ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00014839
Parties:
| Complainant | Respondent |
Anonymised Parties | Social Care Worker | Residential Care Home |
Complaint:
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-00018157-001 | 26/03/2018 |
Date of Adjudication Hearing: 25th September 2018 & 9th January 2019
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Procedure:
In accordance with Section 8of the Unfair Dismissals Acts, 1977 - 2015,following 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 contends that she was unfairly dismissed for alleged gross misconduct on a substantive and procedural basis. |
|
Summary of Respondent’s Case:
As a preliminary point, it is submitted that the complainant does not have the required one year’s service to bring a claim under the Act. Without prejudice to this preliminary point, it is submitted that the complainant was dismissed for gross misconduct in that she destroyed a handover document in order to remove any record of an incident which happened before her shift when one of the residents had water thrown over him. She also failed to furnish the resident with a complaint form and failed to inform inspectors who were carrying out an inspection of the incident. Three members of staff (including the complainant) were suspended pending an investigation into the incident of water throwing. The complainant was invited to an investigation meeting on 2nd October 2017 conducted by the Director of Services. The complainant was then invited to a disciplinary meeting on 9th October 2017 in respect of destruction of records, giving false information to an inspector and failing to give the resident a complaint form. The complainant was dismissed and the dismissal was confirmed by correspondence dated 10th October 2017. The other two persons involved in the incident received written warnings. The complainant was facilitated with an appeal which was heard by a third party. The complainant was represented by SIPTU at the appeal. By correspondence dated 3rd November 2017 the complainant was informed that the original finding of gross misconduct stood and her appeal was dismissed. While the complainant has alleged that the disciplinary procedure was flawed, case law is cited to support the argument that the complainant must demonstrate that the alleged breaches served “to imperil a fair hearing or fair result”. (Gallagher v The Revenue Commissioners (No.2) [1995] 1 I.R. 55). In summary, the conduct to which the complainant has admitted to falls within the terms of gross misconduct. In light of same, and the nature of the conduct admitted the dismissal of the complainant was within “the band of reasonable responses” open to the respondent. The procedural defects did not serve to deny the complainant a fair hearing or result. |
Summary of Complainant’s Case:
The complainant was Deputy Manager of the residential unit catering for vulnerable young people. On the morning in question, the complainant was informed during handover, that a member of staff and another young person had been involved in throwing water over another young person in order to get him up for school. The complainant was shocked and having discovered that the bed linen, pillows and young person’s top were soaked, informed the manager that this could be deemed abuse. The complainant was told by the manager not to mention the abuse word again. The manager took the handover log, scribbled out mention of the water incident. At this point, the complainant panicked and ripped up the log and replaced it with another one. The manager directed the complainant and another staff member not to discuss the water incident and to take the young person out of the unit do the incident would not be mentioned to inspectors who were present on the premises at the time. Following attempts to contact senior management, eventually word came back that the CEO found the incident funny and directed that the young person be offered a complaint form after school the next day. The complainant sought advice from the Services Director who having first advised her to file a complaint, then went on to suspend her and dismiss her for alleged gross misconduct. The complainant was shocked to be called to a meeting on 9th October 2017 without being informed that her job was in jeopardy, only to be dismissed on the spot. The complainant believes she was unfairly dismissed in circumstances where she herself had no hand or part in the incident and her colleagues who were directly involved were given written warnings.
Findings and Conclusions:
The complainant was dismissed for 3 issues: destruction of documentation in relation to handover, failing to disclose to the inspectors that there had been an incident and failure to follow management instruction to provide the resident with a complaint form. I note the complainant’s evidence that there had been some discussion between herself and the Unit Manager about the incident and I accept the complainant’s evidence in respect of this to be genuine. The complainant was left therefore in a difficult position viz the subsequent actions or inactions in relation to the inspectorate and the resident. I note that the complainant herself was not involved in the incident and that others who were, received written warnings, while she lost her job. The lack of fair procedures throughout the process is very significant. The complainant was not informed at any stage that her job was at risk, she was not allowed representation of her choice, and the same manager who carried out the investigation, carried out the disciplinary meeting and effected the dismissal. I conclude that the complainant was unfairly dismissed. I find there was some contribution on the complainant’s part, as she admitted herself she should not have ripped out the handover log. |
Preliminary point.
The complainant was employed by the respondent from 16th October 2016 until 10th October 2017. The respondent raised a preliminary issue regarding the complainant’s right to avail of the provisions of the Act in relation to the continuous service requirements. I note that the date of dismissal as contained in Section 1 of the Act provides that where prior notice is not given, the date of dismissal is deemed to be the date on which such notice would have expired, either in conformance with the provisions of the employee’s contract or the provisions of the Minimum Notice and Terms of Employment Act 1973. I therefore find, in accordance with the conclusion above, the complainant is entitled to rely on one week’s notice bringing her into eligibility to avail of the provisions of the Act.
Decision:
Based on the findings and conclusions above, I find the complainant was unfairly dismissed. I deem compensation to be the appropriate remedy in circumstances where the complainant has secured alternative employment and to return to the respondent’s workplace would not be acceptable to either party. I uphold her complaint and require the respondent to pay to the complainant the sum of €7,000 compensation.
|
Dated: 20/02/19
Workplace Relations Commission Adjudication Officer: Gaye Cunningham