Complainant

Respondent

Anonymised Parties

Healthcare Support Worker

Healthcare Provider

Representatives

Orlaith McCarthy

Tiernan Lowey BL, Vivienne Matthews-O’Neill BL, DAS Ireland, Charlotte Clarke, Moyna Kilbride, Deirdre Tierney, Danuk Jensen, Rosarie Tynan

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-00018762-001

27/04/2018

The Complainant was employed as a Healthcare Support Worker from 4th November 2013 to 18th January 2018. He was paid €2,661.83 per month. He has claimed that he was unfairly dismissed and has sought compensation/re-instatement.

The Complainant was employed as a Support Worker with the Respondent from 4th November 2013 until his dismissal on 18th January 2018. The Complainant was paid €2,661.83 per month. The Respondent is a private company limited by guarantee. The company, registered as a charity in 1983, is a major provider of services for adults and children with a learning disability, mental ill health, acquired brain injury and for older people, including people with dementia. The group was established in 2002 by the merging of 3 well established charities in Northern Ireland.

By WRC complaint form, lodged on 27th April 2018, the Complainant claims against the

Respondent under the following heading: That he was unfairly dismissed and seeks redress of reinstatement pursuant to section 8 of the Unfair Dismissals Act, 1977-2015. The Respondent denies the claim. It is submitted that the Complainant breached behaviour support plans and supervision levels by allowing a vulnerable service user to go to the toilet unaccompanied at Pearse Street station. It is further submitted that in dereliction of duty, the Complainant fell asleep while at work and when he was required to be providing care services to residents. The Complainant’s employment was terminated this due to instances of gross misconduct following a detailed, two-stage disciplinary process, which was conducted strictly in accordance with his contract of employment, natural justice and fair procedures.

Relevant contractual provisions

The Complainant’s employment commenced on 4th November 2013. His terms and

conditions of employment were reduced to writing by contract, dated 3rd April 2017.

Under the said contract the Complainant was directed to details of his duties outlined in

the job description for the post. Under the relevant job description, support workers are required “to meet the practical, physical and emotional needs of the individuals living in X Children’s Unit.”

The same document details a number of requirements of support workers including specific requirements regarding attendance at meetings with managers and team leaders to review and plan work and to engage in ongoing training regarding the care needs of residents to ensure that the support worker is “competent in handling/responding to the particular needs of the client group.” Under the relevant job specification for his role, successful candidates were required to have certain qualifications in health and social care and relevant experience in this field. On commencement of employment, all support workers are required to undergo detailed and comprehensive mandatory induction training, taking place in Northern Ireland.

Disciplinary procedures

Clause 13 of the contract of employment confirms that any disciplinary matter will be dealt with in accordance with the organisation’s disciplinary policy. All members of staff are furnished copies of the Respondent’s disciplinary procedures on commencement of employment. Fundamentally, the said policy confirms that no disciplinary action will be taken until a full investigation into the alleged conduct has been carried out. It also provides that employees will be provided a written statement of the alleged conduct and particulars regarding the basis of the allegation. The same policy confirms the employee’s right to be accompanied at disciplinary meetings by a trade union representative or another employee of their choice and to a right of appeal. Furthermore, employees are advised that they may be suspended from work on full pay pending the outcome of the investigation and resultant disciplinary process. The policy provides that, if appropriate, alternatives to suspension may be used, such as temporary transfer to other duties. The policy contains specific provisions regarding disciplinary procedures for instances of alleged gross misconduct. Included amongst a non-exhaustive list of potential instances of gross misconduct in the said policy is “deliberately ignoring organisational rules and thereby endangering the physical wellbeing of safety or self or others” and “refusal to adhere to work rules or policies.”

Safeguarding vulnerable adults policy & procedure

In addition to the above documents, support workers are advised and trained in the

Respondent’s policies for the safeguarding of vulnerable adults. This policy applies to all members of staff and, amongst other things, is aimed at promoting a no tolerance approach of harm to adults from abuse, exploitation or neglect and to preventing and reducing the risk of same.

Alleged misconduct

Breaches of Service User D1’s care plan. All residents are placed by the Respondent on formal care plans specifying the particular care requirements of each service user. These can be modified from time to time depending on a service user’s particular circumstances.

On 24th November 2017, the Complainant and another more junior member of staff,

BC, took Service User D1 on an external outing. At all material times, the Complainant was responsible for the care of Service User D1 which included the implementation of the relevant care plan for this vulnerable adult’s needs. The Complainant knew that Service User D1 was required at all times during external. outing to have 2:1 care, meaning that he was required to have two support workers caring from him at all times. On the date in question, Service User D1 asked to go to the toilet in the station’s public toilets. It was not in dispute that the Complainant gave him permission to do so. The public toilet was located on another platform and to reach it Service User D1 was

required to make his way through an underpass where he would have been out of sight

for a period of time. Service User D1 would then have been out of sight when in the toilet itself. Following the request by Service User D1,BC expressed her concerns to the Complainant saying that she did not feel comfortable allowing it. The Complainant asserted that it was needed in order for the service user to gain independence. Owing to the Complainant’s relative seniority, BC said she went along with the decision. Prior to these events, both the Complainant and BC had taken Service User D1 on outings on five previous occasions.

Sleeping while on duty

On 19th November 2017, a member of staff, LB, reported to MK, Manager, that he had witnessed the Complainant sleeping while on duty and during a time when he was responsible for the care of residents D7 and D1. On 21st November 2017, another member of staff reported that the Complainant had fallen asleep while at play therapy. During a meeting on 30th November 2018 with Service User D1’s mother, MK was informed that while her son got on well with all male staff, she was aware that the Complainant falls asleep during access. Later that day, the Complainant was subsequently informed by MK of the mother’s comments and the other above safeguarding issues raised by BC and was advised that HR would shortly be in contact in relation to same.

Disciplinary process involving Complainant

By letter dated 28th November 2017 which was delivered by email on the 1st of December 2017 at 16.16, CC HR Advisor wrote to the Complainant inviting him to an investigation meeting on 6th December 2017 regarding “a number of potential safeguarding issues which you were informed on by MK on 30th November 2017.” The Complainant was advised that RT would be the investigating officer and that MC would also be in attendance at the meeting to take notes. The

Complainant was told of his rights to representation at the meeting and assured that no

decision had been made in relation to the matters under investigation. On 6th December 2017, a comprehensive investigation meeting took place during which the Complainant was provided details of the allegations to which he was required to answer and reminded of his rights. The Complainant was given every opportunity to provide his version of events and gave a comprehensive account. In addition to providing a number of explanations regarding the allegations concerning his sleeping while on duty, the Complainant addressed the Respondent’s concerns regarding the care of Service User D1 during the outing on 28th November 2017. The Complainant accepted that Service User D1 was on a care plan that required one to one care in the house and two to one care in the community. By email dated 14th December 2017, the Complainant approved the Respondent’s minutes of the investigation meeting as accurate. In addition to the Complainant, the Respondent carried out investigation meetings with BC, LD, CB, MM, MK and LB. By letter dated 7th December 2017, Ms Clarke wrote to the Complainant to advise that the Respondent had made a decision to suspend the Complainant on full pay pending “a full investigation to be completed surrounding the allegations made against you in relation to potential sleeping on shift and safeguarding in the community.” Following her investigation, MT issued an investigatory report which ultimately

recommended that the safeguarding allegations constituted grounds of gross misconduct in circumstances where the Complainant had made relevant admissions. By letter dated 2nd January 2018, AM (HR business partner) wrote to the Complainant requiring his attendance at a formal disciplinary hearing on 16th January 2018. Details of the allegations to be considered at the hearing were listed in the said letter. The Complainant was informed that the hearing would be conducted by LM, acting assistant director. The Complainant was furnished all relevant investigative materials and once again advised of his rights under the Respondent’s disciplinary procedures. By email dated 9th January 2018, MM wrote to the Complainant to advise that the hearing would be conducted by DT, scheme manager, as opposed to MMcI as previously advised. The Complainant replied to advise that he had not received the letter of the 2nd January 2018. Accordingly, by letter dated 9th January, the Respondent issued the same letter with the one change concerning the identity of the

person conducting the hearing. On 16th January 2018, a disciplinary hearing took place during which the Complainant was given an opportunity to make out his defence of the allegations. By email dated 17th January 2018, the Complainant approved the Respondent’s minutes of the disciplinary hearing as accurate. By letter dated 18th January 2018, Ms Tierney informed the Complainant that a decision had been made to terminate his employment advising that: “[i]t was with sadness that I make the decision that your employment should be terminated on the grounds of gross misconduct. The intrinsic element of all our roles is to safeguard service users, and by deliberately ignoring organisational rules you have failed to do so. Your actions endangered the physical wellbeing of the SU and others.” The Complainant was advised in the same letter of his right of appeal. The Complainant did not avail of this option.

Reporting obligations

Separately, and in accordance with its obligations to inform relevant oversight organisations, an ‘Untoward Event’ form was subsequently completed on behalf of the Respondent detailing the events the subject of the disciplinary process. The form identified the events as potentially constituting ‘neglect/acts of omissions’ and a ‘child protection enquiry.’ It was recommended in the same form that a referral report to the appropriate adult safeguarding or child protection team was necessary.

Legal submissions

In terms of the approach to the decision to dismiss, the appropriate approach is that of

the Circuit Court in AIB v Purcell [2012] 23 E.L.R. 189. In her judgment, Linnane J stated

as follows: “It is clear that it is not for the EAT or this court to ask whether it would dismiss in the

circumstances or substitute its view for the employer's view but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the court would have taken”. It is submitted, therefore that there were substantial grounds to justify the termination

of employment of the Complainant as constituting gross misconduct. Therefore sections

6(1) and 6(4)(b) of the Unfair Dismissals Acts 1977-2013 are applicable. The Respondent

conducted an investigation, disciplinary hearing and offered an appeal in conformity

with its disciplinary procedure and this process afforded the Complainant fair procedures and natural justice. The Respondent was entitled to form the view that, based on the available evidence, on the balance of probabilities, the Complainant was in breach of its policies constituting gross misconduct. The actions the Complainant was found guilty of on the balance of probability are the type of behaviour which the Respondent cannot tolerate.

They are defined as gross misconduct within the Respondent’s disciplinary procedure. In

this regard the Respondent’s obligations under section 6(7) of the Unfair Dismissals Acts

1977-2007 were adhered to. Given the actions of the Complainant and in particular the need for trust and confidence required of him by the Respondent having regard to the nature of his duties of

employment, the sanction of dismissal was fair and reasonable. In this regard reliance is

placed on the decision of the Employment Appeals Tribunal in Abbott v The Lock Shop

[1993] E.L.R. 141. In this case, in upholding the dismissal as fair, the EAT held that the

duty of trust is particularly central to the employer / employee relationship where the

duties of the employee were of a particular nature.

Mitigation and evidence of loss

Strictly without prejudice to the foregoing, insofar as the dismissal of the Complainant is

found to be unfair (which is not accepted), it is submitted there is a high level of contribution on the part of the Complainant towards his dismissal such that any award should take account of this position. In Kayetan Miynarski v John Holland & Henry Gillanders t/a Pianos Plus UD1294/2008,

the Employment Appeals Tribunal, in finding that while the claimant in that case had engaged in gross misconduct, he had been unfairly dismissed on the basis of a lack of fair procedures. In making its award, the Tribunal was cognisance of the claimant’s actions, and held that “the claimant’s contribution to his own dismissal is such that the appropriate remedy is an award of compensation in a nil sum”. Insofar as the Complainant is looking for re-instatement, it is clear that this remedy is

not in any way appropriate in circumstances where the trust between the parties has broken down completely. In A General Operative v A Manufacturer, ADJ-00000309 (15 June 2016), the Adjudication Officer stated that: “In considering the appropriate redress, I have taken all factors into account….and I have concluded that there is a complete absence of the minimum level of trust necessary to sustain an employer / employee relationship and that accordingly the only appropriate redress in the instant case is compensation.”.

If, which is denied, the Complainant was unfairly dismissed for the purposes of the Unfair Dismissals Act 1977, the Respondent makes the following submissions: It is submitted that the Complainant is required to show adequate mitigation of losses, pursuant to Sections 7(2)(b) and 7(2)(c) above. In assessing the Complainant’s duty to mitigate losses, it is submitted that the Court must have regard, inter alia, to the extent (if any) to which any financial loss was attributable to an act or omission by the Complainant. Further, it is submitted that the Court must then have regard to the

measures (if any) adopted by the Complainant or, his failure to adopt measures, to

mitigate his losses. The duty commences from the date of any alleged dismissal and is a continuous duty until the hearing of the claim. In the absence of any evidence to the contrary, it is

submitted that the Complainant has failed to mitigate any alleged losses. The EAT considered the question of mitigation in Sheehan v Continental Administration Co Ltd.1 It stated that:

“A Claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work [...] The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss.” Without prejudice to the foregoing, it is submitted that the Claimant substantially contributed to any financial loss. They stated that the trust and confidence has been broken and reinstatement is not an option.

The decision to dismiss was over the top. The Complainant accepts the facts of the case. He had known D1 for four years. He made a decision to allow him to go to the toilet on his own in view of allowing him to develop independence. Of course, if he had known that this would lead to him losing his job he would not have done it. He was promoting independence. He had not serious concerns for his job when he was advised of the investigation because his manager MK told him he would probably get a written warning. He did not bring anyone with him to the investigation meetings as he was told not to discuss this with anyone. This meant that he couldn’t have a colleague as a representation. He accepts that he made a bad judgement call that day with D1. He didn’t appeal the sanction of dismissal because he was in shock. He decided to apply for another job which he got an offer but when the reference referred to gross misconduct he was declined. This dismissal has meant that he has lost his career. He applied for plenty of jobs in printing, shops, but he couldn’t get social care work. He has retrained as a Security Officer. He got a full-time job on 16th June 2018. He is earning €10,000 less per annum. Regarding redress he is seeking his good name back. He was good at his job but the Respondent does not want him back in their employment. The dismissal was unfair, the sanction was disproportionate he could have been given a written warning.

I note that the sleeping on the job allegations were not upheld and so do not form part of this investigation.

Substantive Matter

I note that the facts of the case are not in dispute.

I understand the very strict standards and obligations that are placed on care providers.

I note that that Client D1 was a vulnerable and a minor.

I note that the incident at the train station could have ended up a very serious matter with all sorts of possible outcomes, thankfully it didn’t.

I find that the Complainant was not acting neglectfully, or lazy or disinterested.

I note that his companion /colleague BC (who was on probation) did not raise a concern when the Complainant allowed the Client D1 to go to the toilet on his own.

I note the Complainant’s assertion it was done to advance the D1’s move towards independence, given that he was approaching adulthood.

I note that BC did not raise this matter with management for three days.

I note that when the Complainant then spoke to his manager about this incident she responded that you’ll probably end up getting a written warning.

Therefore, I find that his manager didn’t see it as a dismissible matter and his colleague did not see it as an urgent matter.

Therefore, I find that this action did not constitute gross misconduct warranting dismissal.

Therefore, I find that this dismissal was substantively unfair.

Procedural matter

I find that the Respondent applied fair procedure to the investigations and disciplinary investigations.

I find that his colleague BC did not report her concerns about this incident for three days therefore she did not see this as an urgent matter.

I find that his manager deemed this to be a matter less than gross misconduct possibly warranting a written warning.

Therefore, I find that the Complainant entered the investigation and disciplinary investigation with a view that this was not a dismissible matter.

I note that he was advised not to discuss this investigation with colleagues, yet he was offered the right of representation from the very people that he couldn’t speak to. So, as he was not a union member he could not bring a colleague or representative.

I find that the Respondent failed to address this with him, which resulted in him not having representation.

I find that the punishment of dismissal does not fit the crime and this was how his manager saw it when she first discussed this with him.

I also find that this sanction of dismissal not only resulted in him losing his job he also lost his career; the hearing was told he was good at his job as a carer.

I find that the dismissal was procedurally unfair.

Mitigation of loss

I note that he applied for care work but because of his dismissal he was unsuccessful.

I note that he applied for a number of positions and then reverted to security and has been successful since 16th June 2018.

I find that he has made a concerted effort to mitigate his loss.

Overall, I find that the dismissal was both substantively and procedurally unfair.

However, I find that he did commit an act of serious misconduct and showed a poor lack of judgement.

I find that he has contributed to his dismissal.

I note that the Respondent has made it clear that re-instatement or re-engagement would not be acceptable to them.

I find that compensation is the more appropriate redress.

Unfair dismissal Care work scenario