Complainant

Respondent

Anonymised Parties

A social care worker

A health care provider

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-00013542-001

01/09/2017

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

CA-00013542-002

01/09/2017

The complainant was a social care worker with responsibility for caring for adults in one of the respondent’s houses in County Laois.  The residents, or “servicer-users” as they are known, have challenging behaviour and have conditions such as borderline personality, autism and attention deficit hyperactivity disorder.  The complainant as dismissed on June 8th 2017, following an investigation into an incident in which the HR Manager concluded that he had pushed a service-user with some force.  This action was considered to be gross misconduct.

The complainant argues that his dismissal was unfair and disproportionate to his conduct during the incident.  He also complains that he was not rostered for the 169 hours per month specified in his contract, with the result that he suffered a loss of pay.

Incident that Led to the Complainant’s Dismissal

This case centres on an incident that occurred on March 6th 2017, when a service-user in the care of the respondent organisation was pushed by the complainant.  For the purpose of this document, I will refer to the service-user as “SU.”  The complainant was one of SU’s two key workers and, on the day in question, he refused her request to use the internet, as she had exceeded her time allowed online.  The amount of time that SU was permitted to access the internet was provided for in her behavioural care plan.  SU reacted to this restriction by kicking the complainant in the leg, shouting and breaking a door handle and a handle to a cupboard in the house where she lives.  Following the outburst, SU went into a corridor and attempted to prise a light switch cover from a wall.  The light switch was not in use and was covered by a blank box.  A picture of the cover was shown in evidence.  While she was prising at the switch cover, the complainant approached SU and pushed her.  When she reacted to the push, SU punched the complainant in the head and headbutted him as he fell on top of her.  SU was then restrained by the complainant and two male colleagues.  Following the incident, the complainant was out of work for a number of weeks. 

An incident report was completed by the staff in the house, and from the information contained in the report, there was no reason to suspect that SU had been physically assaulted.  However, the complainant made a complaint to the Gardaí about SU’s behaviour during the incident, with the result that the Gardaí came looking for CCTV footage of what occurred.  This CCTV record was shown as evidence at the hearing.  When the management saw the footage, they were concerned that the complainant’s pushing of SU may have amounted to a physical assault, and secondly, they were concerned about the nature of the restraint applied to SU by the three members of staff.  The complainant was investigated in relation to the push and the restraint and his colleagues were investigated in relation to the restraint. 

Investigation of the Incident

The Director of Operations and the Deputy HR Manager who conducted the investigation into the incident attended the hearing of this complaint.  The investigation was carried out in accordance with specific terms of reference which were submitted in evidence.  On April 26th 2017, the complainant was interviewed and shown the CCTV recording of the incident and invited to comment on it.  He declined the opportunity to be represented at the interview.  He was also shown the statements of his two colleagues who went to his assistance,  and two others who were on duty on the day in question and he was and asked for his comments.  A note of his interview on April 26th was included in the papers submitted in evidence. 

SU was interviewed by the respondent’s Designated Officer for the purposes of safeguarding service-users.  SU said that the complainant pushed her, but she said that “he didn’t push me hard, it was a brother / sister type thing.”

The investigators concluded that there was evidence of physical assault by the complainant against SU and that, when he pushed her, he had used force.  The investigators also determined that there was a case to answer with regard to the application of restraint during the altercation and the complainant’s actions were referred for consideration as a disciplinary matter.

Evidence of the Operations Manager who Conducted the Investigation

In response to questions from Mr Deegan, the Operations Manager said that the house where the service-user lives is staff by a highly-trained team who care for the residents in accordance with what is known as a “multi-element behavioural support plan” (MEBSP).  Each resident has their own plan, which is developed in line with their needs and can be adapted to suit ongoing changes, progress or behavioural issues.  The care team is made up of six staff and one team leader, with three employees off duty at any one time, and one on sleep-over duties.  In her evidence, the Operations Manager said that the staff are trained in the use of restraint, using what is known as management of actual or potential aggression (MAPA).  The objective of this strategy is to use the least-restrictive practices to restrain a service-user for the shortest period of time.

An incident report form was submitted in evidence, outlining the altercation with SU and its aftermath on March 6th 2017.  This was sent in the normal way to a central e mail address set up to receive such reports.  Describing what occurred when SU attempted to remove the switch cover from the wall, the report states that the complainant,

“…moved towards her to assess the situation and attempt to reason with her but she punched him in the face.  (Name of second staff member) then assisted (the complainant) and put SU in a MAPA high level standing hold.  SU then went to the ground and continued to try and kick staff.  As SU went to the ground she head-butted (the complainant) into his head.  (Name of third staff member) then joined and held SU’s legs while SU was held in a supported prone position by (the complainant and second staff member).”

The incident report was reviewed by the organisation’s behavioural specialist and no action was taken.  Two weeks later, on foot of a report to the Gardai that he was assaulted by SU, they requested footage of the incident.  This prompted a review of the CCTV footage by the behavioural specialist, who escalated the issue to the Regional Manager and the organisation’s Safe-guarding Officer.  This initiated a formal investigation.

In her evidence, the Operations Manager said that the complainant said that he pushed SU away from the switch cover, but that he did not use force.  The investigation team then met with the two colleagues who, with the complainant attempted to restrain SU.  They said that they didn’t witness the push, but emerged from a room onto the corridor to help with the situation. 

An investigation report was completed on May 16th which concluded that the complainant had a case to answer in respect of an allegation of physical assault and that he and his two colleagues had a case to answer in respect of the inappropriate use of restraint.

At the conclusion of her direct evidence, the Operations Manager said that MAPA training instructs staff never to intervene alone when a service-user requires restraint, and to intervene physically only as a last resort.

In his cross-examination of the Operations Manager, Mr Hennessy said that the complainant thought that SU could have removed the switch cover to expose live wires, but the Operations Manager repeated that there should never be a “one-person physical intervention.”  She said that there were two colleagues in the vicinity of the incident.  She also said that there was no damage to the switch cover.   

Disciplinary Meeting

Another member of the respondent’s operations team, accompanied by a HR Manager, conducted the disciplinary meeting, which was held on May 29th 2017.  The complainant was informed that he could not be accompanied by the colleague he had selected, as this person was interviewed as part of the investigation.  He then declined the opportunity to be accompanied.  The notes of the investigation meeting were considered, where the complainant said that he pushed SU, but that he hadn’t used force.  The investigators had concluded that force was used, as, from the CCTV footage, SU appeared to fall backwards on her feet.  At the disciplinary meeting, the managers questioned the complainant about why he pushed SU and he said that he said that he “had to move her away from the socket.”  He explained that he had “a duty of care” and that if he “had let her pull that socket away and let her electrocute herself, there would have been a bigger story than me pushing her.”  The respondent’s maintenance department had examined the switch cover and found that it had not been damaged.

When he was asked what he learned from the incident, the complainant said,

“If I had to intervene in such a way to make sure none of them (the service-users) were harmed I would do it again.  At the end of the day my job is to ensure they are safe and that is what I felt I was doing, moving her from that socket.  She had just ripped two door handles off a door.  I don’t think she was going to that socket to attempt to, I feel she was going to rip it away.  She had just ripped two door handles off she was going to rip that socket off and judging by the CCTV the force she was using she was getting very close to it.”

When he was asked what his training taught him about responding to such an incident, he replied, “wait for help,” but he said that his “gut instinct said if I waited for help how much longer would it have been / taken until she hurt herself?”

Although he was given two more opportunities at the meeting to say how he might have managed the situation differently, the complainant said that because of the “kind of force” that SU was using at the socket, he had to push her out of the way.

During the discussion about the restraining of SU following the pushing incident, the complainant said that he couldn’t remember what happened, because SU had punched him in the head and then head-butted him, with the result that he was disoriented.  The investigation team had concluded that the conduct of the three staff members was inappropriate and did not conform to any prescribed teaching on the management of actual or potential aggression by a service-user, nor did it follow the physical interventions set out in SU’s behaviour support plan.

Evidence of the Operations Manager who Conducted the Disciplinary Meeting

Questioning the Operations Manager, Mr Hennessy referred to the fact that SU said that she was pushed, “but he didn’t push me hard” and asked if the disciplinary team had taken this into consideration.  The Operations Manager said that “the problem is the push, which should not have happened.”  She said that, although they did not analyse every single frame of the CCTV record, the level of force was relevant to the outcome of the investigation, because “we could see SU falling backwards.”  The questions for the disciplinary panel were, did the push happen? and was it necessary?  They concluded that it did happen, that it should not have happened and that the complainant was trained to deal with incidents such as this without resorting to a physical intervention.  The complainant’s actions were exacerbated by the fact that, at the disciplinary meeting, he said that he would do the same again if confronted by the same circumstances.  The witness said that the key to the disciplinary process is to learn from errors, but the complainant did not reflect on the experience and does not appear to have learned from the incident.

When she was asked about the complainant’s statement that SU had tried to assault him, the Operations Manager said that SU punched the complainant after he pushed her.  

Dismissal

On June 8th 2017, the HR Manager who participated in the disciplinary meeting wrote to the complainant to confirm that he was being dismissed.  Setting out the reason for the dismissal, the letter stated:

“Further to our formal Disciplinary hearing, held on Monday, 29th May 2017, the company is now satisfied that your actions relating to the first allegation of physical assault towards Service-user are founded and deemed physical abuse.  During the Disciplinary hearing, you admitted that during the incident 6th March 2017 you pushed Service-user, your explanation for this was that it was for her own safety as she was trying to pull an electrical socket off the wall, however, it was identified through the investigation that there was no immediate risk to the Service-user.  You also highlighted that during an interview with Service-user she stated that you did push her however, did not use force.  On review of the CCTV footage, it clearly shows that you walked up to Service-user and, without pausing, pushed her with some force.  This then resulted in Service-user assaulting you.  This is a serious breach of company rules and is deemed as gross misconduct as outlined in the company handbook.

“In relation to the second allegation whereby it was alleged that there was inappropriate use of MAPA intervention during the same incident involving Service-user on the 6th March 2017, upon review of the CCTV there is evidence to support bad practice during the MAPA restraint however, you stated that due to being assaulted by Service-user during the same incident you were concussed and could not recall this part of the incident including MAPA restraint.  Therefore, this allegation is inconclusive.”

The complainant appealed against the decision to dismiss him, and following an appeal hearing on July 13th 2017, the decision to terminate his employment was upheld.

The Respondent’s Reasons Why the Dismissal is Not Unfair

Setting out their reasons why, in their view the dismissal of the complainant was not unfair, Mr Deegan stated that there is no concept of “an acceptable level of abuse” of service-users.  They argued that SU is a very vulnerable person, and the fact that she engages in challenging behaviour makes it all the more important that staff follow the detailed, evidence-based plans that are in place to de-escalate her behaviour.  Mr Deegan submitted that the complainant ignored the plans for SU’s care by pushing her, with no credible evidence that this was necessary in the circumstances that prevailed.  The complainant failed to show that he had learned from what happened, and stated that he would do the same thing again, if faced with the same circumstances.  For these reasons, the respondent’s position is that the dismissal of the complainant was justified.

Defence of the Complainant’s Actions

For the complainant, Mr Hennessy said that SU had her hands on a socket fitting for 15 seconds, using her body weight to remove it. The complainant engaged her by putting his right hand on her hands and his left hand on her back “to gently move her from the wall.”  She then punched him in the head.  Mr Hennessy said that the force was “gentle, proportionate and minimal.”  Having reviewed the CCTV footage, Mr Hennessy said that SU lost her balance and stumbled.  He said that the complainant’s actions were “a defensive manoeuvre” and that he used “minimum force to protect SU from danger.”  Mr Hennessy stated that the risk would have been greater if the complainant had not intervened and that the CCTV footage does not capture the exculpatory evidence, meaning that evidence was not considered which would have cleared the complainant of the allegation of assault.  Mr Hennessy said that, in their conclusion that the complainant physically assaulted SU, they engaged in gross exaggeration.  Arguing that the respondent took no account of the complainant’s objective to protect SU, Mr Hennessy said they responded disproportionately. 

In its use of CCTV footage, Mr Hennessy argued that the disciplinary process was flawed.  He referred to section 2 (c) (i) of the Data Protection Act 1988 which provides that data, 

“…shall have been obtained only for one or more specified, explicit and legitimate purposes.”

He argued that the CCTV footage is collected by the respondent is for the purpose of ensuring the protection of clients and staff, but it was used in this instance to support an investigation into an allegation of misconduct.   In support of his argument in this regard, Mr Hennessy submitted a copy of a case study from the Office of the Data Protection Commissioner, where the Commissioner concluded that it was unlawful to use CCTV to discipline two employees in a particular workplace, for issues related to irregularities in their attendance.

Evidence of the Complainant

In his direct evidence, the complainant said that the house where he worked was very tense and that he was fearful about what could happen.  He said that he knew that he had to remain calm.

He described his relationship with the service-users as “fantastic.”  He got into this type of work because he “always put someone else’s wellbeing before mine.”  He said that he was bullied as a child and as a teenager and that this gave him an empathy with vulnerable people.

The complainant said that he loved working with the respondent, and that he got on well with his colleagues and there was a good atmosphere in the house.  He came to the job with no qualifications and he said that the only training he got was 15 or 16 hours of MAPA training on restraint.  He said that this training was not effective and doesn’t teach you how to deal with self-harm.  Other skills he learned from his colleagues, and when he had time to read paperwork.

The complainant said that his relationship with SU was very good.  He had previously found her with a rope around her neck, and going blue, and he had cut the rope.  He described other incidents when she turned over a cooker and ripped the insides of a car apart.

Describing what occurred on March 6th 2017, the complainant said that SU had a history of self-harm and was unpredictable.  When he was asked by Mr Hennessy why he didn’t call a colleague to assist him, the complainant said that he thought that “she wanted to rip the socket off the wall” and he had to intervene as quickly as possible.  He said that his intention was to protect SU.   Mr Hennessy said that the CCTV shows the complainant pushing SU, but the complainant said that his intention was to move her from the socket.  After the incident, he said that he was concussed, and he couldn’t remember what happened with regard to how SU was restrained.  He said that his intentions are “to protect people who are undermined,” and that his dismissal has made him feel that “you are the epitome of what you have hated your whole life.”

In response to cross-examination by Mr Deegan, the complainant said that he was familiar with SU’s personal plan and that he would regularly update this plan.  He agreed that de-escalation is particularly important in SU’s case, but he said that he couldn’t remember this aspect of the MAPA training.

Mr Deegan put it to the complainant that the switch cover was not an electric socket and that there was no prospect that SU would remove the socket off the wall.  The complainant disagreed.  From the distance of a couch in a room off the corridor, he said that he asked SU to stop pulling at the socket.  When he was asked how he got from a position of trying to protect SU to pushing her, the complainant said, “it is my professional opinion that harm was imminent.”  He said that the CCTV footage shows “an obscured image.”  He accepts that “what the company see is a push.”  He agreed that his action was not in line with the training he received, which is to wait for help.  In this respect, he also agreed that his action on the day was not appropriate.  However, he said that he “would do what I could to protect service-users,” and that he did what he did “because in my professional opinion, I needed to protect the service-user.”

For the complainant, Mr Hennessy argued that it was not fair to hold the complainant up against the benchmark set out in the training manual, as there was no heading for dealing with the incident that occurred on March 6th 2017.

Referring to Mr Hennessy’s argument that the disciplinary procedure was flawed, Mr Deegan asked the complainant why he didn’t bring someone to the investigation meeting and the disciplinary meeting.  The complainant said that because he couldn’t bring the person he selected, he didn’t want anyone else.  He said that he brought his mother to the hearing of his appeal.

Use of CCTV Footage in the Investigation

I wish to address the use by the respondent of CCTV footage to investigate the complainant’s actions.  CCTV cameras are installed throughout the house where SU lives and where the complainant worked.  In the office of the team leader, a live feed from each of the cameras is available and, in this way, any member of staff in the office can observe the residents and their interactions with staff.  From the evidence I heard at the hearing of this complaint, it is apparent that the staff working with the respondent are aware that practically all their encounters with the service-users are recorded on CCTV.

Section 3.6 of SU’s behaviour support plan provides that:

“(SU) will be informed that CCTV footage will be installed in her environment.  All areas within the house will be monitored with CCTV footage.  A camera will also be placed outside the garden door.  Staff are to locate themselves in view of this camera at all times (unless under duress of circumstances they must attend to (SU) due to self-harm or behaviour of concern).

“(SU) will be informed that the CCTV footage will be used as evidence if (sic) the event of an accusation against staff.”

As one of SU’s key workers, the complainant was familiar with SU’s behaviour plan and he would have been aware of the purpose of the CCTV footage in managing her care.

No attention was given to the incident that occurred on March 6th 2017 until the Gardai looked for a copy of the CCTV footage.  They were made aware of the existence of footage by the complainant, when he lodged a complaint of assault against SU.  By so doing, the complainant sought to rely on the record of the CCTV footage in support of his allegation against SU.

At the commencement of the investigation into his conduct, the complainant was given a copy of the CCTV footage of the incident.  At the investigation meeting, he was asked to comment on the recording and to give his account of what was shown.  His solicitor was also given a copy of the footage; however, no issue was raised about the use of the CCTV until the day of the hearing at the WRC.

In response to the objection of Mr Hennessy on behalf of the complainant to the use of the CCTV, Mr Deegan referred to the unreported case of Hayden versus the Governor of St Patrick’s Institution.  Mr Hayden brought judicial review proceedings to the High Court to attempt to get the prison authorities to erase CCTV footage which recorded his involvement in the restraint of a prisoner in the prison yard.  While he accepted that his conduct was “unorthodox” he claimed that he was not informed that the CCTV recording could be used for disciplinary purposes.  Finding against him, Mr Justice Birmingham stated:   

“The obligations of the prison authorities are to ensure that institutions are well run and it would be destructive of good order if any allegation such as this, whether against an inmate or a prison officer, was the subject of an inadequate or incomplete investigation.”

The events of the case under consideration here mirror the Hayden case in many respects.  The CCTV recordings are used for the protection of the staff and residents in both scenarios.  The cameras are in full view of employees and residents.  In both cases, it appears that the use of CCTV footage for disciplinary purposes is not explicitly stated.

Since the expansion of the use of CCTV technology, where cameras are openly in use in a workplace, the Labour Court has consistently accepted that such evidence may be used in disciplinary investigations.  The use of CCTV was provided for in the care plan of the service-user and this fact was known to the complainant.  It is my view that the use of the CCTV recording in the disciplinary investigation was reasonable.  Like the Hayden case referred to above, in the respondent’s attempt to come to a conclusion about the complainant’s conduct, it would be not in accordance with good order to ignore such evidence. 

Was the Dismissal Unfair?

I have some concerns about issues that emerged during the course of the hearing of this complaint.  I read the behaviour support plan for SU and it describes a tragic and chaotic life, regularly interspersed with attempts at suicide and self-harm and aggression towards her carers.  From a young age, she has been in a variety of care situations.  Her behaviour support plan is detailed in its objective to offer SU the prospect of a degree of some normality and contentment in a supported environment.     

From the evidence I heard, it appears that she was regularly aggressive, displaying uncontrollable feelings of frustration and anger.  I am concerned that the complainant is not a qualified care-worker and he said that before he came to work for the respondent, he had no qualifications for the work he was employed to do.  He was paid an hourly rate of €12.11.  He said that he got 15 or 16 hours of training in how to restrain service-users appropriately and that his other training came from reading documents and observing his colleagues.  He was well-meaning and he liked the work and would like to advance in the field of social care but, he said that he was a victim of bullying, and in my view, he is also a vulnerable person.

When he observed SU at the blanked light socket, attempting as he said, to “rip the socket from the wall,” a more appropriate response would have been to simply stand back.  A similar switch cover is on the wall in the office of the WRC where I work, and there is no possibility that a strong man could remove it from the wall without the use of a screw driver or a hammer.  The complainant should have known this, and the fact that he intervened the way he did demonstrates to me that he succumbed to frustration and failed to use his head to manage the situation.  His reaction, by pushing SU, was inappropriate, escalated SU’s aggressive behaviour and resulted in him being injured.

It is my view that the complainant reacted in this inappropriate way because he is not qualified to manage the highly charged situation in which he found himself.  It seems to me that a developed understanding of dysfunctional behaviour with a high degree of self-knowledge and possibly a qualification in psychology is required to do the job he was employed to do. 

SU’s behaviour support plan has a section setting out how staff are to manage if she engages in self-harm or physical aggression.  Among other clear instructions, it states in bold text:

“Only as a very last resort should staff engage in any physical intervention and only to prevent serious injury to (SU), staff or others and only when all other options have been exhausted, staff to use MAPA medium to high risk seated or standing hold.”

During the disciplinary hearing, the complainant failed to see that there was anything inappropriate about the way he managed the situation and, on three occasions, said that he would react in the same way if confronted with similar circumstances in the future.  It is my view that his inability to accept that there were any failings on his part was fundamental to the respondent’s decision to dismiss him.  If he had accepted that he was wrong, a final written warning would have been the appropriate outcome.  As he did not accept that he made a mistake, the only reasonable outcome from the disciplinary hearing was his dismissal.

I find that the process used to investigate the complainant’s conduct and the disciplinary hearing which resulted in his dismissal were fair.  The complainant was offered the opportunity to respond to the allegation of assault, he was advised to be accompanied at meetings, he received the notes of meetings and the witness statements and he appealed the respondent’s decision to dismiss him.  It is my view that when he was told that the representative that he first selected was inappropriate, he should have chosen someone else, but he decided against this.

While the process was fair and the decision to dismiss the complainant was not unfair, I find that the selection of the complainant for the job of social care worker without any qualifications or experience placed him at risk of dismissal.  There is no provision in the Unfair Dismissals Act to take account of the failings of the employer in this respect, but I wish to place on the record my view that these failings contributed in some measure to the complainant’s dismissal in the circumstances described in this document.

I have decided that the decision to dismiss was not unfair and the complaint of unfair dismissal is not upheld.

Under this heading, the complainant said that he was not paid for 169 hours each month, as provided for in his contract of employment.

The Deputy HR Manager who attended the hearing said that she reviewed the complainant’s payslips for the 20 months that he was employed by the respondent.  For two months, he wasn’t paid for 169 hours.  One of these was November 2016, when the complainant commenced with the respondent, and, as he started on November 11th, he did not work 169 hours that month.  The second occasion was when he was out sick.  The respondent pays for five days’ sickness absence and after that, wages are not paid.  The HR Manager said that, following the incident on March 6th 2017, the complainant was paid for the entire duration of his sickness absence and he was also paid for the time he was suspended pending the outcome of the investigation.

Having considered this matter, I find that the complainant was paid for the hours he worked in accordance with his contract of employment.

I have decided that there was no breach of the Payment of Wages Act and I find against the complainant in respect of this complaint.

Dismissal, conduct