ADJUDICATION OFFICER DECISION

 Adjudication Reference: ADJ-00007233

Complaint:

ActComplaint/Dispute Reference No.Date of Receipt Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00009755-001 16/02/2017   Date of Adjudication Hearing: 24/10/2017Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, andfollowing the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.  

Background:

The Complainant has been employed with the Respondent Company from 10th June 2002 until the employment was terminated with notice on 12th July 2016. The Complainant was provided with a written statement of his Terms and Conditions of Employment including the Grievance and Disciplinary Procedures of the Company. The dismissal was not in dispute.

Summary of Respondent’s Case:

The Respondent operates a Detention Centre where young people have been sentenced or remanded by the Courts, with a capacity to accommodate some 90 people in 10 individual residential units. The Children’s Act, 2001 governs the operation of the Centre. There are some 262-staff incorporating 128 social care workers and 50-night supervising officers. On 13th October 2015, the Nurse Manager emailed the named Designated Liaison Person for Child Protection in relation to a young person who had sustained injuries to his head and right ear the previous evening on 12th October 2015. The Designated Officer met with the young person on 14th October 20215, following which the Director and Deputy Director met with the Complainant on 16th November 2016 to discuss the events of 12th October 2015. Considering this incident and three more recent incidents it was decided to suspend the Complainant on full pay pending the outcome of a full investigation. The Complainant had been on annual leave and returned to work on 16th November 2016. After he was suspended he was informed of a meeting to be held on 20th November 2016. The Complainant attended with a colleague and management were represented by the Unit Manager and Line Manager. Four issues were identified to the Complainant. The Complainant was invited to attend a Disciplinary Hearing on 1st December 2015 with the Deputy Director on the basis that the Complainant had accepted the evidence presented to him at the meeting of 20th November 2015. He was advised of his right to be accompanied. The Complainant responded by email on 27th November 2015 stating he had not accepted all the evidence as presented to him and he also indicated his intention of bringing a case of Bullying against his named Line Manager. The Respondent replied on 3rd December confirming that as he now did not accept the evidence a full investigation would be conducted. Terms of reference were drafted for his approval. These were forwarded to the Complainant by the Director on 11th December 2015. These were accepted by the Complainant on 14th December 2015. The Designated Liaison Person completed his report and submitted it on 15th December 2015. An external investigator, Named, was appointed and the Complainant informed on 18th December 2015. The external investigator met with the Complainant for 11th January 2016 inviting him to view pertinent cctv footage. The Complainant and his representative attended and reviewed the cctv relating to 12th October 2015 but declined to view the cctv footage relating to 28th October 2015. The Complainant attended an investigation meeting with the External Investigator on 14th January 2016. At this meeting the Complainant requested that named employees be interviewed as part of the investigation. The Complainant also made a written submission in relation to each issue on 19th January 2016. All the named employees, including one not an employee, were interviewed. The Investigator completed his report on 8th February 2016. The Complainant was requested to attend a Disciplinary Meeting on 17th February 2016 which was to be chaired by a Deputy Director. The Complainant was advised the outcome could lead to disciplinary sanction, up to and including dismissal and he was informed of his right to representation. A Disciplinary outcome meeting took place on 26th February 2016. Each outcome in relation to each issue was addressed. No action was determined necessary in relation to one issue – he was issued with a verbal warming to remain on his file for a year in relation to a second issue. The remaining issue concerned child protection issues and were to be referred to the Board of Management. The Complainant requested to submit a document to the Board. The matter was ultimately referred to the Minister. The decision of the Department, in the absence of a newly appointed Board was the Respondent should proceed to apply the Disciplinary policy of the Respondent in relation to the Complainant. The Complainant was kept fully informed of these developments. In a letter dated 20th April 2016 the Complainant submitted several complaints against his named Manager, who submitted a detailed response to the allegations – copy provided. In the meantime, the Complainant submitted medical certificates that he was unfit to attend further meetings. His Solicitor furnished a letter to the Respondent on 30th June 2016. The Complainant was requested to attend a furthers Disciplinary meeting on 12th July 2016 at which he was informed that the only remaining issue was the incident of 12th October 2015 which incident amounted to gross misconduct and contravened the Respondent’s stated policy. He was advised of his right of appeal which he did and an external Consultant was appointed to conduct the appeal which took place on 20th September 2016. This Officer also met with the external investigator, the Disciplinary Officer and the Director. The Appeals Officer recommended that the decision to dismiss was proportionate and procedurally correct and that any complaints by the Complainant concerning his Line Manager should be addressed in a separate forum. The Complainant submitted a “mercy appeal” on 6th December 2016. This allows an employee to raise issues not previously raised and not relevant during the disciplinary process. This was submitted to the Director who issued a response on 2nd February 2017 rejecting the appeal. The issue was referred to the WRC. The Respondent argued that the Complainant by his actions in relation to a young person on 12th October 2015 had destroyed the Respondent’s trust and confidence in him regarding the continuation of his employment. His actions alone led to his dismissal.  

Summary of Complainant’s Case:

Prior to the events of October 2015, the Complainant enjoyed an impeccable employment history with the Respondent. In or around November 2014 he began to experience bullying at the hands of his Line Manager and in May 2015 he was assaulted at work requiring him to attend A and E and in July 2015 several young people escaped. In relation to the events of 12th October 2015 the Complainant was working in a unit that was short staffed and he alleged he had not received the required necessary training in the management of assaults and injuries. On the night in question the Complainant had received several complaints from other employees in relation to a named young person who was very aggressive. This young person had finished his supper and had been requested on several occasions to leave the dining area but had refused. The Complainant requested him to leave but he refused, became violent and had to be restrained. The Complainant completed his assault and injury incident report on 13th October 2016. The issue was not raised with him and following personal issues he was on leave from 4th to 16th November 20215. The Complainant was unaware that on 13th October 2015 the Nurse Manager had referred the issue to the Designated Liaison Person. It is clear from his report that he met with the young person, with the Complainant’s Line Manager and watched the cctv footage of the incident. He also met with the Director and voiced his concerns concerning the incident. However, he failed to interview the Complainant in relation to the incident. This is clearly in breach of all fair procedures. The Complainant also alleged he had not been provided with the notes/minutes of all the meetings held prior to his meeting on 16th November 2016 during which he was informed he was suspended on full pay pending the outcome of an investigation. He did attend the investigation meeting on 20th November 2015 and was then requested to attend a Disciplinary Meeting on 1st December 2015 on the basis he had accepted the evidence as presented to him at the meeting on 20th November 2015. He refused to accept this. An external investigator was appointed. The Complainant’s Legal Representative made several submissions in relation to the application of fair procedures in relation to the whole process. The report carried out by the Designated Liaison Person was not conducted in accordance with fair procedures in that he concluded his report into the incident of 12th October 2015 without interviewing the Complainant and reaching a conclusion that the Complainant restrained a young person in a manner which amounted to physical abuse causing actual harm. The Complainant was denied the opportunity to avail of the informal procedure for dealing with disciplinary issues prior to the investigation being commenced. Again, in breach of the Company procedures the Complainant was not provided with a copy of the allegations which were being made against him until he received the terms of reference for the appointment of the external investigator and this was after he had been suspended by the Director. The appointment of the external investigator was incorrect as this named person is not qualified to carry out such an investigation due to his close relationship with the management of the Company. The External Investigator did not conduct his investigation in accordance with fair procedures in that he interviewed the Director and the designated Liaison Person but he failed to provide the minutes of his meeting with the Director. The Investigator did not obtain all relevant cctv footage in respect of the incident of 12th October 2015 thereby giving no context for the complainant’s actions in relation to the young person. The Director erred in law and fact in his findings that the recommendations of the external investigator amounted to gross misconduct. The Legal Representative also argued that the decision to dismiss was disproportionate and they cited several judgements that this decision was not reasonable in all the circumstances of this case. The Complainant has been in receipt of Jobseekers Benefit and Jobseekers Allowance since the date of his dismissal and this is confirmed by the Department of Social Protection. The Complainant is seeking reinstatement or in the alternative compensation.    

Findings and Conclusions:

Based on the evidence and extensive written submissions and supporting documentation from both Parties I find as follows. I note that the Complainant commenced his employment in June 2002. I further note that the Complainant was provided with a copy of the Handcuff Policy for the “Centre” named on 11th January 2016 and this was provided to him by hand on this date. I note that the Complainant was also provided with the Policy on Mobility Trips again on the same date i.e. 11th January 2016. I note that the Complainant had completed refresher training courses in 2011 – 2012 and again in 2013 and that he had passed all thee training refresher courses. I note that the incident of 12th October 2015 was the incident which ultimately led to the decision to dismiss the Complainant and involved the restraint utilised by the Complainant in restraining a young person, which resulted in this young person sustaining injuries. I note that during the investigation, disciplinary and appeal hearings the Complainant sought to defend his actions on the night of 12th October 2015 and defended his position. I have read in detail the outcomes of the Investigation, Disciplinary and Appeals processes and I conclude that all were carried out in accordance with fair procedures and natural justice and the Complainant was afforded all fair procedures in relation to the process. I note the policy operating in the Centre that in circumstances where an employee deems more staff are required to deal with a situation that they can send a signal via a machine with an immediate response. I note that the Legal Representative of the Complainant noted that the full cctv footage had not been viewed. I note the response to the question from the Adjudication Officer as to whether this issue had been raised at any stage during the process where I was informed it had not. I note that the Complainant lodged a grievance complaint with the Respondent Company on 20th April 2016. I further note that an external investigator was appointed to conduct the investigation and I note that he produced his report to the Parties, including the Complainant in May 2017.    

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.   Based on the evidence submitted and in view of my findings above and in accordance with Section 8(1) of the Act, I declare this complaint is not well founded.  

Dated:   17/01/2018

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Key Words: Unfair Dismissal – fair procedures applied to the entire process Unfair dismissal. Fair procedures applied to the Investigation, Disciplinary and appeals process.