ADJ-00000775

ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00000775

Parties: 

Complaint(s):

Date of Adjudication Hearing: 20/02/2018

Workplace Relations Commission Adjudication Officer: Caroline McEnery

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The Complainant claims she has been unfairly dismissed for gross misconduct under Section 8 of the Unfair Dismissals Act 1977.

Summary of Complainant’s Case:

The Complainant qualified as a Montessori teacher in 1988. In 1991 the Complainant established her own pre-school. This operated from 1991 to 1998. On the 5 January 1998 the Complainant commenced work as a part-time preschool manager for The Respondent. She continued to work with in her own pre-school crèche. In 2003, the Respondents premises was incorporated as a company limited by guarantee, the Complainant was appointed full-time childcare manager. In early 2008 the crèche moved to a new facility. The Company remained the same. On the 12 March 2008 the Complainant accepted a contract of indefinite duration as Childcare Manager on a full-time basis effective from the 1 May 2008.

The Complainant was dismissed for gross misconduct on the 30 May 2015. The Complainant appealed the decision and an appeal hearing upheld the decision on the 25 June 2015. The Complainant was dismissed on the 25 July 2015 following four weeks’ notice.

The Complainant alleged the dismissal process was pre-determined and that the sole purpose of bringing the allegations was to dismiss the Complainant. She alleged that while the Disciplinary Committee paid lip-service to the notion of fair procedures, the Respondent was at all times going to dismiss the Complainant. She claimed the process from the initial accusations against the Complainant through to the dismissal and appeal was flawed. She alleged that all the evidence points to the Respondent gathering complaints, creating allegations, or dredging up old issues, in order to ensure that the Complainant was dismissed.

The following is a summary of additional points the Complainant presented for consideration:

1. The circumstances in which allegation number 1 (inappropriate handling of a child) was made require explanation. Past Employee 1 [PE1] was no longer an employee of the Crèche and had previously met with HR Service Enquiry Investigator 1 [HRSEI1] of HR Service Enquiry Company 1 on the 2 October 2014 in respect of the report of 20 November 2014. Ms. HRSEI1 made no reference to this allegation at that meeting. From the 8 May 2014 up to the 12 November 2014 there is no record of this allegation despite there being ample opportunity to make it by this person. There was no necessity for HRSEI1 to meet with PE1 again on the 6 November 2014 as part of the service enquiry as she was no longer an employee and had sent solicitor letters to the Crèche after her employment was not renewed. Neither PE1 nor Witness 1 [WIT1] two of the complainants, gave evidence at the disciplinary hearing.
2. The circumstances in which the second two allegations were added to HR Investigator 2 from HR Company 2 [HRI2] terms of investigation require explanation (added between the 10 November 2014 and 16 November 2014). There is no record of why these allegations were included and on whose request or authority. Witness 4 and Witness 5 [WIT4 and WIT 5] statements are dated 1 and 2 December 2014 respectively, approximately 2 weeks after the accusations are made against the Complainant. Neither WIT4 nor WIT5 gave evidence at the disciplinary hearing.
3. The Complainant had no prior notice of any of the allegations investigated by HRI2. If these were bona fide complaints (which the Complainant refutes) then there is significant delay in accusing the Complainant of misconduct. Allegation number 1 concerns an incident which allegedly occurred on the 8 May 2014. The Complainant was only informed of it on the 10 November 2014 (approximately six months after the incident). Allegation number 2 is alleged to have occurred on the 22 October 2013. It was brought to the Complainant’s attention on the 16 November 2014 (approximately 13 months after the incident). The third allegation, a complaint against the Crèche, which HRI2 investigated was contained in a letter to the Crèche, 21 July 2014 and was never shown to the Complainant until it was added to HRI2’s investigation on the 16 November 2014 (about three to four months after the allegation). The Crèche (using the Complainant’s name and unbeknownst to her) replied to this matter on the 6th August 2014. As such it must have deemed that same had been satisfactorily addressed.
4. HRI2 did not conduct a proper investigation into the three initial allegations levelled against the Complainant. HRI2 did not seek out all the documentation which would support the allegations or vindicate the Complainant. In respect of first allegation HRI2 did not interview PE1, SLO1, SLO2 [Staff Liaison Officers 1 and 2] and WIT4 or other staff members to confirm whether the allegation was raised at the meeting of the 13 May 2013. HRI2 did not revert to the Complainant nor the other witnesses to ensure that they were happy with the accounts provided in her report.
5. SLO1, who was an investigator in this disciplinary; it is alleged, was not an experienced investigator for such a complex issue and an issue which could lead to dismissal.
6. HRI2’s report made findings adverse to the Complainant in respect of allegations number 1 and 2. Her function was solely to gather evidence and present same to the Management Committee (MC) with a recommendation based on that evidence whether there should be a disciplinary hearing or not. She went beyond her role as investigator.
7. HRI2, it is alleged, was a biased investigator. She advised MC member 3 [MC3] and SLO1 to “…document list of other items that may warrant investigation/disciplinary.”
8. The Complainant was not given an opportunity to challenge or cross examine those who made allegations numbers 1 and 2 at the disciplinary hearing.
9. SLO1, did not conduct a proper investigation or any investigation into allegations three to eight. She did not give the Complainant an opportunity to answer these allegations in advance of the disciplinary hearing.
10. In respect of allegation three (the subvention matter) the Complainant had to provide answers to a very complicated issue during a very stressful disciplinary hearing. The only questions put to her prior to the disciplinary hearing did not relate to the central issue (in email form and minimal). This was not a satisfactory way to deal with this matter. SLO1 should have provided a full written statement backing up this allegation with questions for the Complainant to answer. Further she should have put this information to the Complainant in advance of the disciplinary hearing and sought a reply to the allegation. Thereafter SLO1 should have looked into the Complainants’ explanation to see if there was support for it. SLO1 had a responsibility, and failed in this, to leave no stone uncovered where the Complainant provided an explanation for alleged misconduct of such a serious nature.
11. In respect of allegation number seven, threatening staff, the Complainant was not allowed question her accusers on their statements (PE1, WIT1 and WIT6). An investigation meeting in advance of the disciplinary hearing was never held where the Complainant could provide answers to this allegation. There was significant delay in adding this allegation to the disciplinary procedures.
12. Allegations 4, 5, and 8 had been previously dealt with. When they initially arose there was no question of disciplinary proceedings. The issues first arose between the 2 September 2014 (allegation 8) and end of September 2014 (allegations 4 and 5). While the Complainant maintains that either there was no issue for her to answer or that they had already been dealt with, there was significant delay in bringing disciplinary proceedings against the Complainant. The allegations were levelled against her on the 7 March 2015, some five to six months after the issues first surfaced. The fact that these were now disciplinary issues came as a complete surprise to the Complainant. Further the Complainant did not receive the report in respect of allegations 4 and 5 (which was completed in October 2014) until those issues were included in the disciplinary process (March 2015).
13. The Complainant was dealt with differently from other staff members who viewed (against procedures) CCTV footage of an incident (which led to allegation 8 against the Complainant). No action was taken against those staff members but action was taken against the Complainant.
14. The HR Service Enquiry Company 1 [HRC1] Enquiry Report issued on the 3 December 2014 without any input from the Complainant, despite the fact that the Complainant had asked that her input be deferred until the disciplinary procedure had finished. The Complainant’s position is that the Crèche had decided that there was no necessity for the Complainant input as she was going to be dismissed as manager.
15. The Disciplinary Committee was biased. SLO2’s husband had made a complaint to the Crèche (the letter of the 21 July 2014 which was not substantiated). MC3 had been advised by HRI2 to document other issues which warranted investigation or disciplinary procedures. It is alleged that SLO2 and SLO1 received information concerning allegation number 1 on the 20 June 2014 and recorded the allegation.
16. The Complainant requested that the mother of the child alleged to be involved in allegation one be called as a witness. This was denied. The mother of the child involved in allegation 2 was also not called as a witness. Neither mother was informed of the allegations at the time of the alleged incidents. Notwithstanding the fact that the Complainant wished to call the mother of the child in allegation number one, the Disciplinary Committee and/or SLO1 actively sought the mother of another child to give evidence against the Complainant.
17. The Complainant had made an allegation of bullying against SLO1, yet SLO1was still deemed an appropriate person to investigate allegations 3 to 8 and present the evidence against her for all allegations. The Complainant also made allegations of unfair treatment against SLO1and SLO2. Despite these allegations, SLO1 was appointed investigator and SLO2 was on the Disciplinary Committee. In contrast any allegations made against the Complainant were acted upon by the Management Committee.
18. MC3 and SLO2 were present when allegations 4, 5 and 8 had previously been discussed at MC meetings. MC3 requested that the CCTV issue (allegation number 8) dealt with at the MC meeting of the 10 September 2014 be revisited at the MC meeting of the 8 October 2014.
19. The Disciplinary Committee changed the procedure of the disciplinary hearing at the start of the second disciplinary hearing. This was on foot of alleged directions from the Chairman at a management committee meeting. It is presumed that the issues were discussed in the presence of all MC members including MC2 [MC Chairman], MC3 and SLO2 (the Disciplinary Committee members) and SLO1 the investigator.
20. The Appeal hearing (MC2 and an external advisor [EA]), verbally upheld the Complainant’s appeal in respect of allegations number 3 to 8 on the grounds that proper procedures were not followed. The final appeal hearing report changed from this position.

It is the Complainant’s position that there were numerous breaches of her right to fair procedures including her right to face her accusers. The above are an examples of the most serious of the breaches. It is submitted that the delay in itself in investigating some of the allegations is sufficient to have the dismissal deemed unfair.

Further, that in respect of what amounts to a very serious charge (allegation number 3), there was no proper investigation. No account was taken of the Complainant’s explanation or attempt to see if there was substance to it. In circumstances where a person’s ability to continue to work in their chosen field or profession is in jeopardy there is a duty on an employer to ensure that all explanations provided by an employee are explored. There is a further duty to carry out a proper investigation rather than the shoddy exercise carried out by the Respondent as alleged by the Complainant. It is for this reason that we make particular reference to allegation number 3 below.

The Subvention Scheme (Community Childcare Subvention - Ccs) allows qualifying parents to avail of reduced childcare costs. A parent will pay the cost price of the child’s place less the subvention amount. CCS programmes run from September to August of each year. A child must be enrolled under the scheme for a certain number of days and the type of place required recorded. CCS can provide full day care places, part-time places, sessional places and half session places. The services may cater for babies (full day care places), pre-school (sessional places) to after-school places (part-time).

Each service receives an allocated amount of subvention based on the number of eligible children attending the service (allocated to each eligible child). Subvention is paid to the service for the eligible children attending during the ‘snapshot’ week in October. Parents complete a Parent Declaration Form (completed by the parents in September 2013) and these are submitted to the Department of Children and Youth Affairs (DCYA).

Subvention money allocated to a particular child does not have to be used solely for that child if the child ceases to attend the service. This unused subvention money is not automatically returnable to the DCYA. If a child has not attended for four consecutive weeks, a child leaving CCS form must be returned to the DCYA. The annual CCS funding for a service is not affected by this unless a number of children eligible for subvention leave the service without being replaced by new eligible CCS children.

If a child receiving subvention leaves the service or reduces his/her hours with the service and there is a new eligible child in the service, the service may re-allocate the subvention to the new child. The original child’s funding is held in the service’s contingency fund until the new eligible child can take up the place.

The Complainant’s position was that if the original child who was allocated subvention (during the ‘snapshot’ week) returned to the service (or took up his/her place) the subvention reverted to that child and the new child thereafter paid for the service.

On call children are different. The Complainant uses this phrase to refer to children who were not booked in and may attend at the discretion of the manager. If they were booked in a child was guaranteed a place. Otherwise there had to be space on a given day (taking account of staff/child ratios). The Complainant allowed this if there was a free place i.e. depending on staff/child ratios a child could be accommodated on a given day. If staff/child ratios were met then the on-call child could not attend. An on-call staff member’s child did not pay. The Complainants position was that this was custom and practice in the Respondents premises and had been approved by previous management committees. It is notable that neither the Disciplinary Committee nor SLO1 ever followed up this explanation by contacting previous committees.

If there was not a space available and the staff member had previously registered their child for subvention, then that staff member was entitled to take up the subvention place for the required day (the new child had to pay full-fee for that day or if there was no space available make other childcare arrangements). If the staff member took up this entitlement then the staff member paid the appropriate fee, less the subvention (the staff member may also have been entitled to a 15% reduction).

The Complainant maintains that to the best of her knowledge at all times there was an eligible child attending the service for each subvention grant provided by the DCYA, whether that child was a child who registered during the “snapshot” week or a new eligible child. If there was not an equivalent number of new eligible children to take the places of “snapshot” children it was nearly equivalent.

From the disciplinary meeting record, 27 March 2015 the Complainant admitted that she created the second attendance book. The purpose of the book was for on-call children. The Complainant denied putting the ticks in the book beside each child’s name. It is notable that SLO1 did not attempt to find out who put the ticks in the attendance book. It is repeated that there is an onus on the employer to attempt to verify an explanation given by an employee in cases such as this. Attendance books were filled up during the summer months in advance of the next academic year. The attendance book was not meant as an accurate record of which children would definitely attend the crèche the next year but merely a provisional record of possible/probably children who would attend the service.

The disciplinary hearing record notes that the Complainant stated that she ‘transferred’ subvention to 9 eligible children and later to a minimum of nine (‘transfer’ is the incorrect word as it relates to a child moving from one service to another). The Complainant is then criticised for not providing the names of nine children. It must be noted that this was the first time this line of questioning was put to the Complainant. She had been suspended since November 2014 (4 ½ half months previously). She did not have access to her files. It is submitted that it is very difficult to come up with exact names and numbers in such circumstances. The Respondent had access to this information. If it had carried out a proper investigation then the Complainant’s explanation could have been tested. It is again repeated that when the Complainant had offered an explanation there was a responsibility on the Respondent to verify whether or not subvention had been allocated to another child in circumstances where the original eligible child was not availing of it. Further it is noted that the Respondent had access to the Pobal Compliance Folder and computer records.

The Disciplinary Committee and SLO1 never examined records to ascertain how many children had left the service, meaning that their money went into the contingency fund. They never examined or put in evidence whether subvention went from a “snapshot” week child to a new eligible child. Further the investigator never looked into how many new eligible children took up unused subvention funding which was in the contingency fund. The Disciplinary Committee never sought to ascertain whether staff members who were listed as being eligible for subvention intended to use the subvention during school holidays and whether up to that point it would be used by other ‘new’ children.

It is submitted that the evidence of WIT2 in relation to keeping two books is misleading. Children attended afterschool at two locations, the after-school building and the crèche building. The children attending at the crèche building were generally on-call children (staff-children). WIT2’s knowledge was only of children attending the after-school building. The Respondent should have been aware that this was the case and that the two attendance books referred to different buildings. The MC is aware that some after-school children attended the crèche building as this was their preference.

SLO1’s purpose of producing the second book was to accuse the Complainant of fraud. This is a very serious charge. The investigation into allegation three was flawed. Great care should have been taken when investigating such a serious charge. The purpose of the investigation should have been to seek out evidence of guilt and innocence. SLO1’s only sought evidence of guilt. SLO1’s whole investigation was predicated on the premise that the Complainant was guilty of the offences alleged against her and it was alleged that this goes for all allegations. SLO1 only ever intended to call witnesses who could prove guilt. She did not call witnesses who could assist the Complainant’s position and she barely called any witnesses. It must be borne in mind that the Complainant was suspended and in no position to gather evidence and call witnesses. The full charges were not put to the Complainant in advance of the disciplinary hearing. No statement was taken from the Complainant. Statements were not taken from other employees who had knowledge of how this system worked (if they were they were not admitted to at the hearing). No detailed examination of the children, new and old who received subvention was undertaken.

In relation to the second book it was the Complainants explanation that it held the name of on-call children. This explanation was never tested. The Disciplinary Committee or SLO1 failed to question other staff members based in the crèche about the existence of this book. It is submitted that SLO1 started from a position that that book was false and created by the Complainant for fraudulent purposes, rather than attempting to ascertain all the facts surrounding the book and its purpose including who put in the ticks. SLO1 failed to get statements from former committee members on the existence of an arrangement whereby staff members could bring their children to the crèche free of charge if there was an appropriate place available.

The only sheet a parent would sign is the incident book if there was an incident. There are also daily attendance sheets where staff members sign in children on a daily basis. Neither, SLO1 nor the Disciplinary committee ever checked or even sought out these records. Yet it is notable when discussing allegations number 4 and 5 reference is made to parents/staff members signing children in on a daily basis. As such, the Disciplinary Committee and SLO1 were well aware of daily attendance records.

There was substantial delay in bringing allegations numbers, 1, 2, 4, 5, 7 and 8 to the attention of the Complainant.

In general there was delay in finalising this process. The Complainant was suspended with pay on the 10 November 2014. The first hearing was on the 27 March 2015, almost five months after suspension. The appeal hearing upheld the decision to dismiss on the 15 June 2015, approximately seven months after the Complainant was suspended.

Where a person faces dismissal she is entitled to question her accusers otherwise it is a breach of fair procedures. Where allegations of serious misconduct are made against an employee which could affect her/his career prospects particularly in his/her chosen field or could have criminal ramifications there is an onus on the employer to gather all the evidence not just the evidence that supports the allegations of misconduct. On a general point, the Complainant only ever worked as a childcare professional. This was her chosen profession from 1988 onwards. The allegations brought against the Complainant could result in destroying her career and any prospect she ever has of returning to work in that profession. Further, the allegations could restrict her from working in any position where finance is involved. It is further submitted that there was a potential for criminal charges to be brought. In those situations there is a duty on an employer to seek out all information which would demonstrate innocence as well as guilt.

While there is divergent case law on whether the principals of natural justice and fair procedures apply to the investigatory phase, what is not disputed, is that an investigator is not entitled to make adverse findings against an employee during the investigation phases. The Complainant was suspended from work. She could not access her files or notes. It is submitted that she could not defend herself. The Respondent did not layout or properly lay out the charges against her particularly on the subvention issue. Further it did not prior to the hearing seek her explanation so that it could seek out the evidence which may show guilt or innocence. At the hearing SLO1 and the Disciplinary Committee dismissed her explanations without properly considering them.

When deciding whether a deciding authority, such as a Disciplinary Committee, is biased, the test is an objective one. The principles in deciding whether the Disciplinary Committee was biased are: (a) whether a reasonable and fair minded objective observer in possession of all relevant facts, reasonably apprehends that there is a risk the decision maker will not be fair and impartial; (b) the apprehensions of the affected party are not relevant; (c) objective bias may not be inferred from legal or other errors made within the decision making process but from external factors; and (d) external factors can include statements made by the decision maker which would decide the issue, or which show prejudice, hostility or dislike towards one of the parties.

Essentially these were allegations which were accepted as fact by the Disciplinary Committee prior to the hearing and the Complainant was not in a position to defend herself against them. Further the Appeal Hearing’s position was that the allegations were proven.

The Complainant is primarily seeking re-instatement under section 7(1)(a) of the 1977 Act. If the Complainant is re-instated she is entitled to back pay from the date of dismissal to the date of re-instatement. She is entitled to be reinstated on the same terms and condition. The reason why the Complainant seeks re-instatement as the preferred remedy is that for her whole working life the Complainant has only ever worked in child care. She has worked in the community as a childcare worker since 1991. She has been involved with the Respondent since 1998. She has spent over twenty years working for this organisation in one form or another. There will never be another similar position and the possibility of gaining similar employment in Limerick is limited due to the circumstances of her dismissal. The MC is voluntary. As such this is not a similar situation to other businesses and the MC is not the equivalent of other employers. There will be changes in the make-up of the Committee over time children move on and with them their parents who are members of the committee often leave. While the position between the Complainant and the current MC is difficult. This will not always be the case. The Complainant not have any difficulties with previous MC’s. The remedy of re-instatement cannot be considered if there exists a very definite possibility that it would result in compelling a reluctant employer to continue a relationship of employer/employee. However as stated above the personalities will not always be the same they will change. The employer will not always be represented by this management committee.

The Complainant’s second relief is compensation pursuant to section 7(1)(c)(i) of the 1977 Act. The Complainant relies on two issues, first that as a result of the disciplinary procedures and the stress, bullying and harassment which she underwent the Complainant has suffered mental health issues. The Complainant states that the Respondent is responsible for her mental health difficulties and in particular the actions of the MC of the Respondent.

Second, the Complainant also wishes to clear her name. As a result of these allegations her professional reputation has suffered possibly irreparable harm. Not only has her role as a carer for children been impugned. But as she has been accused of dishonesty and fraud as such her job options are extremely limited.

The Complainants weekly wages was €643.89. The maximum relief that the Complainant is entitled to claim is 104 weeks wages, being €66,964.56. Due to the nature of the allegations made against the Complainant it is submitted that she will find it very difficult to find similar employment. Further she will find it very difficult to find work which involves money. As such the Complainant is entitled to a large award due to the damage to her reputation as a childcare worker and manager. That damage is possibly irreparable and has resulted in financial loss. The Complainant is seeking the maximum compensation allowable under the Act.

Summary of Respondent’s Case:

The Respondent is a not for profit company limited by guarantee, incorporated in 2003, which is governed by a voluntary management committee (“MC”) of five members. The Respondent receives public funding from Pobal and the Department of Children and Youth Affairs in respect of the Community Childcare Subvention Programme (CCS) and other such programmes and a significant portion of its income comes from such programmes. The Respondent provides full day, part time and sessional care and a service to babies, toddlers, pre-school and after school children up to the age of 12.

The Complainant was employed with the Respondent as a Respondent Manager from 1 March 2003 and this position was renewed from time to time in writing until on 1 May 2008 the Complainant was appointed to the position of Childcare Manager in the Respondent’s new facility. The Complainant signed a written contract of employment to this effect on 30 September 2008. The Complainant was responsible for the day to day running of the childcare service, including compliance with all legislative requirements and maintaining good financial systems. The Respondent has in place a Staff Information Handbook which contains detailed employment policies and procedures including disciplinary and dismissal procedures and policies, with which the Complainant was familiar.

The Complainant claims that she was unfairly dismissed for Gross Misconduct. The Complainant contends that the dismissal was unfair, in terms of the procedures used by the Respondent, the manner in which the investigation was conducted and the severity of sanction issued. The Respondent contends that the dismissal was fair, arising from findings of Gross Misconduct on the part of the Complainant following a full and thorough investigation, during which time the Complainant was suspended with full pay, pending the outcome of the process, in accordance with the Respondent’s disciplinary procedure.

The Complainant was fully informed of the nature and extent of the complaints against her in advance of the disciplinary procedure, and was afforded every opportunity to respond to the complaints, to state her case and to call witnesses in support of her position. The investigation into a number of complaints against the Complainant was conducted by an independent external investigator, with expertise in Human Resources. The investigation into the other complaints was conducted by a member of the Management Committee of the Respondent, who was not an employee of the facility and who was independent of the decision making disciplinary panel and the separate appeal panel.

The Complainant was accompanied by her husband at the disciplinary and appeal hearings. The Complainant was permitted to record the disciplinary and the appeal hearings. The appeal was conducted by a person who was independent of the disciplinary hearing. The Complainant was afforded fair procedures at every stage of the process. The Respondent contends that the sanction of dismissal was proportionate to the conduct complained of in relation to each complaint which led to the decision to impose that sanction, having regard to the nature of the employment. The Respondent adopted a diligent, fair and reasonable approach in all of the circumstances of this case.

The Respondent submits that (a) the Complainant was fairly dismissed on grounds of gross misconduct and (b) the procedures utilised in the disciplinary process were fair and reasonable.

In May 2014 the staff at the service sought a meeting with the MC on behavioural issues/challenging behaviour associated with the children attending the service. Two Staff Liaison Officers [SLO1 and SLO2] were appointed by the MC and they met with staff members individually. They relayed that issues were being raised by staff to the MC in June 2014. Arising from this, the MC decided to hold an independent enquiry by an external expert entity into practices and procedures within the service which was known as “the service enquiry”. HR Service Enquiry Company 1 were contracted for this purpose. A previous review of operations at the service was carried out by the National Children’s Nurseries Association in June 2011.

Around the same time, in June 2014, two staff members made formal written complaints of unnecessary stress caused to them by the Complainant. The MC decided, due to the seriousness and complexity of the allegations, to contract HR Service Enquiry Company 1 to conduct an investigation into them known as “the investigation”. The Complainant was notified of this decision in writing on 12 August, 2014. On 10 September 2014 the Complainant was informed in writing that a copy of the complaints would be sent to her, together with the Terms of Reference for the Investigation. The Complainant was informed that HR Service Enquiry Company 1 appointed HR Investigator [HRSEI1] to conduct the investigation and the service enquiry processes. The Complainant decided to defer her participation in the service enquiry. The Claimant participated in the investigation.

At the monthly MC meeting on 10 September 2014, an incident was discussed whereby CCTV footage of a child being bitten at the crèche by another child was played for the parent of the child who was bitten and then was later viewed by two employees and a possible TUS worker.

At the monthly MC meeting on 8 October 2014, it was noted that a complaint was raised by a staff member regarding inter alia children in attendance at the service, but not on the attendance record and children possibly not paying fees. MC Member 1 [MC1] and SLO1 from the MC conducted an investigation into this complaint and the MC decided to ask the Complainant for her response.

On Friday 7 November 2014, HRSEI1 of HR Service Enquiry Company 1 telephoned a member of the MC [MC2, Chairman of the MC] about an incident which had come up in one of her service enquiry meetings. This incident was alleged to have occurred on 8 May 2014 and involved the Complainant with a child and the description of what allegedly occurred fell in her view into the concern of child welfare. Arising from this telephone call, members of the MC over the weekend decided on a precautionary course of action to place the Complainant on suspension with full pay to ensure the welfare of the children in the service pending the outcome of an independent, external investigation into this incident.

MC2 contacted the Complainant by telephone on Monday 10 November 2014, advising her of the outcome of the MC decision over the weekend.

On 12 November 2014, HRSEI1 of HR Service Enquiry Company 1 compiled and forwarded a confidential record of the aforesaid incident with the child in May 2014 to MC members. This reported that the staff member didn’t think that the child should have been held in a particular manner by the Complainant in his upset state; the staff member also alleged that the Complainant threatened her with her job and that a child’s parent who witnessed the incident expressed shock at what she saw.

On 16 November 2014 the MC wrote to the Complainant confirming her suspension with pay pending an independent investigation into three alleged incidents, which were stated to constitute gross misconduct. The letter confirmed that a full investigation would commence; that documentation pertaining to the alleged incidents would be forwarded to the Complainant in advance; that she would be entitled to bring a representative with her to attend the investigation meetings and that the meeting would provide her with an opportunity to present her case. The letter also referred to the fact that the discipline policy referred to a ten day time frame to conduct an investigation and stated that MC2 would endeavour to ensure that the investigation meeting would be set up as expediently as possible within this timeframe; however, that it might be in both parties interest to extend this timeframe in order to ensure that the Complainant had sufficient time to review any documentation that would be forwarded to her. The letter assured the Complainant that the decision to suspend her was a precautionary as opposed to a punitive measure and during the suspension the Complainant would continue to receive her pay and benefits in accordance with her employment.

On 20 November 2014 HRSEI1 of HR Service Enquiry Company 1 reported on the investigation conducted by her into complaints against the Complainant. The Complainant had engaged fully with this investigation. This investigation report found that there was unnecessary stress caused to the staff members who made the complaints against the Complainant; i.e. the report upheld the complaints against the Complainant.

In November 2014 the Complainant was informed in writing by the MC that HRI2 from HR Company 2 would carry out the independent and external investigation of the three allegations detailed in the letter of suspension of 16 November.

On 3 December 2014 HRSEI1 of HR Service Enquiry Company 1 presented her service enquiry report to the Respondent. This reported among other things a staff member concern that a child was put outside/that there was isolation of a child and that staff members were afraid to talk to the Complainant about this because of fear of repercussions, e.g. threats about job. The report also raised the issue of the non-payment of childcare for a staff member and the CCTV policy.

The investigation report by HRI2 from HR Company 2 was forwarded to the MC on 2 January, 2015. The investigation report found two of the three allegations to be substantiated. The report expressed the view among other things that the manner in which the Complainant dealt with challenging behaviour was “very concerning” and the fact that record was not made of a “serious incident” being raised at a staff meeting was “concerning.”

On 9 January 2015 the MC wrote to the Complainant informing her that they would be considering the report as soon as possible and that: “The investigation…took some time as interviews had to be conducted with a number of parties.”

On 22 January 2015 a full copy of both the HR Service Enquiry Company 1 reports and the report from HR Company 2 was sent to the Complainant, together with a statement that the MC were “considering these reports with a view to invoking the disciplinary procedure.”

In late January 2015, a MC member, SLO1, whilst looking for a particular attendance book, discovered a second attendance/roll book for the after school room for 2013/2014. This led to an investigation by her on behalf of the MC of the books and records, including CCS records and fee records for the school children in that room for that year, which indicated that the children listed on the second roll book did not actually attend the service during this period, yet CCS was claimed for them.

In February, 2015, the Complainant sought detailed records under the Data Protection legislation. Records were compiled and furnished to her in compliance with her request and an explanation was furnished to her where documents were not released.

On 7 March 2015 the Complainant was notified in writing of the full details of the complaints which would form the basis of the disciplinary proceedings against her and she was furnished with all documentation grounding those complaints. The Complainant was therefore informed of the allegations at the outset of the disciplinary process, in order to ensure she had a meaningful opportunity to prepare and to present her defence.

The Complainant was notified of her entitlement to involve a Solicitor in the process and of the right to record the disciplinary hearing and to contact witnesses. The proposal was set out that SLO1 who had conducted an investigation into some of the allegations, would present evidence to the disciplinary panel, comprising of MC3 and SLO2 who would be the independent decision making body. An Appeal would be solely decided by MC2 who was independent of the disciplinary panel. Thus the roles of these members of the MC were entirely separate and distinct. It was proposed to hold the disciplinary hearing on 28 March 2015.

The disciplinary hearings took place on 27 March 2015 and on 24 April 2015. There was a time lapse between the two hearings, owing to Easter and also to a family bereavement suffered by one of the members of the disciplinary panel. The Complainant was notified of the fact and reason for the adjournment of the second hearing in a timely manner.

The hearings were recorded by both the Complainant and the Respondent. The Complainant was accompanied to the hearings by her husband. The evidence was presented in the presence of the Complainant to the disciplinary panel and the Complainant was given an opportunity to respond and put forward her case. The Complainant was also afforded the opportunity to cross examine witnesses who attended before the disciplinary panel. The disciplinary panel did not have access to the books and statements presented to it prior to the hearings.

The disciplinary panel carefully examined the evidence presented to it at the hearings, the statements made by witnesses who attended, together with the case made by the Complainant, and they reviewed the recordings. The disciplinary panel had regard to the manner in which the Complainant addressed the allegations against her and the admissions she made by way of response.

The disciplinary panel made findings on 8 of the 9 allegations against the Complainant. In relation to one of the allegations, that of failing to keep appropriate records pertinent to business compliance, the disciplinary panel made no finding.

The findings in relation to five of the allegations were considered sufficiently serious to warrant the sanction of dismissal. These allegations were that the Claimant

• • (1) inappropriately handled a pre-school child;
  • (2) inappropriately isolated a child;
  • (3) made false CCS Subvention Claims;
  • (4) permitted children of certain staff members to be on the premises without being registered on the attendance books and
  • (5) Breached the data protection policy.
• The disciplinary panel decided that their findings in relation to two of the allegations warranted a first written warning
  • That of permitting certain staff members to have their children in the care of the Respondent without fees being paid and
  • Of making threats to employees that they would lose their jobs –
  • The disciplinary panel decided, having found that the Complainant retained documents: Parent Declaration CCS Forms 2013/14 and Appeal Forms 2013/14 containing children’s PPSN, that this warranted a final written warning.

The disciplinary panel addressed queries which were raised by the Complainant during the disciplinary hearing on 24 April 2015 and replied by letter dated 15 May 2015. Further queries were raised by the Complainant in response to this letter on 19 May 2015. These additional queries were carefully considered and answered on 30 May 2015. The disciplinary panel delivered their findings of the disciplinary process to the Complainant on the same date, setting out the reference documents and policies referred to and giving detailed reasoning for their decisions.

The Complainant appealed to MC2 by letter dated 10 June 2015. The grounds for her appeal were set out in this letter. The Appeal hearing was arranged for 22 June. MC2 was accompanied to the appeal by an external observer, who was not involved in the decision making and the Complainant was advised of this in advance of the appeal.

The Complainant did not adduce any new evidence. The Complainant did not dispute the findings of fact, nor deny the allegations that formed the basis of the disciplinary process against her. The Complainant took issue with the fact that the disciplinary process was instigated in the first place and submitted that the appeal process was commenced before the disciplinary process had concluded.

MC2 took time to review all the evidence presented before him and thereafter, he informed the Complainant of his considered decision to reject the Complainant’s appeal by correspondence dated 25 June 2015.

In relation to certain allegations regarding the Complainant there was reluctance of staff members to speak out because of “fear of repercussions” including “threats about job” from the Complainant. This is evidenced by the fact that staff members sought out a meeting directly with the MC because of their concerns about how challenging behaviour was addressed in the service. Staff members told the Staff Liaison Officers in June 2014 that there was an incident concerning the Complainant but they did not furnish any details on the nature of the incident. The Staff Liaison Officers advised the staff members to put whatever concerns they had in writing to the MC.

Following the telephone call by HRSEI1 of HR Service Enquiry Company 1 to the MC of an incident concerning the Complainant, the MC gave full consideration to the necessity for a suspension with pay pending independent external investigation of the matter, to prevent the possibility of a repetition of the conduct complained of and to protect children at risk from such conduct.

HRI2 of HR Company 2 liaised and met directly with the Complainant and her husband, and facilitated all the Complainant’s requests during her investigation. The number of witnesses involved and the Christmas vacation meant that this investigation took some time. Following the disciplinary hearing, the findings on two allegations investigated by HRI2 of HR Company 2 were considered sufficiently serious by the MC to initiate the disciplinary process against the Complainant, during which time the Complainant remained on precautionary suspension with full pay.

Further concerns about the Complainant arose out of the HR Service Enquiry Company 1 reports and the HR Company 2 report, together with the chance finding by SLO1 of a second attendance record book for the after school room for the school year 2013/14; which prompted a review of documents and records at the service by the MC.

Prior to the disciplinary hearings and after the Complainant was notified of SLO1’s investigative role into some of the allegations against her, SLO1 sent emails to the Complainant raising queries in relation to some of the books and records of the Respondent. The Complainant made admissions in her responses to those emails, which were considered by the disciplinary panel, together with the books and statements presented and the recordings. The allegations against the Complainant were serious and so the disciplinary panel treated them seriously and took time to carefully consider each one.

The Complainant made a number of objections to the disciplinary process, which were noted and addressed by the MC.

1. The Complainant complained about SLO2 being a member of the disciplinary panel on 12 February 2015 because of an issue which involved SLO2’s husband. SLO2’s husband had raised an issue in the summer of 2014 when his service to the facility was being reviewed by the MC. The issue in question (that of failing to provide a staff member to accompany the children from the local national school to the after school on more than one occasion in the school year 2013/14) was carefully investigated and found not to be substantiated by HRI2 in HR Company 2 and this was reiterated to the Complainant.
2. The Complainant complained in February 2015 of perceived bullying on the part of SLO1 against her. This was addressed in correspondence which informed the Complainant that SLO1 was acting on instructions from the MC to collect information regarding the running of the childcare service. SLO1 also replied to the Complainant in this regard on 21 March 2015, informing the Complainant that her involvement related only to investigating issues concerning the Complainant and that she would have “no role whatsoever in any decision making process.”
3. The Complainant objected to the extra allegations against her. SLO1 replied that these had come to light, and that the SLO1 was invited to respond to them and could engage a Solicitor for this purpose.
4. The Complainant objected to the disciplinary hearing being conducted on a Saturday and therefore the first hearing was rearranged to accommodate her from Saturday 28 March to Friday 27 March.

The Complainant was advised in writing on 7 March 2015 that SLO1 would do her best to ensure the attendance of witnesses at the hearing. WIT 1, WIT 2 and WIT 3 attended the first disciplinary hearing and answered questions put to them. Other witnesses were unable to attend for personal reasons. Signed statements of other witnesses were read out and put to the Complainant so that she could respond. Reasonable efforts were made by the Respondent to locate and have witnesses attend in person.

All the evidence against the Complainant was fairly put to her and she was given every opportunity to respond. The Complainant was satisfied that she was in a position to respond to the evidence presented and made various factual admissions which were carefully considered by the disciplinary panel.

The Complainant addressed emails after the disciplinary process was invoked on 7 March 2015 to MC2. SLO1 rather than MC2 replied to these emails as the separate and defined roles of members of the MC including MC2’s role for the purpose of any independent appeal, was clearly outlined to the Complainant in correspondence dated 7 March. For MC2 to have become involved during the investigative and disciplinary process would have affected his independent role at the Appeal and therefore this did not occur. MC2 simply informed members of the MC what their respective roles should be and had no involvement in the investigative, or disciplinary process.

The Respondent complied with its own procedures and policies in relation to the investigation, the disciplinary and the appeal process and where this was not possible (e.g. with respect to the ten day period for the investigation by external consultant HR Company 2) it was to the Complainant’s benefit to afford her all due process.

The Respondent’s decision to dismiss was within the range of reasonable responses of a reasonable employer to the conduct concerned, having regard to the surrounding circumstances, including the impact of the conduct on the Respondent as against the impact of the dismissal on the Complainant.

At the appeal the Complainant did not dispute the factual findings against her or the admissions she had made, but rather took issue with the disciplinary process. MC2 carefully reviewed the evidence and considered the Complainant’s submissions in relation to the process, prior to making a decision to reject her appeal.

The gravity of the breaches of the Respondent’s policies by the Complainant was sufficient to amount to gross misconduct and as such the sanction imposed was proportionate and the dismissal was fair.

Findings and Conclusions:

There was a full opportunity for both the Respondent and the Complainant to put forward detailed submissions via written and oral evidence. Evidence was additionally heard from witnesses. I have considered all this information in conjunction with legislation and case law in reaching a finding.

The Complainant

The Complainant commenced employment in 2003. She is an experienced Childcare Manager and there were no issues regarding her performance prior to this. I have additionally considered the Complainants length of service. The Complainant had no previous complaints raised against her and had an unblemished record.

Allegation 1

The issue that sparked the initial investigation was made by a previous employee. This allegation is known as allegation 1 and requires particular review based on its serious nature relating to the inappropriate handling a child.

The Complainant had made a report to the MC critically reflecting PE1’s suitability and competence. This employee (PE1) had already made a formal complaint against the Complainant and had a solicitors letter sent to the company contesting the renewal of her contract so it can be held that she was a disgruntled employee. This complaint was made after this PE1 had left employment verbally by phone to HRS1. 

• PE1 had been met by HRS1 a few weeks previous but and she did not raise this issue then.
• PE1 was not met by the investigation manager HR12 as part of her investigation.
• PE1 said she raised this issue with SLO1 but she said it was not raised to her.
• A parent was allegedly present when the incident occurred, this parent was not interviewed.
• The incident occurred approximately 6 months prior to it being investigated. 

PE1 was not met to present her complaint. PE1 was not questioned as to why she had not raised this allegation earlier given her management capacity. PE1 was not questioned as to why she did not record it in the incident book at the time. The above mentioned needed clarification in order to facilitate a fair investigation. The Complainant didn’t remember the incident clearly which was 6 month previous to the investigation.

Allegation 2

There was no clarification where allegations 2 and 3 from the initial investigation came from. Allegation 2 was in relation to isolating a child. This was investigated 13 months after the incident was alleged to have occurred. There is conflicting evidence presented by the Complainant of 20 minutes and the WIT4 who says it was up to 80 minutes. Neither version is collaborated. The matter was allegedly raised at a staff meeting by WIT1 however WIT4 chaired that meeting and PE1 took the minutes of the meeting and it was not recorded in the meeting minutes. WIT4 and WIT1 say they raised this issue with the SLO’s but the SLO’s said this did not occur when questioned at the adjudication hearing. HRI2 did not follow up and interview the SLO’s to identify why they did not follow up these matters at the time especially as it was such a serious matter.

The disciplinary panel member MC3 stated that she preferred WIT4’s evidence which was a written statement over the Complainants oral evidence in relation to this allegation. She stated she understood that the Complainant accepted that she inappropriately handled the child. However this is contested by the Complainant who said she did not agree with or accept that she inappropriately handled the child. When questioned regarding the minutes of the meeting which had no record of this incident MC3 said they did not consider this they took it that they could not redo the investigation and they were just to decide on a sanction.

Allegation 3

Allegation 3 was not upheld as it was based on issue of transporting children without staff accompanying them but this letter was replied to by SLO1 without the Complainant even knowing about the matter which occurred 3-4 months previously. It was not identified where this allegation came from for to have it added to the investigation. It was never investigated correctly.

The HRI2 said she was appointed by SLO1 who contacted her on behalf of the MC. She then met 3 members of the MC to prepare for her investigation. She wrote to the Complainant on the company’s headed paper to commence the investigation. HRI2 told the MC and it is recorded on their minutes to document any other items that may warrant investigation and disciplinary which causes concerns regarding her independence. The Disciplinary Panel and the Appeal Panel thereafter based their decision solely on this investigation which was not comprehensive enough given such a serious complaint in the childcare profession. MC3 who was a member of the disciplinary panel said it wasn’t her job to redo HRI1’s investigation. However, it was her job to ensure she was provided all the evidence they required to make a fair decision.

Allegation 3 in the second investigation is in relation to subvention fees. The key witness to this allegation was WIT8. She had 6 years’ service with the Respondent in the role of administrator which involved administering this scheme. When she was contacted by SLO1 as part of her investigation she was told there was 11 allegations against the Complainant and she was asked to provide a statement. This statement was modified by the Investigator and subsequently was not used. This is concerning as it does not give me confidence that the Investigator was trying to get to the truth in relation to this complex issue.  

This allegation is a complex one and I do not feel it was thoroughly investigated. I am particularly concerned that witness WIT8 was not interviewed. WIT8 was the main person who was responsible for the administration of the scheme and her evidence at the adjudication hearing was extremely helpful in reiterating my concern that the investigators did not seek evidence that would vindicate the Complainant so the investigation process was flawed as a result. A witness regarding this allegation was a parent WIT3 however it was not this parent that was involved in applying for her child’s subvention but it was the other parent. This is not therefore helpful evidence. MC3 when questioned regarding her experience of subvention stated it was with WIT8 that she liaised regarding hers as a parent. This commentary and involvement did not allow separation of process or objectivity.

Fair procedures and natural justice which are crucial for any fair investigation to occur. There are many flaws in this regard noted above.

Right to Know the Full Details of the Allegation

Regarding the allegation of retaining documents that should not have been retained there was no proof of this allegation given to the Complainant. The Complainant was never shown the documents she was supposed to have retained. SLO1 did not show them to her for data protection reasons. This is unacceptable based on the fact she needed to defend herself in relation to this allegation. This was not providing a fair process to the Complainant.

Witness Evidence

The investigators did not satisfy me that they made every effort to meet the standard required to get to the truth in relation to inviting relevant witnesses to partake in the investigation.

• For example WIT8 was not interviewed or requested to attend.
• Witnesses the Complainant requested were not invited by the company nor facilitated.
•  

The evidence presented in minutes and based on evident presented by SLO’s and the Complainant I found are more convincing than that of PE1 or WIT4 who were clearly disgruntled and put forward complaints of stress against the Complainant so therefore their evidence should be validated and investigated thoroughly on this basis and this was not done as part of the investigation.

It is understandable that witnesses may not want to attend and that due to scheduling may not be able to attend specific appointments however reasonable efforts should be made to particularly meet key witnesses. I consider that WIT8 and PE1 as key witnesses that should have been met. Giving the Complainant the opportunity to invite witnesses is not acceptable. This has been reiterated in the Select Service Partner case , SSP Ireland v Albert Ford (2017) (ILCR Determination Number UDD1758) as I have outlined it is clear that in order to ensure compliance with fair procedures.

All witnesses should be interviewed and reliance should not be placed only on written statements or complaints, especially in relation to key witnesses. In addition, if an employee puts forward witnesses in his/her defence the person investigating matters should interview such witnesses and then determine the weight to be placed on this evidence. Therefore it is important that any defence put forward by an employee is dealt with objectively and is investigated to ensure that the investigation is based on getting to the truth fairly and objectively.

Impartiality of The Process

• The Management Committee (MC) at the time was made up of SLO1 (who became the investigator of allegations 3-8), SLO2 (who was on the disciplinary panel) and MC2 (who became the appeal person) and MC3 (who was on the disciplinary panel).
•  
• The Chair of the Management Committee MC2 resigned on 13 November prior to the initial suspension letter being sent to the Complainant stating a difference of opinion with the MC as a reason. He remained involved in the process. He was also the appeal person.

• • MC3 stated that at the disciplinary/investigation meeting the Complainant objected to SLO1 asking questions so SLO2 did the questioning but they reverted back to SLO1 asking the questions at the second disciplinary/investigation meeting.
  •  
  • MC3 clarified it was SLO1 only who called witnesses.
  •  

• Regarding the appeal SLO1 said he recommended his decision but it was up to the MC to then decide on the outcome. I am particularly concerned that the Appeal Manager MC2 made a certain decision and communicated it to the Complainant at the end of the hearing and a different decision was subsequently issued after he spoke to SLO1 according to his evidence; again this compounds my concern that separation of process did not occur.

I find the involvement of SLO1 in all aspects of this process from start to finish in her role as SLO and on the MC and her involvement as the main investigator of complaints 3-8 as a concerning flaw in the process and my concerns regarding this person’s involvement include the following:

• The SLO1 was a member of the MC and had met staff prior to any investigations commencing individually with another SLO. They presented their findings to the MC. It was this process that initiated the Service Enquiry to commence. The SLO1 had a very in-depth involvement and understanding of all perspectives and issues therefore it would be difficult to ensure she would remain objective throughout the process.
•  
• The Complainant objected to SLO1’s involvement from the outset. The complainant also raised a bullying complaint against this person. SLO1 replied on behalf of the Committee to say she would be involved and this was approved by the MC.
•  
• The SLO1 was involved in the suspension of the Complainant as she was involved in the decision to suspend her in her role in the MC and she also sent the email on behalf of MC2 to the Complainant.
•  
• SLO1 confirmed she added allegations to list to be investigated eg staff’s children onsite without being signed in and without paying fees. SLO1 confirmed in her evidence that “MC2 wanted to draw a line in the sand but she wanted to put all the allegations to the Complainant to give her the opportunity to respond”. SLO1 stated at the hearing that she “wanted to include the allegation regarding staff feeling they were threatened was not a negative because by putting it to her she would have a chance to reply to this allegation as she had not had a chance to date.” Also she was not happy the CCTV matter was dealt fully by the Chair at the time so she felt it should be included as it was still an issue with her.
•  
• MC3 who was member of the management panel and was involved in the disciplinary panel confirmed that it was SLO1 not the MC as a whole that decided to add in the additional allegations to the investigation allegations 3-8.
•  
• This SLO1 was the only investigator of allegations 3-8. She was involved with advising MC2 throughout the process and was additionally involved in adding on allegations
•  
• In addition MC2 was the appeal authority and he confirmed his decision at the appeal meeting which was varied after he spoke to SLO1. Therefore she was too involved in all aspects of this disciplinary so separation of process did not occur.
•  
• SLO1 spoke to HRI2 who investigated 3 complaints and noted in the MC minutes was a record to keep a note of any other matters that can be added for investigation.
•  
• The investigator too it upon herself to decide who was a relevant witness and what was relevant in terms of evidence to present to the disciplinary panel. SLO1 confirmed at the hearing that the Complainant wanted to call WIT7 the parent of the child who the inappropriate handling related to as a witness but SLO1 decided that she did not call her as it would be a breach of confidentiality. This person was also the person who was to have sent the letter regarding allegation 3 in the first investigation. However she did call another mother WIT3 in relation to another allegation which leaves the rational of why she did not call WIT7 questionable.
•  
• WIT 1 was unavailable to attend the hearing (investigation/disciplinary one) due to a sick child – she was a crucial witness to allegations 1 and 2 and she was not rescheduled to attend. SLO1 said she did not consider inviting PE1. SLO1 stated that the Complainant should have contacted any witnesses she wanted to attend herself. This was not feasible or facilitating fair process to get the truth and facilitate a fair investigation.
•  
• She did not present all the evidence independently and instead only presented evidence to prove guilt rather than evidence to vindicate the Complainant. The investigator and the Investigation process needs to crucially present evidence to identify the truth and I am not satisfied this was the case. For example WIT8 who’s evidence was very crucial and helpful at the adjudication hearing confirmed that she was not invited to attend as a witness and was requested to instead to present a statement which was modified by the investigator and ultimately not used. SLO1 in her role as the investigator decided to ask her about her role only via a statement and decided as she was not an employee at the time inviting her would breach confidentiality. This is unacceptable especially based on such a complex and serious allegation that was being presented.
•  
• The Investigation of allegations 3-8 and the disciplinary hearing were combined and they were led by the SLO1 and the disciplinary panel were not in control of making an independent decision nor were they in control of asking for witnesses/evidence etc. they followed SLO1’s lead. It was left to the Complainant to organise her own witnesses by SLO1 but the Respondent should have facilitated the same.
•  
• SLO1 was involved at the appeal in discussions with MC2. MC2 told the Complainant the decision at the end of the hearing. In relation to the appeal MC2 said the scope of the appeal was to focus on any additional evidence presented only and to identify if they breached any procedures. After getting guidance from SLO1 he then upheld all aspects of the disciplinary panel’s decision.

Separation of Investigation and Decision Stage

The disciplinary panel were only given the book of evidence as it was known at the hearing at the end of the second day of the disciplinary hearing 1. Therefore I find that it was difficult for them to fully understand the complex allegations that they were addressing e.g. the subvention scheme. MC3 stated that she did not have detailed knowledge of the subvention scheme only in her role as a parent.

It was also confirmed that because the disciplinary panel had very limited information prior to attending the investigation/disciplinary meetings they had to ask SLO1 many questions to understand the allegations and evidence rather than ask the Complainant questions etc. It is clear that the combination of the investigation and disciplinary meetings meant that neither the Complainant nor the Disciplinary Panel had a fair opportunity to examine the “book of evidence” which was complex and contained a lot of information. The meeting did not allow the Complainant to address her concerns. The Disciplinary Panel had no investigation report to work from and I find that the fact-finding was not done in advance.

When asked regarding her state of mind and how it influenced her at the disciplinary meetings and in reaching her decision MC3 stated she was really concerned regarding the rationalisation of food portions which was raised by one of the SLO’s. There were only 2 SLO’s i.e. SLO1 who was sitting on the disciplinary panel with her and SLO2. There was no evidence presented at any stage of the investigations, disciplinary etc. of this allegation. It is however concerning that a SLO had communicated this without evidence and it had influenced the disciplinary panel member accordingly. This additionally adds to the Adjudicators concern of bias and failure to provide separation of process and a fair investigation.

Flawed Investigation

MC3 who was on the disciplinary panel said they did not revisit HRI2’s investigation and “relied heavily on this evidence” in reaching their findings. They felt the manager should be a role model and a breach based on the findings of the report warranted dismissal for 2 of the allegations. However the 2 members of the disciplinary panel said they differed in opinion regarding some of the sanctions. The fact the disciplinary panel and appeal manager MC2 based their decision on the initial investigation report of HRI1 and that of HR12 which I find were both flawed for the reasons outlined above means their decision was also flawed.

Fair procedures and natural justice which are crucial for any fair investigation to occur. There are many flaws in this regard noted above.

Conclusion

The importance of fair procedures is a key requirement outlined in Section 6(7) of the Unfair Dismissals Act in addition to the Code of Practise on Grievance and Disciplinary Procedures SI 146 of 2000.

The requirement to ensure the investigation is conducted fairly to identify the truth in line with the rules of natural justice is crucial and has been reiterated by Justice Charlton in Galway-Mayo Institute of Technology v Employment Appeals Tribunal and others [2007] IEHC 2001 confirmed the principle applied by the Labour Court in this case by stating that “When [a] decision making body is drawn into the process of attempting to find out the facts, then it does so in fulfilling the fundamental principle that justice requires to know the truth before it can decide on the remedy.” 

• The initial two investigations were flawed as they were not complete and did not aim to objectively identify the truth which the disciplinary and appeal process was based on for the reasons outlined above.
• The issues related to the investigation flaws were not remedied at the disciplinary nor at the appeal stage of the process.
• The Complainant was suspended from the 10 November 2014 until her dismissal was confirmed in June 2015. The rational for the delay is not acceptable. This time line is deemed excessive and I find it impacted the fairness of the process.
• It is accepted that is it difficult to achieve separation of process but reasonable and fair efforts need to be made to achieve it and the reason for it is reflected in this case where one person became the judge, jury and executioner. This did not occur.

Section 6(1) of the Act provides that the dismissal of the Complainant is deemed unfair unless, having regard to all the circumstances there are substantial grounds justifying the dismissal. Pursuant to Subsection 6 the burden of proof rests on the Respondent to show that there were substantial grounds. Subsection 4 allows for dismissal to be justified for certain specified reasons including conduct. I am not satisfied that the conduct of the employee on this occasion was investigated fairly in line with the rules of natural justice therefore I am not satisfied that the conduct of the Complainant amounted to unfair dismissal.

Decision:

Section 7 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I have considered all evidence presented and the relevant legislation in reaching my decision.

In hearing this claim, it is not a matter for me to decide on the issue of guilt or innocence of the Complainant. The question for me as Adjudication Officer is whether, following a fair and transparent investigation and disciplinary process, the Respondent’s decision to dismiss was one that a reasonable employer might have made. (EAT – UD690/2012). The principles of natural justice must be applied by the Respondent in the process it followed in relation to the Complainant and how they reached their decision to dismiss her. This requires that fair procedures are applied, not perfect procedures. As stated by Barrett J. in Boyle –v- An Post (2015) IEHC 589 “fairness is ever required, perfection is unattainable”.

I have found that both investigations conducted were flawed and that the rules of natural justice were not afforded to the Complainant. I have also considered that as a result of these flawed investigations the disciplinary panel’s decision and that of the appeal manager were also flawed. Separation of process did not occur. I find that SLO1 was the puppeteer of the entire process and she pulled the strings of the MC in relation to the allegations to be added, the investigation process, leading the disciplinary panel and advising the appeal decision making person this meant there was no separation of process and the rules of natural justice were not achieved throughout this process. In short she was the judge, jury and executor. I have considered the impact of the decision to dismiss the Complainant based on all these serious allegations and on the loss of earnings of the Complainant as she is a Childcare professional who was working locally in her community prior to this dismissal. I have considered the Complainant role as the Manager in addition to the consideration towards whether she contributed to her own dismissal. From the outset the Complainant clearly outlined her objections to the SLO1’s involvement throughout the process. This was not considered. Matters were investigated that had previously been addressed and concluded.

Taking the above into account I award the full amount available to the Complainant which is 104 weeks which is €66,964.56 due to significant impact on the Complainant of this unfair dismissal and the likelihood that her future employment prospects have been impacted.

Dated:   04 April 2018

Workplace Relations Commission Adjudication Officer: Caroline McEnery

Key Words: