Complainant

Respondent

Anonymised Parties

A Social Care Worker

A Care Home

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00016653-001

05/01/2018

The Complainant commenced employment as a Social Care Worker with the Respondent on 5th December 2017. His gross monthly pay was €2,984.82. He was dismissed by the Respondent on 4th January 2017.   The Complainant lodged a Complaint Form with the WRC on 5th January 2017.

The Respondent did object to an Adjudication Officer investigation but this objection was received outside the 21-day objection period and therefore the matter proceeded to Adjudication. The Respondent did not attend the Adjudication Hearing.

The Respondent did not attend the hearing.

The Complainant submitted that he applied for a job with the Respondent in late 2017. He was interviewed for the job on 15th November. The Complainant submits that at this interview he made the Respondent aware of a conviction he had for assault, he also promised that he would send the Respondent a copy of his Garda Vetting Form (GVF) that he had from his previous Respondent. He was offered a position on 18th November 2017, which he accepted.

He sent his GVF to the Respondent on 21st November 2017 as requested. On 22nd November the received an acknowledgement form the Respondent that he had sent the GVF to the Respondent. On 23rd November the Complainant resigned from his employment, where he had worked for three years, to take up his new job with the Respondent. On 1st December the Complainant was asked to start working with the Respondent on 11th December, which he did.

The Complainant stated in direct evidence that all was well until 3rd January 2018 when the Complainant received a call from the Respondent’s HR Manager in which he was told he should not attend work because of a disclosure on the GVF. On 4th January 2018 the Complainant received an email from the Respondent terminating his employment.

The Complainant contacted the Respondent as he felt he was being treated very unfairly. The Respondent told him, that he did not know about his Garda Vetting and that is why he was let go.  

The Complainant appealed the decision to terminate his employment and on 16th January he met with a representative for the Respondent.   On 18th January, he received a written response from the Respondent regarding his appeal; the appeal was unsuccessful and the decision to dismiss him was upheld.

The Complainant stated that the Respondent was very short staffed in the run up to Christmas and needed to offload surplus employees after Christmas, he being an example. In the eyes of the Complainant, after Christmas the Respondent was looking for any excuse to let people go.

The Complainant did not get another job until mid-April, on slightly better terms.

In concluding, the Complainant stated that the way he was treated was inhumane. He had made it clear to the Respondent at the interview that he had previous convictions, but that even after this they had encouraged him to leave his job and take up the new job. He also stated that the Respondent had broken the law by allowing him work for 13 days with vulnerable people.

Although the Respondent did not attend the hearing the Complainant provided copies of (i) an email sent by the Respondent to the Complainant on 4th January 2018 which is a dismissal email and (ii) a copy of a letter sent by the Respondent to the Complainant on 18th January 2018 which is titled “Outcome of Dismissal Appeal”. These documents outline the Respondent’s rationale in taking the decision to dismiss the Complainant.

Document (i) states, inter alia:

“As you are aware we have just received your Garda Vetting and it contains details of past charges that are of great concern.

At interview you were asked (as with all interviewees) whether there was anything that we needed to know that might prevent you from dealing with young vulnerable children to which you answered NO, you were further asked if you hold a full clean Driver’s License to which you answered YES.

As per your contract if anything discussed at interview is later found to be false or misleading your contract is immediately null in void (sic). This is the case here.

I understand that you have discussed with HR that the charges in question may be incorrect, if this is so please provide us with written proof from the Garda to state same. If you can provide this evidence I will meet with you to discuss further, however a return to work for (name of company) is unlikely.”

Document (ii) states inter alia:

“Having carefully considered your appeal and taken into account your representations, it has been decided that the original decision to dismiss you from (name of company) due to issues that arose following a mandatory check carried out by An Garda Siochana for your role was appropriate and therefore I do not uphold your appeal.”

“While you advised X (at interview) that you had received a conviction in 2001 on your record, the details of your most recent offenses were not explicitly explained within the interview process.

“Company name was only officially made aware that you had another incident/conviction in 2013 involving the Garda on the 3rd January 2018.”

“On the 3rd January 2018, Y, called you to inform you that they had received the Garda Clearance form and stated that there were a number of convictions identified which would prevent you from working with vulnerable children and that your employment with the Company would be terminated.”

In deciding on the merits of this case I must consider both the fairness of the procedures adopted and substantive issues leading to the dismissal.

Regarding the procedures adopted by the Respondent it would seem to me, on the uncontested evidence of the Complainant, that whereas he was granted an appeal hearing, he was not afforded an initial hearing at which he could make a defence of his position or put forward any mitigating factors.     Notwithstanding the fact that the Complainant was on probation, this was not fair. An Respondent is obliged to utilise fair procedures. Indeed, in the Complainant’s Contract of Employment, it states under “Disciplinary Procedure”, that the procedures “will be applied in a fair and reasonable manner with regard to the rights and responsibilities of the parties concerned.” This was not done in this case.

Regarding the substantive issues leading to the dismissal, in the context of working with vulnerable children, the existence of previous convictions had serious implications for the Respondent. Once these previous convictions were confirmed by An Garda Siochana I do not think it unreasonable of the Respondent to dismiss the Complainant.

Having considered the matter carefully, I find the Complainant was unfairly dismissed and in the circumstance, recommend that he be paid a sum of one month’s pay, that is €2,984.82

Fair procedures, probation,