FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : A SERVICE FOR PERSONS WITH INTELLECTUAL DISABILITY (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Marie Worker Member: Ms Treacy |
1. Appeal Of Adjudication Officer Decision No: ADJ-00004653 CA-00006652-001.
BACKGROUND:
2. The Claimant appealed the Decision of the Adjudication Officer ADJ-00004653 to the Labour Court in accordance with Section 8A of the Unfair Dismissals Act, 1977 to 2015. A Labour Court hearing took place on January 30th 2018. The following is the Determination of the Court:
DETERMINATION:
This is an appeal by an employee against the Decision of an Adjudication Officer ADJ-00004653, CA-00006652 under the Unfair Dismissals Acts 1977 – 2015 (the Acts) in a claim made against his former employer, a Service for Persons with Intellectual Disability. By decision dated 7thJuly 2017, the Adjudication Officer held that the complaint was well-founded and awarded the sum of €8,000 in compensation.
For ease of reference the parties are given the same designation as they had at first instance. Hence the employee will be referred to as “the Complainant” and the Service for Persons with Intellectual Disability, will be referred to as “the Respondent”.
The Complainant referred his case to the Workplace Relations Commission on 25thAugust 2016. On 9thJune 2017, the Complainant appealed the Adjudication Officer’s Decision against the quantum of compensation awarded. The appeal came before the Court on 30th January 2018.
Due to the sensitive nature of this case the Court has decided to anonymise the parties.
Basis for the Appeal
The only issue for determination in this appeal concerned the matter of redress/remedy as it was not contested that there were procedural shortcomings in the disciplinary process. The Complainant sought reinstatement, whereas the Respondent was opposed to the Complainant returning to his role in the Service.
Background
The Complainant was employed as a Health Care Assistant with the Respondent from 17thApril 2012 until his dismissal on 12thAugust 2016.
The Respondent is a campus and community based residential and day service for adults and children with intellectual disabilities. A board of directors, comprised of volunteers, was replaced in 2016 by the HSE.
On 29th September, 2015, an allegation of physical abuse towards a resident was made. The Complainant was accused of forcefully pulling a service user to his feet and he was immediately suspended with pay.
The Respondent drew up Terms of Reference under its Trust in Care policy for an investigation into the incident and an Independent Investigator was appointed to conduct the investigation. The investigators investigated the allegation that the Complainant had engaging in verbal psychological and physical abuse of a resident. Towards the completion of the investigation the Complainant accepted that the allegations made against him were true. The Investigation was concluded in November 2015 and found as follows: -
- "The confirmed allegations and behaviours - psychological, verbal and
physical abuse - displayed by [the Complainant] constitute inappropriate practices within the sphere of major misconduct and the organisation should consider this in deciding on appropriate courses of action. "
Summary of the Respondent’s Position
Mr Robin McKenna, Ibec, on behalf of the Respondent submitted on receipt of the final investigation report, the Respondent considered the situation in its entirety and was left with no other option but to dismiss the Complainant, which took effect on 10th December 2015. He said that this decision was due to the Respondent’s zero tolerance of abuse and it was one of the sanctions contained in its Serious Misconduct Policy. In line with its disciplinary process, the Complainant was afforded the opportunity to appeal this decision, which he duly did. Mr McKenna said that the then Chairman of the Board heard the appeal on 8th January 2016 and recommended that the Complainant be reinstated. He was put back on the payroll with effect from 10th December 2015.
A new Board of Management appointed by the HSE held its first meeting in April 2016. Due to there being grave concerns over the safety and welfare of people with disabilities in the Service, and in compliance with an ethos and stated policy of zero tolerance of abuse, the Board considers that the Complainant was not suitably qualified to work with the residents of the Service and determined that he should be removed from the payroll.
This decision was made at the Board meeting on 28th June 2016 and communicated to the Operations Manager on 29th June 2016. The Complainant’s employment was terminated with effect on 12th August 2016.
Mr McKenna said that due to its responsibility to provide day and residential services for adults and children with disabilities, the Respondent must have total faith and confidence in the people it employs to provide a safe and effective service. He submitted that its faith and confidence in the Complainant had been irreparably damaged following the abuse he admitted to perpetrating on a child with an intellectual disability.
Mr McKenna accepted that prior to this incident there had been no known
actions conducted by the Complainant that put service users at risk. He said that while the Complainant was psychologically assessed by Dr Patrick Ryan in March 2016 which found that"it would be unsafe to attach a level of risk to him at this time",the Respondent was not in a position to take that risk as there was no certainty in that prognosis. He said the only certainty was that the abuse did take place.
Mr McKenna referred to the'Children First: National Guidance for the Protection and Welfare of Children'policy which is the overriding policy statement in this country regarding the welfare and protection of children. It states,"In all instances, the best interests and safety of the child must be prioritised."Furthermore, he said that while all children in society are seen as being vulnerable,'Children First'has identified a number of categories where children can be especially vulnerable. These include children in residential settings and children with disabilities. These points are also contained in the Respondent's'Protection and Welfare of Children Policy'.
Mr McKenna referred to the Investigator Report which found that the Complainant’s actions constituted inappropriate practices within the sphere of major misconductand that the Respondent should consider an appropriate courses of action. It also recommended the following: -
- "Without prejudice to decisions made by the organisation regarding [the Complainant’s] status, consideration should be given to relocating [the Complainant] to an alternative work location. This location should be one where there are adequate structures in place to ensure an availability of mentoring and supervision for him on an ongoing basis, for a minimum period of six months."
In conclusion, Mr McKenna acknowledged that there were procedural shortcomings in this process. However, he said that central to every action carried out by management was the safety and wellbeing of a vulnerable child. He said that it was particularly significant that it was only at the conclusion of the investigation that the Complainant eventually admitted to the abuse and he would have been aware of the 'zero tolerance' stance on abuse. It was for this reason that the Respondent was left with no alternative but to dismiss the Complainant. He said that reports produced by both TUSLA and a clinical psychologist following the Complainant's dismissal, could not categorically state that the Complainant will never reoffend.Therefore, the Respondent could not accept the Complainant returning to his role in the Service.
Summary of the Complainant’s Case
Mr Shay Clinton, F�rsa (formerly IMPACT Trade Union), on behalf of the Complainant submitted that the dismissal was unfair. Furthermore, he submitted that there was no due process afforded to the Complainant prior to his dismissal.
Mr Clinton stated that the Complainant appealed the notice of dismissal given to him in December 2015 by the Board of Management on the basis of the severity of the sanction which was not in line with the Independent Investigation Report and also on the basis of procedural errors. The appeal decision was issued on 28th January 2016, stating that he should be re-instated to his role of Health Care Assistant retrospective to 10th December 2015 and in line with the Report it stated that he should be re-assigned to another Unit and receive mentoring and supervision. Mr Clinton said that although back on the payroll from the above date, despite repeated communications from the Union on his behalf, the Complainant was not facilitated with a return to work. He had turned up for work after his appeal was successful but was told to go home.
At the request of the Board of Management, the Complainant attended an appointment with Dr. Patrick Ryan, Clinical Psychologist on 16th March 2016. Dr Ryan’s report concluded that
- 'Given my assessment of key risk variables for offending behaviour; [the Complainant's] mental health status; his attachment style; and analysis of contextual factors; it is my overall conclusion that it would be unsafe to attach a level of risk to him at this time, as all of his current profile suggests that the factors associated with risk of him being a person prone to perpetrating physical abuse, do not meet a threshold of clinical significance.'
On 12th June, 2017, the Complainant received a report from TUSLA who were investigating the incident separately. The Respondent had made
two separate complaints, one to An Garda Siochána and the second to TUSLA. Following a brief Investigation, the matter was not pursued by the Gardai. The TUSLA Investigation carried out by two Social Workers concluded as follows: -
- 'Based on the Founded outcome of allegations of Physical Abuse as well as the above information, any potential risk to children of Physical Abuse from you should be manageable should you successfully resolve the trigger issues identified by you following this incident and detailed in your meeting with us on 08/07/16.'
Mr Clinton told the Court that as a return to work date was not forthcoming the Union sought recompense for premium pay which he was losing out on, estimated to be in excess of €10,000 over this extended period. When this payment was not forthcoming, the Union referred the dispute to the Adjudication Service, Workplace Relations Commission. On 12th August, 2016, he was dismissed by the new Board of Management. The Union then referred the matter under the Unfair Dismissals Legislation.
Mr Clinton contended that the original decision to dismiss the Complainant was unfair and on appeal, the Board rectified this by reinstating him. Furthermore, the Board set out that the findings of the Investigation should be followed and that the Complainant should be relocated to an alternative work location. He made the point that the Independent Investigation Report taken along with the Psychological Assessment should have facilitated the Complainant's return to work but neither the Union nor the Complainant received any correspondence from Management prior to receiving the dismissal letter of 12th August, 2016.
Mr Clinton said that the HR Sub-Committee of the new Board drew attention to the Psychologist Report and was satisfied that the Board had already dealt with the matter, there was further pressure exerted on the new members of the Board of Management to make a decision in the absence of all the information available and when the Chair of the HR Sub-Committee could not attend. He said it was unclear whether the Independent Investigation Report, the Psychologist Report or the Board's HR Sub-Committee were even considered in the new Board's deliberations. He said that it was also unclear whether the new Board were made fully aware that this matter had already been dealt with by the previous Board who decided on appeal that the Complainant should be reinstated, on the same terms as outlined in the Independent Investigation Report.
Mr Clinton asserted that the Complainant was not made aware of the reasons why the Board of Management reviewed their decision or the documents which they based their decision on. In effect, he said that the Complainant was dismissed without him being afforded due process by being denied any input prior to the decision to dismiss in August 2016.
Mr Clinton sought the Complainant’s re-instatement/re-engagement, contending that there were substantial grounds as outlined below: -
- •The Complainant was not provided with natural justice or due process.
•The Independent Investigation recommended that the Complainant should work in another unit.
•The Sub-Committee of the Board that heard the appeal decided that the Complainant should be re-instated and work in another unit.
•The Psychological Assessment gave assurances and guidance to Management that there was no further risk to service users.
•The HR Sub-Committee of the new Board outlined that all matters had been satisfactorily dealt with and had no issue with the Complainant being reinstated.
•An investigation by TUSLA Social Workers also confirmed that the Complainant did not pose a risk to service users.
Without prejudice to the above, Mr Clinton submitted that in cases where an Employer contends that there is a breakdown of trust without adequate justification or evidence to back-up same that this should be reflected in the compensation award. In this case, the Complainant had undertaken extensive training and had a lot of experience to progress further in the Social Care Profession and the way he has been treated has put
his future career in jeopardy.
Findings of the Court
In reaching its decision the Court has taken account of all written and oral submissions of the parties. The Court notes that the Respondent accepted that there were procedural shortcomings in the dismissal process and on that basis decided not to appeal the Adjudication Officer’s Decision that the Complainant’s claim was well founded. However, it submitted that the remedy which the Court should determine in this case was compensation and not a job back remedy.
The Complainant accepted that by his actions on 29thSeptember 2015, he contributed to the disciplinary action taken against him however, he submitted that his dismissal was unjustified and unfair due to the lack of due process. The Complainant sought his job back, as outlined above.
Redress
Section 7 of the Acts state, in relevant part, as follows: -
- 7.(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:
(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or
(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or
(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations undersection 17of this Act) as is just and equitable having regard to all the circumstances, or
(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,
It is a matter for the Court, having listened to the views of the parties as to preferred redress in the event of a finding of unfair dismissal, to determine which of the three forms of redress open to it is most appropriate having regard to the circumstances of this case.
Determination
The Court therefore determines, having regard to the extraordinary manner in which the dismissal came about in August 2016 and the Complainant’s contribution to the dismissal, that the Complainant is entitled to re-engagement in accordance with Section 7(1)(b) of the Acts.
In accordance with Section 7(1)(b) of the Acts, the Court determines that the terms and conditions of the re-engagement are to be as follows: -
- i.Subject to Point ii below, the Complainant is to be re-engaged in to a position of Healthcare Assistant equivalent to that which he occupied prior to his suspension on 29th September 2015 and subsequent dismissal;
ii.The Complainant is to be relocated to an alternative work location in accordance with the recommendation contained in the report of the independent external investigator dated November 2015. Suitable and appropriate mentoring and supervision in accordance with the recommendation is to be put in place;
iii.The Complainant is to undergo suitable and appropriate training, to be determined by management, with the aim of ensuring that the events of 29th September 2015 are not repeated;
iv.Re-engagement is to take effect from Monday 5thMarch 2018. The period between the date of dismissal on 12th August 2016 and 5thMarch 2018 is to be considered as a period of suspension without pay. For the avoidance of doubt, the Complainant’s service is deemed to be continuous throughout the aforementioned unpaid suspension period;
v.The Complainant is to receive a lump sum payment of €7,500 gross to recognise the loss of premium payments during the period of paid suspension between 29th September 2015 and 12th August 2016. This payment is to be made as soon as is practicable after the Complainant returns to work, but no later than end of March 2018, and is to be accepted by the Complainant in full and final settlement of the loss of premium pay matter;
vi.The Complainant is to be placed on a final written warning in line with Stage 3 of the Respondent’s Human Resources Policies & Procedures. This warning to take effect from 5thMarch 2018 for an eighteen-month period.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
19 February 2018______________________
JDDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Deegan, Court Secretary.