Complainant

Respondent

Anonymised Parties

Social Care Worker

Care Services Provider

Representatives

Audrey Goode Byrne & O'Sullivan

Philip O'Gorman Ibec

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00031988-001

04/11/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00031988-003

04/11/2019

The complainant commenced employment as a social care worker on 01 December 2016. He was dismissed on 11 July 2019. He alleges he was unfairly dismissed. He worked a 39-hour week. His hourly rate of pay was €12.11 gross.

The respondent specialises in the provision of residential care, community outreach and day services to adults and children with complex support requirements on both the intellectual disability and mental health spectrums. There are 1500 people employed by the respondent company of which 1300 are frontline care workers. As a leading care provider, the respondent strives to maintain a high standard of compliance with industry wide health and safety standards.   It provides a person-centred care service for individuals in their own home or in community-based care facilities.

The complainant was employed from 01 December 2016 as an assistant support worker. He was issued with a disciplinary sanction on 30 April 2019 following a full and fair disciplinary process. The sanction imposed, a final written warning, was a result of unauthorised use of a company car on 30 October 2018 and a failure to follow a reasonable management request. The complainant appealed the decision and the sanction was reduced to a first written warning. The appeal decision was issued on 18 June 2019. The first written warning was to be placed on his employee file and to remain in place for twelve months from 30 April 2019.

The matter giving rise to the complaint to the Workplace Relations Commission relates to a separate complaint received from a service user. The service user submitted her complaint to the respondent on 30 May 2019.   She complained about an incident that took place the previous evening, 29 May 2019. The service user alleged that the complainant had called her ‘fat’ and as a result she felt sad. When questioned about the incident the service user quoted the complainant saying, “I am not trying to be funny, but you are fat”. The service user noted that this was not the first time the complainant had expressed such an opinion. The service user’s version of the incident was supported by statements from other members of staff who had been present. The service user was quite distressed after the incident.

On his return to work on 30 May 2019 the complainant was informed of the service user’s complainant and he was suspended with pay pending investigation. The formal notice of the investigation, Including the terms of reference, were issued to the complainant by letter dated 07 June 2019.   The issues to be investigated were:

(1)    An allegation of psychological abuse towards a service user on 30 May 2019

(2)    An allegation of not providing and/or delivering high quality, safe, effective care to service user(s) on that occasion, and

(3)    An allegation of not maintaining a safe environment for service user(s) on that occasion

The terms of reference stated the investigation would be conducted under the Company Disciplinary Procedure with reference to the Safeguarding of Vulnerable Persons Policy and the Company Code of Conduct. The terms of reference also stated that where parties to the investigation were being interviewed their representative, whether trade union official or work colleague, may accompany them at the meetings in their respective capacities.

The complainant attended an investigation meeting on 10 June 2019. He was not accompanied at the meeting. The investigation report was issued on 27 June 2019. The investigators met the complainant and reviewed statements from the service user and two members of staff. The investigators, based on the evidence presented, the complainant’s admission that he said “(Name), you are fat” and his acknowledgement that the comment made to the service user was not appropriate, concluded there was a case to be answered under the disciplinary policy. The investigators recommended the matter be progressed to a disciplinary hearing.

By letter of 03 July 2019 the complainant was invited to attend a disciplinary hearing. He was provided with a statement of the allegations against him, copies of the relevant policies and was afforded the right to be accompanied by a colleague or trade union official. The disciplinary hearing took place on 05 July 2019. The complainant was informed of the allegations against him and was given an opportunity to respond to the investigation report. In reply, the complainant stated he made the comments to the service user but that it was intended as a joke. The complainant acknowledged that the service user could have self-harmed or absconded and stated that he could understand why she would be upset.

The outcome of the disciplinary hearing was communicated to the complainant on 11 July 2019.   The allegations were well founded, and it was deemed that the complainant’s actions amounted to gross misconduct. It was decided to invoke stage 5 of the disciplinary police and terminate the complainant’s employment with immediate effect.

The complainant appealed the decision and an appeal hearing took place on 30 July 2019.   The grounds of appeal were that the complainant felt fair procedures were not followed by virtue of the fact that the sanction applied was dismissal as opposed to a warning. The appeal was rejected and the decision to dismiss the complainant was upheld. The complainant failed to provide at appeal any further mitigating reason for his actions, significant enough to support any change in outcome. The dismissal was confirmed to be effective from 11 July 2019.

The respondent submits that the gravity of the complainant’s actions are even more significant when considered in tandem with the vulnerability and status of the service user concerned. The complainant had acknowledged it was not acceptable to speak to the service user in the manner he did. He was aware of the potential impact his behaviour could have had on the service user.   At the disciplinary meeting he acknowledged that the service user could have self-harmed or absconded because of his actions.   The respondent company aims to create a safe and healthy environment for the individuals in their care. The respondent is funded to take care of the most vulnerable people in society and the complainant’s actions did not align with the mission, vision and values of the respondent.

The respondent submits that any form of inappropriate behaviour towards a service user and failure to maintain their safety and wellbeing is deemed to be gross misconduct as per the respondent’s disciplinary policy. The complainant’s actions amounted to gross misconduct.

When considering the appropriate sanction to be apply the decision maker had regard to the seriousness of the allegations and the representations made by the complainant within the process itself. The respondent submits that the principles in relation to the appropriate sanction in cases of gross misconduct are well established and relies on the following test set out in Looney & Co. Ltd v Looney UD843/1984 as follows:

“It is not for the Tribunal to seek to establish the guilt or innocence of the claimant, nor is it for the Tribunal to indicate or consider whether we, in the employer’s position would have acted as he did in his investigation or concluded as he did or decided as he did. To do so would be to substitute our own mind and decision 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 his actions and decision be judged”

The respondent submits that a “reasonable employer in the same position and circumstances” would have reached the same determination in the circumstances of the within case. As such the respondent’s decision to dismiss was reasonable and fair in the circumstances. Therefore, the dismissal was not unfair.

Further, the respondent submits the actions of the complainant irreparably damaged the company’s trust and confidence in him and rendered the continuation of the employment relationship impossible, therefore justifying dismissal. The respondent relies on the Employment Appeals Tribunal decision in Moore v Knox Hotel and Resort Ltd UD27/2004 to support this submission.

The respondent submits the dismissal of the complainant was procedurally fair in all respects.   He was afforded the benefit of fair procedures in line with the respondent’s policy and the Code of Practice on Grievance and Disciplinary Procedure (S.I. 146/2000). He was afforded the right to representation in line with the respondent’s disciplinary policy. He was provided with fair and impartial hearings at which he was given every opportunity to respond to the allegations made against him.

The respondent submits that actions of the complainant contributed fully to his dismissal and in the event of a finding in his favour he is not entitled to seek any redress under the Unfair Dismissals Act, 1977. The respondent relies on the Employment Appeals Tribunal decision in Murray v Meath County Council UD43/1978, where the Tribunal decided it was appropriate not to award redress to the claimant in light of his inappropriate actions.

The complainant was employed as a social care worker with the respondent company which provides residential care and day services to adults and children with complex support needs.  

The complainant submitted that there was a history of over-kill in respect of the disciplinary approach adopted by the respondent towards the complainant. The complainant became aware from his HR file, supplied to him following his request, that at his initial interview he was deemed unfit for the post. However, he was offered the post. The complainant submits that the respondent appears to have second guessed the appointment and set out to remove to complainant from the post.

Earlier Disciplinary Issues

In 2018 it was alleged that the complainant had made unauthorised use of a company vehicle and that he had failed to follow reasonable management requests. The complainant maintained he had driven a service user to Dublin and waited to collect her rather than returning to base.   He claimed he was not asked to return and did not refuse to follow a request from management. A disciplinary sanction of a final written warning was issued to the complainant on 30 April 2019. This decision bypassed the informal caution, verbal warning and first written warning stage of disciplinary sanctions provided for in the respondent’s policy. The complainant felt so strongly that he has been mistreated that he appealed the decision. On appeal the sanction was reduced from final written warning to first written warning. The appeal hearing took place on 21 May 2019 and the final decision reducing the sanction to first written warning was issued on 18 June 2019.

Medical Certificates

The complainant was absent on sick leave for three days from 25 to 27 February 2019. He had emailed his medical certificate to the Person in Charge and had received a reply acknowledging receipt of the certificate.   In May 2019 the HR department sought a medical certificate for the complainant’s sick leave the previous February. Although he had supplied a medical certificate and received an acknowledgement in February the HR department in May 2019 issued him with an informal caution.   This was placed on his HR file and he was not allowed to reply or given a right of appeal.

The complainant states that the above two events supports his submission that the respondent engaged in over-kill in respect of their disciplinary approach to him.

30 May 2019

The complainant was notified that arising from events of the previous day, 29 May 2019, the following allegations were made:

(1)    Psychological abuse of a service user

(2)    Not providing or delivering high quality safe, effective care to a service user

(3)    Not maintaining a safe environment for the service user

The complainant was suspended with pay pending an investigation. The events of 29 May 2019 that lead to the allegations and investigation concerned comments passed by the complainant to a service user. The complainant described the service user in question as someone who would usually be involved in banter. The complainant, without thinking, called the service user ‘fat’. He instantly regretted this lack of judgement and apologised. The service user became upset.

The complainant accepts what happened but submits that sensitivity training and, at a push, a final written warning would have sufficed as a sanction instead of dismissal.   This was a one-off slip in judgement which did not amount to gross misconduct.

The investigation meeting took place on 10 June 2019. Following the investigation, a disciplinary hearing was arranged. The disciplinary hearing took place on 05 July 2019.   The complainant was not accompanied at either the investigation or the disciplinary hearing. He had asked to be accompanied by his brother, but this request was refused by the respondent.

The complainant was dismissed from his employment on 11 July 2019. He immediately lodged an appeal. The appeal hearing took place on 30 July 2019. The person hearing the appeal was accompanied by the HR person who had incorrectly issued him with an informal caution concerning sick leave medical certificates in May 2019. The complainant submits that the HR person was not a non-biased party to deal with an appeal hearing. Again, the complainant was not allowed to have his brother attend the appeal hearing with him, so he attended alone.

The appeal was rejected on 14 August 2019 and the dismissal was confirmed to be effective from 11 July 2019.

The complainant submits that this one-off incident did not warrant dismissal on the grounds of gross misconduct. He was willing to retrain if that option had been made available to him, but it was not. Lesser disciplinary sanctions, as set out in the disciplinary policy, were passed over.   The incident involved did not amount to gross misconduct warranting dismissal. Dismissal was an extreme measure taken by the respondent against a back drop of extreme measures taken by the respondent against the complainant.  

The complainant is seeking compensation for his unfair dismissal. In his submission he provided information of his work history and income from the date of dismissal to the date of the hearing.

The fact of dismissal is not in dispute in this case.   In a complaint of unfair dismissal arising from the employee’s conduct the relevant statutory provisions and the factors to be considered are set out in Section 6 of the Unfair Dismissals Act, 1977 including:

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.

6. (4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

6. (6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

6. (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 as the case may be, 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.

Procedures for dealing with disciplinary issues are also set out in S.I. No. 146/2000 – Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) requiring that the general principles of natural justice and fair procedures be complied with. The respondent’s disciplinary policy follows the procedures in S.I. No. 146/2000.

The respondent submits that the dismissal was fair as it resulted wholly or mainly from the complainant’s conduct. The issue here to be decided is, taking account of all the circumstances, did the respondent act reasonably?

The ‘band of reasonable responses’ test in the context of Section 6 of the Unfair Dismissals Act, 1977 was set out by Noonan J in The Governor and Company of the Bank of Ireland v Reilly {2015} IEHC 241 as follows:

“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.

39. I respectfully agree with the views expressed by Judge Linnane in Allied Irish Banks v. Purcell [2012] 23 ELR 189, where she commented (at p. 4):

“Reference is made to the decision of the Court of Appeal in British Leyland UK Ltd v. Swift [1981] IRLR 91 and the following statement of Lord Denning MR at page 93:

‘The correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.’

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 employers view 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.”

The respondent company provides residential care, community outreach and day services to adults and children with complex support requirements on both the intellectual disability and mental health spectrums. As such, there is a responsibility on the respondent to maintain a high standard of compliance with health and safety regulations and provide care to vulnerable users of the services. The provision of such services requires well trained and committed staff with an understanding of the issues associated with working with vulnerable users of the services.

The respondent had provided the complainant with training appropriate to working with vulnerable service users. Copies of the complainant’s training certificates were provided with his submission. The complainant acknowledged that he knew the service user and believed her to be a person who would usually be involved in what he described as ‘banter’.   He admitted that he had called her ‘fat’ but stated that he had instantly regretted this lack of judgement and apologised. Further, he acknowledged that the servicer user became upset at his comments.

Copies of the minutes of the investigation meeting, the disciplinary meeting and the appeal meeting were provided with the submissions. At the investigation meeting the complainant stated that he was in the kitchen with two other staff members when the service user came in and “just out of the blue I wasn’t even thinking, and I stated to her (name), you are fat”. He was unable to offer an explanation as to why he made these comments. He acknowledged that nobody would like to be called fat, whether they were or weren’t.  

The complainant did something that he should not have done. His comments were inappropriate and caused a vulnerable service user to become upset. The complainant could not provide any valid reason for his actions. He acknowledged that this service user could have reacted to his comments by self-harming or absconding. I am satisfied that what took place on 29 May 2019 was a very serious error that caused great upset to the service user.  

The respondent suspended the complainant with pay pending investigation. The investigation and the disciplinary hearing were carried out in accordance with the respondent’s disciplinary policy.   At each stage of the investigation and disciplinary process the complainant was offered the opportunity to be accompanied by a colleague or trade union official. The three allegations against the complainant were; (1) psychological abuse towards a service user on 30th May 2019 (2) not providing and or delivering high quality, safe, effective care to service user(s) on that occasion (3) not maintaining a safe environment for service user(s) on that occasion. The complainant accepted what happened.   The respondent’s disciplinary policy states that gross/serious misconduct includes any inappropriate behaviour towards service users, including neglect of a service user, leaving a service user unsupervised and failure to maintain a service users’ safety and wellbeing. The disciplinary hearing finding was; “Based on witness statements and your admission of the facts, you caused the service user unnecessary distress and you did not deliver effective care, failing to ensure their welfare to be the most important.” The outcome was a decision to invoke Stage 5 of the disciplinary policy and terminate the complainant’s employment with immediate effect.

Taking account of all the circumstances was the decision to terminate the complainant’s employment within the ‘band of reasonable responses’? I am satisfied the complainant did act inappropriately towards a service user, that he admitted what he did and expressed regret for his actions.

I note the respondent’s disciplinary policy includes the following statement; “Summary Dismissal – this occurs where a team member is in serious breach of a company policy, procedure or practice or who’s conduct or behaviour is deemed to be a serious concern, under the terms of Gross Misconduct. In this instance disciplinary action may result in the team member’s contract of employment being terminated. The team member will be dismissed without notice or pay in lieu of notice.”   The use of the word ‘may’ indicates that dismissal is not always the penalty to be imposed. Each case must be decided on the facts and any penalty imposed must take account of all the relevant circumstances of the individual case.

Dismissal from employment is the ultimate penalty. I note that the letter of dismissal, dated 11 July 2019, gives no indication that any alternative to dismissal was considered. There are six outcomes of a disciplinary procedure listed in the respondent’s disciplinary policy; (1) No further action (2) Informal Caution / Counselling (3) Verbal Warning (4) First Written Warning (5) Final Written Warning (6) Dismissal.

The complainant had received a first written warning for a separate disciplinary not involving a service user. The first written warning was not referred to in the disciplinary decision. I note that this was the first time a complaint of this nature had been made against the complainant.

The incident in this case was serious and required a reasonable and appropriate response from the respondent. As it was the first time such an incident occurred it would have been reasonable to consider all the possible sanctions available before deciding on the ultimate sanction of dismissal. I am satisfied that the decision maker, having decided the allegations were well founded, did not consider any alternative penalty to dismissal. The decision to dismiss did not take account of all the circumstances. The decision to dismiss cannot be regarded as coming within the range of reasonable responses of a reasonable employer as alternatives to dismissal were not considered.

The complainant’s grounds of appeal were (1) fair procedures were not followed and (2) that the sanction applied does not in any way reflect natural justice or any objective justification. The outcome of the appeal is set out in a letter dated 14 August 2019. The following statement, among others, is contained in the letter: “I find that on review of your case, it was deemed that your actions were deemed to be that of gross misconduct which carries a sanction of dismissal.”   This statement confirms that no alternative to dismissal was considered. It is not reasonable to impose or confirm a penalty without considering all the circumstances and any alternatives to dismissal that may be available and suitable. Imposing a penalty, particularly that of dismissal, without considering alternatives is not within the range of reasonable response of a reasonable employer.   I am satisfied that the complainant was unfairly dismissed.

The complainant has sought redress of compensation for unfair dismissal. I am satisfied that the complainant’s conduct contributed significantly to his dismissal. The award of compensation that is just and equitable, having regard to all the circumstances, should reflect the fact that the complainant’s conduct contributed to his dismissal. The complainant submitted evidence of his attempts to mitigate his loss following dismissal. He was successful in obtaining temporary work for the month of August 2019. In October he obtained a part-time permanent post, but he decided to leave this position. That post would have mitigated his loss to a significant degree.   The complainant commenced a new post in January 2020, at a higher hourly rate, on a relief panel. Based on the figures submitted by the complainant I calculate the loss to the date of hearing to be €10,500.00 gross.   Taking account of all the circumstances I consider it just and equitable to award the complainant compensation of €6,000.00 gross.

CA-00031988-001 – Claim under Section 8 of the Unfair Dismissals Act, 1977

I am satisfied that the decision maker, having decided the allegations were well founded, did not consider any alternative penalty to dismissal. The decision to dismiss did not take account of all the circumstances. The decision to dismiss cannot be regarded as coming within the range of reasonable responses of a reasonable employer as alternatives to dismissal were not considered. The letter setting out the appeal decision confirms that no alternative to dismissal was considered at the appeal stage. It is not reasonable to impose or confirm a penalty without considering all the circumstances and any alternatives to dismissal that may be available. Imposing a penalty, particularly that of dismissal, without considering alternatives is not within the range of reasonable responses of a reasonable employer. I am satisfied that the complainant was unfairly dismissed.

The complainant has sought redress of compensation for unfair dismissal. I am satisfied that the complainant’s conduct contributed significantly to his dismissal. The award of compensation that is just and equitable, having regard to all the circumstances, should reflect that fact.   Based on the figures submitted by the complainant I calculate the loss to the date of hearing to be €10,500.00 gross. Taking account of all the circumstances I consider it just and equitable to award the complainant compensation of €6,000.00 gross.

CA-00031988- 003 – Claim under Section 6 of the Payment of Wages Act, 1991 – withdrawn.

Unfair dismissal

Band of reasonable responses