ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00004473
Parties:
| Complainant | Respondent |
Anonymised Parties | Counsellor | Care Provider |
Representatives | William Maher BL instructed by Heslin Ryan & Co Solicitors | Cathal McGreal BL instructed by Wendy Doyle Solicitors |
Complaint:
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-00006501-001 | 17/08/2016 |
Date of Adjudication Hearing: 30/03/2017 and 25/02/2021
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 andSection 8 of the UnfairDismissals Acts, 1977 - 2015,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant was employed as a Counsellor from 10th March 2008 to 9th March 2016. He was dismissed on grounds of serious misconduct. |
Summary of Respondent’s Case:
The complaint The Respondent received a complaint alleging inappropriate behaviour regarding an interaction between the Complainant and an adolescent who attended the centre with members of his family. The Complainant was placed on administrative leave with full pay on 13th October 2015, and in line with statutory obligations, the Respondent notified the incident to the Gardai, the HSE and the Department of Social Protection. The suspension letter dated 13th October 2015 notified the Complainant that an internal investigation would be held and could lead to disciplinary action up to and including dismissal. The Complainant was provided with a record of the meeting which was held with the adolescent and his parents on 12th October 2015. He was also provided with a copy of the Respondent’s complaints and disciplinary policy and advised of his right to have a union representative or a staff member present with him at all future meetings with the Respondent. An investigation was carried out. The investigation process The Complainant provided a written statement, received by the Respondent on 6th November 2015. The Investigation meeting was held on 2nd December 2015. Prior to the meeting the Complainant was advised that no decision would be made until such time as a full and thorough investigation was completed and the Complainant was afforded an opportunity to present his version of events. The Complainant was also provided with copies of written statements of all witnesses interviewed to date, together with a copy of his own statement received by the Respondent on 6th November 2015. The Complainant was accompanied by his SIPTU representative at the investigation meeting on 2nd December 2015. The Investigation meeting was conducted by Manager A. A copy of the Investigation report was sent to the Complainant on 7th December 2015 the findings of which were (1) it was not established that there was sexual contact between the Complainant and the adolescent. However, a finding was made of inappropriate physical contact and (2) it was established that the Complainant used inappropriate language during the session and had hugged the adolescent tightly twice during the session. On 5th January 2016 the Complainant advised that he did not accept the findings of the report and he requested the opportunity to call his work colleagues to give evidence before any steps are taken to move to a disciplinary. The disciplinary process A disciplinary meeting was held on 6th January 2016 in advance of which the Complainant was advised of his right to representation and that the outcome of the process could result in disciplinary action being taken against him up to and including dismissal. The disciplinary meeting was conducted by the then CEO (Manager B). At the disciplinary meeting the Complainant was given the opportunity to respond to the investigation report. He acknowledged that he had sworn, touched the adolescent on the leg, chest, shoulder and face as well as hugged him tightly a number of times. The Complainant disagreed with the suggestion that his conduct was such as to constitute inappropriate physical contact. The Complainant asserted that his conduct and/or level of physical contact was appropriate and common practice within the Respondent’s centre. The Complainant acknowledged that the language he had used while alone with the adolescent was inappropriate. The Complainant requested that Manager B interview other key counselling staff working at the centre to establish culture and practice. Following on from this Manager B interviewed four staff members, (Staff members C, D, E and F), as well as the Investigator (Manager A). The transcripts of the interviews were submitted. A resumed disciplinary meeting was held on 24th February 2016 at which the Complainant was represented by his solicitor. This was allowed although it was a deviation from the Respondent’s disciplinary procedures whereby a colleague or union representative would be present. In advance of the meeting, the Complainant was provided with copies of the five interview transcripts. During the resumed disciplinary meeting, the Complainant asserted that he felt that his behaviour had been appropriate. This was notwithstanding the fact that his colleagues clearly did not support his position, i.e. “physical contact with an emotional client was common practice within the Team..” The Complainant further stated that he felt he had engaged in no wrongdoing. The Complainant refused to sign off on the notes of this meeting, informing the Respondent that no such request had been made for the notes of previous meetings and the Respondent had not engaged a stenographer for a complete and accurate account of proceedings. By letter dated 9th March 2016 the outcome of the disciplinary process was advised to the Complainant. The letter advised the Complainant that Manager B who conducted the disciplinary process was satisfied that the Complainant’s conduct, as admitted by him constituted serious misconduct, as per the Respondent’s disciplinary policy. The letter to the Complainant stated that during the disciplinary meeting on 6th January 2016 and the resumed disciplinary meeting on 24th February 2016, the Complainant demonstrated a very worrying lack of understanding of how his conduct (physical contact of the nature admitted by the Complainant) was inappropriate and totally unacceptable. Even at the resumed meeting on 24th February 2016 the Complainant continued to demonstrate this lack of understanding, describing his actions only in terms of a “professional error”. It was found that the Complainant’s actions demonstrated an utter lack of sound professional judgement and that for the Complainant to continue to maintain the position that he had done nothing wrong and that his conduct was acceptable was of significant concern. The Complainant’s conduct was found to have constituted serious misconduct and his failure to acknowledge that his conduct was unacceptable was such that it served to undermine the very necessary trust and confidence that must exist between an employer and employee. The Complainant carried his role as a counsellor, working with vulnerable children and adolescents, and thus, it was an essential element of the relationship between both parties that the Respondent continue to have trust in the Complainant and faith that the Complainant’s conduct would at all times be proper and appropriate. It was determined that the Complainant’s conduct destroyed the necessary trust and confidence. Accordingly, the Respondent had no alternative but to dismiss the Complainant. The appeal process On 16th March 2016 the Complainant appealed the disciplinary sanction. He further requested that the appeal be heard by “people who have no association” with the Respondent. The Respondent acceded to the Complainant’s request to have the appeal heard by an external third party. This was a second deviation from the Respondent’s procedures. The Complainant was also permitted to be represented by his solicitor at the appeal hearing. The Complainant’s appeal was ultimately dismissed in that it was determined that the disciplinary sanction as originally applied was deemed to fall within the range of appropriate sanctions for the admitted conduct. The dismissal By letter dated 6th May 2016 the Complainant was provided with a copy of the appeal report and it was confirmed to him that the outcome was that the sanction as originally applied was deemed to be within the range of appropriate sanctions for the admitted conduct and that the Complainant’s dismissal was upheld. Legal points Case law was submitted supporting the Respondent’s contention that the Respondent acted reasonably in the decision to dismiss the Complainant. Bunyan v United Dominions Trust [1982] ILRM 404, Union of Construction and Allied Trades and Technicians v Brane [1981] IRLR 224 and other cases (cited) establish that the EAT or Adjudication Officer must not assume the mantle of an employer regarding the facts in any case before it. Its or his/her function is to decide whether, within the so called “band of reasonableness” of decision-making, an employer’s decision to dismiss was not unfair. The guiding principle endorsed by the Court of Appeal in the British Leyland UK Limited v Swift [1981] IRLR 91 case is as follows: a dismissal is unfair if no reasonable employer would have dismissed, but it is not unfair if a reasonable employer might reasonably have dismissed. Reasonableness of the decision to dismiss It is submitted by the Respondent that its decision to dismiss the Complainant, which decision was upheld by an independent external third party, lay within the reasonable responses and/or appropriate sanctions for the admitted conduct. The physical conduct admitted by the Complainant during the investigation process, i.e. touching the adolescent on the leg, knee, shoulder, chin and chest, and hugging him was found to be unacceptable and inappropriate. Similarly, the use of expletives in the meeting with the 14-year-old adolescent was found to be inappropriate. Prior to any disciplinary sanction being issued, and at the Complainant’s request, it was established by the Respondent, following interviews with professional colleagues of the Complainant, that physical contact would take place only if initiated by the other party, not the counsellor. None of the interviewed members of the counselling team indicated or accepted that any form of physical contact as extensive as that admitted by the Complainant was engaged in at the Respondent’s centre. The fact that the Complainant demonstrated no understanding of how his admitted conduct was inappropriate and unacceptable added to the totality of the circumstances. It is submitted that the Respondent, and the external third party on appeal, were correct to conclude that the Complainant’s conduct, together with his failure to acknowledge that same was unacceptable and improper, served to undermine and/or destroy the essential relationship of trust and confidence warranting the imposition of the ultimate sanction of serious misconduct. Accordingly, it is submitted that the decision to dismiss was reasonable, fair and appropriate and one that fell within the band of reasonableness. The Respondent further submits that the Complainant was at all times afforded fair procedures and natural justice throughout the investigation and disciplinary process. |
Summary of Complainant’s Case:
The Complainant is an Addiction Counsellor and a member of the Addiction Counsellors of Ireland since 2005. He commenced employment with the Respondent in October 2007. Since then he was involved in the treatment of people with addiction issues between the ages of 15 and 21. Over a number of years the Complainant had developed a particular expertise in relation to gambling and has produced two research pieces in relation to both adult and adolescent gambling addiction. He has previously lectured at UCD and NUI Maynooth and also at Limerick Institute of Technology on gambling addiction. He has contributed to numerous radio, television and newspaper items in relation to addiction and has presented to an Oireachtas Select Justice Committee. He has assisted in the setting up and running of an aftercare service for adolescents suffering from addiction and he is a qualified bereavement counsellor and in relation to suicide awareness. The facts in this case are net. Following a meeting with a service user and his family on 11th October 2015, the Complainant had reason to speak with younger family members together and then provide a one-on-one counselling session with the service user’s teenage brother. The following day, the teenager, via his parents, made a complaint to the Respondent alleging that the Complainant sexually assaulted him and that the Complainant had used inappropriate language. A process ensued involving suspension, investigation, disciplinary and appeal process. During the investigation the Complainant stated unequivocally to the Investigator that on the day in question the teenager was suicidal and in fear and so the Complainant did have cause to physically touch the teenager so as to provide reassurance during a difficult counselling session. He also acknowledged that he did use expletives during the counselling session which, when taken out of the context of the counselling session, may assume a different meaning and implication. At all times however, the Complainant was emphatic that he did not sexually assault the teenager and he was satisfied that he conducted himself in an appropriate manner relative to the situation. The Investigation found that the central allegation of sexual misconduct was not upheld. However, the Investigator did find that there had been physical contact and language used in the course of the counselling session which the Investigator found was not appropriate. There followed a disciplinary process which was conducted by the Respondent’s Chief Executive which was held on 6th January 2016 and resumed on 10th February 2016. By letter dated 9th March 2016 the Chief Executive wrote to the Complainant to advise of the decision to dismiss him for, inter alia a failure to apply sound professional judgement thereby leading to the destruction of trust between the parties. The decision to dismiss was appealed by the Complainant. An appeal hearing was conducted by an external party. At the end of the process the Chairman of the Board of Management of the Respondent wrote to the Complainant on 9th May 2016 to advise that the Appeal Committee had decided to uphold the decision to dismiss and that the matter was concluded from the Respondent’s point of view. Complainant’s position The Complainant submits that where the central allegation of sexual misconduct was not upheld following the investigation process, the remaining charges were not of such seriousness to warrant dismissal for gross misconduct. Accordingly, the decision to dismiss the Complainant was wholly disproportionate. It is submitted that at all times, the Complainant acted in good faith when showing empathy to the teenager, comforting him especially as someone who presented with suicidal thoughts. It is submitted that no malicious or adverse motive was ever attributed to the Complainant in his actions. On the contrary, the CEO acknowledged in the disciplinary appeal process (as referenced at page 6 of the Disciplinary Appeals Report) that he “was not doubting that [the Complainant’s] intent was to assist [the minor]”. Guidelines and Training It is submitted that at all material times the Respondent failed to produce and implement any clear guidelines on what constituted appropriate physical by members of staff. This fact was acknowledged by the CEO both during the investigation stage and during the disciplinary process. In fact, it was only at the instigation of the Complainant that the Respondent conducted an interview process with members of staff to ascertain the culture of the organisation vis-à-vis physical contact and what the practice was amongst staff. Furthermore, the Respondent’s own Family Support Policy as approved on 17th January 2015 states that it is the Manager’s responsibility “to ensure that facilitators are adequately trained and supported”. It is submitted that the Respondent acted disproportionately to dismiss an otherwise exemplary employee who had diligently worked for almost 9 years with the service. Fairness of Procedures Case law was cited in support of the contention that the onus is on the Respondent to demonstrate that the disciplinary process was robust and that appropriate efforts were made to ensure the fairness of the process (Hennessy v Read & Write Shop Limited UDI/1978). It is submitted that in the instant case, the disciplinary process failed to properly ascertain best practice standards in relation to appropriate physical contact between counsellors and service users. In circumstances where the Respondent possessed no set or clear policies in relation to appropriate physical contact, it follows that those conducting the disciplinary process should have applied industry best practice in order to achieve an objective, fair and reasonable comparison. Their failure to do so fundamentally undermines the purported fairness of the disciplinary process. Proportionality of sanction It is submitted that any consideration of the fairness of the dismissal must also take account of the sanction imposed by the employer and whether that sanction was proportionate in all of the circumstances. In Bigaignon v Powerteam Electrical Services Limited (UD 939/2010), the Employment Appeals Tribunal found: “Does the punishment fit the crime? In considering this question the fact that the Tribunal itself would have taken a different view in a particular case is not relevant. The task of the Tribunal is not to consider what sanctions the Tribunal might impose but rather whether the reaction of the Respondent and the sanction imposed lay within the range of reasonable responses. The proportionality of the response is key and that even where proper procedures are followed in effecting a dismissal, if the sanction is disproportionate, the dismissal will be rendered unfair.” Further case law was cited in relation to the argument regarding the proportionality and range of reasonable responses ( Michael Morales v Carton Bros (UD835/2011), Employer v Employee (UD 2114/2010), Marshall v Conduit Enterprise Ltd (UD1293/2013). Conclusion The Complainant submits that he was unfairly dismissed in circumstances where: a) the decision to dismiss failed to have proper regard to the circumstances which gave rise to the within proceedings; b) the central allegation of sexual assault giving rise to the investigation was not upheld; c) the remaining charges were not of such seriousness to warrant dismissal for gross misconduct; d) the Respondent had no written policy or clear guidelines in relation to what constitutes inappropriate conduct in terms of physical contact with service users; e) management considered it necessary to subsequently conduct interviews with other Counsellors in their employment to ascertain what the custom and practice of the Respondent was; f) management failed in their stated obligation under the Family Support Policy to provide adequate training and support to staff, including the Complainant; g) no consideration was given to the Complainant’s distinguished record; h) no consideration was given to the length of the Complainant’s service; i) at all material times the Complainant acted in good faith, a fact acknowledged by the Respondent; j) the investigation and disciplinary process was unfair; k) the punishment was too harsh; l) the decision to dismiss the Complainant for gross misconduct was not proportionate in all of the circumstances; m) the Respondent failed to have regard to alternative sanctions. |
Findings and Conclusions:
The Respondent dismissed the Complainant on grounds of serious misconduct following a complaint made regarding the conduct of the Complainant during a counselling session with a minor. The hearings in this case took place on 30th March 2017 and 25th February 2021. The reason for the long delay in concluding the case was that between May 2017 and October 2019, having been charged with the sexual assault of a minor, the Complainant was subject to two criminal trials at the end of which he was acquitted.
During the hearing on 30th March 2017, evidence was given by Manager A who conducted the investigation. She described the circumstances in which she conducted it. She took statements from the adolescent and his parents. The adolescent had stated that he felt sexually threatened. The Investigator met with the Complainant and reviewed various policies, i.e. Code of Ethics for Counsellors and the Respondent’s Child Protection Policy. The Investigator had regard to the issues of physical boundaries, code of ethics and best practice especially in relation to minors. In cross examination, the Investigator agreed that due to the suicidal thoughts element, the matter was not completely straightforward, however, in this case, sound judgement was not exercised by the complainant. The investigator confirmed that no pre-judgement was exercised by her in the investigation. The outcome was that she found that it was not established that there was sexual contact between the Complainant and the adolescent. However, she found there was inappropriate physical contact where the Complainant had touched the adolescent on his chest, leg, shoulders and face while alone with him during a 1:1 counselling session. Further she found that the Complainant had used inappropriate language and he had hugged the adolescent twice during the session.
Evidence was given by the Head of Services at the time of the incident (Manager G). In relation to the Respondent’s policies e.g. Child Protection Policy, Children First Policy, Grievance and Disciplinary Policy and Procedures, she stated that all staff would be fully aware of these. Team Leaders were informed and relevant documents were in appropriate places in the centre. She strongly believes that all staff were fully aware and any issues would be raised at team meetings. There is an obligation on the Respondent to have the policies in place for compliance with Service Level Agreements with the H.S.E.
Staff member D gave evidence of compliance with Code of Practice, IACP, Addiction Counsellors (IAAAC) and Children First Policy. He confirmed that on occasion counsellors would hug clients but this would be with agreement of the client, and counsellors would not touch the client when 1:1 counselling taking place.
Ex-staff member H gave evidence. She stated that during her time in the employment of the Respondent, she was never informed not to meet with a client or minor on her own. She did not accept that physical contact was totally disallowed. She herself had often put her arms around clients in distress and that it totally depended on the situation. The exception obviously is where there is any threat or perceived threat of abuse. She did not recall any follow up from management on policies.
The CEO at the time (Manager B) gave evidence in relation to the disciplinary process. His qualifications are Diploma in Addiction Studies, BSc in Counselling and Psychotherapy and MSc in Public Health. He outlined the circumstances and sequence of events. He was informed of the complaint in a phone call from the Services Manager. He requested Manager A to investigate and as the Services Manager had been involved at an early stage and had placed the Complainant on Administrative leave, he decided it would be appropriate for him to conduct the disciplinary. He met with the Complainant on 6th January 2016 and the Complainant was represented by his SIPTU Official. Subsequent to this, it was decided to interview colleagues to ascertain custom and practice especially about touching clients when in counselling session. Manager B stated that he was shocked that the Complainant or any other staff would think of putting a hand on any clients especially in 1:1 counselling. His information, gleaned from Team Leaders was that custom and practice was not to touch clients and to completely respect boundaries. He asked the Complainant at the resumed disciplinary meeting if he had any comments to make on the transcripts of the interviews with colleagues, and he said no. He hoped that the Complainant would reflect on matters between the first and second disciplinary meetings and he also considered whether he could apply a lesser penalty such as transferring the Complainant. He came to the conclusion that the Complainant had a fundamental disagreement about what constituted inappropriate physical contact, and as such there was a destruction of trust between the employer and employee.
The Chairman of the Board of Management at the time of the incident gave evidence in relation to the appeal process. He stated that he appointed an external appeal panel as this was specifically what the Complainant requested, that there be an appeal process containing no one that any connection with the Respondent.
On the second day of the hearing, 25th February 2021, evidence was given by the external third party who conducted the Appeal (Witness Y). She stated that she had experience of conducting such business over at least 11 years and had handled over 200 cases. She stated that a significant point in the appeal meeting was when the Complainant admitted that he had made a major professional error, that he had brought disrepute to him and the organisation, and most significantly, if he was asked would he do it again, he would say no, he wouldn’t get out of his chair. The witness stated that she called a break in the meeting at that point in order for the Complainant to consult with his solicitor, who was present with him in the room. When the meeting resumed the Complainant clarified that he felt on the day that what he did was right, but now acknowledged that it was not right. On checking the documentation including the records of the two disciplinary meetings the Appeals Committee were satisfied that the Complainant’s position was that his behaviour was appropriate (even in circumstances where he admitted a professional error) and that any change in this approach first manifested itself at the appeal hearing. The Appeals Committee was not satisfied that the Complainant accepted that his behaviour was inappropriate. The Appeals Committee was at a loss to understand how behaviour that amounted to a professional error could simultaneously be appropriate behaviour as the Complainant held throughout the process until the Appeal hearing. The witness said that as stated in the appeal report, a professional error might include arranging a meeting with a client when it is too soon for that treatment, or in this case might be having a 1:1 with the adolescent who was a minor and not the Complainant’s client. The report found that it was another matter entirely to proceed beyond that ‘error’ and engage in the physical contact as admitted in the case. The Complainant’s appeal was not upheld and the dismissal was seen as proportionate and within the range of the choices of disciplinary action in respect of gross misconduct.
In his evidence on the second day 25th February 2021, the Complainant stated that he has qualifications in counselling skills from UCD. As a person in recovery himself, he developed an interest and skills in dealing with addiction. In 2002 he commenced a course in addiction studies and he was asked at a later point to consider becoming a counsellor and eventually came to work in the Respondent’s centre. He really enjoyed the work, he specialised in gambling addiction and presented papers at National and International level. Any performance evaluations would show that he always went above and beyond what was required of him in his work. The Complainant described in detail what took place on the Sunday in October 2015 when the family concerned visited the centre. The youth in question presented with significant difficulties, not least suicidal ideation. The Complainant confirmed that he adopted the standards of his profession as outlined in Alcohol Addiction Counsellors Standards 2006. He confirmed that he had received no specific training on Child Protection guidelines from the Respondent’s Centre. He was generally aware that policies existed in the Centre, but he stated that he generally knew what to do. He stated that he did use expletives and had a tactile approach but the context was as an encouragement to the young person. In cross examination, the Complainant stated that he now accepts that what he did was not right but that he had said from an early stage to the CEO that he had made “an awful professional error”. He had served the Respondent loyally for 9 or 10 years and expected the Organisation to stand by him, but it failed to do so. He accepts now that he would never do what he did again. If he was to go back in time, he would never have left his chair. He blamed the Organisation for what happened to him. He always practiced a hands-on method with clients, he stated that everyone in the Centre knew this, and that he had “hoped against hope” that his colleagues and management would stand by him, but it was not to be. He wants to get back into counselling but “certainly not with adolescents”.
Findings
Based on the evidence and submissions and the various witness evidence heard at the hearings, I find as follows:
The Respondent dismissed the Complainant because of his conduct at the counselling session in October 2015.
Section 6 (4) (b) of the Unfair Dismissals Act 1977 provides:
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:
(b) the conduct of the employee,
Section 6 (6) provides:
(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.
As has been pointed out by both parties in this case, in deciding if the dismissal was unfair, it is not for me to establish the guilt or innocence of the Complainant, but rather consider whether the Respondent acted reasonably in the matter of the dismissal, whether there was a fair and thorough investigation and whether the penalty was proportionate.
There are a number of seminal cases which address these key tests:
The Employment Appeals Tribunal held, in Looney & Co v Looney UD843/1984 that
“It is not for the Tribunal to establish the guilt or innocence of the Complainant, nor is it for the Tribunal to indicate, or consider whether we, in the employer’s position, would have acted as he did in the investigation, or concluded as he did..to do so would substitute our mind and decision for that of the employer…our responsibility is to consider against the facts what a reasonable employer would have done in the same position..”
In O’Riordan v Great Southern Hotels UD1469/2003, the EAT set out the appropriate test for determining claims relating to gross misconduct:
“In cases of gross misconduct, the function of the Tribunal is not to determine the innocence or guilt of the person accused of wrongdoing. The test for the Tribunal in such cases is whether the respondent had a genuine belief based on reasonable grounds arising from a fair investigation that the employee was guilty of the alleged wrongdoing”.
In assessing the proportionality of the sanction, Noonan J. in Bank of Ireland v Reilly IEHC 241 stated:
“The question.. is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned”.
BHS v Burchall [1978] IRLR 379 is also one of the key decisions in Unfair Dismissal cases when considering a dismissal arising from misconduct.
In that case, the Employment Appeals Tribunal determined that where misconduct is alleged, an employer has to genuinely believe that the employee is guilty, and has to have reasonable grounds for that belief, which must have been reached following a reasonable investigation. The employer does not have to prove guilt to a criminal standard and does not have to adopt a procedure comparable to a criminal investigation. Further it was not the role of the Tribunal to consider whether the employee was actually guilty of the alleged misconduct when deciding if the dismissal was fair.
In this instant case, I base my findings and conclusions on three key questions
(1) Did the Respondent have a genuine belief based on reasonable grounds arising from a fair investigation?
(2) Was there a fair investigation? and
(3) was the penalty proportionate?
In addressing the question (1) above, the evidence shows that the Respondent, having received a formal complaint from the adolescent and his parents, carried out a full and thorough investigation, disciplinary and appeal process. I find, from the evidence of Managers A and B that the Respondent, in the course of the investigation and disciplinary process did have a genuine belief that the Complainant had acted wrongly in his interactions with the youth. The reasonable grounds for such belief were based on (a) interviews with the youth and his parents, (b) interviews with colleagues and (c) interviews with the Complainant himself. Such grounds were also ascertained from consultation with the many policies and documents which the Complainant, as a professional counsellor would have been aware. The policies and practical common-sense approach dictate that a person, particularly a young person should never feel unsafe in counselling session.
In addressing the question (2), I find that the Complainant was afforded a full, thorough and transparent process of investigation, disciplinary and appeal. He was afforded full rights of representation, including the engagement of his solicitor, a deviation from the Respondent’s normal policies. He was also facilitated in his request for an independent external third party in the appeal process. I note that the Respondent, during the disciplinary process did conduct interviews with colleagues to ascertain custom and practice. This was in part a response to the Complainant himself requesting testimony from colleagues. The unfortunate fact from his point was that the Complainant’s view of ‘hands on approach’ was not corroborated.
In addressing (3) above, I note and accept as genuine the evidence of the CEO who conducted the disciplinary, (Manager B) that he had thought long and hard about imposing a lesser penalty, but for reasons including the fact that the Complainant stuck to his stated belief over a long period that he had done nothing wrong, that the trust was destroyed and that the Respondent could not take any risks in placing the Complainant in a position of trust in the future, that the penalty of dismissal was appropriate and not disproportionate.
I find that in all of the circumstances outlined here that the dismissal of the Complainant was not an unfair dismissal.
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Based on the evidence, submissions and findings above, I have decided that the Complainant was not unfairly dismissed, and I therefore find his complaint to be not well founded.
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Dated: 11/05/2021
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Key Words:
Dismissal fair, penalty proportionate. |