Complainant

Respondent

Anonymised Parties

A Social Care Worker

A Social Care Facility

Representatives

Deirdre Canty, SIPTU

Rosemary Mallon B.L instructed by Ronan Daly Jermyn Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00027917-001

23/04/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00027917-002

23/04/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 (withdrawn)

CA-00027917-003

23/04/2019

This a claim for unfair dismissal and minimum notice lodged by the complainant, a Social Care Worker on 23 April 2019. The case came for hearing on 15 October 2019 ran over 3.5 days, concluding on 15 January 2020.

A claim for annual leave was withdrawn at hearing.

The Complainant was represented by her Union, Ms Deirdre Canty from the Workers’ Rights Centre of SIPTU. The Respondent denied the claims and was represented by Ms Rosemary Mallon, B.L instructed by Ronan Daly Jermyn.

Both parties made very comprehensive written submissions.

During the hearing, I had cause to address the parties directly on how I wished to have the scope to conduct the hearing. I allowed all witnesses to be present during the hearing. I explained that I was keen to oversee a participative hearing, but I could not accept prompting by witnesses, however well intentioned. I explained to the parties that I could see that the case was hugely important for both sides and I wanted to make the correct decision having regard for witness evidence, cross examination, witness demeanour and body language.

I equally acknowledged that there was room for both parties to present their case based on their respective styles.

This was accepted by the parties.

The complainant sent in some email threads and an extract from a Communication book post hearing. This was shared with the respondent.

The Respondent operates a service for clients who have an Intellectual disability. The service supports clients through a range of ages from 20-70 years, who may also have physical disability and mental health issues.

Counsel for the respondent outlined the governance of the service through a range of policies and procedures and the interface between the respondent and the Irish Public Health service in that regard. The policy of Trust in Care was emphasised as the umbrella Policy under which several allegations raised by Service users and Staff members were managed in April 2016.

Counsel described the Organisational chart of care management in the Residence from which these allegations were made.

She told the hearing that the complainant had been employed as a Social Care Worker by the respondent from 19 August 2015 until her dismissal on the grounds of gross misconduct on 7 December 2018. Prior to this, she had worked at the Centre on an agency basis.

On 16 April 2016, two Service Users made certain disclosures to a member of staff, Ms A at the community residence. MS A accompanied both service users to the Designated Officer, Mr B on the following Monday, where they made allegations concerning the complainant.

On foot of these allegations, a Preliminary Screening exercise was undertaken, and the complainant was suspended on full pay as a protective measure. The Preliminary screening determined that the allegations of abuse “could have occurred” and a full investigation was launched. Ms A subsequently submitted a written statement of complaint as did another Care Assistant. Both statements amounted to new allegations against the complainant and were amalgamated into a blended investigation.

An Investigator, with extensive experience was agreed between the parties. The complainant was represented throughout and terms of reference of 5 pages, which governed 13 specific allegations were agreed.

The investigation. Consisting of 21 interviews proceeded in September 2016 and ran until December 2016. Clients at the residence were psychologically assessed for capacity and one service user was found not to have capacity. One service user, who was nonverbal relied on a recognised modem of communication called “lamh “and was supported by an Advocate. All interviews were audio recorded and the complainant was afforded the opportunity to sign off on these, which she did. Various correspondence on capacity assessment and interview clarification was exchanged between the parties before a Final Report was issued in May 2017.

The Report found that there was insufficient evidence in three of the allegations, one allegation was partly upheld, and nine allegations were upheld. The report reflected findings at a “very serious end” of neglect, involving physical and psychological abuse.

The Complainant had raised issues of the Investigator being biased, which was rejected in the final report. In addition, the complainant had submitted that information submitted at investigation had been false and this also was rejected. She also contended that the allegations were vexatious and malicious. The Investigator found that they had been made in good faith and that fair procedures had been satisfied.

The respondent moved the outcome to stage 4 of the Disciplinary Procedure in line of the duty of care owed to service users.

Ms B held a Disciplinary hearing on 7 December 2017, which was accompanied by notes. The complainant’s representative raised issues with the Final Report. On 19 November 2018, the respondent issued a letter of response. The complainant continued paid leave throughout.

Correspondence exchanged between the parties during this period reflected issues that had already been addressed in the Investigation.

The Disciplinary Hearing was reconvened for 5 December 2018. The Complainant requested an outcome by letter and did not attend the hearing.

The respondent decided to dismiss the complainant as the only appropriate outcome. An appeal was granted to the CEO, Ms C, the appeal addressed the stated grounds of severity of sanction, mitigation and incorrect procedure and focussed on staff collusion. The decision to dismiss the complainant was ultimately upheld in April 2019.

Counsel for the respondent submitted that the complainant had been afforded fair procedures and natural justice. The respondent was faced with significant findings following a full investigation. Dismissal rested squarely within the range of reasonable options permitted to an employer where findings of care failures towards vulnerable people were pronounced.

The Respondent conformed that the complainant had received full pay from April 2016 to December 2018 and she had received payment for annual leave. The complainant has an ongoing obligation to mitigate her loss as she had not demonstrated any mitigation of loss.

Evidence of the Investigator, Ms I

Ms, I had a background in Mental Health and General Nursing. She had worked as a Director of Nursing, Mental Health. She had clinical experience in Intellectual Disability. She had also worked in Regional Planning.

In August 2016, Ms I was approached by the respondent to undertake an Investigation in accordance with the Trust in Care Policy. Terms of Reference had been agreed. The investigation centred on complaints from service users and staff members. Both Service Users had been assessed by a Clinical Psychologist and were assessed as capable. Neither had a history of making complaints.

Ms Is methodology consisted of audio recorded interviews which were subsequently typed and sent to the interviewee for verification. All transcripts were signed off.

Ms, I submitted that she had done everything to secure and deliver on a fair hearing. she was the lead investigator and sole decision maker, supported by Administrative support. On receipt of the complainants follow up commentary, she indicated that she was happy to meet to discuss. She went back and listened to the entire audio. Amendments were agreed with SIPTU on 18 January 2017.

Ms, I undertook the service user investigations in the community residence. On 19 September 2016, a Service User, who was non-verbal entered her room in a distressed state. It was clear to her that he had a story to tell that he wanted her to hear. He gestured that he had been hit on the back of his head. Ms, I had not been trained in lamh, a sign language, however, she was concerned at the level of distress he exhibited and ethically decided to include him in the investigation. She felt she could not omit him.  

Ms, I identified the retired PIC as a material witness and made extensive efforts to secure her attendance at investigation. This delayed the investigation. Ms I was disappointed not to have met with this witness who had forwarded medical certificates to cover her absence. In seeking to be fair to the complainant who was off work, she decided that it was unfair to prolong the investigation in the short or medium term to capture the PICs contribution.

Ms, I refuted that she had refused to meet with the complainant post her interviews. She had offered to meet her closer to her base.

Ms, I confirmed that she had complied with the Terms of Reference set down and had persistently sought corroboration. One Service User and resident in the community residence was not interviewed as he was found to have lacked capacity through a dual diagnosis.

Ms, I submitted that she had undertaken a thorough reading of the care charts. She had ascertained that service users had the required capacity to present at investigation. A respondent-based advocate attended interviews to assist in having service users views and wishes heard but Ms I accepted her objectivity.

Ms, I recalled that the complainant had felt the target of “sour grapes “from Ms A. She had investigated her responses that one of the service users tended to fabricate injury /falls but there was no evidence for this. She also recalled that one of the service users had not commented on an aspect of the inquiry of “what she had not seen “This added to her credibility. She had not found validation for a certain care intervention relied on by the complainant in a Service Users chart.

Ms, I submitted that she had made her findings on the balance of probability. She interviewed everyone who worked with the complainant bar the retired PIC.

She was satisfied that her findings were informed by proven facts. She found that the complainant had failed to treat the service users as equals in terms of the activities of daily living.

Ms, I recalled that she addressed the serious allegations fairly and without bias. She followed due process and natural justice and was impartial. She was aware that the Union did not agree with her findings, but that did not take from them.

She did not establish that Ms A had orchestrated a vendetta against the complainant over the PIC position. She had not identified an active collaboration against the complainant. She had not identified a named Co-coordinator as being material to the investigation. She interviewed everyone who worked there.

She gave the Union to visit the community residence and view the documents they referred to. She had expressed a dissatisfaction with how Mr B responded to the service user complaints which veered outside the Trust in Care Policy and reflected this in her report.

During cross examination, Ms I outlined how she had approached the investigation through meeting with the Human Resource Manager ,4 staff from the service and three service users and a visit to the community residence. She denied that the Investigation outcome was preconceived.

The complainant’s representative asked her if she recalled being asked to refrain from waving at a child during an interview as this was causing an unnecessary distraction during the first day of interview? Ms, I disputed this and said that the only breaks were to facilitate tea and coffee.

In addressing the service user reference to being hit, Ms I confirmed that the client assisted by sign language had confirmed the complainant had hit him and disagreed with the complainant’s representative when she tested her evidence in that regard. Ms, I referred to the transcript and denied that she had posed a leading question to the client. Ms, I contended that the service User in question had intentionally entered the room, his level of distress militated against further probing by photo ID. His non-verbal communication was good, and Ms I established that he had been assaulted. The Advocate had corroborated this.

Ms, I confirmed that she had not been struck by the gap in time before Ms A made a written record of her observations. Ms, I responded that the allegations had been screened by the safe guarding officer, whom she interviewed, and Ms A had subsequently written down her observations. The main complaints emanated from the three Service Users.

Ms, I confirmed that she had not interviewed the named Co Ordinator as she was not the complainant’s manager and not material to the investigation.

Ms, I confirmed that she was aware that the complainant was set to replace the retired PIC from April 18, 2016 on a temporary basis. The investigation was centred solely on the respondent site as provided in the terms of reference. The complainant was interviewed over two full days.

Ms, I did not engage on the suggestion that the issues reported regarding the complainant’s practice if true would have been discovered much sooner? She distinguished her role as an investigator from that of an employer, whose role is was to evaluate earlier performance. She did not find evidence that the complaints were vexatious.

Ms, I did confirm that she was unhappy with the value judgements made by Mr B as they were not his to make. She confirmed that there some discrepancies between his recollection and that of Ms A and she considered these.

She denied that a named Service User may have been confused in his recollection.

Ms, I denied refusing to meet the complainant at any time and confirmed that she was offered a meeting which was not availed of. Efforts to locate an email from 27 March 2017 were unsuccessful on the complainant’s side at hearing.

In redirection, Counsel for the respondent put the chronology of the emergence of the first complaints followed by the additional concerns of two staff members to Ms I and this was re-affirmed.

In response to the adjudicator, Ms I confirmed that her investigation had run over 30 days and was focussed on restricted disclosures. She did not have scope to recommend a sanction, nor was she involved in the aftermath of the Final Report.

She did not have an awareness on why the Service User and Staff complaints were conflated and she was not involved in notification to the Gardai. Ms, I had commenced her investigation based on an agreed term of reference. Ms, I confirmed that she had made recommendations as footnotes to the final report on service User care planning, charts and safeguarding information but she took them out prior to submitting the report. The had addressed recommendations regarding service issues. The complainant had expressed a clear desire to return to work.

Ms, I confirmed that based on the corroborations she received, she stood over her Investigation Report. She maintained that the complainant was permitted an opportunity to submit documents.

Evidence of Ms B, Head of Client Services and Decision Maker:

Ms B worked as Head of Client services at the respondent centre. She had 32 years of nursing experience in many and varied roles.

In her capacity as decision maker in the Disciplinary process, she considered the Final Report and the appendices.

She met with the complainant and her representative on 7 December 2017 and recalled that the complainant’s representative read from a document dated April 13, 2017 which constituted her response to the draft report. Ms B did not have this document and the complainant’s representative forwarded it to her.

At the end of the meeting, the complainant expanded on her personal circumstances. The minute of the meeting reflected a 3-hour engagement.

Ms B reflected on the meeting and accepted an additional submission from the complainant’s perspective.

Ms B reflected that the primary role of the service was to support the service User. The Investigation concluded that there had been a breach in the Trust in Care Policy. Ms B said that she was influenced by the Investigation records of service User distress. She was struck by the number of allegations made against the complainant and their severity.

She concluded that her decision to dismiss the complainant arose from the fact that trust no longer existed. This made the complainants’ continuation in post as social care worker/shift leader unsustainable.

During cross examination, Ms B denied that the outcome of the disciplinary procedure was a foregone conclusion. She told the complainants representative that she would have been open to submissions on possible sanctions on 5 December 2018 had the complainant attended the resumed hearing.

She accepted that the complainant’s representative had fully elaborated on the case against her and this exceeded the sole reading of the complainant’s responses to the draft report.

Ms B recalled that she had interviewed the complainant for her position and was aware of her references and positive standing. Ms B accepted that a significant delay had followed the first disciplinary hearing in December 2017 and the resumed hearing some 12 months later. She had not been met with requests for updates from the complainant during that period. she attributed the delay to the breadth of detail involved and “other things “and apologised. she needed to reflect.

Ms B had not found evidence of bias against the complainant. She could not see how all the Service Users could be motivated towards vexation. All staff in the community residence were relatively new and would not have ran benefit from vexation.

Ms B confirmed that she had given her options under the Disciplinary procedure some consideration. She did consider the impact of dismissal on the complainant, who had a clean record but believed that she had to balance against what the respondent expected from her role in terms of service User support and supervision.

Ms B confirmed that she had not placed any weighting on the lack of recommendations furnished with the Investigation Report as some report have recommendations and some don’t. The Investigator was new to the service. she did not place a weighting on the lack of involvement of the by then retired PIC. She had considered measures short of dismissal such as demotion but concluded that it would be too difficult. There were no changes or sanctions placed on the remainder of the staff. The respondent did not operate a system for Performance Review for the complainant’s position as ad hoc relief.

Evidence of Ms E, Human Resource Manager

Ms E had been in her role for 17 years and worked across a range of areas which incorporated Industrial Relations, Employee Relations, Pensions and Training. She gave an outline of the complainant’s role transition through the service from Agency Worker in 2014 to a Permanent relief position in February 2016.

She confirmed that the complainant had not applied for the PIC role when it was advertised in January 2016. Interviews had been concluded in April and the incumbent commenced in post in August 2016. She confirmed that Ms A worked as a permanent relief Social Care Worker. She disputed that the complainant was destined to be the PIC.

MS E confirmed that she had decided to suspend the complainant as the most appropriate measure. The decision was a protective measure as the complainant worked in a relief capacity and tended to work alone. The complainant received full pay and premia until the date of her dismissal.

Ms E recounted the initial complaints made by service users were subsequently joined by complaints from two staff in early June 2016. She considered linking them for the purposes of the investigation. The respondent proposed an Investigator which was vetoed by the Union. The Union proposed another Investigator who was vetoed by the respondent. The parties eventually agreed on Ms I.

During cross examination, Ms E confirmed that she had sought approval to blend the complaints for Investigation purposes in early June 2016. The complainant agreed to proceed with the Investigation which incorporated both sets of complaints which were reflected in the agreed Terms of Reference.

Ms E had written to the complainant on May 23 to update her on the preliminary screening process and the importance of her continuing to send in time sheets.

The issue of the second preliminary screening had not been raised or contested and the investigation proceeded with a high level of administrative support.

Evidence of Ms F, Appeals Officer and CEO of the Organisation.

Ms F had experience in voluntary agencies over 30 years and is a Registered Nurse in Intellectual Disability. she assumed the role of CEO in 2017. she gave an outline of the Multi-Disciplinary basis for the centre and emphasised that the ethos of the Organisation is to protect the vulnerable.

Ms F submitted that a Service Users credibility should not be marred by their Intellectual Disability. Where warranted capacity is explored.

In her capacity as Appeals Officer, Ms F had considered the Investigation Report. She contended that issues of, vexation envy and suggested collusion had been extensively addressed in this report and had not been upheld.

Ms F accepted that there was a pronounced delay but” this did not diminish the severity of or change the picture”

She had not identified signs of a pre-determined outcome and while. she was aware of the absence of PIC from the Investigation, the retired PIC was ill. Ms F went on to say that complete reliance would not have been placed on one person.

Ms F was satisfied that the report findings fell within the definition of gross misconduct. The Investigator had found breaches in the Disciplinary procedure and in the Trust in Care Policy.

Ms F expressed that she would be very disappointed if the complainant achieved re-instatement as trust had gone.

During cross examination,

Ms F confirmed that the complainant was due to start in replacing the retired PIC on the day she was suspended. She confirmed that 10 points had been corroborated and most of the allegations had been upheld.

Ms F had considered other options to dismissal by was overtaken by the seriousness of the allegations and upheld the decision to dismiss.

She did not find cause to probe the complainants continued denial further. Ms F did not place weighting on the lack of recommendations. While it was her first appeal, she affirmed that she had placed the best interests of the service users in primary position. she confirmed that she had delayed in giving the outcome of the appeal, but this rested on an extensive deliberative process which was ultimately shared with the complainant in April 2019.

In conclusion, Counsel for the respondent submitted that the complainant had entered the Investigative process to have her name cleared. This did not happen. The decision to dismiss the complainant was fair and reasonable.

The Investigation was undertaken by a service expert who upheld 10 of the very serious allegations. The respondent could not countenance a return to work by the complainant as trust and confidence in her had disappeared. Special attention should be given to the critical care requirements of vulnerable service users. These clients were supported by the Multidisciplinary team an a newly appointed PIC.

The Complainant knew the case made against her and she was provided with many opportunities to state her case and make submissions. Her response of denial of the allegations was insufficient for her to win the investigation. The Investigator working on the balance of probability preferred the version of others over the complainant’s version. Acting reasonably, Ms I explored the declaration of vexation and malice and found no evidence of same.

The service users were tested for capacity to provide information to the investigation and one service user was disregarded. A Service user distanced herself from one event which went to her credibility.

The respondent stood over the fearlessness of the Investigation. They acknowledged” the blip” around the naming the “draft final report “but there were no procedural flaws.

The Disciplinary Hearing took place over 3 hours and was augmented by the Union submission to the Final report. The 11-month delay in reconvening the hearing provided time to consider the topic in full and was not challenged.

The respondent did not accept that the complainant was unable to find work and contended that the complainant had not mitigated her loss in accordance with the requirements of the Act. She had not sought work in social care. St Colmcilles (Kells) Credit Union ltd and Patrick Leneghan UDD 1952was cited, where the Labour Court had not been satisfied that the complainant had “made sufficiently rigorous attempts to mitigate his loss “and reduced an award of compensation by 50% as a result. Synergy security Solutions and Paul Dusa UDD 1911 was also cited, where the Court was dissatisfied at the mitigation relied on by the complainant and awarded nil compensation.

The Respondent submitted and relied on the facts of David Atkinson v Cope Foundation UD483/2015, where the EAT found that the decision to dismiss a Health Care Assistant fell within the range of reasonable responses. The circumstances of the case had yielded a final written warning in respect of an assault in 2013. This had subsequently been overtaken and the complainant was summarily dismissed on prosecution of the assault at the Criminal Court.

CA-00027917-002   Minimum Notice

The Respondent rejected the claim for notice and disputed liability for payment.

CA-00027917-001   Unfair Dismissal

The Complainant qualified as a Social Care Worker in 2011. Having previously worked as an Agency Worker, she worked directly for the respondent from August 2015, first as a relief Social Care Worker and subsequently on a permanent basis to the date of her dismissal in December 2018. The Complainants representative submitted that the complainants preferred option for remedy in the case is Re-instatement to her position.

The Complainants representative outlined that the complainant worked across several the respondent’s community residences. In January 2016, she substituted for the Deputy Person in Charge of a named residence as this person, Ms A was on sick leave. The Person in Charge (PIC) of the residence was due to retire in April 2016. Ms A returned to work in April 2016, which overlapped with the retirement of the PIC. The complainant was expected to take on this PIC role.

On 18 April 2016, the respondent placed the complainant on paid suspension. This followed the presentation of allegations made by two service users. Client A and Client B. Ms A had managed the collation and submission of these allegations.

The complainant stayed home without receiving a follow up from the respondent. The Union contacted the respondent on 25 May 2016 seeking an update. The complainant was invited to attend a further meeting with the respondent on 9 June 2016, this time in relation to further complaints made by two staff members, Ms A and a Care Assistant.

Terms of Reference were agreed, and an Investigation commenced. The complainant received 15 attachments to prepare for the investigation and she presented on December 1 and 5, 2016. The complainant was uneasy as the interviews were interrupted by clients.

On 13 March 2017, the complainant was invited to respond to a “final copy of the Investigative Report “in a very short time frame. Further time to make representations was sought and granted. The Complainant was aggrieved to discover that the matter had been raised with the Gardai. she had no prior knowledge of this. There was also an omission in identification of contributors to the investigation and their resulting transcripts.

The complainant made an extensive response to the March report and was very disappointed that the highlighted inaccuracies and contradictions highlighted were not reflected in the final report issued in May 2017.

The Respondent held a Disciplinary Hearing on 7 December 2017. An earlier meeting was not possible as the respondent had arrived at an October meeting in the company of a witness to the investigator acting as note taker.

At the December meeting, the Union expressed surprise that the Unions tabled response to the draft report had not been shared with the respondent by means of the Final Report. This was forwarded separately, and a response awaited.

On 21 November 2018, the complainant was invited to attend a reconvened disciplinary meeting on 5 December 2018.The complainant was invited to issue any additional comments to the notes of the earlier hearing, some one year before. The Union received confirmation that an outcome was to be shared at the meeting and sought this outcome in written format. This was notification of dismissal.

This outcome was appealed, yet the decision to dismiss was upheld, and the complainant received notification of this in April 2019.

The Union submitted that the complainant was unfairly dismissed. the Complainants representative outlined that the complainant had been a victim of vexatious and malicious complaints which arose as she was proximate to becoming the PIC for the residence over Ms A. She pointed to Ms A’s deposition to the investigation which reflected that the PIC had told Ms A, that her own retirement could elevate the complainant to PIC and this was received in glee at a retirement dinner for the then PIC. This conversation was overheard by other witnesses to the investigation. The Union contended that Ms A instigated the service Users to instigate the April complaints as she was in fear of being overtaken by the complainant.

The complainant’s representative submitted that there were contradictions in the evidence of Ms A and the Designated Officer to the Investigation. A six-week delay followed before the complainant was notified that she may have hit a Service User.

The Union submitted that they had sought the inclusion of a named service Co-ordinator at investigation. It was their understanding that Ms A had informed her of concerns on 22 April 2016 yet was not asked for a report until 27 April 2016. Yet, the Co-ordinator was not interviewed as it fell to the Investigator to decide on who should be interviewed. One Co-ordinator was interviewed and did not have knowledge of the allegations being reported previously.

The Union raised an entry to the communication diary made by the complainant on 21 February 2016 which raised an alternative version of events surrounding one of the allegations. The union saw this diary entry but was not permitted to copy it. The union contended that this evidence was omitted from the final report

The Union listed 5 documents which were omitted from the final report, service user complaints, social worker statement, Designated Officers original statement. service user interview and the service user programmes.

The Union submitted that the programmes reflected that both service users, who served as the primary complainants “tend to fabricate stories “. The Union was not provided with copies of these programmes.

The Union also maintained that the Investigator asked leading questions when interviewing the service users.

The Union submitted that the complainant had been significantly disadvantaged by the delay in the procedures adopted by the respondent. The complainant furnished her response to the final report on 28 July 2017, yet the Disciplinary meeting was held in December 2017 and the outcome issued a year later. This amounted to a failure in the respondent’s duty of care towards the complainant. A further delay followed before the outcome of the appeal issued and this arrived on 18 April 2019, some 3 years post the complainants suspension.

The Union submitted that the complainant had been denied natural justice and fair procedures in how the allegations were managed and reported on. Her dismissal was disproportionate and unwarranted, and the complainant was deliberately targeted for dismissal. The Union contended that that the allegations were tainted by collusion and the Service Users were manipulated into making the statements. The investigation was flawed.

The Union requested re-instatement as the complainants preferred remedy. The Union submitted details of loss and mitigation through a printed dossier of jobs sought post dismissal.

The Union submitted that the complainant had worked at a very high capacity and was an excellent employee. The Complainant felt destroyed by the events of the three years following the allegations, all of which she had vigorously denied.

Evidence of the Complainant:

The complainant detailed an extensive background portfolio in Social Care, which ranged from volunteer work in socially disadvantaged areas, special Olympics and Children’s groups. She had secured a broad academic portfolio in child health, social care and ultimately completed a master’s Programme in Human Rights and Criminal Justice. She became a direct employee of the respondent in August 2015.She accepted her permanent appointment as a Social Care Worker in March 2016. The complainant completed 5 hours of Induction, where she shadowed another employee and learned how things worked. Nobody raised any issues with her.

The complainant had been requested to cover over a 6-week period for a retiring PIC when she was approached by Ms E on 18 April 2016. Ms E said that she wished to speak to the complainant and enquired whether she required representation?

The complainant said she would wait and see what this was about. She was shocked to receive an envelope which contained allegations from two service users. She received a letter confirming her suspension with pay with a stated intention to follow her up by Friday. When she could not secure an update following two phone calls she contacted her Union, who led the process after that.

She received further allegations from two staff members on 9 June in the presence of her shop steward. The proposed terms of reference dated 5 July did not include an allegation of assault on a named service user.

The complainant understood that all allegations were to be incorporated in one investigation.

The complainant addressed the allegations which had been levied against her.

1.       She contended that she followed interventions she had witnessed in the case of a Service User. She had requested that colleagues who had counselled the service against an activity be interviewed, but she was informed that she was having responsibility for her own practice. The complainant expressed her disappointment that witnesses to the investigation had reported that she had undertaken an activity on several occasions, while she had acknowledged completion with reason on just one occasion.

2.       The complainant had worked without issue from March 28 to 18 April.

3.       The complainant reflected that there were inconsistent practices adopted in relation to the care and support of a certain. She expressed a moral dilemma regarding her observed reluctance around the care of a client.

4.       She expressed a disappointment at the inconsistent statements of some of the staff on the topic of locked doors at the house.

5.       The complainant denied assaulting any service user and reflected that this had not been mentioned in her dialogue with the service on April 18. This had come to light on 27 May in Ms A’s statement.

6.       The complainant denied that she had treated the service users unfairly and the allegations had no basis. She was troubled that the observers of these behaviours had not reported these events “there and then”.

7.       The Bus outing had been a colleague’s suggestion and the allegations which arose from this journey were groundless.

The Complainant was disappointed with the investigation, she contended that the service users were asked leading questions which permitted answers from the advocate. There was no evidence that she had hit a resident.

The complainant contended that Ms A’s statements to the Investigator had varied throughout and these amounted to contradictions.

The Complainant had participated fully in the investigation and was disappointed when the Investigation was accepted without alteration at Disciplinary Hearing stage. She had issues that the decision maker Ms B had not been provided with the Union response to the Draft report. She had not retained her own notes of this hearing.

The complainant concluded that once she met Ms I, that her mind was made up in favour of what the staff had told her. She recalled that the entire process had been difficult for her as she had difficulty understanding what she said which resulted in her evidence being confused.

The Complainant submitted that she had got on well with staff but was adamant that she had suffered from reporting lack of activation in clients care. She submitted that her reportage of this resulted in her becoming the target of allegations of malicious intent. She was very troubled as she really didn’t know where these allegations were coming from.

The entire experience from April 2016 onwards has caused her stress resulting in her having to secure counselling for a depression. The respondent had caused her great harm by the biased investigation which rested on a lie. There was no foundation to any of the allegations.

The complainant requested that she get her job back to clear her name. This was a priority for her as she loved working. She was troubled by the Gardai involvement and the records which now exist in this quadrant. she had sought but not secured a reference.

She understood that allegations had to be investigated. The complainant clarified that she had a strong familial understanding of the field of disability.

The complainant gave evidence of loss and mitigation. She had been unable to find work since her dismissal.

During cross examination, the complainant re-affirmed that she wished to return to work for the respondent. She accepted that allegations in a care setting need to be enquired into.

In addressing Counsel on whether she thought service Users can tell the truth, she responded by stating her opinion that they can be manipulated by others for their own ends. She accepted that the service users were deemed to have capacity to participate at investigation.

The complainant confirmed that she had read the transcripts and was aware that 7 staff and 4 service users participated in the investigation. she re-affirmed her denial of the 13 allegations and balanced this with her references to conspiracy, malice and vexation. She reaffirmed that staff had influenced the depositions of the service users as they were still working with the service users during this period.

Counsel challenged this by reference to the service user who distanced herself from commenting on an event which she had not attended or witnessed. The complainant distanced herself from that viewpoint.

The complainant discounted the number of staffs who had given evidence against her and submitted that events had been distorted.

The complainant disputed the level of experience attributed by Counsel to the Investigator and declared that Ms I had been biased against her and had arrived at a pre-determined outcome. She gave a rationale for this as she was unhappy meeting with the Investigator at an advanced stage of the investigation rather than the beginning.

Counsel tested this statement by referencing the 3.5 allegations which had not been upheld and were “to your benefit “To which the complainant contended that her response to the investigation was not well received by Ms I.

The complainant accepted that she was permitted an opportunity to make submissions but had an issue in the undue delay in how the disciplinary hearing was conducted. she fully appreciated that Ms B would need to take time to consider the case, but 11 months was highly excessive. The Complainant confirmed that representations to counter this had not been made during that period. she didn’t want to push the respondent as she wanted her job back. She confirmed that she found fairness in how Ms B and Ms F treated her.

The complainant referred to the years aligned to this case as lost years and she would like to have that 11-month sojourn back.

In referring to her decision not to attend the reconvened disciplinary hearing on 5 December 2018, the complainant confirmed that her absence was her decision due to anxiety and she believed that she had furnished her response. She submitted that she didn’t want to be told by Ms B what Ms I had already told her.

The complainant had been unable to find work.

The Complainant went on to confirm that she found work in the community residence to be difficult. The service users had been upset at the PICS imminent departure. She did not have access to a specific communication forum as a relief worker. She was troubled that the named co-ordinator whom she suggested being interviewed was not interviewed. She had a professional dilemma and had expressed her reservations regarding service users care. she referred to a Diary guidance note of 27 January 2016 where a client was to be activated during the day and his night wear washed and put away to discourage a return to bed. The complainant forwarded this in written form post hearing.

The complainant confirmed that she had agreed to the conflation of both sets of complaints into a unitary investigation as she was keen to press on and secure her return to work.

In concluding arguments, the complainant’s representative reaffirmed that the dismissal was unfair as the allegations were fabricated against the complainant. There was an underlying issue of the service user unease regarding the succession of PIC and this coloured their actions. Both Service Users who submitted complaints had a history of fabrication to turn attention to themselves. The Complainant had endeavoured to secure the attendance of both the PIC and a key Co Ordinator to the Investigation but had not succeeded.

The primary complaint from one of the service users had not mentioned an allegation of physical assault and this had been added much later. The complainant was steadfast in her belief that the allegations had been canvassed by Ms A on the eve of her assuming a locum of 6 weeks for the retiring PIC. This amounted to being “too coincidental in our book “. The allegations were linked to an earlier time and were given a platform consistent with Ms as return to work in April.

The Complainant agreed to the Investigative process and saw no reason to object to the proposed terms of reference. The complainant found it unfair when her suggestions for participants were vetoed on the supremacy of the Investigates role. She was also disappointed when the PICs continued refusal to attend Investigation was accepted by the respondent.

The complainant was focussed on performing well at investigation to anchor an early return to work and she was very disappointed by the delay associated in the process. she adopted a strategy of not rocking the boat or arguing during the Disciplinary hearing to assist her much desired return to work and she had faith in Ms B.

The Complainant was keen to secure an outcome to the Disciplinary procedure and did not have further evidence in the run up to the reconvened hearing. She had formed the view that she would not get the opportunity to change what she believed was to be a pre-determined outcome, so she absented from December 5, 2018 meeting.

The complainant tried to raise matters on appeal. Ms F told her that she was not there to re-investigate. There was a further delay before the decision to dismiss was upheld.

The Complainants representative submitted that the complainant had invested heavily in seeking to get her job back and she was compromised seeking new work in a care setting, with this case hanging over her. She believed she would not be re-employed in care and directed her attempts at mitigation across a wide range of jobs.

The decision to dismiss the complainant was unreasonable. The complainant had a clean record and had issues of her care delivery existed, they would have been brought to light much sooner. The complainant was not guilty of the allegations advanced an she has been stuck with this negative outcome. she saw a return to work as an equitable remedy to assist her to relaunch in care and distance herself from an unfair dismissal. The complainant had a strong desire to move on after an arduous experience.

The Complainants representative referred to an EAT case of Mayland V HSS ltd UD 1438/2004, where the Tribunal held that an employer’s disciplinary code on cash procedures leading to summary dismissal was not determinative of the reasonableness of the employer’s decision to dismiss. The EAT emphasised the importance of considering “all the circumstances of the case “such as length of service, and unblemished record.

The Complainants representative argued that the dismissal was disproportionate in the face of Elder Homes v Reda Kunceviciene, where the EAT held that a zero-tolerance policy did not necessitate a dismissal on all occasions. The Employer had a certain discretion in that regard.

The Complainant is keen to return to work to prove her ability in a care setting and this remains her preferred outcome.

CA-00027917-002   Minimum Notice

The complainant submitted that she was denied her statutory notice of two weeks when she was dismissed without notice on 7 December 2018.

CA-00027917-001   Unfair Dismissal

I have carefully considered all aspects of this case. Both parties presented extensive written submissions and I can confirm that I have read and considered all. I have also listened very carefully to the oral evidence, cross examination and the representative’s oral conclusions. I have also read the case law submitted by both parties.

It was important for me to understand the chronology of the case and I returned to the submitted documents and witness evidence on several occasions to copper fasten my understanding in this regard. It was also important for me to consider the nature of the respondent’s business as that of a Community based residential setting for clients with Intellectual disability.

This is a claim for Unfair Dismissal, where both parties made very profound submissions in the case. It was clear to me that both parties had invested heavily in their personal preparation for hearing. It is fair to say that the circumstances of the case were highly sensitive, charged and emotional at times and I would like to commend the representatives who adopted a professional approach in managing a challenging case for their clients/member.

I must decide whether the Respondent has shown that the decision to dismiss the complainant was based on an honest /reasonable belief, based on reasonable grounds arising from a full and fair investigation? Preston v Standard Piping ltd [1999]10 ELR 233.

This may amount to a variance in how the complainant saw my role. The complainant directed me towards situational factors which had prompted her behaviour while rejecting the allegations made by the respondent. The complainant expressed a strong belief that she did not breach the Trust in Care Policy of the respondent Organisation and had been wronged. She communicated through her representative and sought that I acknowledge her actions and consider them against the correct context and background of the care setting which challenged by a changing in leadership through retirement of PIC.

I think it helpful to call on the 1984 EAT case of Looney and Co Ltd v Looney U 843/1984, as useful to clarifying  my role further as Adjudicator of this case.

“ It is not for the EAT to seek to establish the guilt or innocence of the claimant nor is it for the EAT to indicate or consider whether we in the employers position would have acted as it did in its investigation or concluded as it did or decided as it did , as to do so would be to substitute our mind and decisions for that of the employer .

Our responsibility is to consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employers’ actions and decisions are to be judged “.

The law requires that I consider the reasons for dismissal put forward by the respondent followed by an evaluation of the procedural framework relied on to that end.

I found it useful at this stage to frame a much-quoted statement by the late CJ O Caleigh in the seminal case of Re; Haughey [1971]IR 217, 264 which sets out a code onthe parameters of fair procedures.

“In proceedings before any tribunal where a party to the proceedings is at risk of having his good name, or his person or property, or any of his personal rights jeopardised, the proceedings may be correctly classed as proceedings which may affect his rights, and in compliance with the Constitution the State, either by its enactments or through the Courts, must outlaw any procedures which will restrict or prevent the party concerned from vindicating these rights”.

This points to the essential balance between those who formulate allegations with those who seek to defend their position. The Equality of Arms.

Section 6 of the Unfair Dismissals Act sets down a definition of an unfair dismissal.

Unfair dismissal.

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.

The respondent has submitted that the complainant was dismissed following negative findings of an external Investigation Report and the resultant loss of trust. They contend that the complainants conduct justified her dismissal.

The respondent has placed the dismissal within the “band of reasonableness “open to an employer who operates a service for vulnerable clients. This defence is contained in section 6(4) (b) of the Act.

(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,

As an adjudicator, I may have regard to the following provisions of section 6(7) of the Act.

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court 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 referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7(2) of this Act.

The Complainants representative had sought that the respondent witnesses would present separately. I heard the parties on this and refused that request, reliant on Brannigan v Louth VEC, I thought it best that I hear from the parties on a continuum rather than incrementally.

1.       The Allegations

The Complainant is a qualified Social Care Worker who secured a permanent appointment in February 2016. Prior to this, it was common case that she worked across a range of the respondent facilities in a relief capacity. From January 2016, she was substituting for a fellow Social Care Worker on sick leave. This is the period of interest in the case.

The Contract on file is dated August 6, 2015 and confirms receipt, understanding and acceptance of a range of respondent documents inclusive of the Trust in Care Policy. The respondent training log for the complainant reflected training in several associated modules but not Trust in Care.

I am satisfied that the complainant understood the Trust in Care Policy. The Disciplinary Procedure formed part of the contract of employment.

The Complainant had agreed to provide locum for the Person in Charge for a 6-week period when she was met with allegations from two service users on 18 April 2016. She was provided with copies of these statements and suspended the same day. The complainant gave evidence that this came out of the blue as nobody in the Organisation had addressed her performance previously. She consistently denied the allegations and maintained that they had been canvassed by the colleague who had returned from sick leave. The Respondent confirmed that it did have not an active mechanism of performance management/supervision  due to the complainant’s mobility around the service. I was surprised by the absence of any monitoring in that regard and became more pronounced when her Direct Line Manager did not make herself available to the Investigation. I noted that the complainant was not a candidate for the PIC competition.

The Respondent undertook to manage the allegations promptly. I was not satisfied with the delays in the respondent’s management of the early stages of this process. The speed associated with the suspension stood in stark contrast with the subsequent passage of procedures in the case. However, I am satisfied that the suspension was affected to permit an investigation in accordance with the Trust in Care Policy.

The complainant was outside the Organisation for several weeks before the respondent informed her of the outcome of the preliminary screening for the service users’ complaints. By then, the second set of allegations from staff had been formalised and were presented to the complainant on 9 June, some 7 weeks post suspension.

I was concerned at this development and probed this with the respondent. My concern centred on the importance of the employee knowing all allegations from the outset, Glover V BLN ltd [1973] IR 338, Supreme Court and applied by the Labour Court in Kilsaran Concrete V Vitalie Vet, 2017.

I learned that the complainant had agreed to accept the blended complaints for the purposes of an external investigation. I accept that this was proposed by the respondent and accepted by the complainant. The complainant told me she agreed to this in seeking to Fastrack her return to work. I can appreciate that she felt vulnerable in suspension and wanted things to move along. I accept that this was an act of good faith in seeking to convince the respondent that she had not harmed the residents. However, I would have preferred if both sets of complaints had been addressed separately. I shared the complainant’s reservations on the respondent delay in asking Ms A to record her concerns regarding the service users.

2 The Investigation

The parties agreed to the appointment of an external Investigator in accordance with the Trust in Care Policy. Ms I was the agreed second choice. Both parties had initially rejected each other’s primary nomination. Draft Terms of reference had issued dated June 2016 which contained 7 allegations. On 25 July 2016, the complainant through her representative sought new terms of reference to include all the allegations to clear her name.

The terms of reference were agreed, and the Investigation proceeded on a very expansive terms of reference consisting of 13 allegations, inclusive of one episode of alleged assault. This bound the parties to an agreed course of action during the Investigation.

This is distinguished from the facts in the case of Lyndsey Conway v HSE [2016] IEHC 73, where the High Court granted an Injunction against the appointment of a Disciplinary Investigation Team without the prior agreement of 5 Psychiatric Nurses. The Complainant has accepted that she received all documents and was permitted representation throughout.

I must conclude that the complainant was therefore aware of all the allegations from the outset. I also accept that she was fully aware that the allegations were to be investigated under the umbrella Policy of Trust in Care which provides for a clear roadmap for allegations of abuse in a care setting. On balance, I would say that the complainant did not appreciate the challenges associated with activation the Trust in Care Policy. I return to Murphy J in Conway:

“In all such disciplinary investigations, there is a potential inequality of arms in that the power of the institution is ranged against the individual. the requirement that the investigation team be agreed between the parties redresses that potential; imbalance and is a material safeguard for the right of the individual to have a fair, unbiased and impartial hearing “

Ms I was new to the Respondent Setting but approached the Investigation with an expertise in the field of Intellectual Disability. I took some time to reflect on Ms Is evidence. I also read the Investigation Report and the Complainants submitted responses to this report on several occasions. I was struck by her 30-day commitment to the investigation.

It was the complainant’s case that her dismissal was pre-determined and that from an early stage, prior to the commencement of the investigation her fate was sealed through the canvassing of complaints by Ms A. Neither party called Ms A to hearing and it is important for me to state that she who asserts is obliged to also prove these assertions.

The Respondent had vehemently denied this assertion and told the hearing that they were obliged to investigate service user and staff complaints. This prompted the appointment of the Investigator by agreement.

Ms, I struck me as a methodical and dedicated Investigator who appreciated a professional dilemma when a Service User made an unanticipated call to her interview room during her investigation. This service user was compromised in verbal communication and relied on assisted advocacy and sign language.

Ms I was clear that she could not ignore what he was trying to communicate and sought to offer a supported means of accepting his narrative.

This caused me a dilemma as I was concerned that the importance of the complainant being aware of all matters from the outset may have been compromised, until I noted that this allegation was included in the agreed terms of reference from the outset.

I found that the Investigator did not go beyond a pure evidence gathering type of Inquiry. She did not formulate the complaints and she was not part of the Disciplinary procedure. I noted the arduous efforts she made to secure the attendance of the retired PIC at Investigation. I also noted that she decided to advance with the investigation having taken account of the inconvenience of additional waiting time on the complainant.

I noted with approval the Investigators persistence in cross checking conflictual statements raised by the complainant during the investigation. I was reassured by the audio tapings shared with the complainant in addition to all her requested documentation.

I am satisfied that the complainant was given a meaningful opportunity to address the allegations through direct engagement and through the provision of requested documentation. I noted that the complainant made several references to being refused meetings, which were denied by Ms I. I have established that Ms I was open to meeting with the complainant and sharing the audios. Invitations were formalised but not taken up.

The complainant’s representative made a latter-day reference to not being granted an opportunity to cross examine witnesses. Both parties agreed that this facility had not been requested by the complainant and for my part, it had not been appended to the Terms of Reference governing the Investigation.

I continue to hold reservations regarding the length of time between the complainant’s suspension and the furnishing of the final report to the respondent in May 2017. The allegations had covered a 3-month period, yet 1 year had elapsed before the Investigation was completed. This was excessive.

However, on balance, I must conclude that the complainant was given a fair opportunity to respond to the allegations. I note that the complainant was aggrieved that the Investigator did not start with her deposition and that she had heard from many others before her. I accept the respondent response on the sequencing of the participants for the purposes of the investigation. The complainants were heard in the first instance before the complainant’s response. The complainant may have been confused on this rule.

The respondent referenced Atkinson on several occasions in this. The facts of the case differed somewhat as Mr Atkinson had admitted to a transgression and had received a final written warning following which he had returned to work before the circumstances of a prosecution came to light. Dismissal followed. In the instant case, the complainant has steadfastly denied all allegations throughout the investigation.

On listening to both parties, I observed a certain irritation on the complainant’s part that the Investigator held the “tiller “for the investigation and could have based her findings on evidence adduced. I found Ms I honoured the Terms of Reference and provided a rationale for all her actions and decisions.

For my part, I note that the Investigator had the benefit of a holistic interview with witnesses complete with the scope to assess demeanour, body language and non-verbal’s. The audio reflected the written record only and amounted to just one aspect of the investigation. I found this criticism rather harsh by the complainant.

I appreciate that the complainant was somewhat blind sided by the arrival of the draft report and the unanticipated mention of Garda involvement. However, she made a robust response to this document and was disappointed when her submissions did not reverse the findings. I note that the initial draft report was presented in a 50-page format which extended to 53 pages in the final report to take account of this document. This demonstrated a due regard for the document but did not support the complainant’s submission. The final report was unaltered after that.

The UK Supreme Court in Chhabra v West London Mental Health NHS Trust [2013] UKSC 80, considered an application for injunction from a Psychologist, accused of breaches of patient confidentiality seeking a restraint from an employer moving to a disciplinary hearing. The Court, in granting the injunction held that there had been a breach of both the disciplinary policy of NHS and implied contractual right to fairness. The Court held that the Trust could not move forward on the disciplinary procedure as the charges had not amounted to gross misconduct. In addition, a HR advisor was found to have modified the Investigatory conclusions which strengthen the criticism of the Dr. Lord Hodge cautioned against extracurricular involvement by a case manager when he stated:

“ the case manager has discretion in the formulation of the matters which are to go before a conduct panel, provided that they are based on the case investigators report ……But the procedure does not envisage that the case manager can send to a conduct panel complaints which have not been considered by the case investigator or for which the case investigator has gathered no evidence “

While, I continue to hold reservations on the blended Investigation, I must accept that the complainant agreed to this format and this was an informed decision. It was clear during the hearing that the complainant had prioritised her wish to return to work and her strategy on “not rocking the boat “in response to the delay around the investigation and subsequent disciplinary time line was informed by that desire to get back to work.

I noted that the Investigator was obliged to furnish recommendations outside of sanction at the end of her report. I note that she formulated these and then omitted them. Given that Ms I had identified deficiencies in care, I would have expected that recommendations would have been best placed at the end of the report for both the complainant and the service. I was surprised that their omission was not picked up by either party in due diligence or remarked on prior to the hearing.

I saw that as a missed opportunity rather than a procedural flaw. The Investigator was well placed to identify a road map to an improved service rather. The findings had been recorded. There was some ambiguity in the terms of reference on this point where the words “may “and “shall “were both used.

Throughout the hearing, the complainant countered the Respondent approach to the Investigation. I established that there was a lull in inter party correspondence from May 2017 until the invitation to Disciplinary hearing in October 2017. The complainant had not sought a new investigation during this period.

The Complainant insisted that the Investigation was tainted which in turn rendered her dismissal unfair. This was vigorously rejected by the respondent.

I took some time to reflect on this submission. I can confirm that I was uneasy about some of the antecedent events prior to the commencement of the investigation, as explained above. However, I am satisfied that the Investigation provided the complainant with a fair opportunity to be heard and a platform to test evidence. I appreciate that the complainant did not win at investigation and this has been a cause of residual and persistent disappointment to her.

I have found that despite some failings in time lines and unhelpful absence of a key service leader, the investigation was conducted fairly and in accordance with the agreed Terms of Reference.

3.       Disciplinary Procedure  December 2017 and resumed December 2018.

The Disciplinary procedure was scheduled for October 2017 and was rescheduled as a notetaker had been a witness at investigation. The parties met in December 2017. The complainants representative re-introduced the response to the Draft Investigation Report from March 2017 and submitted this expansive document post hearing in support of the complainant’s desire to resume work at the respondent service.

I found that the complainant was on notice of the gravity of the circumstances of the case from October 4, 2017. I am satisfied that she was provided with scope to make an oral submission at this hearing and was represented throughout. Her points were examined and responded to. However, there was an unreasonable delay in that response until November 2018. I must find that this disadvantaged the complainant who by now was some 18 months outside the Organisation.

On review of the respondent disciplinary policy, I noted that the CEO is charged with dismissals under Stage 4 of the Disciplinary Procedure. In this case, the dismissal was delegated to the Manager of the Client services with right of appeal to the CEO. I noted that this was provided for in the Policy but is ambiguous.

I also note that the final report had been amended to take account of the complainants’ submissions and enlarged accordingly.

The Disciplinary hearing was reconvened for December 5, 2018. At first the complainant agreed to attend and then lost her resolve in that regard as she told me that she didn’t want to hear a repetition of what the Investigator had already determined. I must respect that the complainant made an informed decision in that regard, however, in employment terms, it may have been more strategic for her to attend to seek to influence a positive outcome, if possible. At hearing, the complainant attributed the emergence of the complaints to the retirement of the PIC and apprehension regarding a Successor, yet this was not argued at her own disciplinary hearing.

I am satisfied that the respondent did not hear a submission from the complainant on her preferred outcome on December 5, 2018. I found that the respondent felt affronted by the complainant’s decision not to attend her own Disciplinary process. The complainant, by her own admission had acknowledged that Ms B had been fair with her, her decision not to attend was self-defeating in my opinion.

Again, the facts conflict with Atkinson, who disclosed a transgression. The complainant maintained her innocence and rebutted the allegations throughout.

This left the respondent to decide based on the final report which consisted of 9 allegations which had been upheld and 1 partly so followed by the complainants oral and written submissions. I am satisfied that the respondent did consider lesser sanctions in addition to the impact of dismissal on the complainant, Bank of Ireland and James Reilly [2015] IEHC 241. Ms B did engage in a proportionality assessment but was overtaken in her deliberations by the “impact of the conduct on the employer “which had been found to amount to significant breaches under the Trust in Care Policy.

I found that the Disciplinary Procedure was inordinately delayed, and I did not secure a reasonable explanation for this delay. This should have reconvened in early 2018 out of respect for the complainant and the service. I found that this was a wholly unsatisfactory omission and should not be repeated. I found that it did prejudice the complainant as she told the hearing that she was feeling very diminished at that point. She did not submit a medical report in support of this, but I accept that she was feeling diminished and vulnerable.

I reviewed the respondent reliance on Khan V HSE [2008] IEHC 234, in granting an injunction, extolled the supremacy of fair procedures over efficiency in public bodies. I appreciate that some of the undue delay was attributed to the imperative for fair procedures, however some was an administrative lag.

However, while this is a procedural flaw in the entire procedure, I cannot determine that it was a fatal flaw. The complainant had not sought an earlier engagement and had been presented with an opportunity to state her responses and had been heard. I noted that this approach evolved from her identified strategy to return to work without rocking the boat too much.

The respondent adhered to the respondent Disciplinary Procedure in accordance with stage 4, serious misconduct and decided to dismiss the complainant in her chosen absence on 7 December 2018.

The Complainant has relied on Kunceviciene , which rested on a single episode. As in Atkinson, the facts differ as Kunceviciene referred to an episodic omission which was followed by an unbroken work pattern before dismissal.

The Labour Court in     a Service for Persons with Intellectual Disability and a Worker UDD 1813 considered a very unusual pattern of events where a worker who confirmed a transgression was first dismissed, successful on appeal only to be dismissed again some 5 months later through a new Board of Management. The Investigation in the case had recommended that the complainant work in a different unit.

In the Labour Court Determination, the Court re-engaged the complainant, with stringent monitoring mechanisms, having regard for this recommendation.

In the instant case, no such recommendation was available to the parties. Ms, I confirmed that her constructed recommendations had referred to service improvements. I would have liked to have seen these.

4. The Appeal

The complainant lodged an appeal in January 2018 which was heard by the CEO. I found this to be a very comprehensive process conducted by the respondent CEO. I found that Ms F considered the complainants grounds of appeal fairly and provided a cogent response, albeit once again in a delayed time frame of 12 weeks.

Conclusion:

I have found that the complainant participated fully in the respondent procedures once the allegations came to light in April 2016. She held a strong view that she was facing collusion and canvassing of complaints by others but did not prove this at Investigation or at the hearing at this case.

It is important for me to state my opinion that the complainant was employed in a relief capacity and I found several threads which pointed to a lack of integration in this model of work. She was not at the Retirement Dinner for the PIC or involved in performance appraisal.

I was struck by the undisputed fact that her system of care delivery seemed to be informed by her juniors and Agency staff and I believe that PIC did her a great collegial disservice by not co-operating with the Investigation. All views are important and deserved to be heard. I note that the respondent did not hold a statutory or contractual opportunity to compel attendance.

However, having considered all the circumstances, I find that the respondent has demonstrated substantial grounds, based on an honest belief of expansive breaches of the Trust in Care Policy, following a fair investigation, in justifying the complainant’s dismissal in December 2018.

I have also established that the decision to dismiss the complainant, while harsh and regrettably enduring for the complainant, was within the band of reasonableness for an employer of the respondents standing and obligation in a Specialist Care Setting.

I find that the Dismissal was fair.

CA-00027917-002   Minimum Notice

I have considered the claim for Minimum Notice. The 2015 Contract prohibits payment of notice in the case of gross misconduct justifying summary dismissal. This is echoed in Section 8 of the Act.

The complainant participated in Stage 4 of the respondent disciplinary procedure on Serious Misconduct. She was found to have breached the Trust In care Policy and was summarily dismissed.

I find the claim for notice to be not well founded.

CA-00027917-001 Unfair Dismissal.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I decide in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I have found that the Complainant was not unfairly dismissed on 7 December 2018.

CA-00027917-002 Minimum Notice

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 12 of the Minimum Notice and Terms of Employment Act, 1973 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Section 8 of that Act.

I find the claim is not well founded.

Unfair Dismissal, Minimum Notice