Complainant

Respondent

Anonymised Parties

A Social Care Worker

A Health Care Provider

Representatives

SIPTU

CC Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00010500-001

29/03/2017

The complainant was initially employed by the respondent on January 1st 2012 and his employment terminated on January 12th 2017.

He was paid a salary of €29,434.00 per annum.

The complainant was dismissed following an incident in which he was believed to have been asleep while on night duty. He was required to be awake at all times to deal with any issues which residents might have, to administer medication and to undertake cleaning duties.

In the course of the night a resident left the facility at around 4.45am and returned about forty-five minutes later. On his way out and on his return the resident tried to communicate with the complainant but could not get a response on either occasion.

In a statement, the resident said he repeated the complainant’s name about six times as he was leaving but the complainant did not acknowledge him.

On his return the resident again could get no response from the complainant.

There are strict reporting requirements about such incidents and when the resident brought it to the attention of another staff member on the following day shift she activated the necessary reporting protocol.

The complainant was transferred to another location pending next steps.

The first of these was an investigation.

The respondent fully complied with its obligations in relation to the complainant’s rights; he was advised of the allegation, given a copy of the procedures and terms of reference and advised that he could be accompanied at the investigation meeting.

He confirmed receipt of the materials at the meeting, and despite not being accompanied, indicated that he was agreeable that the meeting should go ahead.

He denied that he was asleep; but said he had been feeling a little unwell and sat down to recover.

He said that he saw the resident leave and gestured to him, but did not speak, and that, on the resident’s return he had opened the front door to enable him to re-enter before returning to the chair.

One of the investigators gave evidence on this point.

While the complainant had claimed that he had waved at the resident, in fact this was only a very low level gesture (which the complainant himself later confirmed to the hearing). She also said that the complainant had said he had temporarily lost his voice as a consequence of his bout of ill health.

The Investigation Team concluded that there was a case to answer and the respondent activated the disciplinary procedure.

Among the factors were that, if the complainant had observed the resident leaving and returning he made no mention of this in the daily report he is obliged to provide at the end of his shift.

Neither did he make any mention of the fact that he was unwell in the course of his shift, (necessitating him to rest on the chair.)

She (the investigator) stated in evidence that the conclusion that the complainant had been asleep was based on a combination of factors which were listed in the report of the investigation.

He was invited to a disciplinary hearing and the respondent again fully complied with the notification requirements, although the complainant again consented to proceed without representation. The decision maker had no previous involvement in the case.

The complainant repeated in his defence the case already submitted to the investigator. He denied that he had been asleep.

On foot of the hearing a decision was taken on January 1st 2017 to terminate his employment.

He appealed the decision on January 17th and following two appeal meetings (at which he was represented by his full-time union official) in due course, on March 22nd the decision was taken to uphold the decision of the disciplinary decision maker and reject his appeal.

The person who heard the appeal had no previous involvement with the case. In his evidence, he said that he did consider alternative, lesser sanctions but felt that on the facts before him the decision to terminate the employment was justified.

The respondent also made legal submissions on the tests to be applied in assessing conduct necessary to justify the sanction of a fair termination.

In summary, the respondent met those tests in that a fair procedure was followed, the matter giving rise to the termination was a very serious one; the complainant had fallen asleep on duty and also failed to properly complete an important form, and the sanction was within the range of reasonable options.

The complainant criticised the procedure adopted by the respondent. For example, he was not told at the investigation stage that disciplinary charges might follow, he did not get the Terms of Reference until the day of the meeting and did not get sufficient notice of the meeting.

He says he was fully aware that the resident was leaving the premises and confirmed this in his direct evidence at the hearing.

He heard him open the gate on his return and he (the complainant) went to open the front door to facilitate his re-entry.

He had been sitting in the dark and the resident could not have been in a position to see whether his eyes were open, or whether he had made a hand gesture.

He also criticises the disciplinary hearing stage and says he was not put on notice that the charge was one of gross misconduct.

There are three key pillars involved in an assessment of the fairness of a dismissal.

In order for a dismissal to be fair there must be some significant grounds to justify disciplinary proceedings or other actions against the employee related to performance or conduct.

The onus under the Act falls on the employer to justify the dismissal.

Secondly, in our employment rights system there are well established procedural obligations placed on an employer who is carrying out disciplinary action in order to protect the rights of the employee and ensure that justice is done.

These are not particularly onerous and are generally well known.

They are referred to by such terms as fair procedure and natural, or constitutional justice.

Many, if not most cases coming before an Adjudicator are argued on the basis of facts that are generally not in dispute and the outcome normally turns on alleged inadequacies in the procedures and/or the appropriateness of the sanction.

That is not entirely the situation in this case, as the complainant has disputed one the facts at the heart of the issue and also contests the sanction on the basis that it was excessive.

In such a situation, the conduct of the process by the respondent is not just a matter of whether the complainant’s rights were respected but additionally, whether its conclusions are reliable.

The final pillar concerns the sanction. In this the WRC Adjudicator will in general apply not his own view as to the gravity or otherwise of the complainant’s conduct but, in addition to the procedural aspect of the case whether the sanction lies within a range of what night be considered reasonable, having regard to the nature of the respondent’s business activity.

In this case, the allegation that a care worker would be asleep at a time when he was supposed to be on duty, and subsequently fails to report the departure of the resident during the night is sufficiently serious to trigger the process.

I am satisfied that the investigation was both thorough and fair and fully justified the decision to take the next step; the disciplinary process. There was some criticism of aspects of the investigation but I find that there was nothing that materially undermined the complainant’s rights, especially bearing in mind that this was purely a fat-finding exercise.

Again, from a procedural point of view the disciplinary process could not be criticised; a point accepted by the complainant at the hearing.

On the central conflict in the evidence I fully investigated the complainant’s case which was that at all times he was awake. He offered no explanation for why he did not complete the necessary report about the resident’s departure and return.

His case lacks credibility. There is no reason why the resident would concoct a story regarding the number of times he called the complainant. The complainant demonstrated how he waved at the resident on his departure; it was little more than the raising of a finger.

He said that he did not speak to the resident as he had lost his voice; surely a resident leaving the facility in the middle of the night, would trigger some communication, or attempt at communication beyond a barely visible hand gesture. (even though the residents in question are low dependency and free to come and go, subject to their movements being recorded).

Likewise, there was no reason why he should have to open the door on the resident’s return, as he claimed, and in any event the resident denied this and said he opened the door himself.

Put briefly, the entire sequence of events as described by the complainant lacks credibility.

His submission was that he was taken unwell, he ‘felt dizzy and sat down, closed his eyes, but believes he remained aware of his surroundings the whole time’.   (Emphasis added).

But unfortunately for him this alternative explanation, and one of the grounds of his case at the hearing, that the mitigating circumstances of his illness were ignored during the process, also lacks credibility.

The complainant at no stage relied on such circumstances; he denied having been asleep at all and he made no report of that at the time. He is asking this, and the previous adjudicators to find that his closed eyes, his ‘belief’ (as it was put) that he was aware of his surroundings and the evidence of the resident that he was not meant that he was not really asleep.

The Appeal decision maker gave evidence and said that his decision was based on the fact that he could not trust the complainant’s explanation and while he considered other options he felt that termination was the correct sanction.

I agree with him.

The respondent conducted a fair process and on the basis of the evidence before it, the nature of its work, and the conduct of the complainant (both in respect of the incident itself and his subsequent conduct) its decision lay well within the range of reasonable sanctions and I find that the decision to terminate was fair.

For the reasons set out above I do not uphold complaint CA-00010500-001 and it is dismissed.

Unfair dismissal.