ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00020876

Parties:

Complaint(s):

Date of Adjudication Hearing: 27/09/2019

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

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

Background:

This case refers to a complaint of unfair dismissal as a result of an allegedly flawed disciplinary procedures which were enacted by the Respondent. The Complainant was employed as a Childcare Assistant in the Respondent’s Montessori School. The complaint commenced her employment on 4th March 2008 and following an alleged disciplinary incident on 13th June 2018 she was dismissed on the 20th December 2018.

Summary of Respondent’s Case:

The Respondent operates two Montessori schools and advised the Complainant was employed from the 4th March 2008 in one of the schools that caters for 44 children and employs 7 staff. The Respondent maintained the Complainant was provided with a written statement of her terms and conditions of employment together with a copy of the Employee Handbook, Behaviour Policy and a Code of Behaviour during the course of her employment. The Respondent further submitted that the policies and procedures were reviewed and periodically updated in line with best practice in the childcare industry, and that the Complainant was also furnished with a copy of the Respondent’s Employers Disciplinary Policy which formed part of the Employee Handbook.

The Respondent's advised that the Complainant was suspended from work on 13th June 2018 following a verbal altercation at a meeting with its Managing Director and a the Wages Clerk who is the Director’s sister. The Respondent outlined that the school was holding a sports day and the Wages Clerk approached the Complainant to discuss a matter concerning bank holiday and annual leave entitlements. The Respondent maintained the Complainant got annoyed during this meeting and stormed off. The Director subsequently approached the Complainant to see if she was ok, and the Respondent maintains the Complainant proceeded to give out to the Director using expletives saying that she was “f***ing annoyed”, and in using a similar expletive told the Director that she was sick of the lack of respect.TheRespondent submitted that the Complainant continued to shout and swear at the Director at that time. The Director asked the Complainant to calm down and tried to explain to the Complainant that the Wages Clerk was not telling her that she would not be paid for the bank holiday, but as the person who runs their accounts was on leave they would have to wait before the matter could be clarified.

The Respondent maintained that when the Director was discussing this matter with the Complainant in kitchen the Wages Clerk entered room, and in her evidence at the hearing the Wages Clerk confirmed she had heard the Complainant shouting and screaming at the Director. The Respondent maintains the Wages Clerk told her that she did not say she was not paying the Complainant for the bank holiday entitlement, but that she needed to get the correct calculation.

The Complainant maintained that the shouting occurred in the kitchen, which was adjacent to the children's bathroom, and where the Complainant’s shouting and screaming could be heard by the children. The Director and the Wages Clerk admitted that they were shaken by the Complainant’s Behaviour. The Respondent submitted that the Complainant then left the kitchen and entered the staff room at which time the Director endeavoured to speak to the Complainant again to reassure her that she does her best to look after employees.

The Director then left the school and returned at 1:00 pm when she had a meeting with the Complainant, the Wages Clerk, and the Person in Charge to advise the Complainant that she was being suspended with full pay until an investigation of the incident took place. The Respondent stated that the Complainant's suspension was confirmed in writing by letter the following day, 14th June 2018.

The Respondent also advised that the Child and family Agency (the Agency) carried out an unannounced inspection in accordance with its regulations in April 2018 and the Respondent was furnished with a copy of this inspection report on 24th June 2018, which was a shortly before the school closed for the summer holidays. The report contained a number of concerns regarding the behaviour of a member of staff, and the Respondent followed this up with the Agency who advised by way of a verbal conformation in September 2018 that the member of staff referred to was the Complainant. The Respondent further advised that in November 2018 it received written confirmation from the Agency that the practice it observed referred to negative language used by the Complainant.

The Respondent appointed an external HR consultancy to carry out an investigation into the incident that occurred on the 13th June 2018 and the Agency's inspection report. As part of this investigation a statement was taken from the Managing Director and the Wages Clerk. The Complainant furnished a response to the allegations and to witness statements that were taken during the course of the investigation.

The Respondent submitted that the school was closed between the 28thJune 2018 and the 29th of August 2018. Notwithstanding the Complainant wrote to the Respondent on the 12th July 2018 querying why an investigation was to be conducted and alleging that a co-worker had been advised Complainant was sacked. The Respondent maintained that the tone of the correspondence from the Complainant was sarcastic throughout the period of her suspension and subsequent investigation. The Respondent also submitted that it received correspondence from the Complainant's solicitor and the Respondent wrote to the Complainant on the 11th September 2018 querying whether correspondence should be referred to the solicitor rather than the Complainant.

The Respondent then wrote to the Complainant on the 19thSeptember 2018 setting out the allegations against the Complainant in full and confirming independent HR consultants had been appointed to carry out the investigation. At this time the Complainant confirmed the correspondence was to be sent to her directly, and also requested a copy of the disciplinary policy and the Agency's inspection report. On the 28th September 2018 the investigator wrote to the Complainant inviting her to an investigation meeting which for 4th October 2018 and enclosed the terms of reference, witness statements, and the disciplinary policy. The Respondent maintained the Complainant responded using unhelpful tones where she chastised the short notice for the investigation meeting and indicated she would not attend the investigation meeting until she had an opportunity to study documentation which was not included. The Respondent maintained the Complainant failed to specify what documentation was omitted. The investigator wrote to the Complainant on 3rd October 2018 asking her to specify what documentation was omitted, that the Complainant would be advised of a new meeting date for the hearing days in due course, and where the investigator commented that the tone of the Complainant’s letter was unwarranted and unhelpful.

The Complainant responded by email on 8th October 2018 requesting a copy of the Agency investigation, CCTV footage of the incident of 13th June 2018, other witness statements. The Respondent also advised that the Complainant's husband wrote to other employees with a view to gathering witness statements on behalf of the Complainant. On 16th October 2018 the investigator wrote to the Complainant advising that the investigation meeting was rescheduled for the 19th October 2018 and by email dated the 17th October 2018 the Complainant indicated she would be attending the investigation meeting accompanied by her husband, and that she found the investigator’s tone both aggressive and bullying. The investigator responded on 17th October 2018 indicating the investigation meeting would proceed on 19th October 2018. On the 18th October 2018 the investigator contacted the Complainant advising he was now unable to attend the investigation meeting but another investigator had been appointed. The Investigation meeting was conducted by the new investigator and a copy of the notes from the meeting were sent to the Complainant for review and the Complainant was invited to respond by the 29th October 2018.

The Respondent advised that on the 6th November 2018 it wrote to the Complainant in relation to two matters it became aware of during the course of the Complainant’s suspension, namely the Complainant was engaged in secondary employment during the course of her suspension, and that the Complainant’s husband had written to other employees when the investigation was underway. The Complainant responded to this letter on 8th November 2018 outlining the basis of her secondary employment and querying why the Respondent wanted to “suppress any available evidence”.

On the 29th November 2018, and following the investigation phase being completed, the Complainant was invited to a meeting for 7th December 2018.  

The Respondent also advised that it uncovered a letter on a work computer that purported to represent a job reference for the Complainant from the Managing Director but where the Managing Director was not aware of this letter. On 12th December 2018 the Respondent wrote to the Complainant about this letter seeking clarification as to whether she intended using the letter as a reference from the Respondent, and to desist from furnishing the reference.

Following the investigation, a report was submitted by the Investigator setting out a number of recommendations to the Respondent, and the Complainant was invited to a disciplinary hearing on the 19th December 2018. This hearing was held by a different consultant, and by letter dated 20th December 2018 the outcome of the disciplinary meeting was communicated to the Complainant and the Complainant was advised that the allegations regarding the Complainant's behaviour on the 13th June 2018 were upheld and constituted gross misconduct with the sanction of a summary dismissal. With regard to the allegation of the Complainant’s behaviour as identified in the Agency's report, the Complainant was advised this allegation was upheld and a written warning and retraining was the sanction imposed. The Complainant was advised she could appeal the determination by Friday 4th January 2019. On 3rd January 2019 the Complainant submitted her intention to appeal the findings on the basis the investigation process was laughable and that the investigating office and disciplinary officer were not independent or unbiased.

The Complainant was advised that an appeal hearing would be held on 9th January 2019 by a different HR consultant. The Complainant sought to have the hearing rescheduled, and on 17th January 2019 the Respondent rescheduled the appeal hearing for 23rd January 2019. The appeal hearing took place, minutes of the hearing were forwarded to the Complainant to review. The decision to dismiss was the Complainant upheld, and the Appeal Office sent her report to the Respondent on 31st January 2019. The Complainant was informed by letter on 5th February 2019 of the outcome of the appeal hearing.

The Respondent therefore submitted that the dismissal was due to gross misconduct which related to the Complainant’s behaviour on 13th June 2018. It argued that the Complainant was aware that shouting or using raised voices in a threatening manner amounts to gross misconduct, that the Complainant had signed a policy on 17th June 2009 acknowledging her awareness of this, and specifically gross misconduct included “abusive or insulting behaviour and/or language to fellow workers, children or parents (and) physical or verbal assault”. The Respondent submitted that the Complainant had acknowledged at a minimum to using expletives to the Director and where she would have known such behaviour constitutes gross misconduct as defined in its policy and Employee Handbook.

Legal Argument

The Respondents admitted that it adhered to fair procedure and that it employed a third party HR provider to oversee an independent investigation and to subsequently undertake the disciplinary hearing an appeal hearings. It further argued that the procedures adopted were entirely fair and that the Complainant was afforded her natural and constitutional rights during the course of the investigation, the disciplinary meeting, and the Appeal.

The Respondent submitted it adhered to the Code of Practice On Grievance And Disciplinary Procedures in that is provided the Complainant with terms of reference that set out clearly and unambiguously the scope of the allegations which were to be investigated. It further argued that its decision to suspend the Complainant was consistent with the jurisprudence set out in The Governor and Company of the Bank of Ireland v Mr James Riley, High Court, Newnan J ., 17th April 2015 [2015] IEHC241, and where the Respondent in deciding to suspend the Complainant gave careful consideration of its necessity pending a full investigation of matters. It acknowledged the Complainant remained in service for 1½ hours following the incident on the 13th June 2018, and the Respondent noted that it did not take the decision to suspend lightly as they had to consider the necessity to protect individuals at risk from such conduct, namely the children in the school. Furthermore the Respondent argued that the Complainant was permitted to be accompanied by her husband to all of the meetings and was informed at all stages of her right to bring a friend, colleague or trade union representative.   It further maintains that the Complainant was furnished with copies of the evidence which reflected on her good name including the Agency report and the witness statements along with being provided with copies of the policies and procedures, the investigation report, the minutes of all meetings, and she was advised of the outcome of the investigation.

In this regard the Respondent maintained it adhered to the jurisprudence I set out in Haughey [1971] IR271 which stated “a person whose conduct is impugned as part of the subject matter of inquiry must be afforded reason means of defending himself which includes … being furnished with a copy of the evidence which reflects on his good name … being afforded the right to cross examine…in his own defence”.

The Respondents submitted that the Complainant was afforded the opportunity to challenge the witness statements and set out her position orally and in writing in relation to the allegations. It also voiced it objection to the Complainant's husband conducting his own investigation by writing to the employees requesting statements. The Respondent advised the Complainant that she was to provide the investigation officer with contact details for witnesses she wished to call. These witnesses were contacted by the investigation officer and these witnesses were property questioned by investigating officer.

The Respondent also submitted that it stood back from the process and only contacted the Complainant during her suspension on exceptional cases which related to the Complainant's husband writing directly to employees and that the Complainant had prepared a reference on a work computer purporting to be from the company. The Respondent maintained it did not interfere with the disciplinary investigation, the disciplinary hearing, or the Appeal process as it used independent parties. The Respondent further maintained these parties where unbiased and that the Complainant failed to provide any evidence to the country. It submitted the civil standard of the burden of proof on the balance of probabilities was applied which was reasonable under the circumstances, and the Respondent referred to Georgopoulus v Beaumont Hospital Board [1998] 3 IR 132 in support of its argument that it was reasonable to apply this standard.

The Respondent therefore submitted that the decision to dismiss the Complainant was taken after a lengthy investigation and disciplinary procedure, and on the recommendation of independent HR professionals. It maintained it did not predetermine the matter and the Complainant was paid throughout her period of suspension other than during the summer period when the school was closed.

Finally, the Respondent's submitted that having completed a fair process which upheld the behaviour of the Complainant on 13th June 2018 was egregious, that any reasonable employer would have no alternative but to dismiss the employee. Therefore, the Respondent maintained the sanction of dismissal was proportionate and justified under the circumstances. Furthermore, the Respondent submitted that the Complainant has never acknowledged the unreasonableness of her behaviour or offered any form of apology. The Respondent also argued that the Complainant had mocked and ridiculed the various, unconnected professionals who are tasked with undertaking the investigation and subsequent disciplinary an appeal. In light of the approach it had taken, and the behaviour of the Complainant, the Respondent submitted that the complaint was entirely vexatious and requested that it be dismissed.

Summary of Complainant’s Case:

The Complainant submitted that the dismissal was based solely on witness statements provided by the Respondent’s Managing Director and an employee who is the sister of the Managing Director.

The Complainant disputed the credibility, accuracy, and veracity of the statements made by the Managing Director and the Wages Clerk, and upon which she contended the dismissal was based on. The Complainant further maintained the allegations were unproven and therefore did not constitute genuine grounds for her dismissal. She maintained no other evidence or witnesses were sought or provided despite being available.

The Complainant denied the specific allegations of shouting, screaming or swearing, or that it was overheard by children at the school. It was her contention that the evidence in relation to these allegations was unreliable and therefore for the investigator to have depended on this evidence rendered the decision to dismiss her to be unfair. The Complainant argued that the statement of the Director and the supporting statement of the Director’s sister were made the day after her suspension and are contradictory to her recollection of events. The Complainant submitted the statements are grossly exaggerated and are not factually supported. She also submitted the statements were deliberately worded for the sole purpose of justifying her suspension on the day in question. The Complainant confirmed the discussion on 13th June 2018 in the kitchen related to a dispute over bank holiday pay.

The Complainant submitted that the veracity and credibility of the Wage Clerk’s statement of   "aggressive screaming" and a confrontation that was "not witnessed in 20 years employment” was not a credible statement as nobody else on the premises heard it despite there being at least 2 other staff members in the nearby vicinity. The Complainant submitted that on the day no other independent witnesses, including the Person in Charge, were questioned or asked to provide statements. Whilst firmly denying the allegations of shouting, screaming, and swearing the Complainant maintained the allegation that children overheard this was unsupported. She further submitted that she was not aware of any evidence that demonstrates any of the children overheard any part of the conversation in the kitchen. The Complainant submitted that she had made repeated requests for additional independent staff witnesses and CCTV evidence to support her recollection of events but this was largely ignored until well into the disciplinary procedure. She further maintained that the investigator used by the Respondent to conduct the investigation only paid lip service to her objections.

The Complainant submitted that she has never been given the opportunity to question three the witnesses she had provided, and that her request for CCTV evidence was dismissed on the grounds that "it doesn't work". The Complainant maintained that the questioning witnesses by the Investigator by telephone was at best perfunctory, and appeared to be designed solely to discount their credibility.

The Complainant also raised concerns that she believed the evidence relating to the Agency’s inspection was flawed, and that the Agency’s inspector was manipulated by the Respondent for the sole purpose of supporting an unfounded allegation against her. This she contested demonstrates the manipulative character of the Managing Director and where the Respondent sought to obtain evidence from the Agency to support a predetermined allegation decided some months previously. The Complainant therefore maintained when this allegation was made the supporting evidence had not been obtained until September 2018, and as such it was used to unfairly influence the procedures.

The Complainant submitted that following her suspension on 13th June 2018 nothing happened until the disciplinary process commenced on 19th September 2018. She acknowledged in her submission that the procedure was strictly adhered to until her eventual dismissal on 20th December 2018. She appealed the decision but her appeal was denied on the 31st January 2019.

The Complainant therefore maintained that the allegations against her were not corroborated, that the Respondent purposefully manipulated the Agency report to further and unfairly discredit her, and that whilst the Respondent provided what appeared to be a fair procedure it failed to properly consider the substantive issues, or properly investigate the allegations of 13th June 2018 made against the Complainant. On that basis the Complainant contended the finding of gross misconduct for her behaviour on 13th June 2018 was unfair.

Findings and Conclusions:

In accordance with Section 6(1) the Unfair Dismissals Act, 1977 “the dismissal of an employee should be deemed, for the purpose of this Act, to be an unfair dismissal unless having regard to all circumstances, the were substantial grounds for justifying the dismissal”.

S6(4)(b) of the Act states the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if inter alia it results wholly or mainly from the conduct of the employee.

In addition S6(7) of the Act requires that in determining if a dismissal is an unfair dismissal, regard may be had, if the Adjudication Officer considers it appropriate to do so- (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure which the employer will observe before and for the purpose ofdismissing the employee …or with the provisions of any code of practice.

I must therefore consider both the substantive issues leading to the dismissal, and the fairness of the procedures adopted.

As to whether there were substantial grounds for the Complainant’s dismissal on the ground of gross misconduct, the applicable legal test is the “band of reasonable responses” test, as comprehensively set out by Mr Justice Noonan in the context of Section 6 of the Unfair Dismissals Act 1977 in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated: “It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM.”

Having considered the written submissions and evidence presented by the parties at the hearing I am satisfied the evidence supports that a verbal altercation occurred between the Complainant and the Managing Director on the 13th June 2018, and where this altercation related to public holiday entitlements. Two discussions took place on that day, one between the Complainant and the Wages Clerk, who is a sister of the Managing Director, and a second discussion between the Complainant and the Managing Director, where the Wages Clerk also joined the discussion. It was during this engagement the Complainant was accused of being loud and using inappropriate language, and where it was alleged this was overheard by children using the toilet.

I am also satisfied that an Agency report of an unannounced inspection in April 2018 was submitted to the Respondent in June 2018, after the Complainant was suspended. This report made observations on a member of staff, and the Agency subsequently confirmed the Complainant was that member of staff.

The Complainant has contended the investigation of the allegations of the events of 13th June 2018 did not properly consider the evidence, and that the Respondent manipulated the Agency’s report to undermine her.

I find the evidence supports that following an incident on 13th July 2018 the Respondent had concerns about the Complainant’s behaviour and it was entitled to investigate these mattes under its policies and procedures. I also find it was reasonable for the Respondent to investigate both the alleged incident of 13th August 2018, and the Agency report. I do not find the Complainant’s assertion that the Respondent sought to manipulate the Agency staff as being credible. It was reasonable for the Respondent to seek the identity of the member of staff referred to in the report, and the Complainant has not provided corroborating evidence that the Agency’s report was not reliable.

The evidence supports that the Respondent appointed external consultants to conduct the Investigation, the disciplinary hearing, and the appeal. This measure was appropriate in light of the fact that the complaints of the 13th June 2018 were made by the Managing Director.

Having reviewed the Investigation report I do not conclude that the Investigator failed to adhere to fair procedures. The report supports that the Investigator considered the evidence, questioned the parties identified, and concluded on the balance of probability the Complainant behaved as alleged. Further, whilst the Investigation identified that the alleged conversation in the kitchen was not overheard by the Complainant’s witnesses, the Investigation did consider whether the voices could have been overheard in the bathroom. The Investigation concluded the Complainant could have been overheard and in this context on the balance of probability children may have been using the bathroom close by. On that basis the Investigation upheld the complaints of 13th June 2018. I note the Investigation also observed that the use of language and loud behaviour in the vicinity of vulnerable children amounts to gross misconduct.

In considering the Agency report, the Investigation also upheld that the evidence supported the Complainant was the staff member identified, and that the conduct identified by the Agency amounted to misconduct.

I therefore do not find any act or omission occurred on behalf of the Respondent that renders the procedures or decision to dismiss the Complainant amounts to unfair dismissal.   It is evident the Respondent adhered to proper procedures, provided the Complainant with every opportunity to have her response heard during all stages of the process with included the investigation procedure, the disciplinary hearing, and the appeal process. I also find that the investigator was entitled to draw its conclusions on the balance of probability.

In light of the breach of behaviour of the Complainant on 13th June 2018, and the environment of working with children, I find the decision to dismiss the Complainant was proportionate.

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.

As I have not found the Complainant was unfairly dismissed, I do not uphold the complaint.

Dated:   14/2/2020

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Key Words: