Complainant

Respondent

Anonymised Parties

A healthcare worker

A healthcare provider

Representatives

 BL

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-00014704-001

29/09/2017

The respondent is a voluntary organisation, providing a range of supports to adults and children with intellectual disabilities. One of their services is training for employment and support for service-users in employment. The complainant was engaged in this work as a job coach. When a service-user secured employment, his role was to provide coaching and support so that they could remain in employment and develop their skills in the workplace.

The complainant joined the respondent organisation in May 2006 and he was dismissed on February 16th 2017. His dismissal arose from an incident that occurred on December 8th 2015, when he was coaching a service-user at her place of work. I will refer to this service-user as “Ms A.” An investigation into the incident concluded that, on the day in question, the complainant’s treatment of Ms A “was abusive and intimidating” and that it “fell short of what could be regarded as reasonable” with respect to the support of Ms A. On this basis, the investigators found that the complainant’s conduct amounted to emotional abuse and was in breach of the respondent’s Adult Protection Policy.

At the hearing, the complainant set out his views that his dismissal was unfair because he believes that the sanction was too severe, that consideration was given to an earlier “out of date” incident about which no warning was issued and that there were procedural deficiencies in the investigation and the disciplinary process.

Incident on December 8th 2015

From the evidence submitted at the hearing of this complaint, it is apparent that on December 8th 2015, the complainant was engaged in coaching a service-user, Ms A. Ms A has Down Syndrome and a mild intellectual disability and was employed by the same company for 10 years in a facilities role. In December 2015, she was 37 years old. She lives with her sister, as her mother had died about a year earlier and her father some time before that.

The evidence indicates that on the day in question, the complainant visited Ms A at her place of work. It appears that she was in a low mood. In her presence, the complainant asked other employees, “Is Ms A doing her job properly?” During the same visit, observing Ms A’s detached response to friendly greetings from her colleagues, the complainant remarked to her, “your attitude is shit.” At home that evening, Ms A was upset and told her sister about this altercation with her job coach.

The evidence also shows that on the same day, December 8th 2015, a manager in the company where Ms A worked phoned a manager of the job coach team to express her concern about how the complainant engaged with Ms A.

Preliminary Screening of the Report of the Incident

In accordance with the respondent’s preliminary screening process, the concerns raised by the manager in Ms A’s workplace were referred to a designated officer. This is a process where a designated person makes an initial assessment of a complaint or a report about an incident of abuse or unprofessional treatment of a service-user. On December 15th and, in a second statement a few days later, the complainant sent a written explanation of his understanding of what occurred on December 8th. He said that when Ms A did not respond to the friendly greetings of her co-workers, in a raised voice, he said to her, “your attitude is so bad, your attitude is shit, I’m sorry I have no other word to describe your attitude.” The designated officer decided that “there were reasonable grounds for concern that abuse may have occurred” and, in accordance with the respondent’s Adult Protection Policy, the incident was referred for an investigation. On December 21st 2015, the complainant was placed on what was referred to as “administrative leave,” pending the outcome of the investigation.

Investigation under the Trust in Care Policy

Investigations into the conduct of health service professionals are conducted in accordance with the “Trust in Care Policy.” This was developed in 2005 under the auspices of the Health Service Executive (HSE) by a working group of health service employers and unions. The introduction to the policy states that its aims are two-fold:

“(i) Preventative: to outline the importance of the proper operation of human resource policies in communicating and maintaining high standards of care amongst health service staff;

“(ii) Procedural: to ensure proper procedures for reporting suspicions or complaints of abuse and for managing allegations of abuse against health service staff in accordance with natural justice.”

An independent investigator was appointed to carry out the investigation and he was assisted by a senior nurse manager from the respondent’s organisation. Terms of reference for this investigation were developed and finalised in March 2016, following input from the complainant.   The specific complaint about the complainant’s conduct was documented in the terms of reference as follows:

“It is alleged that on or about Tuesday, 8th December 2015 (the complainant) was observed to speak with (Ms A) in an aggressive and inappropriate manner saying among other things, ‘get in there and empty that dishwasher as he is doing your job for you.’ It is also alleged that (the complainant) spoke about (Ms A) to others in the presence of (Ms A) making such comments as, ‘Does (Ms A) do her job of loading the paper? Does she really?’ (This refers to loading of paper in photocopiers). Furthermore, in his own report, (the complainant) made the following comments: ‘…yes I did say to (Ms A) that her attitude in work was very bad and that I said to (Ms A) your attitude is shit I’m sorry I have no other word to describe your attitude’ contrary to (the respondent’s) Personnel Policies and Procedures including Code of Conduct.”

The investigators interviewed the community facilitator who met Ms A on December 9th 2015 following the phone call from the manager at her place of work. They interviewed the social worker who conducted a “validation assessment” with Ms A on December 20th. They also interviewed the complainant and considered his responses to the statements made by these witnesses, the statements of the manager at Ms A’s workplace and the statements of the employees who observed the complainant’s treatment of Ms A on December 8th 2015.

In their findings, the investigators considered the complainant’s conduct in respect of two incidents. The first of these, described as “the incident at the photocopier,” was when the complainant asked Ms A’s colleagues, in her presence, if she was doing her job properly. The second, referred to as “the incident at the coffee dock,” was the context in which Ms A did not respond to her colleagues and the complainant remarked to her, “your attitude is shit.”

The investigation report refers to the respondent’s Policy on Adult Protection and Procedures where emotional / psychological abuse is defined as “any behaviour carried out with the intention of causing mental distress or which results in mental distress. It may take many forms and may be overt or subtle.”

The investigators concluded that the complainant’s “language and behaviour was abusive and intimidating towards (Ms A), and further found that (the complainant’s) behaviour towards (Ms A) fell short of what could be regarded as reasonable.”

On June 1st, a copy of the investigator’s report was given to the complainant and he responded the same day. He disagreed with the outcome of the investigation, saying it was “completely unacceptable.” He complained that it was inaccurate and contained “glaring errors which have serious consequences to my future and my name.” In a response addressing each of the points raised by the complainant, the investigators stated that they had “carefully considered all the information and submissions made” and that they had made “balanced and proportionate findings.”

On September 19th 2016, the complainant attended what was referred to as a “mitigation meeting” with the Chief Executive Officer (CEO). The complainant’s notes in response to this meeting were submitted in evidence. The notes show that he had a concern about the summary nature of the investigation report and the fact that the transcript notes of his statements were not recorded in the report. In a letter dated October 12th 2016, the CEO informed the complainant that she read the report of the investigation in its entirety, and that before their meeting on September 19th, she read the transcripts of all the meetings with him and the other witnesses. She concluded “upon careful reflection of the totality of the information” that the complainant’s behaviour towards a vulnerable person and his lack of appreciation of the impact of his behaviour was “extremely worrying.” She referred the matter to the organisation’s human resources department with a request that it be processed in accordance with its disciplinary procedures.

Consideration of the Complainant’s Conduct as a Disciplinary Matter

A disciplinary meeting was held on December 1st 2016, at which the complainant was accompanied by a colleague. The respondent was represented by the Human Resources Manager and the Director of Operations. These managers said that in reaching a decision about whether to impose a disciplinary sanction, they considered the report of the investigators of June 1st 2016, the complainant’s subsequent comments on the report, the investigators response to these comments and the complainant’s comments to the CEO at his meeting with her on September 19th 2016. The disciplinary panel also considered an investigation into an incident that occurred in November 2014. This investigation concluded in May 2015 and the panel noted that there were similarities between the 2014 incident and the incident that occurred on December 8th 2015. In the earlier report, the investigators concluded that the complainant’s response to a service-user not following his instructions was “not an appropriate response from an individual whose primary responsibility is to provide supports to persons with an intellectual disability.”

Considering the December 8th incident with Ms A, the disciplinary panel found that the complainant’s behaviour towards Ms A was “totally unacceptable.” Considering the findings of the investigation into the incident that occurred in November 2014, they found that his actions were “compounded by a lack of evidence of any learnings or improved behaviour.” The panel formed the view that the complainant’s behaviour “fell far short of the very high level of trust and confidence that must be reposed in employees providing support to our service-users.” The concluded that, “by his actions,” the complainant, “had broken this trust and confidence which forms the cornerstone of every employee / employer relationship.”  

The Respondent’s Arguments that the Dismissal was not Unfair

The respondent’s position is that the dismissal of the complainant was not unfair as it resulted from his conduct which, following an investigation and a disciplinary hearing, was found to be unacceptable. In his evidence at the hearing, the HR Manager said that the complainant was dismissed not for misconduct, but because of his conduct towards a vulnerable service-user which was emotional abuse and his failure to recognise that his behaviour was unacceptable. The respondent’s case is that the complainant’s conduct on December 8th 2015, was similar to the behaviour he displayed in an incident in November 2014, the outcome of which was communicated to him in May 2015.   They said that they lost confidence in the complainant and that, as a result, the employment relationship could not be sustained.

It is the respondent’s case that the process that resulted in the dismissal of the complainant was procedurally fair in all respects. The process commenced with a preliminary screening and was followed by an investigation chaired by an independent consultant. The complainant also met with the CEO to mitigate the effect of his conduct and then moved to a formal disciplinary hearing, in accordance with the respondent’s procedures. The complainant was given the details of the allegations against him and allowed to be represented at all stages when he had an opportunity to respond to the allegations. A fair and impartial determination of the issues was carried out by the disciplinary panel and following his dismissal, he availed of the right to appeal. Following an appeal hearing on February 9th 2017, in a report on March 22nd, the decision to dismiss the complainant was upheld.

The chronology of the events leading to the dismissal of the complainant in this case have been set out in the section above on the Summary of the Respondent’s Case. In this section, I intend to focus on the complainant’s response to his dismissal and to the process that resulted in his dismissal, commencing with the incident with Ms A on December 8th 2015.

The Complainant’s Arguments that his Dismissal is Unfair

Notes of the disciplinary meeting of December 1st 2016 were submitted in evidence and these record that, at the meeting, the complainant apologised for his behaviour towards Ms A and he asked that his honest responses during the investigation be taken into account. At the hearing, the HR Manager agreed that, during the investigation, the complainant had been honest in his dealings with the various personnel he encountered.     For the complainant, Mr Doran said that early in the process, the complainant admitted to raising his voice with Ms A and to using the word “shit” in his effort to get her to change her attitude.

Evidence of the Human Resources Manager

Cross-examining the HR Manager, Mr Doran asked what kind of abuse had taken place, and the HR Manager replied that the abuse was categorised as emotional abuse. The organisation’s Adult Protection Policy was submitted in evidence and Mr Doran referred to a matrix which sets out adult protection thresholds. This depicts types of abuses under the headings of physical, intellectual, sexual, discriminatory, emotional/psychological, financial and neglect. For each type of abuse, there is a description of levels of seriousness from level 0 to level 3. The four levels of emotional / psychological abuse are described as follows:

Level 0: One-off incident of teasing that caused little or no distress.

Level 1:   Undermining someone’s dignity and self-esteem. Denying people choice.

Level 2: Recurring verbal abuse. Emotional blackmail.

Level 3: Denial of basic human rights.    

In response to Mr Doran’s question about what level of abuse he considered the complainant to have engaged in, the HR Manager said that he categorised the abuse at level 2.   He said that the issue of concern was how he spoke to the service-user and how he spoke to others about her in her presence. Mr Doran said that it was a concern that the independent investigators didn’t categorise the level of the abuse.

Mr Doran also raised an issue about the fact that the incident that resulted in the complainant’s dismissal took place one year before the commencement of the disciplinary investigation and that, in the interim, the complainant was suspended.   Mr Doran argued that this was unfair, and that the complainant’s colleagues and others in the organisation could reasonably conclude that he was the subject of a very serious allegation.   In his own evidence, the complainant said that he heard that people thought he had a nervous breakdown and others thought he was seriously ill.

The HR Manager clarified that the complainant was not suspended, but that he was placed on administrative leave. He said that this was not part of the disciplinary procedure and that its purpose was to protect the service-user and the complainant from any further issues.   Mr Doran questioned why the complainant was not simply assigned as a job coach to a different service-user and the HR Manager replied that it would not be appropriate to risk another service-user being subjected to the same treatment.

When he was asked if he considered that, in dismissing the complainant, the disciplinary panel was putting an end to the complainant’s professional life, the HR Manager said that he was aware of the seriousness of the effect of dismissal on the complainant. He said that he felt that the outcome of the disciplinary process was reasonable, as it resulted from a fair, balanced and thorough investigation and had been conducted in accordance with the principles of natural justice.

Referring to the fact that, in accordance with the organisation’s Adult Protection Policy, the incident on December 8th 2015 was reported to an Garda Síochána, Mr Doran asked if the complainant had been advised that criminal proceedings could have been initiated about his conduct. He asked if the complainant had been advised to get legal advice and the HR Manager responded that he was advised to get a representative. He said that if the complainant had consulted a solicitor and brought a solicitor to any meeting, they would have proceeded with the solicitor as his representative. For the complainant, Mr Doran said that, by allowing the complainant to engage in an investigation and a disciplinary process without the support of legal advice, the respondent had exposed him to a risk of recrimination in the face of potential criminal proceedings.

Finally, Mr Doran suggested to the HR Manager that there was no evidence that Ms A was distressed in response to the complainant’s remarks and the HR Manager said that it was apparent from the report of Ms A’s sister and from the statements of her colleagues at work that she was distressed.

Evidence of the Director of Operations

Mr Doran asked the Director of Operations to comment on the fact that the complainant accepted that his statement to Ms A, “your attitude is shit,” and the way he raised his voice during the encounter on December 8th 2015 was unacceptable. The Director of Operations said that his concern, and that of the HR Manager, was their sense that the complainant had “a distinct lack of awareness” of the impact of his behaviour on a vulnerable person. He said that he appeared to have a lack of understanding of the impact of his language on Ms A. He said that he did not consider the complainant’s behaviour as gross misconduct.

Considering the incident that occurred in November 2014, which resulted in no sanction, Mr Doran suggested that this incident was treated too lightly and the December 2015 incident was treated too seriously. The Director of Operations said that the disciplinary panel had no prior knowledge of the earlier incident, and his conclusion was that the complainant lacked understanding of the impact of his behaviour. He said that this failure to reflect on his behaviour was reinforced at the appeal hearing, where the committee concluded that the complainant had no remorse and did not see any need to consider a change in his behaviour.

Noting that a coaching process was set up following the November 2014 incident, Mr Doran asked why this had not been allowed to conclude. The Director of Operations said that this process was halted when the complainant was placed on administrative leave.

At the hearing, evidence was also given by the volunteer director who heard the complainant’s appeal against his dismissal. I have noted that the dismissal was upheld and there is no requirement to repeat the evidence of this witness here.

Evidence of the Complainant

In his direct evidence, the complainant said that he accepted that the use of the word “shit” and the raising of his voice with Ms A on December 8th 2015 was unacceptable. He said that he regretted his approach, which was not reasonable or professional.   He said that he now accepts that he may have caused upset for Ms A and that this was not his intention. He also said that he would like to apologise to her. He said that he had a good relationship with Ms A and with her sister, and that he would like to go back to his job.

In response to cross-examining by the HR Manager, the complainant was asked when he became aware that his behaviour towards Ms A was not acceptable. In response, he said that “this has been a process” and that since leaving the respondent organisation, he has become aware and he understands now that his behaviour was wrong. He said that “sometimes, realisation is slow” and that he is still learning. He said that he was dismissed because of one incident in a career of 10 years in the organisation. He questioned how trust could be broken down by one incident.

The HR Manager asked if the complainant had come to this realisation before or after his dismissal.   In response, he said he knew he was wrong before he was dismissed. Referring to the complainant’s statement to Ms A that her attitude was “shit” and the follow-up remark, “I’m sorry I have no other word to describe your attitude,” the HR Manager asked the complainant if he was aware in December 2015 that his treatment of Ms A was wrong, and he said that he knew that this comment was wrong before December 2015.

At the end of his evidence, the complainant described his efforts to find work after he was dismissed.   He spent some months teaching English in Vietnam and on January 2018, he started a new job, but for just 15 hours per week.

The Legal Framework

Section 6(1) of the Unfair Dismissals Act 1977 provides that:

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal, unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

The burden of proof rests with the respondent to establish the substantial grounds justifying the dismissal of the complainant in this case. The respondent referred to Section 6(4)(b) of the 1977 Act which provides that;

“…the dismissal of an employee shall be deemed, for the purposes of this Act not to be an unfair dismissal if it results wholly or mainly from …the conduct of the employee.”

The conduct that led to the complainant’s dismissal is the way he engaged with a user of the respondent’s services by questioning her colleagues in her presence about whether she was doing her job properly. At the investigation meeting, the complainant said that he did this to encourage her. Defending his “your attitude is shit” comment, the complainant said that he said this to Ms A in a loud voice of “dismay and shock,” to encourage her to engage with her colleagues. It is apparent that the disciplinary panel did not accept the complainant’s explanation why he engaged with Ms A in this way, and that they found his attempts to normalise his actions were unacceptable.

My role here is not to take the place of the employer, but to consider if, by established standards of reasonableness, the decision to dismiss the complainant was fair and the process that resulted in his dismissal was a fair process. While considering the facts of this particular case, I have the benefit of established precedents against which to measure the respondent’s decision.

Was the Decision to Dismiss Reasonable?

In their evidence at the hearing, the HR Manager and the Operations Director said they did not consider the complainant’s actions in respect of Ms A as gross misconduct, but rather as conduct that was “totally unacceptable” and that resulted in a breakdown in the trust that an employer must have in an employee. On the scale of zero to three on the Thresholds Matrix Guide for Adult Protection, the HR Manager categorised the complainant’s conduct at level 2. The matrix document defines conduct at level 2 as “recurring verbal abuse” and “emotional blackmail.” Considering the testimony of the respondent’s witnesses, there is no evidence that the verbal abuse of Ms A on December 8th 2015 was recurring.   There’s also no evidence of blackmail and there is no reference to either recurring abuse or blackmail in the investigation report of June 1st 2016. The letter of dismissal dated January 5th 2017, makes no mention of abuse, but lists the following considerations which led to the decision to dismiss:

“Your apparent normalisation of the events in question.

Your lack of professionalism and the totally unacceptable manner in which you performed your duties in respect of the events in question.

Your lack of awareness, even with the benefit of hindsight, as to the inappropriateness of speaking to a work colleague about the work performance of a service-user with an intellectual disability in the presence of that service user.

Your lack of awareness of how your behaviour would impact on a person with an intellectual disability.

Your failure to treat the person you were supporting with the required dignity and respect.

Your lack of empathy towards the person you were supporting.”

Recognising the objective of remediation in a disciplinary process, the Code of Practice on Grievance and Disciplinary Procedures (Statutory Instrument 146/2000) refers to the stages as “progressive.” One of the aims of disciplinary procedures is to support an employee whose conduct or performance is out of line with what is expected and to give them an opportunity to change their behaviour or to reach the performance standards required.   The respondent’s disciplinary procedure sets out seven stages from counselling at stage 1, to dismissal at stage 7. I fully agree with the HR Manager that the complainant’s treatment of Ms A on the day in question was totally unacceptable. I also agree with the CEO that his conduct towards Ms A was worrying. However, having seriously considered all the evidence, I find that the decision to move to the sanction of dismissal was too severe. The reason I have reached this conclusion is because the incident is more correctly categorised at level 1 on the respondent’s Matrix Guide for Adult Protection. Also, from my understanding of what occurred, there was no evidence that emotional abuse or disrespect was a feature of the complainant’s ongoing relationship with Ms A and the emotional abuse that occurred on December 8th 2015 appears to have been a single incident.  

On this point, I note the respondent’s reference to an earlier incident which, when coupled with the abuse of Ms A, seems to show that the complainant had a pattern of verbal aggression towards service-users. In this respect, I recall the observation of the complainant’s counsel, Mr Doran, that the incident that occurred in November 2014 was treated too lightly and this incident was treated too seriously.   The imposition of a disciplinary sanction in May 2015, in addition to the performance improvement plan, may have avoided what happened with Ms A, but this is unhelpful conjecture at this stage.

It is my view that the November 2014 incident was “bolted on” so to speak, to the December 2015 incident, to reinforce the seriousness of the complainant’s conduct. While the respondent may have had concerns that the complainant’s conduct had not changed following the November 2014 incident, its inclusion in the letter of dismissal gives me the impression that the respondents may have been concerned that the December 2015 incident, on its own, was not substantial enough to warrant dismissal.

The Issue of Trust

Having reviewed the notes of the meetings of the investigation team and the disciplinary panel, it seems to me that the complainant’s responses give the impression that he struggled to appreciate the unacceptable nature of his behaviour. He relied on his recollection that Ms A did not appear to be upset on the day in question, giving no weight to her sister’s account that she was upset and suggesting that she may have been upset for different reasons. He wanted the statements of Ms A’s work colleagues not to be considered. He dismissed the relevance of the recommendation of Ms A’s occupational therapist where she said that Ms A required positive reinforcement, because this report “was not officially part of Ms A’s Positive Support Plan.” He dismissed the report of the independent investigator and the senior nurse manager claiming that it was inaccurate and that it contained “glaring errors” and “blunders.”    

On January 18th 2017, after his dismissal, the complainant wrote to the appeal panel.   Explaining his actions on December 8th he said, “I was simply looking for an answer to a simple question.” This was a reference to his questioning of Ms A’s colleagues about whether she was doing her job properly. In his appeal letter he states, “If (the respondent) deems this type of approach not appropriate any more I have no problem with this and I will change my work practices to suit…” At this stage, the complainant had been dismissed, and still, there is no sign that he reflected on his treatment of Ms A and no acknowledgement that any person, regardless of their intellectual capacity, would have felt humiliated if they were treated in the way he behaved towards Ms A. I find myself in agreement with the disciplinary panel that the complainant’s response to the concerns of the various personnel he encountered was to “normalise” his behaviour. Having started out as an investigation into his treatment of Ms A on December 8th 2015, another problem emerged during the course of the investigation. This was the complainant’s failure to appreciate that his conduct was unprofessional and humiliating.

Proportionality of the Decision to Dismiss

In the High Court case of Samuel Frizelle v New Ross Credit Union [1997] IEHC 137, considering the sanction of dismissal, Mr Justice Flood stated,

“The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity of the effect of the dismissal on the employee.”

The ultimate question is, was dismissal a proportionate response; in essence, does the punishment fit the crime? As an employee with more than 10 years’ service with the respondent, the complainant’s dismissal had a critically damaging effect on his career, and, by his own admission, he is unlikely to remain working in the healthcare sector.

Having carefully considered the written and verbal evidence presented at the hearing of this complainant, it is my view that, in response to his disrespectful treatment of Ms A, the sanction of dismissal was too severe and the complainant should have been issued with a final written warning.

Was the Process Fair?

The process that resulted in the complainant’s dismissal commenced on December 21st 2015, when he was placed on administrative leave. At this point, there was no reference to a disciplinary investigation and the complainant was informed that the matter was being considered as a “Trust in Care” issue.

While he was not suspended in accordance with the organisation’s disciplinary procedure, the effect of placing the complainant on paid leave was to suspend him. I am concerned that the effect of this was to overlay the incident with a degree of gravity not matched by the incident itself. I am mindful of the decision of Mr Justice Noonan in the High Court case of the Governor and Company of the Bank of Ireland v Reilly, [2015] 26 ELR 17, where the Judge found that suspension is justified only if it is necessary to prevent a repetition of the conduct complained of or to prevent interference with evidence. I accept the statement of the HR Manager when he said that he didn’t want to expose another service-user to similar treatment. However, over 10 years of service, it appears that there were two occasions when the complainant’s conduct towards a service-user was found to be unacceptable. Some consideration could have been given to moving him to a different job. If a suitable role could not be identified then, without prejudice to the outcome of the investigation, he should have received clear instructions about the very basic requirement of how to treat service-users with respect, such as: “Do not raise your voice when speaking to a service-user. Do not use expletives. Do not speak about the service-user in their presence.”

I have no issue with the fact that the complainant was not advised to consult a solicitor, as I am satisfied that the respondents did not anticipate that a criminal investigation would be initiated.

A note of the meeting at which the complainant was informed that he was being placed on administrative leave was submitted in evidence. There is no reference to the possibility that the outcome of the Trust in Care investigation might lead to a disciplinary hearing or, that at the end of such a hearing, a disciplinary sanction or dismissal might result. As the investigation into the incident that occurred in November 2014 did not result in a disciplinary sanction, it was reasonable for the complainant to think that a similar outcome would emerge from this second investigation. It was certainly reasonable for him not to contemplate that he might be dismissed. At the hearing, I formed the view that the complainant’s responses during the investigation and at the disciplinary hearing gave as much cause for concern as his treatment of Ms A on December 8th 2015. If, at the commencement of the Trust in Care investigation, he had been alerted to the possibility that he could be dismissed, he may have conducted himself differently, and this may have avoided the breakdown in trust referred to in the letter of dismissal.

It is a fact that the process that led to the complainant’s dismissal went on for more than a year. Some of the responsibility for this falls on the complainant himself, as he asked for amendments to be made to the terms of reference for the Trust in Care investigation and he challenged the outcome of the investigation itself.   There was a long gap between the outcome of the Trust in Care investigation in August 2016 and the disciplinary hearing in December that year and I accept that this prolonged the uncertainty for the complainant. Investigations such as this one, taking place as it did in a healthcare setting, must go through several stages involving various people who take on responsibilities assigned by the terms of the Trust in Care Policy.   An unfortunate feature of such investigations is that the time span between an incident and an outcome can be long.

Having considered this matter, I find that a degree of unfairness arises from the fact that the complainant was placed on administrative leave, which, in my view, was equivalent to suspension. I also find that it was unfair not to inform him that a disciplinary investigation might result from the outcome of the Trust in Care investigation, and that he faced the possibility of dismissal.

Conclusion

For the reasons set out in this section, I find the sanction of dismissal was too severe.   I also find that certain aspects of the process mitigated against a fair outcome. In conclusion therefore, I find that this was an unfair dismissal.

I have decided that the complaint of unfair dismissal is well founded. Considering the matter of redress, I am of the view that the confidence that the respondent is entitled to have in the complainant is irretrievably broken down. Having considered the complainant’s response to the investigation and the disciplinary hearing, I think that he contributed significantly to this breakdown in the relationship between him and his employer and I do not think that reinstatement or re-engagement are feasible options. I note that the complainant commenced working again in January 2018.   Taking these facts into account, pursuant to section 7(1)(a) of the Unfair Dismissals Acts, I order the respondent to pay the complainant compensation of €40,000 gross, equivalent to one year’s salary.

Care-worker, emotional abuse, conduct, proportionality of sanction, unfair dismissal