FULL RECOMMENDATION
PARTIES : PRAXIS CARE (LIMITED BY GUARANTEE) DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No(s.) ADJ-00014409 CA-00018762-001. Background The Complainant commenced employment with the Respondent as a Healthcare Support Worker on the 4thof November 2013. He was dismissed from that employment on the 18thof January 2018. Dismissal is not in dispute; therefore, it is for the Respondent to show that the dismissal was fair. Summary of Respondent’s submission and evidence. Mr Lowey BL, on behalf of the Respondent submitted that the decision to dismiss was not unfair. The Complainant had deviated from the clients care plan and this fact was not disputed. In respect of some confusion over the date of the event, the date of 27thNovember referred to by the Respondent is the date that the incident came to their attention. The Complainant does not deny that at an earlier date he had allowed the client out of his line of sight contrary to the clients care plan. Mr Lowey BL submitted that the Respondent had lost all trust and confidence in the Complainant and that dismissal was well within the band of reasonableness in this case. Ms Rosarie Tynan was the first witness to give evidence on behalf of the Respondent. Ms Tynan was an area manager and was asked to carry out an investigation into the incident and into another incident which was not upheld and not relevant to the case to hand. Ms Tynan set out that the house where the Complainant was based had three clients, the client who the incident relates to is highly unpredictable and his care plan sets out that when he is outside, he must have two care workers and must be in line of sight at all times. It was Ms Tynan’s evidence that she was asked by HR to do the investigation and that they issued the letter inviting the Complainant to an investigation meeting on the 6thof December 2017. The letter advised that the meeting was in relation to safeguarding issues that Ms Moyna Kilbride had spoken to him about, and that he could be accompanied by a work colleague or a Trade Union representative. At the commencement of the investigation meeting Ms Tynan reiterated that he was entitled to be accompanied but he agreed to proceed unaccompanied. It was Ms Tynan’s evidence that she asked the Complainant to set out what the supervisory requirements for that particular client were and that he set them out correctly and knew why they had been put in place. Ms Tynan asked the Complainant about the incident. The Complainant stated that he allowed the client to go to the toilets on his own and this involved the client going under an underpass and being out of sight for approximately 30 seconds. The Complainant stated that in hindsight he should not have done it. Ms Tynan ‘s evidence was that she advised the Complainant that as a concern had been raised regarding safeguarding and that he was being suspended pending the outcome of the investigation. It was her evidence that she decided to suspend the Complainant because of the risks that presented on the day in question, and it was her perception that there could be a further risk as he had admitted to acting outside of the care plan. It was Ms Tynan’s evidence that the Complainant was given the opportunity to review the minutes and he confirmed by email that they were an accurate reflection of the meeting. Ms Tynan stated that she had interviewed six other people on the same day as part of her investigation including Brittney Cox, who was the second care worker present on the day. Ms Tynan submitted that she then prepared a report which she sent to HR. In the report she recommended that the incident should proceed to disciplinary action on the grounds of Gross Misconduct. In response to a question from the Court, Ms Tynan accepted that the report was not signed or dated by her, and she was not sure when exactly she had sent it to HR. Ms Tynan also confirmed that she had not sent a copy of her report to the Complainant. Under cross examination from Mr Jolley BL, Ms Tynan confirmed that she was asked by Ms Carol Breen HR to carry out the investigation. Ms Tynan stated that she had previously participated in several investigations and had also been the lead person in investigations. In response to a question from Mr Jolley BL as to how she decided who to interview, Ms Tynan stated that she received a list from Ms Clarke in HR which set out who she was to interview. In respect of the allegations against the Complainant, Ms Tynan stated that she did not have a copy of the statement that Ms Cox made during her supervision meeting and has never seen same, she was provided with an email from Ms Clarke containing the allegation. Ms Tynan confirmed that she did not give the Complainant a copy of that email or of the list of people she was told to interview. Ms Tynan stated that she understood Ms Clarke’s role in the procedures was to ensure that the procedures were fair. Ms Tynan in evidence to the Court stated that employees are not given a copy of the grievance and disciplinary procedures when they join but there is a copy available in the office that they can access. Ms Tynan accepted that the requirement within the Respondent’s procedure that the Complainant would be provided with the allegations in writing prior to the disciplinary hearing were not followed in this case. In respect of the incident in question in response to questions from Mr Jolley BL Ms Tynan accepted that the Complainant knew the client very well and that he could identify the client’s triggers. However, the Client was volatile and the carer’s needed to be in a position to stage an immediate intervention if required. They could not do this if he was out of sight. Ms Tynan accepted that Ms Cox did not raise the incident for a least a month she went on to say that this was not a matter of concern for her. Mr Jolley BL put it to Ms Tynan that the issue had come to light at a routine supervisory meeting. Ms Tynan accept that it had come to light in that manner she also accepted that she had not tied down the actual date of the incident when she interviewed Ms Cox. Ms Tynan accepted that the Complainant and Ms Cox were the same grade and had the same responsibilities. She accepted that the Complainant was not Ms Cox’s supervisor and that they were doing the same role. Ms Tynan stated that Ms Cox was not investigated because she brought the incident to the Respondent’s attention. Ms Tynan accepted that Ms Cox was equally culpable but as far as she was aware Ms Cox did not receive any sanction for her role in the incident despite the Respondent having a zero tolerance of employees not following the care plan to the letter. In respect of the Untoward Event form (UE) Ms Tynan accepted that the form referenced physical assault and that there was no physical assault involved in the incident involving the Complainant. Ms Tynan also accepted that the Complainant had fully recognised that he had made an error and had admitted it when it was raised with him, she also accepted that there was no adverse outcome from the incident in question. Mr Jolley BL put it to Ms Tynan that the incident had actually occurred on the 8thof October, that it was only raised by Ms Cox on the 27thNovember 2017 and that in the intervening period they had been on a number of outings with the client and there had been no further incidents. Ms Tynan stated that she was not aware of the actual date of the incident or the fact that there had been further outings. In response to a question from the Court Ms Tynan clarified that she was not asked by Ms Clarke to investigate the incident she was only asked to investigate the Complainant’s role in it. Ms Tynan also confirmed that supervision meetings take place on a monthly basis so Ms Cox would have had at least on supervision meeting before she raised the issue. Mr Lowey BL in re-direct asked Ms Tynan if members of staff could interpret or deviate from the care plan. Ms Tynan stated that only the multi-disciplinary team could make changes to the care plan and all staff would be aware of that. In response to a further question Ms Tynan stated that Ms Cox could have stayed silent, but staff are encouraged to come forward if they have concerns. Ms Tynan stated that to the best of her knowledge there is no automatic amnesty just because you report an incident. The next witness for the Respondent was Ms Brittney Cox. It was Ms Cox’s evidence that she started work with the Respondent as a support worker in August 2017 and that she received her induction training in October 2017. Ms Cox confirmed that at the start of her employment she received training in respect of the safeguarding vulnerable adults’ policy. It was Ms Cox’s evidence to the Court that on the day in question the Complainant stated that they could let the client go to the toilets on his own as it was promoting independence. Ms Cox went on to say that it didn’t feel right to her to let the client go on his own. When she was having a supervision meeting with her manager, she took the opportunity to raise it and get re-assurance or get told it was a risk to far. Ms Cox stated that she did not intervene on the day as she was new, inexperienced, and lacking in confidence. Ms Cox stated in her evidence to the Court that during a supervision session she was having with her supervisor, there was a discussion on safeguarding and promotion of independence and what does this mean. Ms Cox stated that they discussed how it meant everybody working on promoting independence together and this was why she sought clarification on what had happened previously on the trip with the Respondent and the client. Under cross examination from Mr Jolley BL, Ms Cox informed the Court that she had previously worked in residential care in England for 6 years and had worked for six months in Community Care prior to taking up the position with the Respondent. Ms Cox confirmed that she was employed at the same level as the Complainant, and that he was not her supervisor. In response to a question from Mr Jolley BL as to why she had not gone with the client to the toilets if she felt uncomfortable letting him go on his own, Ms Cox cited her lack of confidence as the reason she did not go with the client. Ms Cox stated that when she had gone on other outings with different care workers the client had been allowed to go into the toilet on his own and they had waited outside so she was not sure if it was okay to let him go on his own. Ms Cox accepted that the client was out of line of sight during that period and that was a breach of his care plan. Ms Cox confirmed that she had been working with the client for a couple of weeks prior to the incident. Ms Cox confirmed that she was aware that it contravened the Clients care plan to let him go to the toilets on his own as he was supposed to always be in line of sight of the care workers. Ms Cox accepted that failure to protect a client is neglect and that care workers are required to be advocates for the clients. Ms Cox confirmed that she did not raise the issue with her line manager or at her first supervision meeting following the incident. Ms Cox was unable to offer any explanation as to why if she was concerned on the day, she did not raise it for approximately six weeks. Ms Cox confirmed that she was not investigated or subject to any disciplinary action and that she continues to this day to work for the Respondent. Ms Cox accepted that she was as culpable as the Complainant, it was her understanding that she was not investigated because she had raised it as a concern. Ms Cox was unable to say where that understanding had come from, but she accepted that they had both done wrong. When the Court reconvened on day two the next witness for the Respondent Ms Deirdre Tierney Scheme Manager went into evidence. Ms Tierney stated that she had received training on disciplinary procedures and that she would go through the procedures with new staff in her area, which she confirmed is not the area the Complainant was working in. Ms Tierney stated that Anne Meegan from HR assisted with the disciplinary process by sending out the letters, taking the minutes of the meeting and typing them up. It was Ms Tierney’s evidence that a letter was issued to the Complainant on the 2ndof January 2018 and re-issued to him on the 9thof January 2018. The letter set out the allegations and contained a copy of the minutes of the meetings with the other people interviewed and the UE form. The letter stated that if the allegations were proven that they will be considered Gross Misconduct and his employment may be terminated. The letter also advised him that he was entitled to be accompanied at the meeting by a colleague or an accredited Trade Union. Ms Tierney stated that a copy of the Company’s Disciplinary and Dismissal procedures was also attached to the letter. Ms Tierney in her evidence to the Court stated that originally the disciplinary hearing was going to be heard by Ms Mc Ivor, but she was asked to step in a few days before hand. Ms Tierney stated that she worked off prepared questions which she had prepared with Ms Meegan from HR. The disciplinary hearing was held on the 16thof January 2018. Ms Tierney stated in her evidence to the Court that at the start of the meeting she confirmed that the Complainant had received the statements of the other people who had been interviewed, a copy of an email dated 28thNovember from Ms Rosaleen Hannon and the UE form. Ms Tierney also reminded the Complainant that he was entitled to be accompanied at the meeting, but he indicated he was happy to proceed on his own. Ms Tierney stated that when she put the allegation to the Complainant, he accepted that he had made an error. He then went through what had occurred on the day in question. The Complainant confirmed that he was aware of the care plan and that he was trying to promote the client’s independence. Ms Tierney stated that she asked the Complainant what he would have done different he replied that he had made a bad call and that he should have followed the care plan. In response to a question as to whether he had anything else to add the Complainant had stated that he was having family and medical issues at the time. Ms Tierney stated that the disciplinary meeting was early in the morning and lasted about 45 minutes. When the meeting was over, she went back to her own job and spent the day deliberating over what had occurred, the statements she had received and the Complainant’s responses. Ms Tynan’s evidence was that she did not uphold the second allegation and that the second allegation did not have any bearing on her decision to dismiss. Ms Tierney stated that it was not an easy decision to make and all thought nothing had happened on the day the fact was that the Complainant would not have been able to get to the client in time if something had happened. Ms Tierney stated that she did not know why Ms Cox was not investigated. It was Ms Tierney’s evidence that she did consider alternatives to dismissal such as re-training and or a final written warning but did not think they were appropriate in the circumstances. The Complainant was given an opportunity to appeal but did not do so. Under cross examination from Mr Jolley BL, Ms Tierney stated that she did not recall being given the letter of 7thDecember 2017 which told the Complainant that he was not to discuss the issue with anyone. Ms Tierney confirmed to the Court that she only had one disciplinary meeting but dealt with the two allegations against him at that one meeting. Ms Tierney confirmed that she did consider the UE form and that she was not aware that it had not been considered as part of the investigation. Ms Tierney stated that this was her first disciplinary process and that she was not provided with a written allegation in respect of the incident. Mr Jolley BL put it to her that she did not sever the other allegation from her mind when coming to the decision to dismiss the Complainant. Ms Tierney did not accept that. In respect of the process that she followed, Ms Tierney stated that she received a phone call from HR asking her to handle the disciplinary meeting. Ms Tierney confirmed that herself and Ms Meegan wrote the script that was used during the meeting. Ms Tierney confirmed that a copy of the script was not given to the Complainant in advance of the meeting. Mr Jolley BL put it to Ms Tierney that it was not appropriate to draft a script with some else in advance of the hearing. Ms Tierney said her interaction with Ms Meegan from HR involved getting some guidance and drafting the script. Ms Tierney stated that she understood Ms Meegan’s role to be notetaker and that she would ask a question if she required clarification for the note of the meeting. Ms Tierney confirmed that she had read the UE document before the hearing. In respect of the date of the incident Ms Tierney stated that she did not believe that the date of the incident was relevant that the important date was when it was reported. Ms Tierney confirmed that she had no issue with the fact that it was reported seven weeks after the event. Ms Tierney stated that she was obliged to thoroughly consider all documentation and she accepted that a number of the documents were contradictory in respect of when the incident was alleged to have occurred and what was alleged to have occurred. Ms Tierney confirmed that she did not notice that the UE form indicated an assault had occurred and that that in fact was incorrect. Mr Jolley BL put it to Ms Tierney that the script she stated she drew up with Ms Meegan actually had Ms Ivor’s name on it and not Ms Tierney’s, so it was drafted prior to Ms Tierney being asked to carry out the disciplinary hearing. Ms Meegan stated that these were the questions she wanted to ask but did not dispute that Ms Ivor’s name was crossed out and her name inserted. Ms Tierney confirmed to the Court that she met Ms Meegan about half an hour before the hearing and went through the script then and that she was not given the clients care plan or risk plan or adult living plan. In respect of the mitigating circumstances put forward by the Complainant it was Ms Tierney’s evidence that she did not consider same as she did not believe the issues he raised in respect of his family circumstances and his health were relevant to the decision she had to make. Ms Tierney accepted that Ms Meegan had asked a question that went beyond clarification in the course of the disciplinary hearing. In respect of the dismissal letter Ms Tierney stated that she spoke to Ms Meegan the next day and that she proofed the letter before it issued. In response to questions from Mr Jolley BL Ms Tierney accepted that the same safety risks arose in respect of Ms Cox as arose in respect of the Complainant, but she did not take any action in respect of Ms Cox. Ms Tierney accepted that the Complainant and Ms Cox who both had the same level of responsibility towards the client had been treated differently but she could not offer any reason why that was so. It was her evidence that it did not add or subtract from the decision she had to make and that she had not factored it in when she came to the decision to dismiss. In response to questions from Mr Lowey BL in re-direct Ms Tierney stated that the Complainant had admitted to the issue, and he knew it was outside of the care plan and therefore a lower level of investigation was required. In respect of the script Ms Tierney stated that she did ask her own questions and she drew the Courts attention to one question that she had asked that was not part of the script. Ms Tierney stated that the Complainant never raised the issue of Ms Cox not being investigated, and she confirmed that she was not saying that it is company policy not to take action against a member of staff just because they were the first person to report an incident. Mr Lowey BL submitted that the Respondent’s response was within the band of reasonable responses. The Respondent has demonstrated that they have irretrievably lost trust and confidence in the Complainant. The net issue for the Court if it believes that there are procedural errors is whether such procedural infirmity is of such a quality as to impair a fair hearing or the process in any way. Mr Lowey BL submitted that there was no evidence to show that the Complainant’s entitlement to fair proceedings were imperilled to such a degree as to cause the proceedings to be fatally flawed. Mr Lowey BL submitted that while the Complainant had not denied the incident had occurred it was not an unqualified admission. He referred to the incident as an error/ mistake / split second lapse of judgment and that this was not sufficient to restore the Respondent’s trust and confidences in the Complainant. By trying to justify his departure from the plan he had doubled down on the original error. Mr Lowey BL stated that in respect of Ms Cox, Ms Tierney had no role in relation to whether or not Ms Cox was investigated. He submitted that it was right that Ms Cox was not disciplined as what message would that send out and went on to submit that Ms Cox should have been rewarded for what she had done. Mr Lowey BL stated that should the Court determine that the dismissal was unfair the Respondent submits that neither re-engagement nor re-instatement are suitable remedies as they have lost all confidence in the Complainant. It is their submission that the Complainant was one hundred per cent responsible for his own dismissal. The evidence the Complainant has put forward in respect of mitigating his loss is very limited. Mr Lowey BL submitted that if the Court was of a mind to determine that the dismissal was unfair then this case fell into the category of case where a nil award is made. Mr Lowey BL opened a number of cases to the Court the thrust of which were in respect of a deliberate breach by the employee of the employers’ rules in those cases the dismissals were found to be fair. In terms of possible deficiencies in the process followed, Mr Lowey BL drew the Courts attention to the case ofDunnes Stores and Kati KipliUDD 203 where the Court relying on the reasoning of Laffoy J inShortt v Royal Liver Assurance Limited[2008]IEHC 32 found that the deficiencies in the Respondent’s procedures were not of such gravity as to imperil the fairness of the process. In the case ofArysta Bakeries and Vilnis CacsUDD 1812 the Court also found that any failings in the processes followed were not of such significance as to render the dismissal procedurally unfair. Mr Lowey BL noting that the Complainant had not appealed the decision to dismiss even though he had been advised that an appeal was available opened to the Court a decision of the EAT UD584/2015Melinda Pungor and MBCC Foods (Ireland) Limited. In that case the EAT held that “the appellant had an obligation to exhaust the internal disciplinary process prior to seeking to enforcing her rights externally. She had not satisfied her obligation and did not adduce any evidence that might justify her decision not to exhaust the internal process. Furthermore, the appellant made admissions in relation to the allegations”. Mr Lowey BL submitted that the case was on all fours with the case to hand and the Court should apply the reasoning of the EAT to the facts of this case. The Complainant did not appeal the decision to dismiss and in all the circumstances of this case dismissal was proportionate. Mr Lowey BL submitted that the decision in this case fell within “the band of reasonableness” which is set out inHennessy v Read & Write Shop LtdUD192/1978 as follows: “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 enquiry, the claimant should be dismissed.” In response to an invitation from the Court to comment on the case ofO’ Reilly and Bank of Ireland[2015] IEHC 241. Mr Lowey BL submitted that case can be easily distinguished from the case to hand, in that in theBank of Irelandcase there was no suggestion of somebody coming forward with the information. Summary of the Complainant’s submission and evidence Mr Jolley BL submitted that the Complainant worked for twenty years as a lithographic printer before training as a health support worker. His first job in the caring field was with Praxis. From the time he started there has never been an issue with his performance. The incident that occurred in October 2017 was one event in the context of five years’ service and the Complainant providing consistent care for the client in question. Ms Cox did not actually report the incident as something she was concerned about, rather she brought it to the attention of her manager in a review situation. Exactly how it was raised or came up for discussion has not been clarified as the minutes of that specific meeting were never provided to the Complainant. Ms Cox has never been asked to set out her complaint in writing. It is clear from the evidence provided by the managers who carried out the investigation and disciplinary process that Ms Cox was never investigated although they accept that she made the same error of judgment as the Complainant. It is also clear that, that fact was not considered at all when coming to the decision that dismissal was the only option even though the decision could result in the Complainant not only losing his job but also his career. It is difficult to reconcile how two workers who are equal in status in the workplace could have such different outcomes from the same incident. Mr Jolley BL submitted that a vast amount of the investigation related to the second issue of sleeping which had to be disregarded as that allegation was not upheld. It was his submission that issue should have been severed from the complaint. The Complainant did not seek to justify what had happened, but he did seek to explain. Ms Cox who had a higher level of qualification than the Complainant was not even subjected to an investigation for the same incidence. Mr Jolley BL submitted that the punishment in this case did not fit the crime as no credible explanation has been put forward by the Respondent for treating two equally culpable employees so differently. In his evidence to the Court the Complainant gave some background to his role with the Respondent. The Complainant stated that the client had been on a 1:1 in the community up until about a month before the incident when he was put on a 2:1. In respect of the incident in October Ms Cox was the second carer on the trip and they had equal responsibility. The client asked if he could go to the toilet, and he told the client that he could. Ms Cox did not raise any issues or express any concern to him at the time. Ms Kilbride spoke to him on the 30thof November 2017 and told him there was an issue about a service user using the toilets, but she did not tell him who had raised the issue or give him any more details in relation to the issue raised. Ms Kilbride told him not to speak to anyone about it and that if he needed to talk, he could talk to her. The Complainant confirmed in his evidence to the Court that during the investigation and or disciplinary process he was not given the opportunity to question or challenge Ms Cox or any of the witnesses nor was he provided with Ms Cox’s original complaint. It was the Complainants evidence that he did not consciously set out to disregard the plan it was a lapse of judgment. The reason he did not appeal was because he was in total disbelief, he thought based on the chats he had with Ms Kilbride that he would not get dismissed. The Complainant informed the Court that he applied for jobs immediately and he got a job within two weeks in the same sector, but once they found out he was dismissed they withdrew the job offer. When he realised that he was not going to be able to work as a carer, he started looking for other work in printing where he had previously worked but to no avail. It was the Complainant’s evidence that he eventually got a security job and is still working there. However, he is earning a lot less than he was with the Respondent. In response to a question under cross examination from Mr Lowey BL the Complainant stated that he accepts that as a social care worker he is an advocate for the client and that the role involves acting in locus parentis. He also accepted that the disciplinary and grievance procedures are available in the workplace. Mr Lowey BL put it to the Complainant that he had received ongoing training and that support workers are not supposed to depart from or vary the care plans. The Complainant confirmed that was correct. In respect of the clients triggers the Complainant accepted that although nothing had happened the client could have been triggered when he was out of sight. Mr Lowey BL put it to the Complainant that his discussions with Ms Kilbride, had taken place prior to his suspension. The Complainant accepted that. Mr Lowey BL put it to the Complainant that he had never intended to tell anyone about the incident. The Complainant stated that he had not thought about it at the time but accepted that the Respondent would not have known about it if Ms Cox had not raised it. In response to questions from the Court the Complainant confirmed that prior to the meeting on the 6thof December 2018 he was not provided with a written complaint or statement. Mr Jolley BL submitted that the case ofArtyzka Bakeries is easily distinguishable from the case to hand. In that case there was no admission, and the case involved a complaint from a member of the public and involved the misuse of drugs and alcohol. The case ofPungorcan also be distinguished from this case as it was about dishonesty and it is not clear from the decision, why the Complainant in that case did not appeal. Mr Jolley BL submitted that gross misconduct does not always mean dismissal it cannot be automatic each case has to be considered on its own merits. In this case no other options were considered. The appeal was to HR who had actively participated in the process in that they provided a script for the disciplinary and in circumstances where the notetaker from HR had gone from a notetaker to a questioner. It was clear in this case that HR were part of the process and not independent of it and therefore it was not going to be an independent appeal. The caseKati Kipliwas again about dishonesty and is fundamentally different to this case. The Complainant in that case denied the act so there were clear issues in respect of trust and confidence. In the case to hand there was no denial, and the process was flawed. The notetaker imperilled the process as she took part in the process, drafted the questions and asked a question on a separate issue. Mr Jolley BL submitted that they full accept the band of reasonableness test but the question in this case was also if the penalty was proportionate. He submitted they are relying on the Code of Practice set out in S.I. 146 of 2000. It is their submission that the process followed in this case did not meet the minimum requirements set out in that Code. There were a number of errors in the process, the Complainant was not told that dismissal was a possibility until the disciplinary stage, he was not given the UE form which the decisionmaker stated she had read, and which carried incorrect information in that it indicated that an assault had occurred which was incorrect and accepted by all the Respondent’s witnesses to be incorrect. In respect ofO’ Reilly and Bank of IrelandMr Jolley BL submitted that this was very relevant to this case before the Court in that the fact that the truth was not denied has to be a mitigating factor and the fact that the Complainant’s suspension arose before the investigation had been completed. Mr Jolley BL submitted that he does not accept that the Complainant contributed to the dismissal. Mr Jolley BL noted that to date no one has heard from Mr Burke as to the context in which Ms Cox mentioned the incident. The Respondent had failed to demonstrate consistency in their approach to this incident in the manner in which they treated both parties involved in the incident. Ms Tierney’s evidence confirms that she did not consider the mitigation he put forward or the fact that Ms Cox had not been sanctioned when coming to the decision that dismissal was the appropriate sanction in this case. Ms Tierney’s evidence was that she felt the seriousness of the incident had led to a breach in trust, but she could not explain why the same breach of trust did not apply to Ms Cox who continued to work with clients. Mr Jolley BL submitted to the Court that on that on that basis alone the process could not be considered to be a fair procedure. Mr Jolley BL submitted that in all the circumstances of this case 104 weeks compensation would be the appropriate redress. The Law
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. (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. Issue for the Court Dismissal as a fact is not in dispute and therefore it is for the Respondent to establish that in the circumstances of this case the dismissal was not unfair. Discussion In this case the conduct of the Complainant is not disputed and therefore, the question to be considered by the Court is whether the Respondent acted in a reasonable manner in coming to the decision to dismiss. The Court notes that several facts pertaining to the process followed were not disputed as follows: The fact that the Complainant in this case never received the allegation in writing before the investigation as required by the Respondent’s disciplinary procedure. The fact that the notes from the meeting where the issue was allegedly raised were never produced. The participation by HR in terms of appointing the investigator, advising the investigator of the allegation as opposed to providing the investigator with a copy of the allegation, and providing a list of people HR had decided should be interviewed as relevant witnesses. The evidence of Ms Tynan to the Court that HR decided that she was only to investigate the Complainant’s role in the incident and not the role of the second care worker. The fact that the investigation report was unsigned and undated and that the Complainant was not given a copy of same nor given an opportunity to comment on the witness statements contained in it, during the investigation process. That the script for the disciplinary hearing was prepared by HR before Ms Tierney was appointed as the decision maker. That this script was not provided to the Complainant in advance of the hearing. The fact that the notetaker asked a question that went further than just seeking clarification. The fact that the Decision maker as confirmed in her evidence to the Court, that she had not considered the mitigation put forward by the Complainant as she did not believe it was relevant to the incident in question. The fact that Ms Cox who was the second carer on the day of the incident was not investigated nor did she receive any sanction for the same error of judgment. The fact that the Decision maker when coming to the decision that dismissal was the appropriate sanction did not consider the fact that a second person had also been involved who was equally culpable and had not been subjected to an investigation or received any sanction. The Court finds that these undisputed facts in an off themselves indicate a lack of independence in the process in a situation where HR are determining how the allegation is framed, who should be investigated, what questions should be asked at the disciplinary hearing and exonerating one of the parties to the incident without any plausible explanation. The Court’s attention was drawn to a number of cases by the parties that were opened to the Court relevant to the issue under consideration. The Court in its deliberations noted that the test for reasonableness was set out in one of the cases opened to the Court Noritake(Irl) Ltd v Kenna(UD 88/1983) as follows: 1) Did the company believe that the employee misconducted himself as alleged? 2) if so, did the company have reasonable grounds to sustain that belief? 3) if so, was the penalty of dismissal proportionate to the alleged misconduct? The issue was further considered inBank of Ireland v Reilly[2015] IEHC 241, where Noonan J. noted that s6(7) of the Act makes it clear that a court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. However, he went on to say at paragraph 38 of the judgment: “That is not however to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that 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” and at paragraph 56 Noonan J. stated “In assessing the reasonableness of the employer’s conduct in relation to dismissal herein, it seems to me that such an assessment must have regard to the surrounding circumstances, including the impact of the conduct on the employer as against the impact of the dismissal on the employee to determine the proportionality of the employer’s response”. In considering the various cases opened to the Courts and the facts as set out above, and in particular the band of reasonableness test, the Court cannot accept that the issues set out above in respect of the process and the decision to treat to the two workers involved in the incident in such a disparate manner are the actions of a reasonable employer. Furthermore, the Court determines that in the circumstances of this case the decision to dismiss could not be said to fall within the band of reasonableness or to be proportionate, particularly in circumstances where what was at stake was not just the loss of the Complainant’s job but also the loss of his career. The Court determines that the dismissal was unfair. Having, considered the parties submissions in respect of the Complainant’s loss, mitigation of loss and his contribution to his dismissal, the Court determines that it can only find a minimum contribution by the Complainant on the basis that his co-worker was not even investigated in respect of the same incident. The Court notes the efforts of the Complainant to mitigate his loss and the difficulties that he encountered. The Court considers it just and equitable in all the circumstances of this case to award the Complainant compensation in the sum of €31,868.37 which takes into account a measure of accountability on his behalf. The Court so determines. Determination The Court determines that the appeal is not well-founded. The Decision of the Adjudication Officer is varied. The Court so determines.
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