Employee

Employer

Anonymised Parties

A Health Care Worker

A Health Care Company

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00030564-001

29/08/2019

The issue in contention concerns an appeal against the issuing of a Final Written Warning to the Employee by the Employer.

The Employee concerned is an Assistant Support Worker in a facility that caters for the needs of a wide range of very vulnerable clients with varied and complex needs primarily in the Mental Health area. He has been employed since 2015 albeit with a break for some months in early 2017. He is an experienced professional in this challenging area.

On the 10th March 2019 an incident took palce at the Care Centre between the Worker and a Client. The Client became quite upset and a heightened /escalated behavioural incident developed which resulted in some minor property damage.

Following procedures and established Protocols the incident was reported to a higher level in the Organisation. An investigation followed and the questions of

Psychological Abuse towards a Service User

Failure to provide high quality care

Not providing a safe environment for a service user

.

were considered. The Investigation found there were sufficient grounds to warrant a Disciplinary case. A Hearing was held, and the outcome of a Final Written Warning was issued on the 6th June 2019. This was then appealed by the Employee to the Director of Operations. The Appeal was unsuccessful, and the sanction confirmed. Letter of the 9th July refers.

The Employee argued at the Oral Adjudication hearing, through his Representative, that the process of Investigation & Disciplinary Hearings had been procedurally flawed. There was a large element of Management presenting matters to show themselves in the best light and effectively making the Employee concerned “carry the can”. The incident of the 10th March was agreed between the parties to have been an unhappy incident which could possibly have been handled better.

The Employee stated that it had been a “Learning Incident” that the entire Organisation could draw lessons from. There was much for the Management to reflect upon, but he was left to carry the blame and was given a Disciplinary sanction that was completely unwarranted and grossly disproportionate.

In addition, an attempt by the Employer to in some way link an earlier incident and Warning on file to this Warning was a complete breach of the rules of natural justice.

His Advocate requested that the Warning be completely expunged from his file.

The basic facts as set out in the Employee presentation were not disputed. A serious incident had taken place on the 10th March 2019 involving a Client. As an Organisation in the Health Care area and especially dealing with very vulnerable mental health clients they had detailed Protocols and Procedures to cope with situations of this nature. A proper comprehensive Investigation and Disciplinary process had taken palce. All procedural rules regarding representation and exchange of information were followed. No procedural flaws could be pointed out.

The Employer is entitled to decide on the appropriate sanction based on the facts of the case and in keeping with Company policy. The background context is one of providing the best possible care to very vulnerable Clients often with mental health issues. In this case the Employee was an experienced worker and knew that the client on the 10th March had specific behavioural challenges. In particular great care had to be taken with this Client to avoid challenging or argumentative situations that would very likely escalate /provoke a serious response.

Following a detailed process, the Disciplinary sanction imposed, a Final Written Warning, was the Appropriate response. The previous incident and the existing warning on file was noted in arriving at the sanction.

The care of very vulnerable clients demanded the highest standards and the actions of the Employer were an appropriate response.

This case was taken under the Industrial Relations Act, 1969. However, the level of warning issued, one step from Dismissal, requires careful consideration. The guidelines set out by Mr. Justice Flood in the Frizell v New Ross Credit Union Ltd, [1997] IEHC are worth considering. It is acknowledged that the Frizell case involved an Unfair Dismissal but the severity of a final written warning in this case allow, in my view, some useful guidance be sought.

In Frizelle v New Ross Credit Union Ltd, Flood J. stated that where a question of unfair dismissal (or in this case a Final Written Warning) is in issue, there are certain matters which must be established to support the decision to terminate employment for misconduct:

“1.

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

2.

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

3.

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

4.

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

5.

The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the Employee.

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

SI 146 of 2000 Statutory Code of Practice on Grievance and Disciplinary Procedures largely follows these principles.

Point 5, above, of Justice Flood is particularly relevant – was the Sanction Proportionate to the Gravity of the Offence.? This is the central question in this case.

There is extensive legal Authority regarding the Principle that the Tribunal or the Adjudicator is not to substitute themselves for the Employer and effectively engage in a de facto rerunning of a Disciplinary case.

The cases of Foley v Post Office [2000] ICR 1283 was referenced in the Irish High Court by McGovern J in the case of Doyle v Asilo Commercial Limited [2008] IEHC 445

“It is not the function of the Courts to substitute itself for the Employer and to make its own decision on the merits of the Employer’s decision to dismiss. As Mumery LJ stated in Foley v The Post Office at page 1295:

       “The Employer, not the tribunal is the proper person to conduct the investigation into alleged misconduct. The function of the tribunal is to decide whether the investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation, is a reasonable response.”

The point is developed further in the Court of Appeal decision in the Iceland Frozen Foods v Jones [1983] ICR 17 where the “Band of Reasonableness” principle was elaborated upon at length.

Considering the Penalty imposed in this case when seen against the charges made against him I had to have regard to the principles of “reasonableness”. It is not for the Adjudicator to revisit the Penalty but rather to see if it falls within the “band of reasonableness.”.

This was first set out in the headline case British Leyland UK Ltd v Swift [1981] IRLR 91. This case has been followed closely in subsequent case law. In essence it made the point that if a penalty decision is “Reasonable” and one which an Employer in a similar situation might take then it is deemed to be fair provided of course that all requirements of Natural Justice have been observed.

In Allied Irish Banks plc v Purcell [2012] ELR 189 Judge Linnane stated that

“It is clear that it is not for the EAT or this Court to ask whether it would dismiss in the circumstances or substitute its view for the Employer’s but to ask was it reasonably open to the Respondent to make the decision it made rather than necessarily the one the EAT or the Court would have taken.”

Guidelines as to what is “Reasonable” is considered in Hennessy v Read & Write Shop Ltd UD 192/1978 where it is stated

“in deciding whether or not the dismissal of the claimant was unfair we apply a test of reasonableness to

1: The nature and extent of the enquiry carried out by the Respondent prior to the decision to dismiss the claimant, and

2: The conclusion arrived at by the Respondent that, on the basis of the information resulting from such an enquiry, the claimant should be dismissed.

In the case in hand Oral evidence was given by the first Decision maker, Ms. Xa. A Sanction of a lesser level to a Final Written warning did not appear to have been the subject of great consideration. The issue of the previous Warning, still on file, was certainly on her mind. Like wise in the Appeal Hearing the Decision maker, Ms. Xb, again was conscious of the previous warning.

Acutely conscious of the Legal strictures regarding Adjudicators not substituting themselves for Employers I read carefully the written evidence and the supporting oral presentations.

The incident on the 10th March was, without any doubt, serious for all concerned but I had to ask the question was it so out of the ordinary for a Psychiatric setting to justify the level of the Sanction issued. The view that all parties could draw lessons from it was one that appeared a reasonable approach.

The issues of the Tapping of the Client’s Headphones to draw his attention, albeit soon after his refusal to clean his room and the issue of his home visits coupled with the explosive response are matters that would appear to be best the materials for a detailed Organisation review involving all Parties. The minutes of meetings provided indicate areas, for all three parties, where an Objective observer might well feel that “future” orientated changes could be made.

Good Industrial Relations practice is always wary of outcomes where a Penalty Imposition on one party, can be seen as, in reality, mitigating against creating a climate for Improvements both for the Individual Employee and also the wider Staff group.

In Oral questioning the Employer Managers were questioned by the Adjudicator as to their views on what could be called “Scope” or in Industrial Relations terms “Headroom” in the Disciplinary process.

If the Incident on the 10th March merited the final, but one, sanction in the process it would make the ongoing use of the process difficult to say the least.

As Mr. Justice Flood, quoted above, stated at Point 1 of his quote, each Complaint had to be seen in its own independent context. Previous warnings do not automatically decide the rights or wrongs of subsequent issues although they can influence the levels of Penalties decided. Interestingly the Disciplinary Code of the Employer has this “cumulative” effect clearly stated.

Accordingly, in this case having carefully considered all the evidence presented and the Oral presentation of the Employer Representatives and the Employee himself and his representative I had to come to the view that the Sanction imposed, even allowing for a previous warning still on file, was at too high a level in the Disciplinary code.

My final recommendation is that the Warning be reduced to a Verbal Warning (this is to reflect the fact that a Warning is already on file).

Further Organisation wide discussion as to the handling of incidents such as led to this case is also recommended.