Complainant

Respondent

Anonymised Parties

Childcare worker

Childcare provider

Representatives

Dave Curran                                               SIPTU

Sinead Finnerty                              Peninsula

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-00037470-001

17/06/2020

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

CA-00037470-002

17/06/2020

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

CA-00038487-001

02/07/2020

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

CA-00038487-002

02/07/2020

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely.  I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way.

I can confirm that I explained to the parties the immediate impact that the recent Supreme Court decision in the constitutional case of Zalewski  -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) has had on how WRC hearings must now proceed. In particular, I indicated that hearings must now (and in the interests of transparency and in the administration of Justice) be open to the public. I have additionally informed the parties that in the event that there is a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered. In these circumstances the parties agreed that they would wait for the implementation of the Workplace Relations (Miscellaneous Provisions) Act, 2021 which cameinto effecton the 29th of July 2021 and which allowed me, as Adjudicator to administer the said Oath/Affirmation as appropriate. It is noted that the giving of false statement or evidence is an offence.

The Complaint herein is set out in the workplace relations complaint form dated the 2nd of July 2020. The Complainant believes her Dismissal for Gross Misconduct is Unfair and disproportionate.

The Complainant was fully represented. At the outset, the Complainant was called upon to  make an Affirmation to tell the truth.  I was provided with a comprehensive submission in advance of the hearing and this can be read in conjunction with the submission outlined in the Workplace Relations Complaint Form. 

The Complainant alleges that she was Unfairly dismissed. She also looks for her Minimum Notice payment. She gave evidence and was cross examined

Based on the evidence I heard, I would determine that the Complainant’s case is twofold. The Complainant says aspects of the disciplinary process were unsatisfactory and unfair. In addition, the Complainant says that the decision to dismiss for Gross Misconduct was disproportionate and heavy handed in light of the issues that had been raised and investigated.

Both parties opened up this case by way of written and oral submissions. These have been comprehensively considered by me as has the significant amount of oral evidence I have heard which was tested through cross-examination.

The Complainant has asked that I consider that there is established jurisprudence which suggests that there is a very restricted view of what constitutes gross misconduct justifying summary dismissal without notice. In particular I have been asked to consider the Labour Court case of DHL Express (Ireland) Limited  -v-  Michael Coughlan UDD1783 where the Court cited the following:

“We have always held that [gross misconduct] applies only to cases of very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe that the legislature had in mind such things as a violent assault or larceny or behaviours in the same sort of serious category. If the legislature had intended to exempt an employer from giving notice in such cases in such cases where the behaviour fell short of being able to fairly be called by the dirty word “misconduct” we have always felt that they would have said so by adding such words (after the word misconduct) as negligence, slovenly workmanship, bad timekeeping etc. They did not do so”

The Respondent had representation at this hearing. The Respondent provided me with a written submissions. I have additionally heard from a number of witnesses for the Respondent following Affirmation. The Respondent was cross examined by the Complainant.

The Respondent asserts that the procedures adopted were in line with the Industrial Relations Act 1990 (Code of Practise on Grievance and Disciplinary Procedures) SI No. 146 of 2000. It also asserts that where there may have been some procedural issues these do not negate the fairness of the outcome.

Amongst other cases (covering the same point) I have been asked to consider the case of Decision of Allied Irish Banks PLC  -v-  Brian Purcell [2012] 23 ELR 189 wherein Ms Justice Linnane stated:

“..it is not for the Employment Appeals Tribunal or this Court to ask whether it would dismiss in the circumstances; or substitute it’s view for the employer’s view but tio ask was it reasonabley open to the respondent to make the decision it made, rather than necessarily the one that the EAT or the Court would have taken.”

I have carefully listened to the evidence adduced herein over the course of three days. The fact of a dismissal having occurred was not in dispute, and the burden of demonstrating that the Dismissal was reasonable and fair in all the circumstances rested with the Respondent Employer.

The Complainant confirmed that she had a background in childcare, having done the appropriate CE scheme 13 or 14 years ago. The Complainant came to work with the Respondent in 2010 and therefore has been engaged by them for ten years. The Complainant feels she was good at her job. She was popular with the children and their parents as well as with her co-workers. The Complainant confirmed that it wasn’t a job without its stresses. It was very busy with different workplace issues and different issues with different children arising each day. I was advised that the workplace ensures that all employees are educated in the highest quality childcare (level 6). The workplace adopts TUSLA guidelines ensuring the highest degree of child protection. There is ongoing and repeated training. XX the Creche manager gave evidence that she is the designated mandated person responsible for reporting any childcare issues to TUSLA. This is part of the TUSLA mandated “children first” protection policy in operation in the workplace.

It was conceded that not every fall in the playground is reported to TUSLA but that even in the workplace there is a need to report any incident or accident which may cause concern at any level. There is a workbook on the premises and when an incident concerning any child is entered into the book both XX as Manager and the parent of the child are expected to sign that record. There is an onus therefore, to write up a report immediately – just a simple account of what has happened. I appreciate the importance of this book where staff are ultimately answerable to parents. I also note that an incident book is practical from an insurance point of view.

The Complainant was dealing with the infants (ages under two) on the 16th of January 2020 and during the naptime she had gone into their room and noticed a little blood on the sheet under where a little boy (C) was lying. The Complainant says she lifted the boy and she says she saw a small amount of spittle and blood across his face. She says she searched for the source of the blood and to check that he was okay. The submission says she looked for 80 or 90 seconds. The Complainant was satisfied that there was no evidence of a significant or any cut or gash and she lay the boy back down thinking it might have been a bit of a nose bleed or a cut inside the mouth she simply couldn’t see. The Complainant did not write up the incident in the Report book though I would expect and accept that it is exactly incidents of this type that should be documented.

That said, I note that the Complainant fully explained to the mother of C that this incident had happened as she was returning the soiled sheet with the boy at the little boys collection time that evening.

It is regrettable that  the Complainant did not write this incident up in the incident report book. This was not a wilful decision she says, she just forgot. She believes she might well have done it the next day, and that such a practise is not unusual. As previously noted, I understand that any such incident has to be co-signed by the relevant parent and the crèche manager in the interests of transparency. In any event, there is no doubt that the Complainant told the mother of the child that something had happened albeit it was not clear what had happened.

The next day, January 17th 2020, the Complainant was in for a 1pm shift when she was called aside by XX the Creche Manager. XX indicated that she was aware that there had been an incident on the previous day and questioned why that had not been written up. The Complainant says that she said she had forgotten and was duly remonstrated for the delay. In her evidence XX said that the Mother of C had been very upset about the blood on the sheet and indeed I was provided with a photo taken by the mother which shows a not insignificant amount of blood soaked into the sheet.

The Complainant was shown a short excerpt of CCTV footage which had been in taken the previous day in the children’s nap room. The Complainant says that at this time she was shown a very short clip and nothing like the length that has been opened to the WRC. The CCTV footage showed the Complainant’s apparent interaction with two  children in the room (one being C). At one point she was moving C from side to side looking for a soother which had fallen out of his mouth and was somewhere in the bedlinen. At another point she is seen lifting C up by the arm checking his face I and wiping it down – in the incident already described where his face had blood on it. Lastly, the Complainant appears to pull another little boy by the clothes on his chest to slide him up the cot. XX on seeing the footage had determined that the manner of the handling of the children was rough and it was in these circumstances that she played the footage to the complainant. The Complainant immediatelyrecognised that the footage showed her being a little rough or heavy handed with these two children as she was leaning in and searching for the soother or re-arranging their position in their beds.  The CCTV it is accepted shows the Complainant dealing with the child C and appears to show her standing the child upright to see his face more clearly having identified blood present underneath him. The Complainant has consistently described the manner of this interaction.

As noted, I understand that XX had been alerted to the previous days incident by another member of her staff who had been given the freshly laundered sheet which had been sent home with C the previous day. The Mother of C had handed it back. I note that XX was advised that there were spots of blood on the sheet.  XX herself had not talked to the Mother yet and had checked the incident against the incident book which of course was silent on the issue. It was in these circumstances that XX felt obliged to look back on the available footage. I also understand that the father of the child C was a Garda and particularly upset about how things had been handled

The Complainant was very surprised though to be suspended then and there from the creche. She was advised that there would have to be a full investigation into the handling of the children as observed on the CCTV. There would also need to be an investigation into the failure to keep an apparently bleeding child under observation and instead leaving the same child for 1hour and 20 minutes in his cot. The Complainant appears to have conceded in the course of that ten-minute meeting that her handling of the children was inappropriate or at least might have appeared inappropriate. She suggested that the fact that she herself is big means that she might not notice being heavy handed. There seems to have been some discussion about the stress levels dealing with that age group.

XX stated that she felt obliged to bring this matter to the attention of TUSLA as there had been a mis-handling issue

The Complainant was contacted by a Ms XX who is the Chair of the Board whom it seems was asked to conduct an investigation by XX. On the 27th of January an Investigation meeting was held by XX who was accompanied by her colleague XX. The Complainant attended with her sister. It is not clear to me that a clear and concise terms of reference had been drawn up and disclosed to the Complainant in advance of this meeting. It is also not clear to me that the Complainant was put on notice of the fact that this matter could potentially be regarded as falling within the category of Gross Misconduct and therefore liable to an outcome of Dismissal. I wonder therefore, had she known what the stakes were, would she have attended such a meeting with only her sister for support? I note from the notes prepared after the said Investigation meeting (presumably prepared by XX) that the Complainant agreed that she had been a “bit heavy handed“ when she was  handling the two children which is not quite the same thing as accepting she had been “rough” with them which is what she was told she had acknowledged herself as being ( in a subsequent letter from XX written on the 4th of February 2020).

In any event, the Complainant was invited to a disciplinary meeting on the 10th of February, and I note that the Complainant was put on Notice that the outcome of that meeting could include a finding of Gross Misconduct attracting a sanction of dismissal. I was referred to the staff handbook and the reference to the mis-treatment of children. By this time, it seems there are three allegations against the Complainant, set out in the letter of 4th of February 2020 from xx –

A mishandling of the two children in their cots

Inadequate recording of the sleeping time of the children

A failure to adequately respond to the fact that a child was bleeding for reasons unknown in the cot.

The Complainant attended the Disciplinary meeting which it must be noted, was hosted by XX who had already conducted the Investigation and XX who had already summarily suspended the complainant for perceived behaviour. Therefore, not an ideal line-up, nor a clearly independent  line upfrom the Complainant’s point of view. The Complainant was accompanied by Union Rep XX who argued that the video footage did not disclose unacceptable manhandling of the children and that it was just the Complaint’s “way”.

The Complainant was written to on the 11th of February 2020. This letter notifies the complainant that her Contract of Employment is being terminated. Two procedural matters occur. Firstly no one party takes ownership of this decision and it is a decision made and signed off on behalf of the Management committee. Secondly, and more worryingly, the letter opens with the line ….Following our meeting on Monday 11th February in Blanchardstown Library and a full discussion with the management team in the childcare facility  which tends to suggest that there was a meeting of Management concerning the Complainant’s future at which she had no voice and no representation. I can have no idea what was said at that meeting, how the Complainant was portrayed, and how the meeting was conducted.

In any event the Complainant was dismissed for five specific reasons:

The rough handling of the children;

The failure to report the fact that blood had been found on the sheet of a child;

Failing to source the blood;

Failing to take the child out and keep him under observation;

Not following procedures.

The Complainant’s employment terminated on the 14th of February. An Appeal was conducted by a Third-party HR company which upheld the decision.

The Complainant’s representative put up a robust challenge to the manner in which this Investigation, Disciplinary and Appeal process were conducted. He has urged me to consider the fact that the Complainant has always been a good employee and had no sanctions on file. He questioned the use and non-use of the CCTV footage He suggested that the sanction herein is wildly disproportionate to what is easily observable on the CCTV.

On balance, I absolutely accept that the overriding issue in this matter has to be the Safety and Health of the children who do not, themselves, have a voice when placed in childcare facilities such as this. Parents have a right to be confident that their children will come to no harm. There is, as is pointed out in the Disciplinary outcome letter of the 11th of February, a Duty of Care to provide a safe and secure environment for these children. It’s the sole consideration for the parents leaving the children in the creche and for the Board and Management in undertaking to provide this facility.

To my mind, this is a sacred Duty of Care overrides everything else in this particular workplace setting.

On the 17th of January the Mother of X flagged that she was concerned that her son had had a bleed which had not been satisfactorily sourced or explained. Of great concern for the employer is the fact that that on the previous day that same toddler who was then known by the Complainant to have had a bleeding episode, was not taken out of the cot and kept under vigilant supervision.  This action simply flies in the face of responding correctly to a potentially serious situation. There could have been anything wrong with the child and simply settling him back into the cot was not best practise. That failure to to correctly (and even instinctively), take the child out of the bed to have him closely watched amounted to a breach of trust and a breach of the duty of care owed to that child.

I can understand that there might be questions of degree when it came to how the children were being handled in the sleeping room. The Respondent determined it was rough, whilst the Complainant maintained it might have seemed heavy handed but was not harmful. I myself, found the CCTV footage to be unclear. However, the Complainant’s own admission and description of how she handled the unexplained appearance of blood on a toddler’s face fell below the standard that a parent might legitimately expect. It’s unfortunate, but once this Employer was on notice of the failure to instinctively give appropriate care to the child, it had no alternative other than to terminate the employment. It just was not possible or feasible to allow the Complainant to stay in the workplace after a level of negligence had been demonstrated. It is noted, of course, that this workplace only allows for interaction and care of children there was no other alternative source of employment for the Complainant.

This was a momentary lapse of Judgement which has cost the complainant her job. This was not Gross Misconduct of the sort envisaged in the case referenced above DHL Express (Ireland) Limited  -v-  Michael Coughlan UDD1783. The Complainant failed to handle the situation correctly, failed to take the child out of the cot and observe him and failed to write the incident up. These are the facts relied upon by the Respondent in dismissing the Complainant  and I find that the Respondent acted reasonably.

I further find that although there were some procedural defects in the in procedures these do not upset the overall correctness of the final decision to dismiss.

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

CA-00037470-001 – The Complainant was not Unfairly Dismissed. The Dismissal was reasonable in all the circumstances.

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

CA-00037470-002 - The Complainant was entitled to her Notice period and I find that there has been a contravention of this Act and I direct that the Complainant be compensated for the loss in the amount of €1,200.00.

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

CA-00038487-001 - Withdrawn

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

CA-00038487-002 - Withdrawn