ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00012433

Complaint(s):

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-00016493-001	21/12/2017

Date of Adjudication Hearing: 25/4/2018 and 27th, 28th and 29th /11/2018

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

The Complainant was dismissed on July 3rd, 2017.

The Complainant lodged a claim for Unfair Dismissal with the WRC on December 12th, 2017. Hearings were held on April 4th, 2018 and resumed in November 27th, 2018 over three days. At the end of the Hearing in November 2018 the parties requested and agreed to allow further written submissions. The parties both made substantial submissions on the issues involved.

Summary of Complainant’s Case:

The Complainant is a Psychiatric Nurse by profession and was the Residential Services Manager for the Respondent in two residential services Centers for adults with disabilities.

The Complainant worked for the Respondent from 2005 to 2007, left their employment and re-joined the Respondent in 2010 as Center Manager for Center A.

Between 2011 and 2014 the Complainant held a number of Center management positions concurrently and in September 2014 he was appointed Center Manager for Center B. He held the two posts dividing his time on a 2/3 days week each.

In October 2016 the Complainant was placed on a Performance Improvement Plan after internal and external audits.

He went on sick leave on October 5th, 2016, returned to work on October 26th, 2016 and was suspended with pay. After a disciplinary hearing in June 2017 the Complainant was dismissed on July 3rd, 2017. He appealed this decision, but the dismissal was upheld by the Respondent.

The relevant legislation governing residential service facilities is the Health Act 2007 and Centers are registered, inspected and monitored by an external body. The Respondent was the Registered Provider (RP) under the Act. The Complainant was the Person in Charge (PIC) under regulation 14 of the Care and Support Regulations.

The Complainant was blamed for the poor performance of the RP.

In between inspections in May 2016 and May 2017 there was improvement in the Centers performance unlike when the Complainant was not the Center Manager previously. Of the 18 outcomes monitored in 2016, 10 were in compliance and 1 was in substantial compliance, 6 were in moderate noncompliance and 1 in major noncompliance. The Respondent was responsible for most noncompliance issues. In May 2016 the PIC was held responsible for 6 actions in 2016 audit.

In May 2017 the PIC was held responsible for 5 actions. The external audit noted the standard of service had improved but further improvements were required.

There was an incompatible mix of service users identified by the Audit.

In November 2017 the then PIC was held responsible for 4 actions.

There was no cognisance taken of the use of Agency staff impact or the Complainants ability to act as a PIC for two Centers.

The Center was registered by the external body in May 2016 when the Complainant was the PIC.

The outstanding actions for the PIC were not acted upon by the PIC who replaced the Complainant in the months after he was suspended.

It is questionable if the Complainant should have been the PIC for two Centers, approximately 30 minutes apart.

The Respondent blamed the Complainant for failures of which were the responsibilities of the RP.

The Investigation report breached the Complainants right to fair procedures as they only found on the balance of probabilities that the allegations were substantiated against him and the Investigation Committee stepped into the disciplinary committee role by this finding.

The Complainant was refused the right to present evidence at the disciplinary committee stage thereby breaching its own procedures. The fact that it was admitted at the Appeal stage was not satisfactory as it was only received just prior to the Hearing and this was a fault of the Respondent.

The appeal process was flawed in that the Chairperson of the disciplinary committee was invited to the appeal hearing and allowed to question the Complainant. The appeal procedure does not allow or is silent on this issue. The Respondent had three senior people questioning the Complainant at the Appeal Hearing and this as not fair.

The Respondent did not consider the Complainants medical history regarding his depression, anxiety and stress.

The Manager who suspended the Complainant had made sexist comments previously about the Complainant and he was treated differently to other Center Mangers and this may have been a contributory factor to the situation.

The Respondent should have looked at other remedies but choose summary dismissal, inappropriately in the Complaints view. They also were unreasonable in placing him on suspension and there was undue delay in conducting the investigation, there were changes to the Investigation team, witnesses were slow to be interviewed, some statements of the witnesses were not signed by the Investigation officers and none were signed contemporaneously and there was a delay of seven moths to complete the investigation and a delay in issuing the report once it was concluded of 12 days.

It is submitted that some of the responsibilities set out for the Complainant were the responsibility of the RP under the Regulations.

The Respondent are claiming that the Complainant was dismissed due to his conduct, but we believe, while asserting the dismissal was unfair, the appropriate area for review was competence/capability of the Complainant.

The Complainant was given a Performance Improvement Plan (PIP) on October 4th, 2016 and suspended on October 26th, 2016 thus denying him the opportunity to address the issues in his PIP.

Up to August 2016 the Complainant had an unblemished record.

The Complainant is blamed for failing to supervise staff, but his own Supervisor regularly failed to provide him with supervision and there is a culture of not providing supervision in the organisation.

There is no evidence of any prior warnings or that the Complainant was informed his job was in jeopardy.

There are three tests adopted by the EAT in Hennessy v Read and Write Shop Ltd. to examine a justification for dismissal for conduct. We question that the Complainant had misconducted himself, that the Respondent had reasonable grounds for the dismissal and that the penalty of dismissal was proportionate. It is summitted that these three tests are not complied with by the Respondent in this case.

The alleged serious and urgent issues which arose after the external inspection in May 2016 were not brought to the Complainants attention until August 2016 and no adequate explanation has ever been provided for this delay. If the issues were so urgent they should have been brought to the Complainants attention immediately. The Complainants Supervisor had a meeting with the Complainant on July 5th, 2016 and did not mention any of the issues involved. There is no documentary evidence to support the allegation that the Inspectors found the Complainant difficult to deal with as was alleged.

The external inspection body did not visit the Center until a year after they raised the issue and if the issues had been so serious they would have revisited the Center sooner.

It is alleged that issues had arisen during the period of the Complainant suspension, but these were not issues raised in the external inspection in its May 2016 report.

The Respondent blamed the Complainant for the lack of staffing and training when the email trail clearly shows he was looking for it and the problem was an organisational one and cant be attributed to the Complainant.

Medication training was an organisational problem and was not adequately resourced.

The non-completion of some need’s assessment documents applied to other Centers and this was not explored in either the disciplinary Hearing or by the Investigators.

External audit reports in November 2107 and March 2018 highlighted governance issues in one of the Centers under the management of the Complainant but at the Hearing representatives of the Respondent refused to acknowledge this criticism of the organisation.

The Respondent refused to face up to its own shortcomings in the March 2018 audit report.

Statements concerning issues which presented after a client situation were inappropriate.

The Respondent is failing in its own duties in certain aspects of its responsibilities.

The Respondent gave an undertaking to provide extra resources after the Complainant was dismissed but did not do so when he was the Manager.

The Respondent, contrary to what it stated, has treated the Complainant different to other staff who might be in the same situation and no one was ever sanctioned for continued breaches of procedures after the Complainant was dismissed.

Our position is that there are clear different roles and responsibilities for the PIC and Registered Provider in legislation. The Respondent sees no difference and there is an assumption the Complainant was responsible for failings which were the responsibility of the Respondent. It is our position that it is the Provider that is responsible and had a statutory duty to do so.

The Complainants contract did not cover the PIC role and it is not appropriate to hold the Complainant responsible for several statutory functions which are not set out in his contract.

The Investigation process was flawed and the Chairperson went beyond her brief to find that “on the balance of probabilities” the allegations were substantiated.

The Complainant was not allowed challenge statements provide at the Appeal Hearing or to confront his accusers.

In was not appropriate for the Respondent to resile from their position regarding Trust and Care issues the day before the Hearing as the Complainant had to engage an expert at his cost to deal with that issue.

Some of the actions for completion were impossible to complete in the timescale set.

One of the Respondents Centers involved in this case was still not registered a year after the dismissal of the Complainant and the continued assertion that the Respondent is in compliance is untrue.

Since the dismissal of the Complainant the Respondent has spilt responsibility of the two Centers, given them extra resources and audits continue to show regulatory breaches.

During the period when the Complainant was suspended the Respondent still blamed hm for regulation non-adherence.

The Respondents position that it was never non-complaint is untrue.

The Complainant understood for nearly two years he had been investigated under the Trust in Care policy and this was only withdrawn on the eve of the Hearing and the Complainant should have been brought back to employment because of this.

The Appeal Hearing upheld allegations which did not exist and the disciplinary and appeal hearings showed bias against the Complainant.

The Complaint commenced employment elsewhere on May 7th, 2018 and is seeking compensation of approximately 84,000 Euros as set out in his relief papers. However, his employment is as a Nurse and it is unlikely he will get a Manager position again.

The Complainant sought compensation as the appropriate redress.

Summary of Respondent’s Case:

The Complainant alleges that he was unfairly dismissed. The Respondent refutes this allegation in its entirety. It is the position of the Respondent that the dismissal, which is not in dispute, was fair by reason of Section 6(4) of the UD Acts.

The Complainant commenced employment with the Respondent on 30 August 2010 as a Residential Services Manager. In 2011 he was offered the position of managing two Centers for residential services for children and adults with disabilities and are subject to external standards for the registration, monitoring and inspection of residential services against these standards and relevant registration.

Regulation 14(1) of the Health Act 2007 (Care and Support of Residents in Designated Centers for Persons (Children and Adults) with Disabilities Regulations 2013 (the Regulations) require the Provider to appoint a person in Charge of the designated Center. A copy of the regulations was provided.

On 1 November 2014, the Complainat was appointed “person in charge” for two Centers. His contracted hours were 39 per week with a weekly gross rate of €1,126.61.

The Respondent adhered to the principles of natural justice and fair procedures at all times. Specifically, an investigation, disciplinary process, and appeals process were conducted by separate and impartial managers. The Complainant was notified in writing of the allegations against him and afforded a full and fair opportunity to consider and respond to those allegations. The Complainant was afforded the right to representation at each stage of the process, which he utilised.

The Complainant was provided with the right to an internal appeal, which he utilised, and this appeal was heard by an independent senior manager who found no substantial grounds to overturn the original decision of dismissal.

The Complainant was placed on paid suspension from duty with effect from Wednesday, 26th October 2016 to permit the Organisation to fully investigate alleged breaches of statutory External Audit Body requirements and non-compliance of the Standards and Practices of Care in two Residential Services.

The Complainant was informed, as outlined in his suspension letter that the alleged incident would be investigated under the terms of the Respondent’s Group’s Discipline Policy & Procedure, a copy of which was provided to the Complainant. The Complainant was also provided with a copy of the Trust in Care Policy with the suspension letter issued to him.

In advance of the investigation, in relation to the allegations against the Complainant, he was furnished with Terms of Reference for the investigation and was informed of his right to be accompanied to the investigation meeting by a trade union representative, or work colleague.

The specific allegations in relation to misconduct by the Complainant were as follows:

While the Complainant were the Manager of Respondent Care service in X Center you failed to manage clinical issues, such as epilepsy and those clinical issues identified on the Performance Improvement Plan.

That the Complainant failed to adequately manage the needs of four service users with epilepsy, failed to have any regards for their monitoring requirements, by only having monitoring in place for 3 of the 4 service users.

That the Complainant failed to manage and / or advise staff on the systems in place for reporting and / or where/when to report issues regarding the welfare of the service users.

In or about the 30th September 2016, the Complainant failed to have in place any protocol and/or procedure for reporting of unexplained injuries to service users, in circumstances were a service user had received a black eye, which was not reported until Monday the 3rd October 2016.

That the Complainant failed to manage and / or advise staff in relation to statutory or External Audit Body reporting guidelines, regarding the welfare of service users.

That the Complainant failed to manage and / or advise staff in relation to the requirement to report incidents of peer abuse to External Audit Body.

It is alleged that the Complainant encouraged staff members not to report issues that may arise during their duties or use the reporting mechanisms that are outlined in the ‘on call’ facility.

That the Complainant failed to forward a referral for behaviour therapy for a new service user, despite being requested on several occasions to do so by the Behaviour Therapist. This alleged failure led to a delay in the provision of effective behaviour supports being employed in the service in a timely manner, relating to the transition of the service user to the service.

(End of Allegations).

During the investigation, a number of new matters came to light, and further information was obtained relating to the investigation, which was required to be further investigated. Following further information obtained in relation to X Center, regarding 47 body maps, these formed part of the original investigation under Terms of Reference and involved “That the Complainant failed to manage and / or advise staff on the systems in place for reporting and / or where/when to report issues regarding the welfare of the service users.”

In addition, an unannounced internal inspection at another Center under the Complainants responsibility was conducted on 6th December 2016 and a number of further related issues were identified. A number of recommendations identified in previous internal audits and the external Audit inspection were not implemented.

The investigation was unavoidably a lengthy process given the extension in the terms of reference of the investigation, the additional number of employees who were required to be interviewed and provide statements, and due to the lead/second investigator of this case resigning from the organisation in January 2017. The investigation concluded on 30th May 2017 and the Investigation Report was issued to the Complainant by email on the 13th June 2017, and a hard copy was issued on 14th June 2017.

The Complainant was invited, in writing, with one weeks’ notice, and advised of his right to be accompanied by a trade union representative, or work colleague, to attend a disciplinary hearing on 27th June 2017, in relation to the aforementioned allegations. The Complainant was also sent copies of all documentation in advance, which would be discussed at the hearing. The Complainant was accompanied to the hearing by another Manager. At the disciplinary hearing, the Respondent examined the detail of the investigatory material and the statements received. The Complainant was given full opportunity to respond to the matters outlined in the investigation report, prior to a decision being made by the organisation and he was also afforded the opportunity to read from a document he had brought to the disciplinary hearing which set out his response and position to same.

Of the original eight allegations against the Complainant, three allegations were upheld and had substantial evidence to corroborate the allegations and the findings of the Investigatory Officers in relation each allegation.

In relation to the Terms of Reference which were extended as part of the investigation to include issues identified as part of an internal audit of the first Residential Service on 6th December 2016, four allegations were upheld and had substantial evidence to corroborate the allegations and the findings of the Investigatory Officers in relation to each allegation.

The disciplinary team found that the Complainant breached statutory External Audit Body requirements, as per the Health Act 2007 and the regulations contained within, and non-compliance of the Standards and Practices of Care in both Centers under his management and control.

Through the neglect and acts of omission, the Complainant, in his role as Residential Services Manager, caused a serious and imminent risk to the health and safety of vulnerable Service Users and also caused a serious and imminent risk to the reputation of the Respondent with the External Audit Body, which is the independent authority with a legal responsibility for the monitoring, inspection and registration of all residential services for people with a disability in Ireland.

The Complainant’s actions were found to constitute Gross Misconduct. The role of Residential Services Manager is to ensure that a high quality of service standards and safe practices are maintained at all times, in particular with vulnerable Service Users. It is the position of the Respondent that the Complainant failed to demonstrate a sense of responsibility with regards to the services he managed. The Complainant’s actions breached the trust that the Respondent expects to have in their employees to safeguard the well-being of their vulnerable Service Users.

The disciplinary team took the decision to summarily terminate the Complainant’s employment, effective Monday, 3rd July 2017. As the dismissal was for gross misconduct, the Complainant was dismissed without notice, as per the company disciplinary procedure and as permitted by section 8 of the Minimum Notice and Terms of Employment Act 1973 (as amended). A decision was taken by the Company to pay the Complainant one month’s pay in lieu of notice. The Complainant received his P45 and any outstanding payments due to him upon termination of his employment (outstanding leave owed).

The Complainant was advised in writing, as referenced in the dismissal letter, of his right to appeal the decision in relation to the sanction imposed and was advised of who the appeal should be submitted to, and the timeframe for lodging an appeal. The Complainant’s appeal was heard by the Chief Operations Officer(COO)on 17th August 2017, to which the Complainant chose to be accompanied by his representative. The appeal upheld the disciplinary team’s decision to dismiss the Complainant on the ground of gross misconduct.

It is the Respondent’s position that the Complainant contributed 100% to his dismissal.

The following is a summary of the series of events which lead to the Complainants dismissal.

In accordance with Part 9 of the Health Act 2007, External Audit Body carried out an inspection of Center X on 4 and 5 May 2016, to monitor Center X’s compliance with regulations and national standards. This inspection was the first registration inspection for Center X. The External Audit Body report which followed the inspection was unsatisfactory and found that Center X was not in compliance with 7 outcomes. Of significant concern to the Respondent was that a significant number of areas highlighted in a previous internal audit carried out on 23 March 2016 as requiring action by the Complainant remained outstanding at the time of the External Audit Body inspection.

An action plan to address the failings identified in the External Audit Body report was completed by the Complainant on 9 June 2016. It was of considerable concern to the Respondent to find a significant number of non-compliances consistently identified in both internal and external audits and inspections. As a result, two Senior Mangers met with the Complainant on 11 August 2016, to discuss the significant concerns raised by internal inspectors and, particularly, by External Audit Body. The Complainant gave a commitment at that time that he took his role and responsibilities as the person in charge seriously.

The Respondent was verbally informed by External Audit Body on 21 September 2016 that the registration of the Center X service would not proceed at that time, due to the significant areas of non-compliance identified in the inspection in May 2016. This resulted in a serious reputational risk, a risk to the quality of care, standards and practices being provided to the residents, a risk to the employees working in the service and also a serious risk to the registration of the service which could have resulted in service closure. In addition, the External Audit Body inspector verbally raised concerns in relation to the person in charge and the risk to registration as a result.

On 23 September 2016, an unannounced internal inspection of Center X was carried out to assess compliance with the action plan. A significant number of failings were again identified in this internal inspection. A copy of the audit report was forwarded to the Complainant by email on 29 September 2016. Following this on 30 September 2016, in light of the very serious failings identified and resulting refusal of External Audit Body to register Center X 2 Senior Mangers asked the Complainant to meet with them on 4 October 2016. At this meeting, the Complainant was shown the internal audit together with a further action plan which was completed by the Complainant with the team leader of Center X on 3 October. The Complainant was advised that he was being placed on a performance improvement plan to address the shortcomings of the report. Immediately after this meeting, the Complainant went on a period of certified sick leave until 20 October 2016. The Respondent referred the Complainant for an occupational health assessment, to establish his fitness to work, before his return to work on 26 October 2016.

During the period of the Complainant’s sick leave, a number of additional issues of grave concern were highlighted to the Respondent, became aware of allegations of inadequate monitoring of epilepsy in Center X and an allegation that the Complainant had missed a potential safeguarding concern where a service user had received a black eye. In light of the seriousness of the allegations raised during this period, the senior and trusted position of the Complainant and the potential immediate threat to the welfare of service users, the Respondent stated they had no choice but to treat these allegations as allegations of misconduct. The matter was, therefore, escalated and a decision made to investigate these, and other allegations of gross misconduct, in accordance with the Respondent’s Discipline Policy and Procedure (the ‘Disciplinary Procedures’). Also, in line with the Disciplinary Procedures, the Respondent made a decision to suspend the Complainant on full pay pending investigation. This was due to the imminent and serious risk to the health and safety of vulnerable service users arising from these allegations as well as the potential for serious damage to the Respondent’s reputation within External Audit Body.

On 26 October 2016, the Complainant was advised of his paid suspension with effect from 26 October 2016, pending the Respondent’s investigation into alleged breaches of statutory External Audit Body requirements and non-compliance with the Standards and Practices of Care in Center X. The Complainant was assured that the decision to suspend him did not constitute disciplinary action nor did it indicate that any determination regarding the allegations of misconduct had been made. The Complainant was advised that the allegations would be investigated under the terms of the Trust in Care Policy & Procedure, in conjunction with the Disciplinary Policy, copies of which were attached for his information. However, as the investigation progressed, it became clear that this matter did not constitute a trust in care issue and as a result, proceeded under the Disciplinary Policy only.

The investigation commenced on 7 November 2016 under documented Terms of Reference. During the investigation, one of the Investigators resigned resulting in a delay in the investigation process. A number of new matters came to light which required investigation. Following further information obtained in relation to Center X, the following allegation was added to the terms of reference “That you failed to manage and/or advise staff on the systems in place for reporting and/or where/when to report issues regarding the welfare of the service users”.

In addition, an unannounced internal inspection on 6 December 2016 a number of further related issues were identified following this internal inspection. Of particular concern was that a number of recommendations identified in previous internal audits and the External Audit Body inspection had not yet been implemented.

On 27 January 2017, the Complainant was informed that further allegations were being added to the Investigation Terms of Reference. Details were provided to the Hearing. One of which was the “Lack of evidence of completion of actions which were submitted to External Audit Body as completed”. That actions were submitted to External Audit Body as having been completed when there was no such evidence of completion was particularly serious and could have caused irreversible reputational damage to the Respondent within External Audit Body.

A detailed investigation process was completed interviewing 11 people, including three meetings with the Complainant and the investigation concluded on 30 May 2017. The investigation report and all associated documentation was issued to the Complainant by email on 13 June 2017, and a hard copy was issued on 14 June 2017. The investigation report upheld 7 out of 16 allegations against the Complainant. The investigation team recommended that the Complainant be instructed to attend a disciplinary hearing, under the Disciplinary Procedure.

The Disciplinary Chairperson concurred with the findings of the investigators and upheld 7 allegations against the Complainant and determined that there was more than sufficient evidence to corroborate the allegations that the Complainant breached statutory External Audit Body requirements and national standards and practices of care. The Chairperson also found that the neglect and acts of omission of the Complainant caused a serious and imminent risk to the health and safety of vulnerable service users and a serious and imminent risk to the reputation of the Respondent within External Audit Body. She, therefore, found that the Complainant’s actions had breached the trust that the Respondent expects to have in its employees to safeguard the well-being of vulnerable service use. The Chairperson was satisfied that the Complainant’s actions constituted gross misconduct and the disciplinary team took the decision to summarily terminate his employment from 3 July 2017. Of particular relevance to the decision to terminate the Complainant’s employment was the trusted role of Residential Services Manager and person in charge in ensuring that a high quality of service standards and safe practices are maintained at all times, in particular with vulnerable service users. The Complainant was advised in writing of his right to appeal his dismissal. The Complainant duly exercised this right.

The Complainant’s appeal was heard by the COO on 17th August 2017. The Complainant chose to be accompanied by his representative. At the appeal hearing, the Complainant was given the opportunity to outline the grounds of his appeal against his dismissal in full. The COO provided detailed findings in respect of each of the Complainant’s grounds for appeal. the COO upheld the Complainant’s appeal in respect of the allegation that he failed to have any protocol or procedure in place for reporting unexplained injuries to service users, in circumstances where a service user received a black eye which was not reported for 3 days. The COO acknowledged that the wording of this allegation was not clear and she accepted the Complainant’s reading of the allegation to be about a failure to have a protocol in place as opposed to his failure to report the fact that a service user had received a black eye. However, the COO rejected the remainder of the Complainant’s appeal, providing detailed reasons for each finding. Of particular concern to the COO. was the allegation that the Complainant submitted actions as having been completed to External Audit Body in circumstances where they were not so completed. the COO noted that the Complainant did not appeal this finding and found the conduct to be extremely serious and unacceptable. She further found it unacceptable that when the Complainant met with managers on 11 August 2016, he had the opportunity to inform them of the non-completion of actions and he failed to do so. the COO was of the view that the Complainant’s actions put the reputation of the Respondent and, the registration of the services the Complainant managed, at risk. The Complainants appeal of his dismissal was not successful on a number of grounds.

The Respondent submits that the Complainant’s dismissal was both substantively and procedurally fair. The sanction of dismissal was justified in the circumstances of the case and the Respondent followed full and fair procedures in imposing the sanction of dismissal on the Complainant.

The Respondent must have total faith and confidence in its employees, and in particular persons in charge, to provide safe and effective services to its service users. The Complainant was in a highly trusted position within the Respondent’s organisation. As the person in charge of two residential Centers, he held a statutorily regulated position. As such, it was his role to ensure that a high quality of service standards and safe practices were maintained in the Centers under his management at all times, in particular with vulnerable service users. He also played a crucial role in protecting the Respondent’s reputation within External Audit Body.

Specifically, the 2013 Regulations impose various statutory duties on persons in charge. The Complainant was found to have failed to comply with the following statutory duties which are directly stated to be the responsibility of the person in charge.

The failures identified posed a serious risk to the health and safety of vulnerable service users. These risks ranged from the risk of serious harm and even, death arising from seizure or status epilepticus, incorrect or out of date medication being administered to residents and/or a failure to properly respond to the medical needs of residents due to the absence of up to date personal plans.

In his submission, the Complainant claims to have been scapegoated for the poor performance of the Respondent. The Respondent categorically rejects such an assertion. The person in charge is appointed by the registered provider to manage all aspects of designated Centers. If there are issues associated with such management, then the person in charge has a responsibility to clearly escalate these issues to the registered provider. When issues relating to staffing were raised, the Respondent took measures to address these. Specifically, concerns raised regarding the use of agency staff were addressed and the year on year spend on agency staff in one Center decreased significantly from 2016 to 2017 due to a recruitment drive in the region. Therefore, had the Complainant raised serious concerns regarding the management of the Centers, the Respondent would have acted on these.

The Complainant further asserts that the Respondent has been the subject of continued non-compliance with the 2013 Regulations and national standards since the termination of his employment. This is untrue. Both Centers are now successfully registered by External Audit Body as designated Centers.

The Complainant failed to demonstrate a sense of responsibility with regards to the services he managed. Indeed, his continued refusal to take responsibility for the services he managed remains evident in his submission to the WRC. He breached statutory External Audit Body duties and failed to properly manage the residential Centers of which he was in charge. These actions posed a serious health and safety risk to vulnerable service users. Furthermore, his actions, in particular the provision of false and misleading information to External Audit Body, put the Respondent’s reputation within External Audit Body and the very survival of the residential services he managed at risk.

In light of the above, it is abundantly clear that any reasonable employer in the same position and circumstances as the Respondent would have had no alternative but to act and decide as the Respondent did. At the core of any organisation is the need for satisfactory standards of behaviour and conduct. However, when an organisation is regulated by statute and responsible for the health, safety and wellbeing of vulnerable adults, the need for satisfactory standards of behaviour and conduct becomes even more fundamental. As such the Respondent’s decision to dismiss was reasonable, fair and appropriate in the circumstances, and no unfair dismissal took place.

The Complainant’s actions irrevocably breached the trust and confidence that the Respondent expects to have in its employees, particularly senior and trusted employees such as the Complainant, to safeguard the well-being of vulnerable service users. As such, the continuation of his employment was rendered impossible.

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.

The C

The Law.

“6.1. 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.

(4) Without prejudice to the generality of subsection (1) of this section 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 one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of a kind which he was employed by the Employer to do.

(b) the conduct of the Employee

(c) the redundancy of the employee and

(d) the employee being unable to work or continue to work in a position which he held without contravention by him or by his employer of a duty or restriction imposed by or under any statute or instrument under statute.

A number of judgements were considered by the Adjudicator in arriving at my decision.

Mainly, the Looney v Looney, UD83/1984 in which the Eat referred to its role as “to consider, against the facts, what a reasonable employer would have done”.

Secondly, Bunyan v United Dominions Trust (1982) ILRM 404 that states “the fairness or unfairness of a dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business, would have behaved”.

Also relevant to consider is whether the decision to dismiss is proportionate to the gravity of the complaint and indeed as Flood J observed in Frizelle V New Ross Credit Union (1997) IEHC 137 “the decision must also be proportionate to the gravity and effect of dismissal on the employee”.

In Pacelli v Irish Distillers Ltd (2004) ELR25 the EAT stated that any investigation should have regard to all the facts, issues and circumstances.

The EAT also pointed out in Gearon v Dunnes Stores Ltd, UD367/1988 that the Complainant in that case had an entitlement to have her” submissions listened to and evaluated”.

Finally, in dealing with the issue of “Procedural v Substantive Justice” in Redmond’s Dismissal Law in Ireland it notes “Procedural defects will not make a dismissal automatically unfair……An employer may be able to justify a procedural omission if it meets the onus of proving that, despite the omission, it acted reasonably in the circumstances in deciding to dismiss the employee”.

Comprehensive submissions were made by both parties during and after the Hearings. In the Complainants case they sought to rely on a wide variety of justifications to support their case while the Respondents case was more focused on a small number of justifications to support their case.

In addition to the formal submissions of both parties, they also presented verbally additional evidence to support their positions and cross examination took place of some witnesses. A Social Care expert was also asked to give evidence on behalf of the Complainant and was available for cross examination.

In summary, some of the key contributions from the participants are as follows;

On Behalf of the Complainant

That the grounds for dismissal had to be above 50% for them to be substantial.

The installation of the extra allegations was not justified.

That the unexplained mark on a person’s face should have been a Trust and Care issue not a conduct issue.

They questioned if all relevant witnesses had been interviewed.

They questioned if the decision to dismiss was objective and had all other possible penalties been considered.

The allegation of the “black eye’ Incident was not upheld.

Mattresses are not required in every case for patients with epilepsy and specific circumstances dictate their need and it was not the risk the Respondent said it was.

The Mattress issue was only raised five months after the external body report.

The PEEPs were completed generally on an as needs basis and were not out of date generally.

Was it reasonable to have the Complainant run two Centers in accordance with Regulation 14.

Where mitigating factors taken into account regarding the staffing issues.

The Complainant was not allowed introduce new material relevant to the investigation at the Appeal Hearing.

The Complainant advised he did not get a new contract when he took over two Centers.

The Regulations were introduced in 2013 and issues of non-compliance were all new in the 2014 audit.

The Complainant agreed he did receive training in the regulations and the standards expected.

Approval to recruit was very difficult to get and often took 10/11 months.

He did not escalate the staffing issue to senior management as he trusted in his colleagues to assist him get the approval.

He was expected to help other Centers.

Staffs were not working with each other at that time.

There was no correspondence from the external audit body that one of the Centers would close.

On behalf of the Respondent.

The headcount in the Centers were at national levels.

No incident report of the “black eye” incident was submitted.

Some of the delay in the Investigation was due to people getting representation.

It was noted the Complainant was honest in the investigation process but never dealt with any of the allegations in detail but was generic in his replies.

No judgement on the potential to dismiss was made during the investigation process.

The Complainant as PIC had operational responsibility for the implementation of all procedures and compliance with same.

The Complainants responses were vague and he had never marked up the Fire Drills.

The key reasons the Complainant was dismissed were that he did not do some of the things he reported to the External Audit body as having been completed, that there were Health and safety breaches which could have put lives of patients at risk, that the bond of trust was broken due to the Complainant either lying or misleading the regulator, Personal Plans for patients were not updated and that some fire drills were not documented as completed when it was stated they were completed.

The sector is highly regulated and compliance to have a licence and to operate is the function of an external body whose trust in the organisation is critical to same.

The Complainant was provided with material in advance of meetings, but he never collected them.

The Appeals officer had never met the Complainant before, considered all the evidence and considered alternative options prior to dismissal. The Appeals Officer stated that telling the Regulator that something was completed which was not goes to the heart of trust and the judgement of an employee.

Under Regulation 4.3 the protocols were in place but were not effective.

Breach of Regulation 7.6 was a key decision in the appeal but was not refuted by the Complainant.

They agreed that each of the issues involved may not have been grounds for dismissal but collectively they were.

The Complainant never submitted any formal requests for additional staff nor did he escalate any issues to senior management regarding staffing needs.

The use of a baby monitor for epilepsy staff is not a safe method of protecting them from injury in the event of a seizure.

The Complainant did not copy other staff on the report he submitted to the external body containing the “false” statement that an action had been completed.

Contribution of Mr. Kieran Mc Grath, expert in Social Care Policies.

Mr. Mc Grath was accepted as an expert witness by both parties. Mr. Mc Grath had been retained by the Complainant as an expert witness.

He stated he is an expert in Social care Law, Child Abuse, Sexual Abuse and Training in the area of Trust and Care policy.

He stated he carries out examinations in relation to abuse.

He stated he never came across and organisation that started and then did not proceed with the Trust and Care process before. He stated that it would normally be brought to a formal end. He stated he never came across a Trust and Care process and a Disciplinary process together. He stated it was possible for a gross misconduct dismissal under a Trust and Care review. He stated any finding under a Trust and Care issue carries implications for the person professionally and for their future career.

He stated a person should be informed in writing that any investigation under a Trust and Care policy has ceased and is no longer being pursued. A person should know where they stand. He stated if a company is no longer using one procedure they should be told and the new terms of reference outlined.

He stated that an employee needed to know the consequences of what procedure the employer is using. The use of certain policies has implications at a number of levels e.g. family or Garda may be notified in findings of gross misconduct. In some cases a professional body would be notified. He stated depending on the nature of the issues involved Tulsa could be notified. These kinds of findings could put a person at the extreme end of the spectrum of actions.

He stated that a finding of gross misconduct has implications for gross neglect in the sector.

He stated that the Complainant was not present when the person who is alleged to have fallen and got the black eye.

He stated there can be lots of issues why poor performance can happen. It could be no proper appraisals, the need for more supervision, the need for an EAP or lack of resources. This would put the person at the other end of the disciplinary responses.

Conclusion

Having considered the extensive back up material supplied in evidence, the submissions, the verbal evidence at the Hearings and the subsequent written submissions after the Hearing, the Respondents justification for the dismissal being fair fell into a number of categories following the investigation and disciplinary hearings. In summary there were that the Complainant:

Failed to manage clinical issues such as epilepsy and the clinical issues identified on his PIP in October 2016

The he failed to adequately manage the needs of four service users with epilepsy and failed to have any regard for their monitoring requirement for one of the users

That in September 2016 he failed to have any protocols in place for reporting unexplained injuries

That supervisions were not being conducted in line with the Respondents group policy

That needs assessments for Service Users were not completed as identified in internal and external audits

That there was lack of evidence of Key Risk assessments e.g. Mobility Status of Service Users and Fire Risk Assessments being conducted

That there was lack of evidence of completion of actions which were submitted to the external body as completed

Both sides cited a number of legal precedents to support their cases.

The core issues for the Adjudicator in this case are;

Did the Respondent have substantial grounds to dismiss the Complainant?

Were the grounds of alleged gross misconduct reasonable to attribute to the Complainant?

Was the Investigation and Disciplinary process fair and equitable?

What would a” reasonable employer” have done in the circumstances?

Was the “Bond of Trust” irrevocably broken between the parties so as to render the continued employment relationship impractical

While much significance was placed on the respective roles and responsibilities of the RP and the PIC, and one could spend endless time analysing and dissecting these, the fact of the matter is it would not change anything in that the Complainant did certify to an external body that a serious action was completed when it was not. The other issues mainly concern the safety of vulnerable Service Users under the management care of the Complainant. Both issues go to the heart of the grounds for dismissal and also the break in the bond of trust between the parties. In situations to do with vulnerable children or adults the duty of care increases on an employee compared to some other employment situations. The responsibilities for management were set out in Regulations and is a highly structured environment. An extensive audit process was in place and formed a core part of the PIC role to manage this, in a highly monitored environment. Many of the explanations put forward to support the Complainants case, were at best, diverse. The Investigation, documentation and disciplinary process undertaken by the Respondent was very comprehensive and supported by a vast amount of internal and external audit documentation. While one could pick some flaws in the process, i.e. not allowing the Complainant introduce questioning of the Investigation report at the Disciplinary Hearing, he had been given extensive opportunities in a number of meeting to put forward his case. Extensive witness interviews and statements were taken. The Complainant had the right to have professional representation but did not do so during the disciplinary process. The delays in the investigation process where not unduly long and some rationale for the delays were given at the Hearing. Fundamentally, the delay did not appear to impact the Complainants right to a fair process.

In its submission the Respondent acknowledge that maybe just one or two of the above allegations been proven may not have been grounds for it to consider dismissal, but collectively, they did and that the bond of trust was broken with the Complainant.

The Complainant stated that the Regulations were “new” but adherence to these was a core responsibility of his role. The maters raised regarding what the Respondnet did or did not do after the dismissal of the Complainant, while considered by the Adjudicator, did not form part of the decision to dismiss the Complainant and have to be viewed in that context. The position that there were staffing and agency staff issues has to be viewed in the context that the Complainant, while having the opportunity to do so, never raised any formal requests for additional staff. With regard to the balance of probabilities this context was not contained in the dismissal decision which stated “I have determined that there is more than sufficient evidence to corroborate the allegations”. Indeed, some of the allegations were found to be not corroborated also. No evidence was produced at the Hearing that the Complainat was suffering from depression, stress and anxiety in the time prior to his dismissal and does not appear to have been presented to the Respondent in the disciplinary process.

While I have considered the change in the investigation Policy issue (Competence/Capability versus Conduct) the fundamental facts of the allegations did not change during the process.

With regard to the Appeal Hearing and who was present, both parties had to right to question them and this is not a fundamental procedural failure. With regard to the comments attributed to the person who suspended the Complainant, there was no substance, even if the comment was made previously, that it contributed to a bias on behalf of that Manager. It was a matter for the Respondent to decide whether to dismiss based on conduct or capability/competence and it would appear that there was some overlap in the circumstances of this case.

The Complainant states that he had insufficient supervision and that none of the issues were brought up with him in the July meeting with his Supervisor. This may well be the case but its contribution to the decision dismissal is minimal.

While the Adjudicator has noted the contribution of the Expert Witness his contribution does not fundamentally change the facts and history of the case.

The Conclusion of the claim is that, based on all the information available to me, that the Respondent had substantial grounds for the dismissal, that most or all of the responsibilities were within the Complainants remit under the PIC roles and responsibilities document, that the Investigation and Disciplinary process was both very comprehensive and fair and that a reasonable employer would, given the duty of care to Service Users and the requirement to maintain the licence to operate from the external audit body, one which was going to be withdrawn in 2017 for one location and that a reasonable employer in similar circumstances might take the same decision that the dismissal was fair based on the delay in reporting the accident to a Service User, the conflicting information supplied to the Audit body compared to the facts, that the health and safety of some Service Users were put at risk and the lack of evidence that fire drills were being carried out in an environment with highly vulnerable Service Users. The Complainant at the Hearing stated he spent about 75% of his time allocated to non-contact duties. Along with the highly regulated environment this should have been adequate time to complete his administrative duties. The Regulations specifically allow for two Centre management by a PIC and the argument that the two Centres were 40 minutes apart is not relevant due to how the Complainat stated he allocated his time between them. Once the bond of trust was broken between the parties it appeared that no other sanction would have been appropriate to the Respondent. Accordingly, I decide that the claim for unfair dismissal is not well founded.

Dated: 07/06/2019

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Key Words:

Unfair Dismissal