Complainant

Respondent

Anonymised Parties

Social Care Worker

Care Provider

Representatives

Una Glazier Farmer, B.L. instructed by Gerald Meagher Midland Legal Solicitors

Declan Naughton Organisation Solutions

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-00018283-001

04/04/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00018283-002

04/04/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00018283-003

04/04/2018

The Complainant contends she was unfairly dismissed and that she did not receive statutory minimum notice. She further contends that she was not paid an appropriate rate for night shift hours.

The Respondent provides professional supports and services to vulnerable children and adults and specialises in intellectual disability, autism and behaviours that concern. The Complainant was employed as a Social Care Worker on 23rd March 2015.   Among other duties, the social care worker is responsible for monitoring and caring for the service user in a manner that ensures the service user’s safety, security, dignity and right to privacy is upheld and maintained at all times.   On 21st October 2017 a number of the Complainant’s colleagues were concerned about her behaviour in relation to dealing with a challenging child. While on duty one member of staff expressed this concern to the Designated Liaison Person (DLP), a required position in accordance with Children First National Guidance for the Protection and Welfare of Children and the Respondent’s own policy on prevention, detection and response to abuse. The DLP, on receipt of the allegation visited the workplace without delay. She asked the Complainant to leave the centre and wait in the office nearby.   The DLP then proceeded to carry out a preliminary screening in accordance with procedure. On the basis of the screening and the potential serious nature of the issues the DLP suspended the Complainant immediately on full pay pending the outcome of an investigation. All relevant staff on duty, including the Complainant were instructed to make a written statement giving a detailed account of their experiences in relation to the allegation.   An investigation commenced on 23rd October 2017.   Statements made by the Complainant and the witnesses were received and verified and signed. The allegations contained in the investigation were sent to the Complainant on 25th October 2017. The allegations contained in the report were put to the Complainant and she was given the opportunity to respond. She denied that she had done anything wrong and provided a defence to state that the child had been extremely aggressive and that she was using the techniques that she had been trained to use. She stated that any force she used was for her own self protection and the protection of staff.    The investigation concluded that the reports of abuse were well founded and that the issues were of such a serious nature that the Complainant’s behaviour amounted to an act of gross misconduct.     The Complainant was invited by letter dated 25th October 2017 to a disciplinary meeting and was informed she could be accompanied at this meeting.     The disciplinary meeting was held on 26th October 2017 and the Complainant chose not to be accompanied by a support person.     The findings of the investigation were outlined to the Complainant and she was given an opportunity to respond.   She acknowledged that her actions were severe but that she did not believe that these actions amounted to child abuse and that she was trying to protect herself. In consideration of her response and the apparent lack of acceptance that she did not see her actions as abuse the Respondent felt that her abusive behaviour warranted immediate dismissal and that there was no alternative but to terminate the complainant’s contract of employment.   The decision was confirmed by letter dated 1st November 2017 and a right of appeal was given.   The Complainant informed the Respondent that she did not wish to pursue an appeal but later, on 21st November 2017 asked for the decision to be appealed. The Director did not accept the request at this stage as the Complainant had requested her P45 and her employment had been terminated.

The Complainant worked with 4 clients in the workplace residential care home. The clients ranged in age from 6 to 12 years with profound mental and physical disabilities. Because of the extreme challenging behaviour and as a result of same, staff members suffered injuries. In particular, the Complainant suffered injuries, such as bite marks and scrabbing and scarring to her hands.   She was required to receive a tetanus injection.   Antecedent behavioural charts and incident reports were being completed on a daily basis and the particular child’s situation was being kept under review.            This child was recommended for single occupancy and this was not acted upon.   The particular details of the incident were recounted from the Complainant’s point of view. She has denied any wrongdoing. It is submitted that the entire process of investigation, disciplinary and appeal was flawed in that:

-          The email inviting the Complainant to the investigation meeting to be held on 24th October 2017 does not provide for the Complainant’s right to representation, contains no details of the charges against her and does not provide the statements obtained.

-          The Complainant was only provided with the statements at the meeting on 24th October 2017, and not beforehand.

-          One account of evidence taken from a staff member incorrectly refers to incident on Friday 20th October 2017.

-          Tusla were informed before the disciplinary process was completed indicating fait accompli.

-          The investigator is the same person who carried out the disciplinary hearing.

-          The decision to dismiss was premeditated – the decision was made before the disciplinary hearing and the complainant was informed at the disciplinary hearing.

-          There was no proper right of appeal, the complainant having received the appeal invitation on the day the time limit expired and then being refused the right to appeal afterwards.

It is argued that the penalty of dismissal was disproportionate given the circumstances.

In relation to other claims, it is contended that in accordance with the Minimum Notice & Terms of Employment Act the complainant was entitled to 2 weeks notice.

It is further contended that the complainant was underpaid in respect of ‘woken hours’ as she was paid minimum wage. The claim under the Payment of Wages Act 1991 is for €2,542.

CA-00018283-001

It is common case that a serious incident took place on 21st October 2017 which led to the dismissal of the Complainant. Although the Complainant has stated that she did not do anything wrong and she acted in self protection I note in the minutes of the disciplinary meeting held on 26th October 2017 that she is quoted as saying “I know how severe this is”. There is therefore a certain ambiguity in her position and she may have contributed to the predicament in which she found herself.

Section 6 (7) of the Act provides:

“Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers it appropriate to do so –

(a)    To the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b)    To the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act 1993) of section 7 (2) of this Act”.

In deciding if the dismissal of the Complainant was unfair, I have considered the test of reasonableness which was set out in Hennessy v Read & Write Shop Ltd UD 192/1978, as to

“1. the nature and extent of the enquiry of the enquiry carried out by the respondent prior to the decision to dismiss the claimant, and

2. the conclusion arrived at by the respondent that, on the basis of the information resulting from such enquiry, the claimant should be dismissed”.

The concept of procedural fairness has been regularly emphasised by the Employment Appeals Tribunal, the Labour Court and the higher Courts since the Act’s enactment.   In Frizelle v New Ross Credit Union 1997, Flood J. stated “put very simply, principles of natural justice must be unequivocally applied”.

In Looney & Co. v Looney UD 843/1984, the E.A.T. found that it was not for the Tribunal “to seek to establish the guilt or innocence of the claimant” but to consider what a reasonable employer would have done.   In this instant case, I find that the DLP who went to the workplace on receiving the complaint from an employee, was the person who carried out the investigation and then carried out the disciplinary hearing. The necessity for separating out the stages of investigation and disciplinary hearings has long been established and was not done so in this case. The decision to dismiss appears to have been taken before the disciplinary hearing as minutes of that meeting dated 26th October 2017 state that the Complainant was told at that meeting that the allegation was founded and that her employment was terminated with immediate effect. She was told that she had the right to appeal but she was informed that “we would not be changing our decision”.   Then when the Complainant did try to appeal, she was denied this right.   In all of the circumstances, I find that the principles of natural justice were not unequivocally applied in this case. I uphold the Complainant’s claim that she was unfairly dismissed. In deciding remedy, I note that the employment relationship has irretrievably broken down and I also find that the Complainant contributed somewhat to the situation and I have decided therefore that compensation in the amount of €8,000 is appropriate.

CA-00018283-002