Complainant

Respondent

Parties

Olga  O'Mahony

Cork Association for Autism

Representatives

Colleen Minihane SIPTU

none 

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-00039249-001

19/08/2020

The Complainant is alleging that she was unfairly dismissed by the Respondent. The Respondent denies this claim. The Complainant commenced employment as a Support Care Worker with the Respondent Association on 22 August 2016 and her employment was terminated on 1 July 2020. The Complainant’s gross pay per week was €450.

An incident which occurred between the Complainant and a service user was verbally reported by a staff member to the Social Care Leader (SCL). The SCL requested the staff member to put these concerns in writing. The allegations were that the Complainant had shouted aggressively at the service user and rotated him whilst grabbing him by the shoulders. The Residential Services Manager (RSM) advised the Complainant that this was a serious matter and she was placed on protective leave for the duration of the investigation.

An independent person with expertise in this area was engaged to carry out a full investigation. The Complainant and her Union representative were sent the agreed terms of reference. On 9 June 2020 the Complainant was informed that the Respondent had received the final copy of the investigation and that it had been referred to the disciplinary committee of the Respondent Association. The investigator had found that the allegation of physical abuse was upheld.

On 11 June 2020 the Complainant and her Union representative attended a meeting to learn the outcome of the decision of the which was that the Respondent had decided to dismiss the Complainant. An appeal was allowed and made to the Board of Management, but this was not upheld.   

The Complainant had a blemish free track record with the Respondent. An incident occurred with a service user on 23 April 2020 in one of the small group houses in a residential care campus belonging to the Respondent. The Complainant, in evidence, said she had a firm exchange with a service user following his exit from another service user’s bedroom. The Complainant categorically denies the charge of physical abuse toward a service user. The Complainant in evidence said the service user had a previous history of sexualised behaviour. A colleague of the Complainant did not intervene during the exchange and did not make a verbal complaint until a week later, demonstrating, what the Complaint submits, was the minor nature of the incident.

The Complainant believes that the internal process was flawed as she was not offered representation at the first meeting with the Respondent. She was subsequently suspended on 5 May 2020. Confidentiality was also breached as she was told by a colleague a complaint had been submitted in advance of this meeting. 

The Complainant submits that the investigator chose to believe the Complainant’s colleague account of the 23 April 2020 incident, despite there being no other witnesses. Furthermore, the investigator only considered written records regarding the service user’s behaviour in the period prior to the incident to contradict the Complainant’s account and did not interview other care support workers for a balanced approach.

The Complainant submits that the subsequent decision of the Respondent to dismiss her was disproportionate in the extreme. No consideration was given to alternative options less than dismissal by the decision makers or at appeal stage. The Complainant submits that it is unreasonable to impose or confirm a penalty without considering all the circumstances and any alternatives to dismissal that may be made.

The Complainant further argues that there was no actual dismissal hearing but instead that an internal management committee made the decision to dismiss, without the attendance of the Complainant or her representative, and that the purported subsequent dismissal hearing had no other purpose but the communication of the dismissal decision to the Complainant. 

Legal Argument:

The Complainant submits that the relevant statutory provisions arising from dismissal due to an employee’s conduct are set out in Section 6 of the Unfair Dismissals Act 1977. The Complainant argues that the circumstances in this case do not amount to “substantial grounds justifying dismissal”.

The Complainant cites Lord Denning in British Leyland UK Ltd v Swift (1981) iRLR 91 and followed in this jurisdiction in Foley v Post Office (2000) ICR1283 where the test for dismissal arising from misconduct is set out. The Complainant submits that one incident where a service user suffered no negative outcome to be considered a sackable offence, is not the action of a reasonable employer.

The Complainant also cites the case of a Social Care Worker v Care Services Provider ADJ-00025193, September 2020. The Complainant contends that this is a similar case, where the respondent also made no reference to the consideration of alternatives to dismissal as per the disciplinary policy.        

Applicable Law:

Section 6 of the Unfair Dismissals Act 1977, as amended, (the Act) states, in relevant part, as follows:

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.

Regarding the investigatory and disciplinary process, employers must act reasonably and apply fair procedures in taking a decision to dismiss an employee. Section 6(7) of the Acts provides:

“(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.”

In determining whether a dismissal of the Complainant was unfair, I must examine whether the Respondent has discharged the burden that the decision to dismiss the Complainant fell within the range of reasonable responses that a reasonable employer could adopt. Furthermore, the Respondent must show that the procedures adopted by the Respondent that resulted in the decision to dismiss were fair and that the conduct was that of a reasonable employer. 

The band of reasonable responses test was considered by the Irish High Court in Bank of Ireland v Reilly [2015] IEHC 241. In Reilly, Noonan J. highlighted that s.6(7) of the Unfair Dismissals Act 1977 provides that a court may have regard to the reasonableness of the employer's conduct in relation to a dismissal, and stated:

“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”.

In relation to section 6 of the Unfair Dismissals Act 1977, Noonan J. in Reilly highlighted the onus that is on the employer to establish that there were substantial grounds justifying a dismissal, and that the dismissal resulted wholly or mainly from a matter specified in section 6(4) of the 1977 Act, which includes the conduct of the employee.

There is a responsibility on the Respondent to provide safe care to vulnerable users of the services therefore it was reasonable of the Respondent to place the Complainant on protective leave on full pay pending the investigation of the complaint of verbal and physical abuse against the Complainant.  The outcome of the investigation was that the allegation of physical abuse was upheld. The nature of the physical engagement was found to be that the service user was pushed (in that he was rotated) and that inappropriate restraint was used by the Complainant. The Complainant denies that she had physically abused the service user. The Complainant also gave evidence that she had witnessed the service user coming out of the bedroom of another service user and that he had previously engaged in sexualised behaviour. This was not denied by the Respondent.

I am satisfied, on the balance of probabilities, that the Complainant did restrain the service user in the manner described. The Complainant did something that she should not have done and there was evidence that she had apologised to her colleague in a text exchange after the incident. The question to be answered is was the decision to terminate the Complainant’s employment “within the range of reasonable responses of a reasonable employer to the conduct concerned” as alluded to by Noonan J in Bank of Ireland.

The Respondent validly argued that it has a ‘zero tolerance’ policy towards physical abuse. The incident in this case was serious and required a reasonable and appropriate response from the Respondent. Dismissal from employment is the ultimate penalty.  Before making such a decision, there was an obligation on the Respondent to consider all the circumstances of the case including the amount of the inappropriate restraint used in the incident and the effect, if any, it had on the service user, the circumstances leading to the incident and the unblemished record of the Complainant. The Respondent gave no evidence other than the decision to dismiss was based solely on a finding of ‘physical abuse’ by the investigator. The decision to dismiss did not take account of all the circumstances and cannot be regarded as coming within the range of reasonable responses of a reasonable employer as alternatives to dismissal were not considered.

The Respondent was also deficient when it came to the application of fair procedures in making   the decision to dismiss. Evidence was given that the Complainant was denied Trade Union representation when she was first challenged by her line manager and, more seriously, was not allowed to have her case heard at a disciplinary hearing. The Respondent’s disciplinary committee, composed solely of management personnel, decided to dismiss and then convened an ostensible disciplinary hearing which had the sole purpose of communicating the pre-determined   dismissal decision to the Complainant.  The right to be heard is a fundamental component of fair procedure and the denial of this right to the Complainant at the disciplinary stage clearly disposed of any argument by the Respondent of having applied fair procedures, as envisaged under Section 7 of the Act.

Having considered all the circumstances of this case I conclude that the decision to dismiss was not within the range of reasonable responses of a reasonable employer to the conduct concerned. I also conclude that the Respondent did not employ fair procedures in conducting the dismissal. Therefore, I find that the Complainant was unfairly dismissed.

The complainant has sought redress of compensation for unfair dismissal. The Complainant gave satisfactory evidence of attempting to mitigate her loss after dismissal. She took up similar employment with an average of three days a week on a salary of €300, a loss of €150 per week. I estimate her loss, including future loss to be €20,000.  However, I am satisfied that the Complainant’s conduct contributed significantly to her own dismissal therefore, taking account of all the circumstances I consider it just and equitable to award the complainant compensation of €12,000.00.

I find that the Complainant was unfairly dismissed, and I direct the Respondent to pay the Complainant compensation of €12,000

Unfair Dismissal, Band of Reasonable Responses, Unfair Procedures.