Complainant

Respondent

Anonymised Parties

A Childcare Practitioner

A Creche Owner

Representatives

Des Courtney SIPTU

none 

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00032210-001

14/11/2019

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

CA-00032210-002

14/11/2019

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

CA-00032210-003

14/11/2019

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

CA-00032210-004

14/11/2019

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

CA-00032210-005

14/11/2019

The Complainant commenced employment with the Respondent as a Child Carer in January 2018. The Respondent is a creche/childcare facility owner. The Complainant was dismissed from her employment with the Respondent in October 2019. The Complainant was paid €400.00 per week and worked for 35 hours per week. The Complainant lodged a Complaint Form with the WRC on 14 November 2019 which included a number of complaints. The Hearing for the case took place on 2 December 2020. The fact of dismissal was not in dispute. The Hearing was held remotely.

The Complainant submits that she was entitled to receive a statement in writing of the terms of her employment as required by the Act. However, she never received the various particulars which must be provided.

The Respondent accepted that the Complainant was not issued with a written contract of employment.

Section 3 (1) of this Act states, "an employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment."

Section 7 of the Act, states:

7. — (1) An employee shall not be entitled to present a complaint under section 41 of the Workplace Relations Act 2015 in respect of a contravention of section 3 , 4 , 5 or 6 , if the employer concerned has —

( a ) complied with a direction under section 6A given in relation to the contravention F11 [ before, on or after the commencement of section 8 of the Workplace Relations Act 2015 ] , or

( b ) been given a direction under that section in relation to the contravention and the period specified in the direction within which he or she is required to comply with the direction has not yet expired.

(2) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 3 , 4 , 5 or 6 shall do one or more of the following, namely —

( a ) declare that the complaint was or, as the case may be, was not well founded,

( b ) either —

(i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under section 3 , 4 , 5 or 6 , or

(ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,

( c ) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the adjudication officer,

( d ) order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks ’ remuneration in respect of the employee ’ s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977 . ]

I am satisfied that the Complainant was never provided with a Contract of Employment nor a Statement of the Terms of her Employment.

 I find the Complaint herein to be well founded and I direct a payment of compensation in the amount of €400.00 which I find is just and equitable in all the circumstances.

The Respondent provided a detailed written submission. The Respondent submits that this dismissal was not unfair.

The Respondent submits that the Complainant had been issued with a verbal warning on 18 September 2018 for failure to adhere to the absenteeism procedures. On 25 September 2018, the Complainant was issued with a final written warning for bringing alcohol into the creche. This warning stated that if there was one more issue with the Complainant she would be dismissed immediately.

The Respondent submits that on Sunday 6 October 2019, the Complainant once again failed to follow polices by texting two members of management at 10.40pm to say she would not be attending at work the next day. The procedures signed by the Complainant state that staff must notify management before 07.30am on the first day of absence. Because of this the Complainant was telephoned by her manager, Ms A, at 12.45pm on Tuesday 8 October 2019, to attend a general meeting with Ms A and Ms B (assistant manager) regarding the Complainant’s texting in sick.

The Respondent submits, that at the meeting on 8 October 2019, the manager and assistant manager made it clear to the Complainant that it was not acceptable that she sent them a text them late on a Sunday night. Ms A also made the Complainant aware that a verbal complaint had been made to her by a parent of a child in the creche regarding a serious breach of confidentiality by the Complainant referring to that parent’s child. This parent later handed in a written complaint.

The Respondent submits that the Complainant admitted that she had failed to follow company procedures regarding texting in sick.

The Respondent submits that the Complainant also admitted that she took part in a conversation regarding the child and said, “I know I shouldn’t have anything about the child and I’m sorry.”

The Respondent submits that the Complainant agreed that she would write a letter of apology to the parent and she would drop this into the creche on Wednesday 9 October 2019. The Complainant was told she was suspended for the rest of the week until the Respondent saw how the apology letter was received. The Complainant was told there would be a follow up meeting on Friday 11 October 2019, at 2.00pm.

The Respondent submits that on Friday 11 October 2019 at 10.50am, the Complainant arrived at the creche with another adult, met with Ms A and Ms B in the office, where she handed in a sick cert from 8 October to 5 November 2019. The Complainant also said she would not be writing a letter of apology as she was advised by SIPTU that this would only be admitting her guilt.

The Respondent submits that a strict policy exists to protect both the parents and the children and if this incident was tolerated then the creche would lose the confidence their parents have in them. The absence of an apology letter made it very difficult for the manager of the creche to pacify the parent concerned.

The Respondent submits that the Complainant’s refusal to apologise gave him no option but to follow company procedures in support of the parent as the Complainant had admitted the breach.   The Respondent believes that if he had not acted in this way the parent could have claimed against the creche and this in turn would have been shared with other parents and could have catastrophic consequences for the business.

In direct evidence given at the hearing the Respondent emphasised the importance of confidentiality and indicated that the Complainant had read and signed the creche’s confidentiality policy which states that breaches will be dealt with under the Disciplinary Policy and could lead to disciplinary action being taken.

The Respondent’s creche manager Ms A gave evidence at the hearing. She stated that the Complainant had failed to adhere to the correct procedures regarding absences and that the Complainant had admitted to breaching confidentiality. Ms A stated that as the Complainant was already on a written warning she was suspended until the Respondent decided what to do vis-a-vis the apology letter.

In cross examination when asked whether she operated the Disciplinary Ms A stated that she did what she was told to do by the Respondent. Ms A she had never heard the phrases “Fair Procedures” or “Natural Justice”. Ms A stated that she had not informed the Complainant of the complaint prior to the meeting on Tuesday 8 October 2019 and that there were no signed minutes of that meeting.

Ms A stated that the Complainant had admitted to the breach of confidentiality and therefore no further investigation was required. Ms A stated that she was not aware that the Complainant had a right to representation at this meeting.

The Assistant Manager, Ms B also gave evidence.   She stated that the Complainant had admitted to speaking out of turn and apologised for doing so. In response to questions from the Complainant’s representative as to whether she had ever been briefed on the creche’s Disciplinary Policies, she stated that it was not her job to supervise and that she only attended the meeting as a witness.

In closing, the Respondent stated that when the Complainant admitted to having breached confidentiality and apologised for it, it was important for the Respondent to go back to the parent involved and tell them that a letter of apology was forthcoming. When that apology letter did not arrive, he had to act in line with policy. When the Complainant did not turn up for the meeting scheduled for the afternoon of Friday 11 October 2019, he felt he had to dismiss her as she had admitted to the action.

The Complainant provided a detailed written submission.

The Complainant submits that she took a sick leave day on 7 October 2019. That afternoon the Complainant received a text message from the creche manager Ms Aadvising that, in line with measures to protect the health of the children the Complainant should also take the following day off.

At approximately 2.00pm the following day the Complainant received a telephone call from Ms A instructing her to attend a meeting with Ms A and a colleague, Ms B., at 3.00pm on the same day. The Complainant was given no agenda for the meeting and was not advised of the nature of the meeting. Neither was she advised of her right to representation.

At the meeting the Complainant was advised that a complaint had been received from a parent of a child who attended the creche, regarding an alleged breach of confidentiality. The Complainant was not given a copy of the allegation made against her. The Complainant was suspended from employment and instructed to attend a further meeting with Ms A and Ms B on 11 October 2019.

However, the Complainant’s health deteriorated due to her treatment at the meeting of 8 October 2019 and she commenced a six-week period of certified sick leave.

On 16 October 2019, the Complainant received correspondence from Mr C, the Respondent and Managing Director of the creche, advising the Complainant of the termination of her employment., “as a result of this breach of confidentiality.”

On 18 October 2019, the Complainant’s union representative contacted Ms A by telephone to discuss the Complainant’s dismissal. Ms A refused to discuss the matter and advised that she would pass the representative’s concerns to Mr C and ask him to respond.

Mr C did not contact the Complainant’s representative and on 23 October 2019, the representative wrote to Ms A and Mr C, neither of whom replied. The matter was referred to the WRC by the Complainant’s representative on 14 November 2019.

The Complainant submits that there are several reasons why this is an unfair dismissal. The reasons put forward are as follows:

·       She is not guilty of the allegations made against her.

·       She was dismissed on the basis of a fundamentally flawed investigation and disciplinary process which denied her right to fair procedure and natural justice; in breach of SI 146/2000.

·       There were no disciplinary sanctions extant at the date of dismissal and the dismissal was disproportionate to the alleged offence.

·       At no stage prior to her dismissal was the Complainant ever advised that the matter was one relating to “Gross Misconduct” or to the fact that her employment was at risk.

The Complainant submits that the allegation against her was one of “breach of confidentiality”. The basis for this is a complaint allegedly made by a mother of a child in the creche. The Complainant was never given a copy of this complaint or an opportunity to rebut the claim made in the complaint. The complaint from the mother emanates from a discussion the Complainant had whilst socialising with a son of the woman who made the complaint; the woman who made the complaint was not present so therefore the complaint she made against the Complainant to the creche should be considered hearsay at best.   The Complainant strenuously denies the allegation that she breached confidentiality.

The Complainant gave direct evidence at the hearing, supporting the written submission provided. During this evidence she agreed that she had spoken with a brother of the child referred to but not about the child. In cross examination the Complainant stated that she had not written a letter of apology as she had done nothing wrong. She also stated that she does not remember ever signing a Confidentiality Policy.

The Complainant submits that management convened neither a formal, properly constituted investigation process, nor disciplinary hearing. The Complainant was instructed to attend a meeting with Ms A and Ms B within the hour, on a day on which she had been rostered off, with no information as to the nature of the meeting and without being advised of her right to representation. Accordingly, she had no “meaningful opportunity both to prepare and to present her defence to the complainant(s)”.

In concluding, the Complainant stated that this was not just a case of someone losing their job; their reputation was also damaged. There was an absence of fair procedures and there was no justice in what had happened.

Findings and Conclusions

I have considered this matter carefully.

In deciding on the fairness or otherwise of this dismissal a number of questions need to be answered.

1. Were there substantial grounds to justify the dismissal?

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

The Respondent’s Confidentiality Policy states, inter alia:

“We take any breach of the confidentiality within our childcare setting very seriously; any staff found to be in breach of the confidentiality policy will result in disciplinary measures and/or immediate termination from the company.”

In this instant case, if the Complainant admitted to breaching confidentiality, and on the balance of probabilities I believe she did, dismissal, in line with the creche’s Confidentiality Policy, could fall within the “band of reasonable responses” referred to above.

2. Was the sanction of dismissal proportionate?

Although a breach of confidentiality constitutes a serious breach of discipline and there were grounds to dismiss, I find the sanction of dismissal to be disproportionate. The Complainant had no warnings extant on her file and this was her first breach of the Confidentiality Policy. A lesser sanction could have and should have been considered.

3. Were the procedures used in the disciplinary process fair?

An employer is bound to show not only had they substantial grounds justifying dismissal but also that they followed fair and proper procedures before dismissal. In relation to procedures a number of questions need to be answered.

(i) Did the Respondent adhere to its Disciplinary Policy and was that Policy fair?

The Respondent has a comprehensive Parent Handbook and Policies and Procedures Document; however, this document does not include a Disciplinary Policy. As seen from CA-00032210-001 above, the Complainant was never issued with a Contract of Employment. I find, therefore that there was no disciplinary policy to be followed.

(ii) Was the Complainant given adequate details of the allegations to be able to adequately address them?  

No. The details of the alleged breach of confidentiality were vague at best.   There was no written complaint at that time.

(iii) Was the Complainant afforded an opportunity to defend herself and have her arguments and submissions listened to and evaluated by the Respondent in relation to the threat to her employment?

No. The Complainant was called to a “general meeting” at which the allegation regarding the breach of confidentiality was raised with her for the first time. She did not therefore know that this allegation was being made against her until that meeting was underway.

She had no chance to prepare a defence, nor had she a chance to arrange for a representative to attend with her.

The decision to dismiss was made without an investigation of merit having taken place.

(iv) Was the Complainant informed of her right to appeal the decision to dismiss?

No. The letter of dismissal makes no mention of an appeal mechanism.

Overall, I find that the Respondent failed to adhere to the basic requirements of Natural Justice. On the face of it no thought was given to the rights of the Complainant to fair procedures. I find this was an unfair dismissal.

Section 7 of the Act states:

7.— (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court , as the case may be, considers appropriate having regard to all the circumstances:

( a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

( b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

( c ) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances.

Following her dismissal, the Complainant did not find work until August 2020. Documentary evidence was provided to demonstrate the efforts made by the Complainant to find work in the period between her dismissal and August 2020. In the circumstances I find compensation of 6 month’s pay is warranted, that is €9,600.

The complaint is well founded. The Respondent is ordered to pay the Complainant €9,600 in compensation.

The Complainant submits that she was dismissed without notice, she was not guilty of gross misconduct and that she is due one weeks’ notice payment.

The Respondent submits that this was a case of gross misconduct and that immediate dismissal was warranted.   Therefore, the Complainant is not due any notice payment.

In light of the above I find the Complainant is due one week’s pay in lieu of her notice, that is €400.

The complaint is well founded, and I order the Respondent to pay the Complainant €400.

The Complainant submits that during the 2019 leave year she was left short 1.6 days annual leave pay. At an hourly rate of €9.80 for an eight-hour day this leaves a shortfall of €125.44.

The Respondent submits that he has gone through all the records for 2019 and he is sure the Complainant was paid her annual leave entitlements.

The Respondent provided documentary evidence which indicates that the Complainant received her annual leave entitlements.

The complaint is not well founded.

The Complainant submits that she was not paid her correct Public Holiday entitlements.

The Respondent submits that the Complainant was paid all her Public Holiday entitlements.

The Respondent provided documentary evidence which indicates that the Complainant received her public holiday entitlements.

The complaint is not well founded.

Fair procedures, natural justice, proportionate, contract of employment.