ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00021257

Parties:

Complaint(s):

Date of Adjudication Hearing: 19/11/2019

Workplace Relations Commission Adjudication Officer: Jim O'Connell

Procedure:

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

Ca- 00027965-001

Unfair Dismissals Act 1977

Background

The claimant was employed by the respondent as a swimming instructor for the past 17 years until her dismissal on the 7th   of March 2019. The claimant had been employed on a series of temporary contracts prior to a contract of indefinite duration being issued to the claimant, which was signed by the claimant on the 23rd April 2018.

On the 21st May 2018 a National School had pre- booked children’s swimming classes at the respondents swimming pool. The school had 10 children from ASD classes booked for six weeks block of 40-minute lessons.

The lessons were divided into (2) twenty- minutes sessions for two groups, one of six children and one group of four children.

The school had booked two swimming instructors for each group, one of whom was the claimant.

On the day of the incident which led to the claimant’s dismissal, 21st of May 2018, nine children attended the pool and seven of the children were due to have lessons. The four bigger children went to the bigger pool, with two instructors and a teacher.

Two of the school staff (SNA’s) sat by the pool in support. The remaining five children were in the smaller pool, supported by the remaining staff members.

The claimant was due to give lessons to two children. During her lesson with one of the children, the child was splashing the water and hit the claimant across the face. The claimant then slapped the child across the face.

Following this incident, the respondent suspended the claimant on full pay, on the 22nd May 2018, to facilitate an investigation into the alleged incident. This is permitted by the Respondent’s Grievance and Disciplinary Procedure.

The Respondent wrote to the claimant, by letter dated the 22nd of May 2018 and confirmed to her that, given the serious nature of the allegation and the and claimant’s position of trust, she was suspended with full pay to facilitate an investigation.

The Claimant was advised by letter of the conditions of her suspension and the basis upon which the suspension was implemented. The claimant was also reminded of the Employee Assistance Programme which the Respondent has in place which was available to her for support.

An investigation was carried out along by an independent investigator and the complaint was upheld.

The investigation report accepted the evidence that the claimant was not trying to discipline or punish the child when she hit him.

The claimant was invited to a disciplinary hearing accompanied by her Trade Union representative and while the person hearing the disciplinary meeting found that while the action of the claimant was indeed a reaction to being hit and that her apology and expressions of regret were genuine, he believed her behaviour amounted to Gross Misconduct and in accordance with the respondent Grievance and Disciplinary Policy he recommended that the claimant’s employment be terminated.

The claimant appealed this decision by letter dated March 7th, 2019 and the final decision termination date the 18th April 2019  

Respondent’s position

It was submitted that the claimant always was fully aware of the issues. The process was both fair and transparent and no objection has been raised to the application of the process.

The claimant was dismissed following a comprehensive fact findings investigation and disciplinary procedure, followed by an appeal in line with the disciplinary procedures of the Respondent.

It was submitted that while dismissal for gross misconduct would ordinarily involve summary dismissal without notice, the respondent chose to dismiss the claimant with notice in recognition of her length of service and the manner she had dealt with the issue as outlined.

The respondent submits that the dismissal was an appropriate sanction in the circumstances where the claimant’s actions amounted to gross misconduct.

The respondent submitted various legal cases to support their position.

Union Position

The Union submitted that the respondent should and could have looked at other alternatives other than terminating the claimant’s employment.

It was stated that she had given loyal and good service to the respondent during her 17 years of employment.

It was submitted that the claimant received a 3-hour training course titled to “Teaching Children with Behavioural Difficulties” There was no refresher training, no ongoing assessment training or anything like this provided since then from the respondent in this regard.

The Union stated that the respondent’s safety notice for the swimming Pool, for the attention of every parent, where it states the following “should any of the children require Special Needs Assistant during school we ask that the SNA also helps them in the pool during their lessons”

It was also submitted that the Procedure for the School, where it states “children with Special needs must be accompanied in the water at all times by their SNA”

Findings

Both parties made written and verbal submissions at the hearing.

I find there is no objection from the claimant’s representative to the procedures including the investigation or appeal process. I find that claimant’s argument is centred around the dismissal was disproportionate and unwarranted in the circumstances.

I find that issues raised by the claimant’s representative regarding training of employees regarding training and ongoing assessment to be a matter that the respondent needs to address going forward.

I find that there is case law in place on the “band of reasonable responses” which has been clearly set out in the respondent’s submission.

I find that the actions of the claimant breached her duty of trust and confidence and in those circumstances the actions of the respondent were reasonable in dismissing the claimant

Recommendation

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.

I find the dismissal to be fair and reasonable in the circumstances and the appeal fails.

Dated:   16th April 2020

Workplace Relations Commission Adjudication Officer: Jim O'Connell

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