Correction Order Issued pursuant to Section 39 of the Organisation of Working Time Act, 1998. This should be read in conjunction with the Decision issued on 18/02/2019
ADJUDICATION OFFICER DECISION
Adjudication Reference:
Parties:
| Complainant | Respondent |
Anonymised Parties | Care Support Worker | Residential Consulting |
Representatives | Stratis Consulting |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
CA-00019539-001 | ||
CA-00019539-002 | ||
CA-00019539-003 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
BACKGROUND.
The Complainant was employed as a Care Support Worker with the Respondent from 23rd June 2013 until the employment was terminated without notice by the Respondent on 2nd May 2018. The Complainant was paid €1035.00 gross per fortnight and she worked 70 hours a Fortnight. The Complainant was provided with a written statement of her Terms and Conditions of Employment, including the Respondent’s Handbook which included the Grievance and Disciplinary Procedures of the Company. The Complainant referred three complaints to the Workplace Relations Commission on 29th May 2018 alleging she had been unfairly dismissed under the Unfair Dismissals Act, 1977 – 2015 – a complaint under the Minimum Notice and Terms of Employment Act, 1973 and a complaint under the Organisation of Working Time Act, 1997.
The Complaint under the Organisation of Working Time Act, 1997 CA-00019539-003 was withdrawn at the Hearing.
SUMMARY OF RESPONDENT’S POSITION.
Unfair Dismissals Act, 1977 – The Respondent provided a detailed account of the services they provide to clients of the service and they operate under the Trust in Care Policy for Health Service Employers – Trust in Care. They also operate under the Respondent’s Policy on Safeguarding Vulnerable Persons at Risk of Abuse Policy and to keep the service users safe and free from abuse and neglect. Every employee is expected to demonstrate conduct, competence and capability that will not place the service user at risk.
There was a complaint from a service user, named, in relation to the Complainant’s alleged conduct on 9th August 2017. This service user is a vulnerable adult who is confined to a wheel chair. An investigation was conducted under the Trust in Care Policy in relation to the service users complaint that he was psychologically abused by the Complainant on 9th August 2017. The Complainant was accompanied by her full-time Trade Union Official from SIPTU, named. The Investigation Report was issued to the Complainant for her comments. The Complainant confirmed she had nothing to add.
The Complainant was invited to attend a Disciplinary Hearing on 16th April 2017. The Complainant was again represented by her Trade Union SIPTU. The outcome was communicated to the Complainant in a letter dated 2nd May 2018 setting out in detail the Concern, the Finding and the Conclusion in relation to 8 issues of concern. It was found that on 9th August 2017 the Complainant had called the service user a little shit – she had raised her voice to the user – she had pointed her finger at the user and she had threatened the user with retaliatory violence. In considering the appropriate sanction the Respondent noted that in her Staff Supervision Meeting on 31st July 2017 she had expressed issues regarding how she felt about service users and she was reminded to walk away from situations where she felt frustrated. The decision was made to terminate the Complainant’s employment for gross misconduct with immediate effect. The employment terminated on 2nd May 2018.
The Complainant was afforded a right of appeal. The Complainant had indicated her intention to appeal her dismissal but she did not do so.
The Respondent argued that – they believed the Complainant had misconducted herself as alleged – the Respondent had reasonable grounds to sustain that belief – the Respondent carried out an investigation as was reasonable before taking action to dismiss and the sanction of dismissal was proportionate to the alleged misconduct.
SUMMARY OF COMPLAINANT’S POSITION.
The Complainant asserted that the procedures of the Respondent in relation to the dismissal of the Complainant were unfair as the Complainant was not afforded legal representation at the Investigation and Disciplinary process although they accepted the Complainant had been represented by her Full-time Trade Union Official from SIPTU. The Complainant was not informed prior to the Disciplinary Process that this could lead to her dismissal. She was not informed nor was she afforded a right to cross examine the service user and the witness, named, to the incident. The Complainant referenced the Decisions of the Higher Courts in Castlerea and Lyons.
The Complainant asserted that the service user, named, had a history of violence and she was placed in danger in having to deal with him. She also asserted that as part of his medication he was provided with Pornography on stream and that putting a female employee in to deal with this service user was appalling. The Complainant stated that in relation to the incident she had reacted to a risky situation. She asserted that this service user should have been assigned a male employee. She stated that rather than being dismissed she should have been assigned to other clients.
The Complainant stated she had been in receipt of Jobseekers Benefit from the Department of Social Protection and that she had recently commenced work earning €11.75 an hour. The Complainant was requested to provide evidence from the Department of Social Protection – to provide evidence of her recent employment and when she commenced this employment and also evidence of mitigation of loss as required by the Act.
FINDINGS AND CONCLUSIONS.
Preliminary issue – Legal Representation.
The issue to be addressed now is whether, following a fair and transparent investigation and disciplinary process, the Respondent’s decision to dismiss the Complainant was one that a reasonable employer might make. The issue of legal representation was also raised by the Legal Representative of the Complainant. There are a number of High Court Decisions to be considered in relation to the application of fair procedures, including legal representation. In Lyons v Longford Westmeath Education and Training Board IEHC 272/2017 the Judge held “where investigative processes can lead to dismissal, cross examination is a vital safeguard to ensure fair procedures………..It is the actual investigation that requires the right to cross examination and representation, that takes place prior to initiation of the disciplinary procedure under Circular 71/2014”. It is clear that in the particular circumstances of that case findings were made against the Complainant prior to the Disciplinary Hearing which would not be considered during the Disciplinary process.
This issue was also addressed by the High Court in EG v The Society of Actuaries in Ireland IEHC 392/2017 in which the Judge held “The Court is satisfied that the Investigating Committee was not obliged to conduct an oral hearing or to give the applicant an opportunity to cross-examine others in determining whether a prima facie case existed. The Court was satisfied that the decision to proceed on the basis of the statements and documents furnished was reasonable and fair in the circumstances”. In that case it is clear that the investigation decided there was a prima facie case of misconduct which was then put before the Disciplinary Tribunal. Similarly in the Decision of the High Court in NM v Limerick and Clare Education and Training Board IEHC308/2015 THE Judge held that “The decision to be taken by the investigators in this case could not be regarded as a final or binding finding of fact against the applicant. The procedure under the Circular requires an extensive hearing before determination could be made by the Chief Executive that a particular sanction should be applied”.
However, this issue has been addressed in a Decision from the Court of Appeal in the Case of Iarnrod Eireann/Irish Rail and Barry McKelvey – 2018 IECA 346 in which it is clear from this Decision that a Disciplinary Process is not rendered unfair by a refusal to allow an employee legal representation in the conduct of the disciplinary hearing or investigation. Such a requirement could only arise in exceptional cases involving issues of factual or legal complexity which could not be adequately addressed without the assistance of a lawyer.
I have read in detail all the appendices provided to the Hearing by the Respondent. I note the Investigation was conducted from 18/10/2017 to 9/1/2018 and the final investigation report was provided to the Complainant and she was requested to make any comments on this report. This was done twice, first on 9th January 2018 and the second letter dated 14th February 2018. The Complainant indicated she had no comments to make in an email dated 20th February 2018. I note that the Complainant was represented by her Full-Time SIPTU Trade Union Official.
The Complainant was invited by letter dated 22nd February 2018 to attend a Formal Disciplinary Hearing on 16th April 2018. The Complainant was afforded a right of representation by a Trade Union or fellow employee but she was informed that Legal Representation of other third party representation was not accepted as the internal process was not exhausted. She was also informed of the free access to the Employee Assistance Programme. This was conducted on 16th April 2018. The Complainant was represented by SIPTU. The Complainant was informed of the outcome by letter dated 2nd May 2018 and in a detailed report it deals with 8 concerns of the Respondent in relation to the incident on 9th August 2017. This stated that they considered the appropriate sanction and reached a decision that the actions of the Complainant amounted to gross misconduct and the decision was made to terminate the employment with immediate effect.
I note the Complainant was afforded a right of appeal but she did not do so and did not offer any explanation to the Hearing as the reasons why.
I note that the Complainant had completed a Training Programme on 3rd June 2015 and this was confirmed by the Complainant.
I note the Respondent’s Response at the Hearing in relation to Legal Representation as follows – The Complainant did not seek Legal Representation – The Complainant did not seek to examine or cross examine the service user or the witness at any stage in the process. Both Parties also confirmed that the Complainant did not raise these as issues during either the investigation or disciplinary process.
I note the Respondent’s response at the Hearing in relation to the Complainant’s allegation at the Hearing, which was not raised during the investigation or disciplinary process, that the named service user had access to pornography. This was sharply contested by the Respondent who flatly denied that any service user in their responsibility had access to pornography. The Complainant confirmed that she had not raised this issue with the Respondent Company.
I note that the Complainant was in receipt of Jobseekers Benefit from 29th May 2018 to 12th September 2018. Evidence was also provided post the Hearing in relation to mitigation of loss.
On the basis of the evidence I find that the Respondent conducted a thorough investigation and disciplinary process in relation to the incident of August 2017 which concluded on 2nd May 2018. This was in line with the Respondent’s Disciplinary Process, provided to the Hearing and also was in line with S.I. 146/2000 as set out at Section 6(7)(a) and (b) of the Act where it states –“….in determining if a dismissal is an unfair dismissal, regard may be had if the Adjudication Officer or the Labour Court, as the case may be, considers it appropriate to do so –(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of the compliance or failure, in relation to the employee, with the procedure referred to in Section 14(1) of this Act, or with the provisions of any code of practice referred to in paragraph (d) ….of Section 7(2) of this Act”
Section 7(2)(d) provides as follows – “the extent (if any) of the compliance or failure to comply by an employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act, or with the provisions of any code of practice relating to procedures regarding dismissal approved by the Minister”. S.I. 146/2000 was approved by the Minister Mary Harney on 26th May 2000.
Section 14(1) of the Act provides “An employer shall, not later than 28 days after he enters into a contract of employment with an employee, give to the employee a notice in writing setting out the procedure which the employer will observe before and for the purpose of dismissing the employee”.
The Complainant confirmed she had been provided with a written statement of her Terms and Conditions of Employment and including the Employee Handbook, which provided the Grievance and Disciplinary Procedures of the Respondent Company.
Decision: CA-00019539 -001
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.
On the basis of the evidence, my findings above and in accordance with Section 8(1)(c) I declare this complaint is not well founded.
DECISION – CA-00019539-002
In accordance with Section 41(5) of the Workplace Relations Act, 2015. I declare this complaint is well founded. I direct the Respondent to pay the Complainant 2 weeks Minimum Notice of €1035.00 gross, in accordance with Section 4(2)(b) of the Minimum Notice and Terms of Employment Act, 1973.
Workplace Relations Commission Adjudication Officer:
Key Words:
Unfair Dismissal – Legal Representation and Cross Examination raised. – A number of High Court Decisions, including Lyons, The Society of Actuaries, Limerick and Clare Education and Training Board and the Decision of the Court of Appeal in Iarnrod Eireann/Irish Rail 2018 IECA 346 were all considered in the Decision – Complainant not well founded as the Investigation and Disciplinary Process was conducted with regard to fair procedures and natural justice and in accordance with S.I. 146/2000. Complainant afforded a right of appeal but did not exercise that right, with no explanation given. Minimum Notice -Complaint well founded. Complainant entitled to 2 weeks minimum notice |
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ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00014984
Parties:
| Complainant | Respondent |
Anonymised Parties | Care Support Worker | Residential Consulting |
Representatives | Richard Grogan Richard Grogan & Associates | Stratis Consulting |
Complaints:
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-00019539-001 | 28/05/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00019539-002 | 28/05/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00019539-003 | 28/05/2018 |
Date of Adjudication Hearing: 11/09/2018
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
BACKGROUND.
The Complainant was employed as a Care Support Worker with the Respondent from 23rd June 2013 until the employment was terminated without notice by the Respondent on 2nd May 2018. The Complainant was paid €1035.00 gross per fortnight and she worked 70 hours a Fortnight. The Complainant was provided with a written statement of her Terms and Conditions of Employment, including the Respondent’s Handbook which included the Grievance and Disciplinary Procedures of the Company. The Complainant referred three complaints to the Workplace Relations Commission on 29th May 2018 alleging she had been unfairly dismissed under the Unfair Dismissals Act, 1977 – 2015 – a complaint under the Minimum Notice and Terms of Employment Act, 1973 and a complaint under the Organisation of Working Time Act, 1997.
The Complaint under the Organisation of Working Time Act, 1997 CA-00019539-003 was withdrawn at the Hearing.
SUMMARY OF RESPONDENT’S POSITION.
Unfair Dismissals Act, 1977 – The Respondent provided a detailed account of the services they provide to clients of the service and they operate under the Trust in Care Policy for Health Service Employers – Trust in Care. They also operate under the Respondent’s Policy on Safeguarding Vulnerable Persons at Risk of Abuse Policy and to keep the service users safe and free from abuse and neglect. Every employee is expected to demonstrate conduct, competence and capability that will not place the service user at risk.
There was a complaint from a service user, named, in relation to the Complainant’s alleged conduct on 9th August 2017. This service user is a vulnerable adult who is confined to a wheel chair. An investigation was conducted under the Trust in Care Policy in relation to the service users complaint that he was psychologically abused by the Complainant on 9th August 2017. The Complainant was accompanied by her full-time Trade Union Official from SIPTU, named. The Investigation Report was issued to the Complainant for her comments. The Complainant confirmed she had nothing to add.
The Complainant was invited to attend a Disciplinary Hearing on 16th April 2017. The Complainant was again represented by her Trade Union SIPTU. The outcome was communicated to the Complainant in a letter dated 2nd May 2018 setting out in detail the Concern, the Finding and the Conclusion in relation to 8 issues of concern. It was found that on 9th August 2017 the Complainant had called the service user a little shit – she had raised her voice to the user – she had pointed her finger at the user and she had threatened the user with retaliatory violence. In considering the appropriate sanction the Respondent noted that in her Staff Supervision Meeting on 31st July 2017 she had expressed issues regarding how she felt about service users and she was reminded to walk away from situations where she felt frustrated. The decision was made to terminate the Complainant’s employment for gross misconduct with immediate effect. The employment terminated on 2nd May 2018.
The Complainant was afforded a right of appeal. The Complainant had indicated her intention to appeal her dismissal but she did not do so.
The Respondent argued that – they believed the Complainant had misconducted herself as alleged – the Respondent had reasonable grounds to sustain that belief – the Respondent carried out an investigation as was reasonable before taking action to dismiss and the sanction of dismissal was proportionate to the alleged misconduct.
SUMMARY OF COMPLAINANT’S POSITION.
The Complainant asserted that the procedures of the Respondent in relation to the dismissal of the Complainant were unfair as the Complainant was not afforded legal representation at the Investigation and Disciplinary process although they accepted the Complainant had been represented by her Full-time Trade Union Official from SIPTU. The Complainant was not informed prior to the Disciplinary Process that this could lead to her dismissal. She was not informed nor was she afforded a right to cross examine the service user and the witness, named, to the incident. The Complainant referenced the Decisions of the Higher Courts in Castlerea and Lyons.
The Complainant asserted that the service user, named, had a history of violence and she was placed in danger in having to deal with him. She also asserted that as part of his medication he was provided with Pornography on stream and that putting a female employee in to deal with this service user was appalling. The Complainant stated that in relation to the incident she had reacted to a risky situation. She asserted that this service user should have been assigned a male employee. She stated that rather than being dismissed she should have been assigned to other clients.
The Complainant stated she had been in receipt of Jobseekers Benefit from the Department of Social Protection and that she had recently commenced work earning €11.75 an hour. The Complainant was requested to provide evidence from the Department of Social Protection – to provide evidence of her recent employment and when she commenced this employment and also evidence of mitigation of loss as required by the Act.
FINDINGS AND CONCLUSIONS.
Preliminary issue – Legal Representation.
The issue to be addressed now is whether, following a fair and transparent investigation and disciplinary process, the Respondent’s decision to dismiss the Complainant was one that a reasonable employer might make. The issue of legal representation was also raised by the Legal Representative of the Complainant. There are a number of High Court Decisions to be considered in relation to the application of fair procedures, including legal representation. In Lyons v Longford Westmeath Education and Training Board IEHC 272/2017 the Judge held “where investigative processes can lead to dismissal, cross examination is a vital safeguard to ensure fair procedures………..It is the actual investigation that requires the right to cross examination and representation, that takes place prior to initiation of the disciplinary procedure under Circular 71/2014”. It is clear that in the particular circumstances of that case findings were made against the Complainant prior to the Disciplinary Hearing which would not be considered during the Disciplinary process.
This issue was also addressed by the High Court in EG v The Society of Actuaries in Ireland IEHC 392/2017 in which the Judge held “The Court is satisfied that the Investigating Committee was not obliged to conduct an oral hearing or to give the applicant an opportunity to cross-examine others in determining whether a prima facie case existed. The Court was satisfied that the decision to proceed on the basis of the statements and documents furnished was reasonable and fair in the circumstances”. In that case it is clear that the investigation decided there was a prima facie case of misconduct which was then put before the Disciplinary Tribunal. Similarly in the Decision of the High Court in NM v Limerick and Clare Education and Training Board IEHC308/2015 THE Judge held that “The decision to be taken by the investigators in this case could not be regarded as a final or binding finding of fact against the applicant. The procedure under the Circular requires an extensive hearing before determination could be made by the Chief Executive that a particular sanction should be applied”.
However, this issue has been addressed in a Decision from the Court of Appeal in the Case of Iarnrod Eireann/Irish Rail and Barry McKelvey – 2018 IECA 346 in which it is clear from this Decision that a Disciplinary Process is not rendered unfair by a refusal to allow an employee legal representation in the conduct of the disciplinary hearing or investigation. Such a requirement could only arise in exceptional cases involving issues of factual or legal complexity which could not be adequately addressed without the assistance of a lawyer.
I have read in detail all the appendices provided to the Hearing by the Respondent. I note the Investigation was conducted from 18/10/2017 to 9/1/2018 and the final investigation report was provided to the Complainant and she was requested to make any comments on this report. This was done twice, first on 9th January 2018 and the second letter dated 14th February 2018. The Complainant indicated she had no comments to make in an email dated 20th February 2018. I note that the Complainant was represented by her Full-Time SIPTU Trade Union Official.
The Complainant was invited by letter dated 22nd February 2018 to attend a Formal Disciplinary Hearing on 16th April 2018. The Complainant was afforded a right of representation by a Trade Union or fellow employee but she was informed that Legal Representation of other third party representation was not accepted as the internal process was not exhausted. She was also informed of the free access to the Employee Assistance Programme. This was conducted on 16th April 2018. The Complainant was represented by SIPTU. The Complainant was informed of the outcome by letter dated 2nd May 2018 and in a detailed report it deals with 8 concerns of the Respondent in relation to the incident on 9th August 2017. This stated that they considered the appropriate sanction and reached a decision that the actions of the Complainant amounted to gross misconduct and the decision was made to terminate the employment with immediate effect.
I note the Complainant was afforded a right of appeal but she did not do so and did not offer any explanation to the Hearing as the reasons why.
I note that the Complainant had completed a Training Programme on 3rd June 2015 and this was confirmed by the Complainant.
I note the Respondent’s Response at the Hearing in relation to Legal Representation as follows – The Complainant did not seek Legal Representation – The Complainant did not seek to examine or cross examine the service user or the witness at any stage in the process. Both Parties also confirmed that the Complainant did not raise these as issues during either the investigation or disciplinary process.
I note the Respondent’s response at the Hearing in relation to the Complainant’s allegation at the Hearing, which was not raised during the investigation or disciplinary process, that the named service user had access to pornography. This was sharply contested by the Respondent who flatly denied that any service user in their responsibility had access to pornography. The Complainant confirmed that she had not raised this issue with the Respondent Company.
I note that the Complainant was in receipt of Jobseekers Benefit from 29th May 2018 to 12th September 2018. Evidence was also provided post the Hearing in relation to mitigation of loss.
On the basis of the evidence I find that the Respondent conducted a thorough investigation and disciplinary process in relation to the incident of August 2017 which concluded on 2nd May 2018. This was in line with the Respondent’s Disciplinary Process, provided to the Hearing and also was in line with S.I. 146/2000 as set out at Section 6(7)(a) and (b) of the Act where it states –“….in determining if a dismissal is an unfair dismissal, regard may be had if the Adjudication Officer or the Labour Court, as the case may be, considers it appropriate to do so –(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of the compliance or failure, in relation to the employee, with the procedure referred to in Section 14(1) of this Act, or with the provisions of any code of practice referred to in paragraph (d) ….of Section 7(2) of this Act”
Section 7(2)(d) provides as follows – “the extent (if any) of the compliance or failure to comply by an employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act, or with the provisions of any code of practice relating to procedures regarding dismissal approved by the Minister”. S.I. 146/2000 was approved by the Minister Mary Harney on 26th May 2000.
Section 14(1) of the Act provides “An employer shall, not later than 28 days after he enters into a contract of employment with an employee, give to the employee a notice in writing setting out the procedure which the employer will observe before and for the purpose of dismissing the employee”.
The Complainant confirmed she had been provided with a written statement of her Terms and Conditions of Employment and including the Employee Handbook, which provided the Grievance and Disciplinary Procedures of the Respondent Company.
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.
On the basis of the evidence, my findings above and in accordance with Section 8(1)(c) I declare this complaint is not well founded.
Dated: 18-02-2019
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
Key Words:
Unfair Dismissal – Legal Representation and Cross Examination raised. – A number of High Court Decisions, including Lyons, The Society of Actuaries, Limerick and Clare Education and Training Board and the Decision of the Court of Appeal in Iarnrod Eireann/Irish Rail 2018 IECA 346 were all considered in the Decision – Complainant not well founded as the Investigation and Disciplinary Process was conducted with regard to fair procedures and natural justice and in accordance with S.I. 146/2000. Complainant afforded a right of appeal but did not exercise that right, with no explanation given. |