline services at two centres. The service involves community home living with an employee staying overnight in each residence. The respondent organisation is funded by the HSE and is regularly inspected to ensure high standards are maintained. Service users are vulnerable therefore employees must be trusted and highly trained to provide a good quality of life and dignity for users. Details of the standards and in-house policies which apply was opened to the Tribunal.

An incident occurred on the 30 October which was reported to RH on the 1 November 2013 by MH a director of services. A service user had raised a concern and a report was documented. The complainant alleged that the claimant had temporarily locked her outside. RH met with the complainant and her mother to record and establish precisely what had occurred. It was not clear how long the service user was locked out. The service user was very upset and unhappy.

On the 12 November 2013 RH met with the claimant. The meeting was described as an information gathering exercise. The witness had verbally arranged the meeting with the claimant the previous Friday the 8 November. The appellant admitted she had locked the service user out for a period describing the incident as “a bit of fun and banter”. RH reported back to MH who set up an investigation team to investigate the incident further. RH was part of the team which included an external person to ensure transparency.

On the 27 November 2013 a meeting was held to establish the full facts and on the 29 November 2013 an investigation meeting was held with the appellant. Following the meetings with the service user and the appellant the investigation team concluded that an abusive interaction had occurred and recommended the disciplinary process be invoked. The appellant was allowed to continue working at her regular place of work which was the respite centre and not the full time centre where the alleged incident had occurred. It was not necessary to suspend her because she did not pose a risk to service users and she was subject to a higher level of supervision at the respite centre.

He, RH, did not tell her that the investigation concerned an allegation of abuse because it was following the investigation that he decided the incident had been abuse. Neither did he tell her that abuse was considered gross misconduct and could result in her dismissal.

The director of services MH gave evidence. She has been 10 years in this role. Before, she was respite manager. She reports directly to the board.

The day after the incident a staff member told her that the mother of the service user concerned phoned to report the incident. MH phoned the mother and said she was aware of the complaint and would take action. She met with the service user and got the report from RH on the screening. She asked RH and an independent person LW to investigate. She had no further part in the investigation.

The letter of 6 January 2013 inviting the appellant to a disciplinary meeting did not say that an abusive interaction with a service user could be regarded as gross misconduct because it was assumed the appellant would have known that Policies are available in hard copy at every location. Employees are not given an individual copy of any policy document. However the appellant was aware that certain misconduct would lead to dismissal.

The appellant brought a colleague with her to the disciplinary meeting. This person was there as a support and would not normally answer questions or raise objections. At the end of the meeting MH did say to the appellant that abuse may be considered misconduct.

It was put to the witness during cross-examination that the appellant was under pressure to consider the report provided to her in the workplace. It was put to the witness that the evidence had been that the appellant was not suspended but was given increased supervision but that in fact she had worked in the Kells house mostly on her own. The witness stated that the appellant had worked one or two shifts in that location. The witness was asked to point to where the additional supervision was provided in that location. The witness replied that there was some supervision but maybe not on site.

In reply to questions from the Tribunal the witness stated that abuse cannot be scaled. Abuse is considered abuse and a no tolerance attitude must prevail. The funding body for the respondent’s services requires the respondent to accept a no tolerance policy. The witness confirmed that only one sanction could apply due to this zero tolerance rule. The relevant policy is the funding body’s policy which can be found on their website. In addition there is a safe guarding policy. The witness did not feel that there was any freedom due to the policy to apply any sanction other than dismissal.

The witness stated that the service-user’s mother was told that she would not be informed of the outcome of the respondent’s internal process.

The Chairman of the Board of Directors gave evidence that the Board is a voluntary board. He received a document from the appellant regarding her appeal of the decision to terminate her employment. This document was opened to the Tribunal and set out the appellant’s grounds of appeal.

The Chairman and the Treasurer of the Board conducted the appeal hearing on the 5th February 2012. The appellant’s solicitor was present having been informed in advance that it was permissible for him to accompany the appellant to the meeting but that he could not speak on her behalf.

The record of this meeting was opened to the Tribunal. The appeal officers asked a number of questions. The appellant did not deny the behaviour but she did not express remorse nor did she apologise. The appellant was informed in writing of the outcome of the appeal. The decision to dismiss the appellant was upheld.

During cross-examination the Chairman stated that he did not know where in the relevant policy it stated that an employee must be dismissed for such an incident. All of the documents were considered as part of the appeal.

This was the first appeal the Chairman had conducted. It was put to him that the role of representative was greater than had been allowed at the appeal. He accepted this could be the case in certain instances but not in this case. It was his evidence that neither the appellant nor her representative had objected when informed that her solicitor was not to speak during the meeting. The contemporaneous notes of the appellant’s solicitor were opened to the Tribunal regarding this issue. In reply to questions from the Tribunal, the Chairman stated that he did not have the disciplinary procedure with him at the appeal hearing nor had he read it beforehand. Sanctions other than dismissal were not considered as the appeal was only about the decision to dismiss and therefore he did not consider other sanctions.

The Treasurer of the Board gave evidence of conducting the appeal with the Chairman of the Board. The documents from the process were collated and provided to them in chronological order for the appeal. All of the documents were reviewed as part of the appeal and the disciplinary procedure was also considered. The witness stated that the decision to dismiss the appellant was considered but weighing all the facts it was decided that the decision to dismiss should stand. They considered all of the matters raised by the appellant but the Treasurer also considered the kernel of the initial complaint and put herself in the place of the mother of the service-user. The witness stated that she was disappointed as there was no adequate explanation put forward for the incident. When the appellant was asked about her rapport with the service-user she was vague in the answer she gave regarding the time spent with the service-user. The Treasurer stated that in relation to the sanction applied, abuse is abuse. She understands that “banter” can take place in a work scenario but the appellant was in the role of house-mother and she and the service-user were not colleagues.

The appellant did not have the authority to reprimand or violate the rights of any of the service-users to freedom. The training received by the Treasurer has been in the form of seminars and workshops. The advice she received at those was that a legal representative can attend an internal process but only to ensure that fair procedure is adhered to. An exception was made by the respondent in allowing the appellant’s solicitor to be present. When it was outlined that he could not speak on her behalf there was no objection raised by the appellant or her solicitor. In relation to a comment passed by the appellant’s solicitor she understood this to be in relation to him not speaking at appeals before.

Appellant’s Case 

A Co-Ordinator of an adult disability team with the HSE gave evidence on behalf of the appellant’s case. The witness had been invited onto the investigation team by the respondent. It was her evidence that she would term the incident in this case as abuse. She also stated that there are abusive actions which are also criminal and consequences to those actions would be different. There are different responses for different abuse scenarios. In her experience the incident in question would not lead to a criminal charge.

The Co-Ordinator has experience of other incidents where it was deemed that a crime was committed and the employee was dismissed. There have been other incidents where re-training, re-direction or increased supervision took place where the sanction of dismissal was not reached.

The witness made her recommendation from the point of view of this incident alone.

A zero tolerance policy of abuse is contained within the current policy but the witness did not believe it was contained with the policy preceding that current policy. In considering the current policy the witness was asked if it meant that abuse always results in the dismissal of the employee. The witness replied no that it was her understanding that incidents must be screened and brought to the attention of more senior staff as was the case in the preceding policy.

The appellant’s solicitor gave evidence that prior to attending the appeal meeting he received a letter from the respondent stating that he would not have a right of audience at the meeting.   The Chairman of the Board asked him whether or not he had an issue with the meeting. He stated that he did not have an issue with the appeal meeting with the exception of the representation issue. The Treasurer stated that she would note that in the minutes of the meeting.

The appellant gave evidence. She has worked in disability care for twenty years. She was awarded a FETAC qualification in 2007 and later a degree. She worked for the respondent for 12 years.

She accepted the facts of the incident that happened on 30th October 2013 as set out in the respondent’s Report of Findings and Recommendations. Some days after, the service manager RH asked her about the incident. This was the screening process where facts are gathered and a decision is made on whether an investigation is required. The service manager decided that an investigation was needed.

An investigation was made by the service manager and an external person. The service user was questioned. The appellant was invited to an investigation meeting on 3 December 2013 and it was for her to tell the investigators what had happened. A colleague accompanied her as a support but was not allowed to speak at the meeting. Later the appellant was given the opportunity the read the report but was not given a copy to take away with her.

A disciplinary meeting was arranged. The appellant was invited to attend by letter dated 6 January 2014 and the meeting was held on 9 January 2014 with a board member and the director of services. She was accompanied by a colleague who again was not allowed to speak. When the meeting concluded the appellant was told that she was stressed and told to go home.

The following Monday she received her letter of dismissal. That was the first occasion she learned that her job was in jeopardy, it had not been mentioned before. She was aware of verbal warnings and final written warnings as possible sanctions and despite not being told such an outcome was possible she expected to be given a warning. She heard of the respondent’s zero tolerance policy at the first day of Hearing before the Tribunal.

She appealed her dismissal and her solicitor accompanied her to the meeting as a support but he was not allowed to represent her or to act on her behalf. The appeal was unsuccessful.

Determination

One of the most serious issues facing a person, with significant consequences for that person, is being dismissed from his/her employment. The person may never be able to work again, and in certain circumstances be ostracised by the community. An employee may be unable to secure employment again. This is particularly so where a person is working in an environment which involves caring for people with special needs, as understandably a high degree of care will be required, including appropriate references, before a person secures a job in that sector again. It therefore behoves an employer to take great care before dismissing an employee especially where that employee will be looking for employment again in a specialised employment sector.

In the case before it the Tribunal notes that a disciplinary meeting was held on the 9th January 2014 which the Tribunal determines was held in breach of fair procedures for the following reasons:

1. The claimant was not told that she was facing a charge of Gross misconduct;
2. She was not told prior to the meeting that she could be dismissed;

Letter of the 6th January 2014:

By letter dated the 6th January 2014 the claimant was invited to attend a meeting on the 9th January which inter alia advised her that the company had completed its investigations and that: “given the seriousness of the findings….it is necessary……to hold a formal disciplinary hearing”. Critically the letter did not advise the claimant that she could be dismissed. It should have. The respondent pleads that the claimant was well aware that her conduct amounted to Gross misconduct.

The letter of the 6th January also advised the claimant that she could have representation at the disciplinary meeting on the on the 9th January 2014. This is in accordance with the company disciplinary procedure: Section 6.4 states:

“The employee shall be given details of the alleged offence and afforded the opportunity to respond, and shall have the right to representation by their association/union or by a fellow colleague at any stage of the disciplinary procedure”.

However this letter makes it clear that [her] “chosen representative...must be mutually acceptable”. This is at variance with the company’s own disciplinary procedure, where there is no question of the representative having to be mutually acceptable. Furthermore it is not in accordance with natural and constitutional justice that the employer must approve the employee’s representative. The Tribunal is not blind to the fact that the claimant had a solicitor at the appeal hearing but, through no fault of his own was not able to provide effective representation because he was not allowed speak on the claimant’s behalf.

The Tribunal considered whether the claimant was entitled to legal representation. ‘Representation’ is defined in Oxford Dictionary as: “the action of speaking or acting on behalf of someone or the state of being so represented”

It is common case that the claimant had the right to be accompanied only (but not represented) at the investigation stage, the disciplinary hearing and the appeal hearing. The Tribunal considered the Supreme Court case of Burns and another v The Governor of Castlerea Prison [2009] 3 I.R.682. In this case the court held that “legal representation was undesirable in internal disciplinary proceedings unless warranted by the principles of natural and constitutional justice”. In assessing whether the principles of natural and constitutional justice might demand legal representation in a particular case, Geoghegan J, delivering the Judgement of the court and approving the case of Reg. v Home Sec. Ex p.Tarrant 1985 1 Q.B 251set out the criteria that should be considered as follows:

1. The seriousness of the charge and of the potential penalty;
2. Whether any point of law were likely to arise;
3. The capacity of a particular person to present his own case;
4. Any procedural difficulty;
5. The need for reasonable speed in making the adjudication;
6. The need for fairness.

The Tribunal accepts that there is no automatic right to legal representation unless it comes within the parameters set out in the Burns case, referred to above. An employee’s right to fair procedures dictates that the claimant be treated fairly and be equipped with whatever is necessary to protect her rights to a livelihood. In the unique circumstances of the case before the Tribunal, it determines that the claimant was entitled to legal representation, given the fact that she was not advised that she could be dismissed for Gross Misconduct and that the consequences were so serious in that it would be particularly difficult for her to get a job in the future in an industry that was specialised with a low level of availability of jobs.

The Reasonableness of the Sanction:

The Tribunal notes that the claimant was allowed to work unsupervised for a period of two months, from the date of the incident, during which she was working with vulnerable service users in Kells. During this period also she had the responsibility of opening and closing the respite centre at Christmas and preparing Christmas meals. This had two possible implications/ramifications: (i) the respondent must not have thought, initially at least, that the claimant’s actions amounted to Gross Misconduct and (ii) the claimant was conceivably lulled into a false sense of security that her job was not in danger.

Having considered all the evidence the Tribunal determines that the sanction of dismissal was disproportionate and that the punishment did not fit the crime. Accordingly the Tribunal further determines that the claimant was unfairly dismissed, and rules that compensation is the most appropriate remedy.

Taking all the circumstances of the case into consideration, including the claimant’s actions which contributed to her dismissal, the Tribunal awards the claimant €15,000 compensation.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

(CHAIRMAN)