ADJ-00031079

Complainant

Respondent

Anonymised Parties

Shift Team Manager

Residential care centre for children

Representatives

  Self-represented

Carter Anhold & Co. Solicitors . Mr Edward Murray, B.L.

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-00041351-001

01/12/2020

The complainant submits that she was unfairly dismissed on 12 June 2020.

She was employed as a Shift Team Manager with the respondent’s children’s social care facility.

Her gross salary was €3330 per month.

She submitted her complaint to the WRC on 1 December 2020.

The complainant was employed with the respondent since March 2016, initially as a Residential Support worker, and then promoted to Shift Team Manager in July 2018 in the residential unit for vulnerable 11-18 year olds with a variety of needs.

She was dismissed on 12 June 2020 on the grounds of gross misconduct for failing to implement the respondent’s procedures when faced with a young person in possession of alcohol. She believes that the process was unfair, and that the sanction was disproportionate.

Complainant’s evidence.

The complainant was in charge of the respondent’s unit on 14 May 2020. Her colleague, a Residential Support Worker, returned to the unit from a walk around 8pm with the 17 year old resident and informed the complainant that while on a walk, the girl had obtained a bottle of vodka, left for her by a relative in a ditch, and had gone up to her room in possession of the alcohol.   The complainant tried to de-escalate the situation.  She did her best to take the alcohol from the girl; the teenager refused to hand over the bottle. After ten minutes or so of frank discussion, the young girl conceded that if she could retain a drink she would give the complainant the bottle. As a last resort the complainant allowed the girl to have a glass of vodka, took the bottle from her and locked it up.  She discussed the incident with her colleague. The young girl then engaged in lengthy individual work with the complainant for an hour or so, up to the point where the night staff arrived at 10 pm. The complainant informed the night staff of the incident. After 10pm she spent further time talking to the seventeen year old. At 2am She wrote up the individual work report because she felt this was in the best interests of the child. By then she had been working sixteen hours without a break. She had had to admit an eleven year old to the unit.

A further reason for her attempt at de-escalation was that in the previous six weeks there had been three such similar incidents with this young girl, each of which had resulted in her drinking the entire 750 ml bottle in a short space of time, becoming very verbally aggressive and threatening, and ultimately requiring medical assistance. The Gardai had to be called to restrain her. The complainant was also responsible for three eleven year olds in the unit and did not want them to be frightened.

The complainant states that the staff complement was two on the 14 May and not three as should have been the case. The unit had been short one staff member since the previous November. The complainant was the only Shift Team Manager and the most senior staff member on site. The Unit Managers and Deputy Managers worked from home due to Covid 19 safeguards. She did not have a n opportunity to create a Special Event Notification (SEN), which is the commonly used reporting device for such situations and the absence of which is cited as one of the reasons for her dismissal.

The next morning, 15 May, she was on duty at 9 am to relieve the night staff. The complainant informed the Deputy Manager that she would have to leave for a family event at 11am. The handover to the new shift happened at 10.00. She told staff and the Deputy Manager of the previous night’s incident with the resident. She advised the Deputy Manager that she had not telephoned the Gardai, she had made a judgement call that she would be able to deal with the matter and de-escalate the situation which she had. The Deputy Manager asked the complainant if she had written up an SEN. The complainant advised that she would do it later that day. She does not accept that it would have been too late as there is a 24 hour window to complete these reports. The Deputy Manager then stated that she would write up the SEN herself. The complainant also informed the Deputy Manager of the log that contained reports of the incident. She left the unit to attend a family event secure in the knowledge that the SEN would be written up.

The complainant worked three further shifts over the next three days, so if her failure to compile the SEN amounts to gross misconduct, why, she asks, was she allowed work these shifts.

On 21 May, HR notified her that she was suspended for allegedly allowing a young person to drink alcohol and failing to report in an appropriate manner.

 She was requested by HR a few days later to telephone the 17-year old’s social worker. The social worker stated that she was happy to close off their investigation and she would issue the report to her Team Leader with no action required. She stated that they were satisfied there was no child protection issue.

Disciplinary process

The process was flawed. The complainant went to an investigative meeting on the 2 June with HR. The Unit Manager was in attendance via zoom. She was called to a disciplinary meeting on 11 June, conducted by Manager, A, was issued with a wallet of evidence in advance and invited to tell her version of events. She asked to comment on some statements in the wallet of evidence and he refused, stating that he was not reopening the investigation. She wanted to do so as the statement of the Deputy Manager did not, contrary to what the respondent states, direct the complainant to do the SEN. She had 24 hours to do the reports. It could have been done in that time. If she had refused why was there no report to the manager to this effect. One of the witness statement’s in the wallet of evidence is incorrect. The colleague, C, stated that the resident had returned drunk to the Centre and he was not corrected in that statement.

She did not receive the report of the investigative committee in the pack before the disciplinary hearing. She received it before the reconvened appeal hearing which took place on the 30 June. She only received the minutes of the disciplinary meeting, held on 11 June, again, just a day or so before the appeal hearing held on the 30 June. The assertion that her behaviour fell below the standard required was not put to her at the disciplinary hearing.

She does not accept that it was gross misconduct. A breach of staff policy is classified as a minor offence in the respondent’s disciplinary procedure.

She queries the statement that it is illegal to allow a young person drink alcohol.

Cross examination of the witness.

The complainant confirmed that she allowed a young vulnerable person to drink alcohol but was unable to prevent the young person from bringing alcohol into the centre; she was not with her. At the end of a protracted mediation with the resident and in order to retrieve the bottle she allowed her a small amount. Concerning the writing up of the SEN, the complainant states that she usually completes them, but the she told the Deputy Manager that she would return later in the day to complete the SEN. The Deputy Manager stated that she would write the report herself. As the situation had come under control she did not inform the Gardai. The complainant stated that maybe she should have called the Gardai. In response to the point that no judgement was permissible other than in compliance with the policy, the complainant said that she did her best in the circumstances. Concerning any possible consequences with Tusla, she stated that such conjecture was hypothetical. She did not get an opportunity to discuss it with the Unit Manager. She stated that she was frustrated at not being allowed to put questions at the disciplinary hearing about the investigation minutes.

In summing up, the complainant stated that the behaviour for which she has been dismissed does not amount to gross misconduct. The respondent is applying the policy to the letter of the law. Previous instances of a breach of policy were ignored.

Mitigation.

The complainant has not obtained a permanent position. The respondent failed to provide her with a referenced and in this way obstructed her appointment to another facility. The complainant stated that she had worked in private practice from May to July 2021 as a psychotherapist but had only earned about £80. She was employed for one month in November 2020.

The respondent offers services in twelve Centres throughout Ireland for young, vulnerable people aged between 11- 18 with particular social, psychological and physical needs who require respite care. 

The complainant worked in one of the respondent’s residential facilities. 

The respondent denies that she was unfairly dismissed. She was dismissed for gross misconduct for failing to follow agreed, mandatory procedures when confronted with a 17 year old resident in possession of alcohol. She endangered the respondent’s capacity to maintain their service. Her failure to follow procedures was investigated and addressed through a fair investigative and disciplinary process.

TimeLine.

14 May: the complainant failed to follow procedures with a young person.

15 May: the complainant decided against writing up the required SEN report, chose not to contact the Gardai or the  Manager contrary to rules.

20 May: the complainant was suspended on pay.

2 June: Investigation meeting.

11 June: Disciplinary hearing,

25 and 30 June:    Appeal hearing

Witness 1. Service Manager, A, for a group of Centres.

The respondent service was established in 2005. They work closely with Tusla, the dedicated state agency responsible for child protection, early intervention and family support services and for providing care to vulnerable children and teenagers in the 11- 17 year age group.

The unit in which the complainant worked accommodates 4 children and 4- 5 staff. She was the Shift Team Manager responsible for the day to day care of the residents. This is a middle management position.

The complainant received training in child protection, supervision policy and procedures.

On 14 May 2020, the complainant allowed a young person of 17 years with addiction issues to consume alcohol in the Centre. The respondent operates a zero tolerance alcohol policy. It is prohibited for children in their care as per the respondent’s Children’s Services Policy and Procedures (section 4.2), where it is stated that “staff will not collude with or condone the use of either substance (alcohol or drug) by young people” This was not followed on 14 May.

The respondent operates a system called a Special Event Notification (“SEN “) when any child moves away from baseline behaviour, for example, in situations of self-harm, alcohol or substance abuse. This incident report (SEN) must be submitted and must record interventions by staff in such circumstances. Consumption of alcohol was a significant child protection event which demanded a SEN and which should have been sent it to the manager for oversight. Thereafter it would have been forwarded to a few professionals including the witness.

A Personal Support Plan (PSP) is compiled for every service user, tailored to the young person’s particular needs. It is a risk management plan specific to each child. It states that Gardai are to be notified when the child is in possession of alcohol. All staff are aware of this young person’s difficulties with alcohol and her needs. The staff must comply with the plan. The company’s procedures demand that alcohol found on a young person must be confiscated. The respondent advised that it was not at her discretion to ignore plans. It was not harm reduction or damage limitation to give a young person some alcohol.

The on call policy names the situations which should result in a call to a manager on call. These include when there is a risk to a young person or the organisation.

The complainant signed the company handbook containing all these policies.

Disciplinary Procedures.

The respondent’s disciplinary procedure lists possession or distribution of alcohol and wilful refusal to comply with legitimate instruction as instances of gross misconduct. The witness conducted the disciplinary hearing. He had not been involved in the investigation meeting. At the disciplinary hearing the complainant accepted that she had made a mistake. She apologised. She stated that she had not been thinking clearly on the night. She had just returned from sick leave and had told the witness that she was not ‘on top; of her game”. She said her actions with the young person on the 14 May were aimed at de-escalating the situation. She had seen previous incidents which had not been entered into a SEN.

The witness states that they complied with their procedures.

No extenuating circumstances were supplied to the witness.

Her behaviour fell well below what is required of someone in her position. The young person involved comes from a very traumatic background with alcoholism and abuse.

Cross examination.

In response to a question the witness confirmed that the SEN must be done within 24 hours and must be done from the Centre, not from the author’s home.

Support staff were not working from home. Regarding the statement attributed to the social worker that no further action was required, the social worker is not an employee of the respondent, works with an external agency and has no legal responsibility for any consequences that might flow from permitting a young person to consume alcohol on the respondent’s premises.

Witness 2,Regional Services Manager, B

The witness is the Regional Services Manager, B. with oversight of Centres in the Republic.

 He spoke of the regulatory environment within which the respondent operates. The service has a contract with Tusla to provide services and care for young people under eighteen. They are subject to registration with the Health Information Quality Authority (HIQA) and are subject to unannounced inspections from them.

The respondent must have standards and policies in place and failure to observe them, as happened ion the 14 May, could endanger their contract with Tusla.

The training on child protection, policies and procedures and training in safety, provided to the complainant, addresses the incident which occurred on 14 May

The witness conducted the appeal hearing against the decision to dismiss.

In upholding the decision to dismiss the complainant, the witness stated that on- call staff should have been asked to intervene. They would have known how the matter could be expedited. On- call staff offer an added layer of scrutiny to determine how intoxicated the young person is. Alcohol on the premises offered the opportunity for the young person to steal it.

The complainant did not accept that the matter was as serious as it was. Had the respondent decided not to dismiss the complainant the repercussions could have included reputational loss and damage for failure to take robust action against the complainant. Tusla might have withdrawn her from the respondent’s care. Public liability insurance would not have been extended to us where staff do not follow procedures and policies.

In relation to the accuracy of the minutes of the investigation meeting, the complainant challenged the accuracy of the minutes in that she had stated at that meeting that there had been previous incidents with the young person.

Legal authorities.

The respondent’s barrister submits that they meet the obligations imposed upon them by the Unfair Dismissals Act 1977 in that they

” both gave the employee the full benefit of a fair procedure and accorded him his just deserts or established a functional necessity for his dismissal” ((Redmond on Dismissal Law, Redmond (Bloomsbury 3rd edition., 2017) at para 13.14.)).

The respondent refers to the requirement found in section 6(7) of the 1977 Act to act reasonably. Case law was submitted supporting the Respondent’s contention that they complied with this requirement. In Hennessy v Read and Write Shop Ltd UD 192/1978, the test of reasonableness was described as the nature and extent of the enquiry carried out by the employer prior to the decision to dismiss the complaint, and the employer’s conclusion following such enquiry that the claimant should be dismissed. Bunyan v United Dominions Trust [1982] ILRM 404, and Union of Construction and Allied Trades and Technicians v Brane [1981] IRLR 224 establish that the EAT or Adjudication Officer must not assume the role of an employer regarding the facts in any case before it. 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.

The respondent relies also on Counsellor v Care Provider ADJ 4473, which upheld a dismissal on foot of a complaint of misconduct against a counsellor working with an adolescent, and A Care worker v A Care Facility, ADJ 19757 which concerned a resignation  and an investigation into permitting a person in care to consume alcohol, described as “no petty matter” by the adjudicator.

The complainant in the instant case was afforded a full, thorough and transparent investigation and disciplinary process, including an appeal which ultimately found that the complainant’s actions amounted to gross 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.   

Relevant Law.

Section 6(1) of the Unfair Dismissals Act, 1977 states that

“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 “.

Section 6(4) of the Act indicates what type of substantial grounds justify a dismissal and states

“…………. the dismissal of an employee shall be deemed for the purposes of the Act, not to be an unfair dismissal if it results wholly or mainly from one of the following

a)      n/a

b)     the conduct of the employee”

In deciding if the dismissal was unfair, I must examine the grounds used by the respondent to justify the dismissal and the procedures used to effect the dismissal.

Grounds for dismissal.

The grounds cited for the complainant’s dismissal were:

Failure to comply with agreed policies and procedures which she had signed, when confronted with a young person in her care in possession of alcohol.

It is accepted that the complainant did not compile the mandatory SEN report though she did offer to do it later in the day and from home, that she did not call the Gardai and that she chose not to call the manager on call- all agreed and mandatory steps required of employees faced with the circumstances obtaining on the 14 May.

I accept that the complainant held the view that it was preferable for her to try and de-escalate the situation by permitting the young person to consume a small amount so as to get the larger amount – a bottle of vodka -off the young person. But professional judgement must be exercised in accordance with agreed, mandatory procedures and policies, which are designed to give maximum care and protection to young people at serious risk as this young person -prey, as she was, to a family supplier of alcohol to her. This did not happen in this instance. I find that it was not the complainant’s call to make this choice however well-intentioned she may have been. I note that she apologised and accepted that it was a mistake in contrast to the decision cited to me (Counsellor v Care Provider ADJ 4473) where that complainant did not accept the error of his ways but did persist in justifying his actions.

The EAT in setting out the test of reasonableness in Noritake (Ireland) Ltd v Kenna, UD 88/1983 advised that the following questions should be considered before coming to a decision on the reasonableness:

“Did the employer believe that the employee misconducted himself as alleged? If so,

Did the company have reasonable grounds to sustain the belief? If so,

Was the penalty of dismissal proportionate to the alleged misconduct? “

I find that the employer did have reasonable grounds to believe that the employee had misconducted herself. Unlike Noritake, which found in favour of the complainant, there was, in the instant case, a risk to a vulnerable young person, a risk to the reputation of the respondent’s service, and a risk concerning the retention of their contract with Tusla.

Taking all the evidence into account, I find that substantial grounds did exist for her dismissal. Notwithstanding the very high price paid by the complainant for her error, the evidence leads me to find that the decision to dismiss the complainant fell within the band of reasonable responses that a reasonable employer might have adopted.

 I am unable on the basis of the evidence to find that the sanction was disproportionate.

Procedures used to effect the dismissal.

Section 6(7) of the 1977 Act as amended states

“(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) of section 7(2) of this Act”.

At the hearing, the complainant’s case that the procedures were unfair focussed on the following four points and these points only;

She was not provided with the investigation report, in advance of then disciplinary hearing;

She was not allowed question the regional manager at the disciplinary meeting about the investigative report;

She was not provided with a copy of the minutes of the disciplinary meeting, in advance of the appeal hearing;

The sanction of dismissal was disproportionate.

I find that the respondent’s disciplinary processes were defective. The complainant’s uncontested evidence was that while she did receive a copy of the investigation meeting minutes dated 2 June in advance of the disciplinary hearing of the 10 June, these minutes did not contain findings as to policies breached by the complainant nor onward recommendations as to what should happen and why. These were contained in the investigation report, not supplied to the complainant until a few days before the reconvened appeal hearing which identified the specific breaches of procedures and policies as per the respondent’s submission to the WRC dated 22 January2021 and set out hereunder:

“There was a breach of employee responsibilities (3.6.2.in the employee handbook),

Failure to notify or complete significant event notification to line management as per section (3.22) of the respondent’s Children’s service policies and procedures, failed to identify and record fully through the significant event notification nor child protection and welfare reporting form a child protection concern relating to an unknown individual providing alcohol to a minor for consumption while in the care of the respondent’s childcare as outlined in section 3.22,

Breach of respondent’s children’s services policy and procedures (section 4.2) whereas it is stated that staff will not collude with or condone the use of either substance (alcohol or drug) by young people”

While the complainant was asked about the SEN, the policy on alcohol consumption and the failure to inform the Gardai, the above specific policy breaches were not put to the complainant during the investigation meeting.

The above findings were relayed to the Manager A who conducted the disciplinary hearing and it served as the working document for the disciplinary hearing on 10 June.

The respondent dismissed the complainant on the 12 June for placing the respondent “in a position of professional negligence “which the respondent classified as gross misconduct.

The Complainant appealed the decision to dismiss.  An appeal hearing was convened for 25 June but had to be adjourned at the outset upon discovery that the respondent, due to what they term an administrative error, had omitted to send a copy of the report of the investigation committee to the complainant. The respondent had also failed to send the complainant a copy of the minutes of the disciplinary hearing of the 10 June before the appeal hearing scheduled for 25 June. She did receive the necessary documents in advance of the reconvened hearing on the 30 June.

Her appeal was not upheld, and she was dismissed on the 2 July.  

The letter rejecting her appeal states that she is being dismissed for allowing a young person to consume alcohol.

I have had to ask the question if the appeal hearing offered an opportunity to cure the defects of the disciplinary process which were evident in the respondent’s failure to provide her with the necessary documents. I note that the appeal hearing on the 30 June was a de novo hearing and not a review or an appeal on points. The complainant now in possession of every document informing the decision to dismiss was offered an opportunity to comment on any aspect of her choosing. The minutes of the appeal hearing include engagement on all of the points in the missing documents. The minutes of the appeal hearing disclose that the complainant was invited to comment on any aspect of the reports, previously omitted. She was asked if she wished to submit any new evidence in light of the fact that she was now in possession of all reports. She said that she did not and wished to reiterate the previously stated grounds. The complainant did not extract any item from these previously omitted reports in defence of her contention that she was unfairly dismissed, nor did she identify how their absence impeded her in her case.  So, the absence of the investigation report and the minutes of the disciplinary hearing did not place her in a position from which she could not recover. I therefore cannot but conclude that she was allowed the opportunity to make a full objection on each and every element of the rationale for and procedure used in her dismissal. That there was unjustifiable careless treatment of the complainant and disregard for her entitlements at the earlier stages of the disciplinary process did not deprive the complainant of the rights set out in S.I 146/2000.

In the circumstances of this complaint and based on the evidence, I do not find that the dismissal was unfair.

I do not find this complaint to be well founded.

I do not find this complaint to be well founded.

Unfair dismissal not upheld; Imperfect disciplinary procedure.