Adjudication Reference: ADJ-00030649
Parties:
| Complainant | Respondent |
Anonymised Parties | A Care Assistant | A Disabilities Service |
Representatives | Dave Curran SIPTU | William Hanly, Solicitor |
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-00040985-001 | 13/11/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00040987-001 | 13/11/2020 |
Date of Adjudication Hearing: 09/02/2022
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Procedure:
In accordance withSection 8 of the Unfair Dismissals 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. The matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the WRC as a body empowered to hold remote hearings. As some of the facts related to this case refer to a minor, I have decided to anonymize the decision.
Background:
The Complainant contends that he was unfairly dismissed for failure to disclose a conviction for assault. |
Summary of Respondent’s Case:
The Respondent is a service providing support to adults and children with intellectual disabilities. The Complainant was employed on a series of fixed-term contracts on 23rd November 2016, 19th February 2018 and 18th September 2019. In each contract it was made clear that the offer was subject to satisfactory medical examination, references and Garda clearance. The Complainant’s contracts of employment provide that an employee’s employment may be summarily terminated in the event of gross misconduct. An employee handbook also is provided. The Complainant’s job description includes the requirement for acceptance of delegated responsibility for the service users’ emotional and physical well-being. It was made clear at all times the organisation’s policy of zero tolerance of violence. The Respondent carries out Garda vetting every few years. As a result of a concerning vetting of the Complainant, he was put off work with pay and a disciplinary meeting was held on 20th March 2020. At that hearing, the Complainant acknowledged that the conviction for assault arose from him slapping his son at a meeting with the School Principal, following which it was reported to Tusla and resulted in a court appearance and conviction. The Complainant was advised at this meeting that the disciplinary process could result in dismissal. Following this hearing, the Complainant was advised that due to the failure to disclose the conviction and the fact of the conviction itself, that the Complainant’s conduct had resulted in a substantive breach of trust in the employment relationship and the decision had been made to summarily dismiss him. The Complainant was given the right of appeal and an appeal hearing was held on 14th August 2020. The outcome was that his appeal was not upheld and he was advised by letter dated 21st October 2020.
Section 6 (4) (b) of the Unfair Dismissals Act provides
“..the dismissal of an employee shall be deemed, for the purpose of this Act, not to be an unfair dismissal, if it is also wholly or mainly from one of the following
(b) the conduct of the employee”
In conclusion, it is submitted that the safety of attendees at the Respondent’s service is paramount, as the service is provided to vulnerable children and adults. The Complainant was convicted of assault, which in itself cannot be tolerated by the Respondent. His failure to disclose the conviction amounted to an act of dishonesty. He appealed, then challenged the Garda vetting, and when the Garda vetting confirmed the assault conviction related to him, the Complainant tried to justify it on the grounds that it was his son. The Complainant was given fair procedure and a right to appeal. Subsequently the Complainant confirmed in writing to the Respondent that he accepted the decision to dismiss him and sought redundancy payment. It is submitted that the conduct of the Complainant resulted in a substantive breach of trust in the employment relationship and that the dismissal was fair in all the circumstances.
The representative of the respondent stated that having read the submission made on behalf of the Complainant, and taking into account the arguments made about ‘cultural differences’ the Respondent is more convinced they made the right decision to dismiss, and it would be reckless not to have done so.
Sworn evidence following the administration of an Affirmation was given by the Head of Human Resources. She stated that the Respondent looks after the most vulnerable persons with autism and intellectual disabilities. She said that the Respondent could not employ people who had or have convictions for assault, no matter what the situation. The Respondent has a duty of care to the vulnerable people they look after, often who cannot speak for themselves. The HR Manager stated that she cannot accept the ‘cultural differences’ argument. Violence against children is not acceptable in this culture.
Summary of Complainant’s Case:
The Complainant was born in Nigeria. He moved to Ireland in 2005 and has 6 children. Prior to joining the Respondent’s organisation, he qualified as a Special Needs Assistant, and has qualifications in Healthcare support and Facilitating Inclusion. He was employed on a fixed-term contract in 2016, following Garda vetting and he received further fixed-term contracts in 2018 and 2019. In 2018, he was called to his son’s school and during the meeting, apparently when his son misbehaved, the Complainant slapped him. As Teachers are “Designated Persons”, they were obliged to report the matter to Tusla. The matter was subsequently referred to the Gardai and the Complainant received a conviction in Court of a three month prison sentence suspended for two years. He did not serve any time in prison. The Complainant explained that corporal punishment is widely used in his country and he was not aware of it being banned in Ireland. The Respondent learned of the conviction when renewing the Garda vetting for the Complainant in 2019. The Complainant was then subject of disciplinary procedures resulting in his dismissal for his failure to disclose the conviction and the conviction itself. It is submitted that the decision to dismiss the Complainant was unfair for the following reasons: He had a flawless record as an employee which was not taken into account While corporal punishment is not justified, cultural differences are a factor. The charge of failure to disclose is entirely invalid. The Respondent did not establish a sufficient connection between the incident and the Complainant’s employment. It is agreed that this kind of physical punishment has no place in society, and its Prohibition is fully supported. Nevertheless, it should be pointed out that corporal punishment by parents was legal in Ireland until 2015. Furthermore, according to Human Rights Watch in 2014, “90% of the world’s population still live in countries where corporal punishment and other physical violence against children is still legal”. This includes the United States where, according to Wikipedia; “Corporal punishment of children by parents is legal to some extent in all fifty of the United States, and is explicitly legal according to the state laws of forty-nine states (except Minnesota). Social acceptance is generally high…”. As a recent immigrant the Complainant was not aware that corporal punishment was made illegal in Ireland a few years ago; as evidenced by the fact that he slapped his son during the meeting with his teacher. He explained that he was taught that it was his job as a parent to discipline his child. The letter of dismissal referred to the Complainant’s “failure to disclose” the charge of assault. However, the Organisation does not require employees to disclosed convictions in any of its documentation. It is noted also in the documents provided by the employer in 2020, reference is made to the following allegation: “The dismissal arose as a result of the fact that the employee had failed to disclose in his employment application form (as required by the organisation) previous convictions for assault.” This is wholly inaccurate, as there was no “previous convictions for assault” when he filed out his employee application form in 2016. Furthermore, it is noted the employer has referred to the Special Employee questionnaire where he confirmed that he was never subject to a Garda Investigation in relation to child welfare. However, they did not mention that this questionnaire was completed in 2016, before the conviction. In conclusion, it is submitted that the Complainant was a dedicated and conscientious employee with the Respondent Organisation. He has obtained numerous qualifications as a Care Assistant. He was involved in one regrettable incident with his teenage son. While corporal punishment is illegal and not justifiable, this does appear to have been a genuine misunderstanding on his part about the different social norms and laws surrounding this issue. In Nigeria, and indeed much of the world the issue is regarded differently than it is in Ireland. Corporal punishment was only made illegal in Ireland in 2015. It is quite possible therefore that other employees of the Respondent may have used this practice with their own children in the past, without this having any impact on their role as Care Assistants. For an employee to be dismissed following a conviction, the employer must demonstrate that the conviction itself is sufficiently linked to their role that their continued employment has become untenable. We do not believe that this is the case here. It is noted that there is no evidence from any of the documentation that the employer took the following factors into account: o His flawless work record. o The role of cultural differences and the evolving social norms around this issue. o Whether or not he posed a risk to the organisation – we note there was no risk assessment. o Whether or not he had learnt from his mistake, and were other options available short of dismissal. |
Findings and Conclusions:
The Complainant was dismissed on the grounds of gross misconduct for failure to disclose a conviction for assault and for the fact of the conviction itself. The applicable section of the Act is Section 6 (4) (b): “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,” 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”. There are essentially three elements to the test as set out in case law: 1. The Respondent must have a genuine belief, based on reasonable grounds arising from a fair investigation that the employee was guilty of wrongdoing, 2. There must be a fair investigation 3. The penalty must be proportionate. The Respondent in its submission and evidence at the hearing emphasised the nature of its business as protecting the most vulnerable children and adults who, in many instances may not be in a position to speak for themselves. The effective zero tolerance of the Respondent for violence of any kind, in or out of the workplace is therefore understandable. I note the Respondent’s point that having heard the ‘defence’ of cultural differences, they were more convinced that it would be reckless on their part to retain the Complainant in employment. The Complainant was dismissed following a procedure which gave him a fair hearing, right of representation and right of appeal. The evidence in relation to ‘cultural differences’ indicates that alternatives to the penalty imposed were not unreasonably rejected by the Respondent. In all the circumstances, I find that the dismissal was not an unfair dismissal and I do not find the complaint to be well founded. |
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.
I have decided, based on the findings and conclusions above that the complaint is not well founded.
Dated: 13th April 2022
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Key Words:
Unfair dismissal, not upheld, gross misconduct, assault conviction. |