Complainant

Respondent

Anonymised Parties

A Child Care Facility Manager

A Charitable Organisation

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00015297-001

25/10/2017

The Complainant has been employed with the Respondent since the 26th November 2002 as a Child Care Facility Manager.   The Complainant referred a dispute to the Workplace Relations Commission on the 25th of October 2017 in relation to a Disciplinary Sanction.   The complainant submits that she was given a final written warning after her employer found that she had failed to ensure that a volunteer had the appropriate Garda vetting clearance certificate before allowing them on site to work for the respondent. She also received a verbal warning in respect of a failure to adhere to Service standards.   The complainant requests a recommendation in respect of the investigation and disciplinary procedures followed by her employer and in respect of the sanctions imposed.

It is submitted that

The respondent issued the complainant with the following disciplinary sanctions following a Disciplinary Hearing held on the 28th July 2017.

It was alleged, that the complainant “allowed a volunteer to be on the premises without verifying that satisfactory Garda Vetting was in place”.

SANCTION: Final Written Warning

It was alleged that the complainant “failed to adhere to standards, policies procedures and conduct expected by this company as highlighted in the audit conducted on the 29th May 2017 and as detailed in the investigation report written by Senior Manager (Ms. T).

SANCTION: Verbal Warning

The complainant lodged an appeal dated the 18th July 2017 and followed the appeal process as set out in the disciplinary outcome letter. From the appeal outcome letter, the decisions from the Disciplinary Hearing   were upheld in one instance and an alternative sanction imposed in the other.

Background

In May 2017, the respondent engaged the services of Firm C to conduct a compliance and quality review (pre-audit) at the complainant’s place of work. Firm C, specialists in the early childhood care and education sector were engaged by the employers to conduct a pre-audit of the child care facility in preparation for a Tusla inspection. Firm C prepared their report dated the 29th May 2017 .

Following the Report of the 29th May 2017, Ms G (Senior Manager) met with the complainant on the 12th June 2017 and went through the Report. Ms G wrote a report to the Directors of Services as a result of the meeting held on the 12th June 2017. As a result of issues raised in this report, the respondent invoked disciplinary action against the complainant.

On the 7th July 2017, Ms T conducted an investigation meeting based on the outcomes from the C Report and Ms G’s Report.   Senior Manager Ms T produced her Investigation Report and disciplinary action was recommended. The Disciplinary Hearing was held on the 28th July 2017. Disciplinary outcome letters dated the 2nd August 2017 were issued.   The complainant lodged her appeal on the 17th August 2017 and the Appeal Hearing was held on 28th of August 2017.

Final Written Warning

It was alleged by the respondent that the complainant allowed a volunteer to be on the premises her place of work without verifying that satisfactory Garda Vetting was in place.

The volunteer (M), made her application to the National Vetting Bureau of the Garda Siochana for Garda clearance ahead of her commencement date of the 22nd May 2017 to enable her work as a volunteer at the childcare facility.

Garda clearance for (M) was received by Mr. C (HR) of the respondent on the 18th May 2017 by email. The volunteer (M) informed the complainant that her Garda clearance was received ahead of her commencement date on the 18th May 2017 and sent to Mr. C (HR) directly that day

M commenced her voluntary work on the 22nd May 2017.   Mr. C failed to notify the complainant or send on M’s Garda clearance once he received it on the 18th May 2017. On the 26th May 2017, the complainant emailed Mr. C enquiring about M’s Garda Clearance and received no response to her email request. On the 29th May 2017, Firm C conducted their onsite pre-audit, where it was noted that no physical Garda clearance document was onsite for the volunteer (M).

The complainant was disciplined as a result of not having the physical Garda clearance document on site at the pre-audit inspection and was issued a Final Written Warning as a result.

Verbal Warning

It was alleged that the complainant “failed to adhere to standards, policies procedures and conduct expected by this company as highlighted in the audit conducted on the 29th May 2017 and as detailed in the investigation report written by Senior Manager Ms. T.

The complainant submits she should not have been subjected to a disciplinary action as a result of the C pre-audit report of the 29th May 2017.

In the appeal outcome letter of the 5th September 2017, the Chairperson on the one hand withdrew the ‘verbal warning’ that flowed from the disciplinary hearing determination, and on the other, went on to impose an alternative sanction by stating the following:

“That a verbal warning should be given to you by the Senior Manager which should include the specific matters that require to be addressed by you, the improvements to be achieved and the time period that the confirmatory letter will remain on your file.”

In the Investigation Report of the 7th July 2017, the investigator noted a heading “Unsuitable Qualifications” where it was alleged that the complainant did not have the proper qualifications in place.

The respondent submits that

the Complainant is contesting the outcome of an internal disciplinary procedure which resulted in the issuance of a final written warning and verbal warning. In particular, the Complainant is contesting whether:

1) there were fair grounds to initiate a disciplinary process;

2) the process followed was fair and according to the disciplinary procedure;

3) the sanction was proportionate

The Respondent contends that the disciplinary process was based on justifiable grounds and was fair and in accordance with procedure. The Complainant was alleged to have allowed a volunteer on site without ensuring Garda Vetting was in place which is deemed a highly serious matter by the Service. The Complainant was further alleged of a lesser matter of concern in relation to a failure to adhere to Service standards. The sanctions of a final written warning and verbal warning are proportionate and warranted in the circumstances following a thorough investigation and disciplinary hearing. The Service respectfully request that the Adjudication Officer finds in favour of the Service and this claim fails.

The complainant allowed a volunteer on site without verifying that the proper Garda vetting was in place. This could have very serious consequences for the users of the service where a person without the appropriate Garda vetting was allowed on site to work with the service users at the respondent’s pre-school childcare facility.

This came to light as a result of a pre-audit report conducted by Firm C. There were some serious concerns raised regarding the absence of Garda Vetting for a volunteer who was on the premises and in sole charge of children for a brief time. In addition, there were some concerns raised in relation to practises and procedures. A number of areas under direct control of the Complainant fell below the standard expected of the Service:

i) hand and washing signs were not in place for the children; ii) Temperature in the classroom was too high; iii) A register of children in each room was not in place; iv) The Fire Safety map was removed from the wall of the centre; v) understanding of Service’s policies and procedures

The complainant was investigated and disciplined for these matters and was issued with a verbal warning and a final written warning. The respondent followed its disciplinary procedure and appeal process and the complainant was afforded fair procedures in accordance with the respondent disciplinary procedure.

In relation to the Garda Vetting matter, the Service considered the incident a very serious matter and, due to the gravity of the situation in causing an unnecessary exposure to risk towards the children on site, took the decision to issue a final written warning. With regards to the procedural issues raised, the Service took the decision to issue the Complainant with a formal verbal warning. The Complainant was provided an opportunity to appeal the decisions. At the disciplinary hearing the complainant took full responsibility for this error and stated that it should not have happened.

The Complainant admitted to allowing a volunteer on site before receiving satisfactory Garda Vetting and any response offered for said wrongdoing was not acceptable. Due to the seriousness of the risk posed on service users, a final written warning was a proportionate response. Any lesser sanction would demonstrate to staff that the lack of satisfactory Garda Vetting is not a serious matter. The safety of the children is paramount to the Service and any incident, intentional or otherwise, which puts the safety of these children at risk is deemed a most serious offence.

The Garda vetting policy is applied to all staff and volunteers and any person deemed to have similarly breached the policy would be subject to a disciplinary procedure. The Service chose a verbal warning for the less severe breaches in procedure. The Service acted reasonably by separating the issue regarding the Garda Vetting from the less severe procedural issues so as not to put the Complainant in a precarious position should further minor procedural breaches occur

The issue in respect of the complainant’s qualifications has since been clarified.

The Service respectfully requests that this claim fails as the Complainant received a proportionate disciplinary sanction which was fair and warranted in the circumstances after a full and thorough investigation.

The complainant told the hearing that it was her understanding that the Report commissioned by Firm C was a pre- audit report in advance of a Tulsa inspection and was not aware that it could result in a disciplinary sanction for her.   The respondent advised that the Report was a pre- audit but that it was entitled to take disciplinary action in relation to issues arising irrespective of how these issues came to light as the safety of children is paramount to the service. The respondent told the hearing that it was entitled to invoke the disciplinary process on foot of issues identified in the report especially when such issues related to an employee failing to adhere to procedures in respect of garda vetting and thereby potentially endangering users of the service. The respondent advised the hearing that the complainant was disciplined for this matter as it was her job to ensure that the volunteer had the appropriate Garda vetting to allow them to work with the children on site.

The respondent told the hearing that Mr. C of HR was not in work during the week in question and was unable to access his emails and so did not see or respond to the complainant’s requests in respect of M’s Garda vetting.   The respondent added that in any event it is the complainant who must be satisfied that the Garda vetting certificate is appropriate and contains no disclosures or issues of concern and that she needs to see this certificate herself to be sure of that.   The respondent stated that the fact that she was aware that a certificate had been received does not satisfy the need to be aware of the contents of the vetting form and to be in possession of the form before allowing a volunteer on site as it may contain disclosures within the form.

The respondent also told the hearing that this sanction of a final written warning was place on the complainants file for a period of 12 months.   The complainant at the hearing raised concerns that this final written warning meant that she could lose her job if she was to incur any other minor infringement while she has this warning in place. The respondent at the hearing clarified that that the final written warning referred only to the Garda vetting incident and stated that minor infringements unrelated to Garda vetting could not result in the complainant being dismissed as these would only be subject to verbal warnings.

The respondent at the hearing stated that it deliberately separated out the issues for which sanctions were imposed as the issue of Garda vetting is a serious issue whereas the failure to adhere to service standards was a more minor issue and such minor issues only warranted verbal warnings in order to help the complainant improve her performance in these areas.   The respondent clarified that additional minor procedural infringements could not be added to the final written warning in respect of the Garda vetting infringements but would result in separate verbal warnings, thus stating that the complainant was not at risk of being dismissed if she incurred further minor infringements.

I am satisfied from the evidence adduced that the respondent was entitled to initiate the disciplinary procedure once it became aware of the fact that no garda clearance certificate was received by the complainant for volunteer M before allowing her access to the site and to its service users. I am also satisfied that the respondent followed its disciplinary procedures in respect of the matter and that the complainant was afforded a fair disciplinary procedure in accordance with the respondent’s procedures.  

On the basis of the totality of the evidence adduced I find that the Respondent conducted the investigation, disciplinary and appeals Hearings in accordance with fair procedure as set out at S.I. 146/2000 – Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000.     In addition, I could find no basis to recommend that the verbal warning or the final written warning be withdrawn or downgraded.