Complainant

Respondent

Anonymised Parties

Assistant to service Users

A Charitable Body

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-00021108-001

13/08/2018

The Complaint is one of Unfair Dismissals. The Complainant issued a workplace relations complaint form on the 13th of August 2018 arising out of his Dismissal which had happened in early July 2018

The Complainant’s representative provided me with a comprehensive submission together with a booklet of supporting documentation. I have considered these. I also had an opportunity of hearing the Complainant directly.

The Complainant makes the case that his observable actions on CCTV footage relied upon have been mis-interpreted and that he should be given the benefit of the inherent doubt created by the lack of audio.

The Complainant also makes the case that the sanction applied is disproportionate in all the circumstances.

The Respondent alerted me to the fact that their notification of the hearing date was only forwarded on to the Belfast Office forom the Dublin Office in the last 48 hours. In the circumstances they advised that several witnesses could not make themselves available at such short notice.

The Respondent presented a number of witnesses including the Complainant’s line Manager and one of the Disciplinary panel which considered the Investigative report provided.

The Respondent asserts that the Dismissal of the Complainant was reasonable and justified in all the circumstances and that it had adopted fair procedures in arriving at this decision.

I have carefully considered the evidence adduced. The Employment relationship between the parties is a long standing one with the Complainant having worked with the Respondent for ten years prior to the incident which gave rise to his Dismissal. The Complainant states that the termination was fundamentally unfair considering the evidence available to the Respondent. The Complainant makes the further case that his dismissal is a disproportionate sanction in all the circumstances.

The nature of the work being carried out and the workplace is significant. The Complainant is an aide worker or care assistant in a unit which houses up to 100 people in the city centre. The people would be considered vulnerable and living possibly on the margins of society. There is a significant amount of drug and alcohol abuse amongst the service users. The service users are free to come and go and live independently save insofar as the facility is overseen on a 24-hour basis by the Complainant and his colleagues. Their job is to try to make sure that the clients are safe and cared for. I do not doubt the Complainant’s evidence that there was a constant need to be vigilant and watchful for aggressive and difficult situations arising as between clients and occasionally as between staff and clients. It is common case between the parties that the Complainant and his colleagues were constantly trained up in Therapeutic Crises Intervention (TIC) and that their primary role when rows broke out was to de-escalate and diffuse situations.

On the 17th of February 2018 an incident arose which ultimately gave rise to the Complainant’s dismissal. Insofar as procedures are concerned I am satisfied that the Respondent implemented a reasonable, measured and fair Investigation and Disciplinary Process. The procedures were not particularly challenged by the Complainant’s representative and I am satisfied that the Complainant had adequate representation at every point along the process. The two primary concerns are whether the incident complained of warranted the sanction which was applied (i.e. dismissal) and whether the evidence supplied by a co-worker was reliable.

There can be no doubt that the CCTV footage which captured the incident complained of amounts to solid evidence of the fact of an incident having taken place. Thereafter it is a question of interpretation of whether the incident is provoked, whether there was self-defence or whether there was an unwarranted attack.

I have looked repeatedly at the video footage which shows a service user (TS) in the courtyard area of the Respondent facility. I am advised the time is about 10pm. It is clear to me that TS is either high on drugs or inebriated. He is unsteady on his feet and moves awkwardly with the aid of a mobilator or rollator. I fully accept that TS was shouting and being obstreperous and difficult. I also fully accept that he is an enormous presence standing at well over six foot tall. There is no sound with the footage, so everything must be interpreted from body language and gesture.

In the CCTV footage, it is clear that TS is in a conversation with another member of staff JR, and I do not doubt that this conversation was robust. I accept that TS had previously been acting in a difficult and obstreperous way up to this point. However, this type of behaviour from service users is not unusual and is outside the control of the Respondent as an employer and is the type of behaviour for which the Complainant and his colleague are trained to deal with.

The Complainant enters the frame of the CCTV and it is clear that his presence does not have the effect of placating TS and that the situation appears to continue to be volatile. I do accept that TS does appear to move forward which movement the Complainant described as sudden and gave rise to a “split-second” recognition on his part of the need for “self-preservation”. The Complainant says he “kicked out” to stop TS from assaulting him. His foot landed on the Mobilator.

I have looked at the footage and I consider the kick to have been a disproportionate reaction to the forward movement made by TS. The Mobilator was jolted backwards and appears to have hit against TS. Had TS lost grip of the Mobilator it is conceivable he would have fallen to the ground.

On balance therefore, I must find that the Complainant did lose his control and rather than take the flight response to a perceived threat he opted for the fight response. The Complainant’s own response put his Employer into a very difficult position because once they are faced with the unavoidable evidence of an employee resorting to a physical response the ability to retain that employee in that capacity becomes very difficult. In fact the relationship of trust that must exist in the employment relationship has been breached beyond repair. The Employer could not trust that this reaction would not be repeated. It was not suggested to me that there was other work available to the Respondent which would not involve dealing with service users, so I must assume no such alternative work could be provided.

On balance therefore, I find that the Complainant was not Unfairly Dismissed and the sanction of termination for Misconduct was open to the Respondent. I believe this outcome is justified on the evidence presented by the CCTV footage alone. I do not therefore accept that any statement provided by the Complainant’s co-worker can negate or diminish what is clear from the CCTV footage.

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 - CA-00021108-001

The Complaint fails