FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : DAUGHTERS OF CHARITY DISABILITY SUPPORT SERVICES (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Marie Worker Member: Ms Treacy |
1. An appeal of an Adjudication Officer's Recommendation No. ADJ-00018132.
BACKGROUND:
2. This case is an appeal of an Adjudication Officer’s Recommendation by the Worker. On the 9 July 2019 the Adjudication Officer issued the following Recommendation:-
- I recommend that in the circumstances, the Complainant should be restored to her grade as House Manager from the date of this recommendation and that the demotion for the period of one year is sufficient penalty.
I recommend that the penalty imposed be reduced to demotion for the period of one year.
A Labour Court hearing took place on 21 November 2019.
DECISION:
This is an appeal by the Company of an Adjudication Officer’s Recommendation ADJ-00018132 in a claim by an employee that the sanction of demotion was excessive and harsh following an internal investigation and disciplinary process. The Claimant submitted that the sanction imposed was punitive rather than disciplinary in nature. The Company contended that the sanction was fair, reasonable and proportionate in the circumstances.
The Company is engaged in providing support to persons with an intellectual disability. The Claimant commenced employment with the Company as a Care Assistant in 1998, she became a House Manager in charge of one house in 2002 and was employed as a House Manager in charge of three house since 22nd June 2016 with service users with mild, moderate and severe intellectual disabilities. She reports to the Person-In-Charge who in turn oversees a number of houses in the area. The Person-In-Charge reports to the Service Manager.
During the Summer of 2017, the Claimant organised a holiday for the service users, while necessary fire prevention renovations were being carried out on the house. On 9th August 2017, one of the service users absconded. An investigation was carried out. The investigation found,inter alia, as follows:-
- •The apartments were unsuitable, there was insufficient and inappropriate sleeping arrangements for both the service users and the Claimant.
•Safety and security arrangements were not addressed beforehand and there was no prior consultation with the Person-In-Charge prior to the trip. Fire doors had been wedged open, in breach of“DOCS 060 Fire Policy”.
•Alcohol had been purchased with no record of the amount or receipt being submitted. There was evidence that no staff member was monitoring the alcoholic intake of the service users.
•The Claimant failed to follow policy on missing persons, it was noticed the service users was missing from 9.30am/9.40am however, no report was made until 12.50pm in breach of“DOCS 010 Policy on Incident Reporting”.She failed to document the incident in the daily reports for the service user and failed to document the late medical administration.
•The Claimant had failed to seek assistance of the Company or the Gardai on discovering that the service user was missing in breach of“DOCS 020 Policy on the Protection of Vulnerable Adults”. She lacked leadership in dealing with the situation, she allowed other staff members to take the lead in the Garda station.
•The Claimant failed to seek medical assistance for the service user and received medication for diabetes five hours late, thereby making a clinical judgement which she was not qualified to do in breach of“DOCS 015 Medication Policy”.
The investigation findings gave rise to a disciplinary hearing, chaired by the Director of HR, which concluded that the Claimant’s actions raised serious concerns in relation to her competency and judgement in the role of House Manager. The Director of HR held that the Claimant’s actions merited dismissal, however, taking account of her work record to date, it was decided to apply a lesser sanction of demotion to Social Care Worker, effective from 12thFebruary 2018. This outcome was appealed to the CEO who upheld the sanction. The Claimant was demoted with effect from mid-June 2018.
The Union on behalf of the Claimant stated that the Claimant had organised holidays for the service users many times previously and her proposal for the Summer 2017 holiday was sent to the Residential Services Manager and Area Manager for approval, who raised no issues with the arrangements. The Claimant disputed that it was not reported when the service user was discovered missing. She said that senior management was contacted and advised of the event. She was not advised when she spoke to a senior manager to seek medical assistance for the service user. She does not accept that the paper record of how medication was administered was not clear and she disputed that the team did not keep accurate records of the alcohol purchased.
Following the investigation and disciplinary proceedings, the Claimant was demoted whereas other staff involved were issued with disciplinary warnings. The Union questioned the fact that the Claimant was allowed to remain at work carrying out her post as Residential House Manager during the period from August 2017 to mid-June 2018, when she was demoted. It argued that a sanction imposed in perpetuity was excessive and unnecessary and will have financial implications until her retirement.
Having considered the oral and written submissions of both parties, the Court notes that while the incident which lead to her demotion occurred in August 2017, she was retained in her role as House Manager until the disciplinary sanction was imposed in mid-June 2018, during which time she was responsible for successfully completing a HIQA inspection.
There is commonality among the parties that a disciplinary sanction was warranted, however, the Union submit that demotion was too severe a sanction. The Court notes that ‘demotion’ is specifically provided for in the Company’s disciplinary procedures and is compliant with S.I. 146/2000. The Court is of the view that in appropriate circumstance demotion can be a legitimate disciplinary sanction. Neither the Company procedures nor S.I. 146/2000 make any reference to it being a temporary sanction. In those circumstances, the Court is satisfied that the disciplinary sanction imposed was appropriate. However, the Court notes that the CEO in his letter dated 19 April 2018, outlining the outcome of her appeal, stated“I hope you willtake time to reflect on this experience and that you will learn from it”. The Court is of the view that it is not unreasonable that she should be given an opportunity to demonstrate that she has learned from the experience. In a letter to the Union from the Director of HR dated 14thMay 2018, confirming the disciplinary sanction, it concludes“I do wish to confirm however, that [the Claimant] is not prevented from applying for posts as they arise. She remains free to apply for any position of interest to her.”The Court notes that at the hearing of the appeal, the Company gave a commitment that the sanction imposed on the Claimant will have no detrimental effects on any application she may make for promotion to temporary or permanent positions in the future. Furthermore, it said that it would welcome and expect such applications from the Claimant. In addition, the Company said that it would support her in completing FETAC Level 5 qualifications and that in the event of her competing for a position prior to the completion of the FETAC Level 5 course, such would not prevent her being successful in her application.
In all the circumstances of this case, the Court overturns the Adjudication Officer’s Recommendation and the appeal succeeds.
The Court so Decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
CR______________________
04 December, 2019Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran Roche, Court Secretary.