Complainant

Respondent

Anonymised Parties

A care worker

A care provider

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-00028753-001

30/05/2019

The Complainant was employed by the Respondent as a care worker from November 2003 until April 2019.

This complaint was received by the Workplace Relations Commission (WRC) on 30th May 2019.

The Complainant was employed by the Respondent since November 2003 as a Care Staff in our Resident Services.

The Respondent is a Voluntary 'section 38' organisation in Dublin that provides services to people with an intellectual disability. The Respondent employs approximately 1,000 staff to provide services to approximately 1,000 service users.

TRUST IN CARE: ABUSE ALLEGATIONS

An allegation of abuse of a service user was made against the Complainant in December 2017 by a member of the public. The Complainant was accused of the following;

·         Allegation that he (the Complainant) was rude to a manager,

·         Allegation that the Complainant grabbed the service user by the arm with undue force, in an attempt to move him quicker

·         Allegation that the Complainant told the service user that he was in no mood to listen to him today, to hurry up he was too slow and (it was coming to the Complainant’s lunch) time.

She alleges that the Complainant told him again to be quiet he didn't want to listen to him, this allegation was made by a member of the public.

An investigation team was appointed which consisted of Ms ML (external investigator) and Ms AG (Social Worker). One of the three allegations was upheld namely the allegation that the Complainant told the service user that he was in no mood to listen to him today, to hurry up he was too slow and (it was coming up to the Complainant’s lunch) time. She alleges that the Complainant told him again to be quiet he didn't want to listen to him. The report concluded:

"The report which the organisation accepts in full deemed the behaviour and language used to be both emotional/psychological and institutional abuse as defined in Safeguarding vulnerable persons at risk of abuse, National policy and procedure. The language used was totally inappropriate and the distraction technique that the Complainant claims to have been using is not part of the service user's communication passport and is not the acceptable level of care that should be provided. The report has found this behaviour to constitute poor professional practice and this is the reason that you have been called to this disciplinary hearing today".

This matter was considered at a full disciplinary hearing. As a result of this hearing, the Complainant was issued with a final written warning for a period of 9 months. The Complainant was required to undergo further training and assessments, re-undergo the full induction training course, undertake a competency assessment with his programme manager and be subject to monthly supervisions.

DIGNITY AT WORK: SEXUAL HARASSMENT ALLEGATIONS

Approximately six weeks after the Complainant returned to work, on the 2nd September 2018, an allegation of sexual harassment of a staff member (LO'C) allegedly by the Complainant was received.

LO’C in her original statement alleges that the Complainant, while working together alone with residents, made comments and statements of a sexual nature. The Complainant had not met LOC prior to the 2nd September. LOC is a 19-year-old female agency worker. It was alleged that the Complainant raised the following topics with LOC:

·         Asking LOC if her friends had one-night stands.

·         If LOC had ever been tempted to have a one-night stand.

·         How long would it take LOC to do something with a male.

·         That there is a sex site for women when their husbands go away that they have sex with these people online and that LOC should look it up.

·         Do men come up to LOC on nights out.

·         Questions about date rape

LOC alleged that the Complainant raised these discussion topics with her only when they were working alone together.

As a result of these allegations, the Complainant was requested to remain off duty pending a full investigation into this matter.

An investigation committee was convened.

The investigation was conducted in accordance with the HSE, Dignity at Work policy. A full investigation report is available.

The HSE, Dignity at Work Policy defines sexual harassment as follows;

'sexual harassment is any form of unwanted verbal, non-verbal or physical conduct of a sexual nature which has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for that person'

1.15 The investigation found and concluded the following:

“We uphold the complaint that Ms LO’C’s Dignity at work was violated as a result of sexual harassment which arose from conversation of a sexual nature with the Complainant which had the effect of creating an intimidating and offensive work environment for Ms LO’C”.

Disciplinary Decision.

A disciplinary hearing (serious misconduct) was convened by the Executive Director of Human Resources on the 27th March 2019 by letter. Scheduling difficulties resulted in the hearing taking place with the Complainant and his representative on the 24th April 2019. The Complainant attended this hearing supported by an official from SIPTU.

The Executive Director of HR took everything into consideration and gave the Complainant a fair hearing. The Executive Director of HR having reviewed the full HR file, two investigations and verbal presentations made to her, made the decision to dismiss the Complainant from employment.

The decision was communicated to the Complainant via letter dated 30th April 2019 and one month’s pay was issued in lieu of notice. The appeal mechanism was also outlined in this letter.

Appeal.

The Siptu official acting on behalf of the Complainant submitted an appeal on behalf of the Complainant to the organisations Chief Executive.

The appeal hearing took place on 17th May 2019, the Complainant was represented at this hearing by his Siptu official.

The Complainant was informed by letter dated 21st May that his appeal had not been successful.

Legal Submission.

The Complainant’s employment was terminated for reason of his gross misconduct. Dismissal for misconduct is a fair reason under s.6 of the Unfair Dismissals Act 1977 which provides:

(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 the 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 the 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 made under statute.

The Complainant’s dismissal resulted wholly from the aforesaid conduct and this is fair reason under the Unfair Dismissals Act 1977.

Having established the dismissal was for a fair reason, the Adjudicating Officer must consider whether the dismissal was reasonable. In Hennessy -v- Read & Write Shop Ltd UD 192/1978 the Employment Appeals Tribunal described the reasonableness aspect of unfair dismissal as follows:

1.       the nature and extent of the enquiry carried out by the employer prior to the decision to dismiss the claimant, and

2.       the employer's conclusion following such enquiry that the claimant should be dismissed.

In Kilsaran Concrete -v- Vet (UDD 11/2016), the Labour Court noted that there were "certain fundamental requirements" of fair procedures that could not be disregarded. These included the requirement:

         i.            to make the employee who is subject of the investigation aware of all the allegations against him or her at the outset of the process;

       ii.            that an employer who has published a disciplinary procedure to its employees follow those procedures scrupulously when conducting a disciplinary process; and

     iii.            in the event that an allegation against the employee is upheld, that any disciplinary sanction imposed is proportionate to the complaint that has been substantiated.

There can be no argument that the Complainant was not made aware of the allegations against him. Similarly, the Respondent scrupulously adhered to its disciplinary procedures which are in line with best practice. The Complainant was accompanied by a senior trade union representative during the process.

Without prejudice to the foregoing, if any argument is made about the procedural fairness of the Respondent's procedures, it must be recalled that there was no dispute over the fact that the Complainant engaged in the conduct complained of. Fair procedures are not and cannot be applied in a uniform manner in respect of workplace investigations and decisions. The essential requirement is simply that the procedures are not such that a fair result is imperilled. Whether this requirement is met depends on the circumstances of each case. The test to be applied is that identified by Laffoy J. in the High Court case of Shortt -v Royal Liver Assurance Ltd [2008] IEHC 332, (Unreported, High Court, Laffoy), 20th October 2008), at pg.16;

[T]he authorities ... make it clear that, while an employee who is facing disciplinary action is entitled to the benefit of fair procedures, what these will demand depends on the terms of the employee's employment and the circumstances surrounding the disciplinary action (per Barrington J. in Mooney v An Post [1998] 4 I.R. 288 at p. 298). The important point is that the decision-maker must not act in such a way as to imperil a fair hearing or a fair result (per Hamilton C.). in Gallagher v The Revenue Commissioners (No. 2) [1995] 1 1.R. 55 at p. 76).

The question that must be asked here is how, in light of the Complainant's admissions, could the investigation procedure imperil a fair result? The answer is that it could not. In reality, the sole issue for determination was whether the Complainant was justified in engaging in the conversations he did, with a much younger staff member whom he was working alone with and did not know. Having answered this the issue is whether it amounted to misconduct or serious misconduct. The Company submits it does.

In the circumstances set out above, it is submitted that the process that led to the dismissal of the Complainant was within the band of reasonable procedures available to an employer finding itself in the position of the Respondent.

The test to be applied whether the sanction was reasonable was set out by the Employment Appeals Tribunal in Noritake (Ireland) Limited -v- Kenna (UD88/1983) where the Tribunal considered the matter in the light of three questions:

1.       Did the company believe that the employee mis-conducted himself as alleged? If so:

2.       Did the company have reasonable grounds to sustain that belief? If so:

3.       Was the penalty of dismissal proportionate to the alleged misconduct?

In assessing the proportionality, it need hardly be restated that the Adjudicating Officer does not step into the place of the employer but decided whether the facts known to the employer were such that dismissal was within the band of reasonable responses, it being presumed that a reasonable employer will only impose a proportionate sanction (Bank of Ireland -v- Reilly [2015] ELR 229). Thus, it is only where the Tribunal concludes that the decision to dismiss was so out of line with the misconduct in question such that no reasonable employer could have considered dismissal a proportionate response that dismissal can be considered unfair on this basis.

For the reasons stated above, the Respondent was gravely concerned about the Complainant's conduct.

It is our submission that the decision to dismiss the Complainant from his employment and in consideration of his service (19 years) within the organisation is in breach of section 6(1) of the Unfair Dismissals Act, 1991.

Section 6 (!) states:

Subject to the provisions of this section, dismissal of an employee shall be deemed, for the purpose of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial reasons justifying that dismissal.

We submit that the Respondent when effecting the sanction of dismissal breached the Unfair Dismissals Act by failing to act proportionately when they made the decision to terminate the Complainant’s employment and failed to consider the mitigating factors.

It was further submitted that the Respondent breached S.I.146 0f 2000. It was submitted that such a breach denied the Complainant of natural justice and fair procedure.

Background to the case.

Note from Adjudication Officer – the events leading to the dismissal are not in dispute, the summary provided by both the Complainant and the Respondent are very similar.

An investigation meeting took place with the Complainant on 13th November 2018 (over 2 months after the incident). The investigation concluded that there was a case to be answered.

On 24th April 2019 (approximately 5 months after the investigation concluded) a disciplinary meeting took place with the Executive Director of Human Resources (Dir HR).

The Dir HR advised that she had also reviewed the Complainant’s HR file and noted the Final Written Warning issued to the Complainant for poor professional conduct, on place on the file at the time of the alleged incident.

The Dir HR said she would make it clear why the Complainant had been called to this meeting – it was to provide the Complainant with an opportunity to reply and that she would take into consideration when she was making a decision and would also consider the sanction at that time.

The question was raised regarding the Final Written Warning – was it active. The Dir HR informed that it would end in April 2019.

The issue of the Complainant being on a 9-month final written warning was raised – it was the union’s position that this warning had expired and should have been expunged from his personnel file. S.I. 146 of 2000 was raised again in this regard.

The Complainant received a summary dismissal letter from the Dir HR. Once again, the expired sanction, which should have been expunged from the Complainant’s personnel file was raised and weaponised to dismiss the Complainant:

“On Wednesday July 4th, 2018,….. At the meeting you were issued with a final warning in relation to poor professional conduct “. and also,. “It has been established that you sexually harassed a female member of staff on 2nd September, I have also considered the representations made on behalf of the Complainant by his union official. Despite supports being given as a result of the hearing on 4th July 2018 (again referenced in the letter) I am now of the opinion your performance / conduct remains unsatisfactory and I have made the decision to terminate your employment with immediate”.

The dismissal was appealed on 17th May 2019, the appeal was heard by the CEO. The grounds of appeal were as follows:

1)      Severity of sanction imposed.

2)      Mitigating circumstances

3)      Breach of natural justice and fair procedure.

The appeal was rejected, and the sanction of dismissal was upheld.

Union position.

It is a fundamental principle of law that any disciplinary action taken by a company, should be proportionate, that is to say the response to the conduct must be measured, the punishment must fit the wrongdoing.

In Frizelle v New Ross Credit Union Ltd – [1997] IEHC 137 Flood J I the High Court said:

Where a question of unfair dismissal is in issue, there are certain premises which must be established to support the decision to terminate employment for misconduct:

1.       The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

2.       Where the Complainant is a person or a body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

3.       The employee should be interviewed, and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

4.       The decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in light of the explanation offered.

5.       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 and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.

It is not the place of the Adjudication Officer to determine what sanction he/she might have imposed, but rather whether the reaction of the Respondent was reasonable – Bigaignon v Powertrain Electrical Services Limited (UD 939/2010).

It is submitted that the reaction of the company in the circumstances, falls outside what could be considered reasonable. It is a fundamental concept of proportionality that it is intrinsically connected to necessity, or to say the objective pursued by the company must be legitimate, and then the sanction does no more than is necessary to obtain that objective. Notwithstanding, regarding perceived transgressions, all disciplinary sanctions in principle are remedial in nature with consideration to all issues, been dealt with fairly and sensitivity addressed. The function of sanctions is to improve the behaviour of workers and are not meant to be punitive.

There is a clear principle established in employment law that the length of service of an employee must be considered in effecting a dismissal, for the employer to be deemed to have applied the disciplinary procedure in a fair and reasonable manner (Johnson Matthey Metals v Harding [1978] IRLR 248)

Other legal cases quoted:

Allen v Dunnes Stores Limited [1996] ELR 203, the EAT states:

“Sexual harassment is a broad category of offence and comprises conduct of varying degrees of seriousness. There should be a range of penalties commensurate with the seriousness of the offence which can be imposed in a particular instance”.

Gearon v Dunnes Stores Ltd UD367/1988:

“The right to defend herself and have arguments and submissions listened and evaluated by the Respondent in relation to the threat to her employment is a right of the claimant and is not the gift of the respondent or this Tribunal….. As the right is a fundamental one under natural and constitutional justice, it is not open to this Tribunal to forgive this breach”.

We submit that it is not a cogent argument from the Respondent to have compromised the integrity of Natural Justice/Fair Procedures, that all workers are entitled to.

We submit that the complaint regarding sexual harassment does not merit the sanction of dismissal. This is a disproportionate sanction.

The Complainant was unfairly dismissed by the Respondent. In order to dismiss the Complainant, the Respondent have breached his rights to Natural Justice and Fair Procedures and have weaponised an expired sanction against him.

The Complainant is seeking compensation as a remedy.

The Complainant has quoted the case of Allen v Dunnes Stores Ltd, what has not been quoted from the same case is “Whether behaviour amounts to sexual harassment in a particular instance is determined from the point of view of the victim and what she/he regards as acceptable behaviour. Behaviour regarded as acceptable and innocent by the perpetrator, his colleagues and others may nonetheless be unacceptable to the victim and so could constitute sexual harassment”.

In this instant case the behaviour of the Complainant did amount to sexual harassment and this fact is not in dispute. What is being disputed is the proportionality of the outcome i.e. dismissal and the previously issued final written warning – was it still active?

The Respondent has in place a comprehensive Grievance and Disciplinary Procedure manual developed and implemented in 2013. The Respondent organisation is highly unionised and Siptu, the representative trade union, had significant input into the procedures implemented. The procedures are based on the HSE’s Grievance and Disciplinary Procedures and form an integral part of the collective agreement in place.

As per the agreement mentioned above Serious Misconduct is described as follows:

Serious Misconduct.

The following are some examples of offences which the progressive stages of the disciplinary procedure would not apply, and which may result in dismissal without notice.

·         Theft

·         Deliberate damage to property

·         Fraud or deliberate falsification of records

·         Gross negligence or dereliction of duties

·         Gross insubordination

·         Incapacity to perform duties due to being under the influence of alcohol, unprescribed drugs or misuse of prescribed medication.

·         Serious breach of health and safety rules

·         Serious abuse of telephone, email and other facilities

·         Serious breach of confidentiality

·         Serious bullying, sexual harassment or harassment against a member of staff

·         Violent behaviour towards a member of staff, client or member of the public

·         Sexual assault

·         Downloading /disseminating pornographic material from the internet

·         Circulation of offensive, obscene or indecent e-mails or text messages

·         Sleeping while on duty

Note: The above list is not exhaustive.

From a study of the process followed from investigation through disciplinary and appeals process I find that the Respondent has followed the agreed procedure at every stage.

I have considered the argument presented by the Complainant’s representative that the final written warning issued on 4th July 2018 for a period of 9 months should have been expunged from his record on 3rd April 2019.

The Complainant was dismissed as a result of his conduct on 2nd September 2018, some eight weeks after he was issued with a final written warning. The argument that the dismissal did not take place until after the expiry of the final written warning does not stand up for various reasons. It is the date of the infraction and not the date of the outcome that must be considered. The date of the outcome can easily be manipulated by individuals not being available for meetings, being on leave etc.

Whilst the Respondent may have followed the agreed procedure, I would take the opportunity to comment on the timeline of events.

Date of offence – 2nd September 2018

Date of Investigation Meeting – 13th November 2018 (some 10 weeks after the offence)

Date of Disciplinary Meeting – 24th April 2019 (some 5 months after investigation meeting)

Whilst I would not advocate rushing these processes, I believe the timeline shown above is too long and would suggest that the Respondent organisation take note.

I have fully considered the arguments presented by both the Respondent and Complainant. The last remaining question I must answer relates to the reasonableness of the decision made by the Respondent. On the balance of probabilities, I believe the actions taken by the Respondent are the actions any reasonable employer would have taken, it is on this basis that I find that the Complaint as presented is not well found and therefore fails. The dismissal of the Complainant was not unfair.

I would also take the opportunity to thank all present at the hearing for the professional way they conducted themselves.

For the reasons outlined above I find the complaint is not well founded and therefore fails.

Unfair Dismissal. Sexual Harassment.