ADJ-00036854

Complainant

Respondent

Parties

Denis Kennedy

Attuned Programmes Ireland Limited

Representatives

Self-represented

 Niall Quinn BL 

Act

Complaint Reference No.

Date of Receipt

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

CA-00048117-001

12/01/2022

The respondent is contracted by the HSE to provide social social care workers and to manage care centres for vulnerable adults and those transitioning to more independent living.  The complainant is a social care worker and he commenced working with the respondent on August 29th 2019.  He worked 30 hours a week and his annual salary was around €26,500.

The complainant was assigned to work with a young person with vulnerable mental health who needed a high level of support.  This young person, who I will refer to as “David,” was cared for by the organisation’s staff on a one-to-one basis, apart from between 8.00am and 2.00pm on Mondays to Fridays.  The complainant was dismissed on July 12th 2021, following an investigation into his failure to be present at work for his full shifts, leaving David unattended.  He claims that his dismissal was unfair.

At the opening of the hearing, Mr Quinn raised the fact that, as this complaint was submitted to the WRC on January 12th 2022, it is outside the time limit for which I have jurisdiction to conduct an enquiry.  As a preliminary issue therefore, I must consider if there was reasonable cause for the delay and if I can extend the time limit to 12 months.

Following an investigation into a complaint raised by David about the complainant’s absence from work, an investigation concluded on July 12th 2021 and the complainant was dismissed.  As he submitted this complaint to the WRC on January 12th 2022, he has exceeded the time limit at section 41(6) of the Workplace Relations Act by one day.  Explaining the reason for the delay, the complainant said that his letter of dismissal is dated July 13th, and that he knew that he had six months within which to submit a complaint.  He said that he forgot about the dates, and during the six months, his family had Covid-19.

Considering the delay of one day, I am mindful of the Labour’s Court’s decisions on the issue[1] and the clear authority, based on the definition of a period of time as set out in the Interpretation Act 2005, that the first and last days of a specified period of time are included in the calculation of the period of time.  As the complainant was dismissed on July 12th 2021, this is the first day of six months, which ended on January 11th 2022.  I do not accept as reasonable cause the complainant’s explanation that he forgot about the dates, nor do I accept that the fact that he and his family had Covid-19 was a reasonable excuse for the delay.  A considerable number of complainants to the WRC over the past two years have had Covid-19 and they have submitted their complaints on time.  I am influenced however, by the fact that the letter confirming the complainant’s dismissal was sent to him by email on July 13th 2021, although it is clear that his dismissal was effective from July 12th.  As a delay of one day is the shortest possible delay, and, as the letter of dismissal was issued the day after he was dismissed, for this entirely technical reason, I am prepared to extend the time limit and to find that this complaint has been submitted within the permitted time.

The respondent’s written submission sets out the background their decision to dismiss the complainant. 

The Job of a Social Care Worker

From the date of his commencement in August 2019, the complainant was assigned to work with David, who has a history of acute anxiety, aggression and damage to property.  David was engaged in a structured support regime to assist his transition to more independent living.  The establishment of a routine in a safe, secure and known environment, with a stable and consistent care team was a key element to support this transition.

A copy of David’s individual support plan was included in the respondent’s book of papers.  This set out the key role that the complainant and the other social care workers who were assigned to David played in his life.  This key intervention included support with getting up in the morning, personal hygiene, shopping, mealtimes, socialising, hobbies, interpersonal relationships and family contact as well as preparing for more independent living.  The complainant and the other care workers monitored David’s behaviour, including looking out for signs of self-harm or threats of suicide, consumption of alcohol and specific historic behaviours, which included damage to property.  An individual crisis management plan notes how this vulnerable young adult becomes stressed in unfamiliar places due to social anxiety and how issues can manifest in screaming and banging objects and hitting himself.  The plan documents the fine line between what is considered to be normal behaviour for David, and the tipping point when he becomes irrational and engages in acts of serious assault in response to routine life events.

The complainant and his colleagues provided one to one care to David, apart from between 8.00am and 2.00pm on weekdays.  As he was supported by only one social care worker at a time, and not by a team of staff, he relied on his support staff to be in attendance. 

David’s Complaint

Shortly after 1.00pm on April 27th 2021, David phoned the senior care lead, Mr Mark Costello, and told him that the complainant was due in work at 2.00pm, but he had phoned him to say that he wouldn’t be in and that other staff would be organised.  He told Mr Costello that he was frustrated by the complainant arriving at work late and leaving early over the previous three weeks.  He told Mr Costello that the complainant had been working an overnight when he woke him at 7.00am to say that he had to leave to bring his son to school.

Mr Costello informed the respondent’s residential services manager and complaints officer, Ms Tara Gaffney, about David’s complaint.  He advised her that the complainant’s timesheets had not recorded his late arrivals and early departures.

On May 17th, Ms Gaffney telephoned the complainant and told him about David’s complaint.  The complainant confirmed that he had been late for work on three occasions and that he had phoned David to let him know.  He said that, on one occasion, he was 30 minutes late when he was stopped at a Garda checkpoint.  He had a handbrake problem that resulted in him being 15 minutes late and on another occasion, he was 45 minutes late when he got a flat tyre.  The complainant said that he had tried to contact Mr Costello on one of these occasions, but not on each occasion.  He said that David had spoken to him about being late and that he had told him that, if it continued, he would make a complaint.  The complainant said that he was two hours late for work on May 16th when there was a crash on the motorway.

In the conversation with Ms Gaffney on May 16th, the complainant told her that he had left work twice before the end of his shift.  Ms Gaffney commented that this had not been noted on the complainant’s timesheets.  She said that if the complainant had to leave work early, the team leader needs to put a plan in place to support David, and that the complainant needs to request permission from his team leader before he leaves early.

Disciplinary Process

On May 31st 2021, having received a short report from Ms Gaffney, the chief executive, Mr McSherry, decided that a disciplinary investigation should be carried out and he appointed the respondent’s social care manager, Ms Claire O’Hara, to conduct the investigation.  On June 4th, the complainant was suspended, pending the outcome of the investigation.  He was invited to a meeting on June 16th and provided with a copy of David’s complaint, the terms of reference for the investigation and a copy of the disciplinary and investigation procedures.  He was advised that he could be accompanied at the meeting.  The allegations to be investigated were as follows:

(i)             That the complainant endangered the safety of David, a vulnerable young person, when he left him unattended on three occasions, without notifying a manager;

(ii)           That he failed to carry out the duties associated with this role as a social care worker with the respondent, on three occasions;

(iii)          That he failed to inform his manager that he would not be present for his full shift, and that, in this way, he did not allow for alternative planning to support the young person.

At the meeting on June 16th, the complainant denied deliberately falsifying his timesheets, but he accepted that he had made errors on them.  He acknowledged that he was late for work on three occasions and that he had left work early on three other occasions but he said that there were valid reasons for his lateness and his early departures.  He said that he had a flat tyre, that his handbrake was malfunctioning, he had to drop his child to school, there was a Garda checkpoint, and one evening, he had to do the shopping.

Ms O’Hara concluded that the complainant had failed to carry out his duties and that David was placed at risk on the occasions when he was left unattended due to the complainant’s absence and his failure to notify anyone in management.  Ms O’Hara did not find that the complainant deliberately falsified his timesheets.

A disciplinary hearing was held on June 29th, chaired by the chief executive, Mr McSherry and held over Zoom.  The complainant was accompanied by a colleague.  At the meeting, the complainant said that he felt he had been singled out without any evidence.  He said that he felt that he had no support from management and that he had been stressed out and worried about losing his job.  He said that he felt that his line manager encouraged David to make a complaint about him.  He said that he didn’t want to continue working in the organisation.

The allegations about his failure to arrive at work on time and his early departures were put to the complainant for his response.  He agreed with the facts as they were presented, but he said that he left only five minutes early on one occasion.  He said that he felt that the issues being investigated were minor and that they should not have been subject to the disciplinary procedure.  Mr McSherry accepted that the errors on the complainant’s timesheets was an oversight.

On July 12th, Mr McSherry re-convened the disciplinary meeting, with the specific purpose of informing the complainant of the outcome.  Again, the meeting took place remotely.  Mr McSherry concluded that the complainant had left David unattended on a number of occasions and that he had failed to inform management that he was not at work.  Mr McSherry noted that the complainant said that he had to leave work on more than one occasion because his wife wasn’t well; however, this fact had not been mentioned until the disciplinary process had started.  Due to the seriousness of his conduct, Mr McSherry informed the complainant that his employment was terminated with immediate effect.

Dismissal on the Ground of Conduct

It is the respondent’s case that the complainant’s dismissal was not unfair.  His role as a social care worker was to provide support to a vulnerable adult in line with that person’s individual support plan.  A high level of trust was placed in him to support the young person and any deviation from his plan should have been reported to a manager.  As the sole care worker on duty, an even higher reliance of trust is placed on the employee.

The investigation found that the complainant left a vulnerable young adult unattended on a number of occasions.  The complainant admitted that this had occurred.  He did not use the appropriate channels to report his absences.  The complainant was aware that the young person had an extensive history of self-harm.  The respondent was commissioned by the HSE to provide structured, stable and consistent support to this young adult from 2.00pm to 8.00am to assist with his transition to more independent living.  By leaving him unattended without the knowledge of the management, there was a risk that an incident of self-harm could have occurred.  A further aggravating factor was the fact that the complainant was aware that a deviation from the normal routine was known by the complainant to be a potential trigger for self-harm.

The falsification of the timesheets masked the reality that David was not being supported at times when support should have been in place.  Managers could not have known about the gaps in support.

In reaching the decision to dismiss the complainant, the respondent considered the fundamental breakdown in trust between them and the complainant.  Without a foundation of trust, they decided that it was not reasonable or appropriate or, in David’s best interests to continue to employ the complainant.

Alternative roles for the complainant were considered.  The respondent also manages a children’s service where at least one other member of staff would be on duty with a site manager; however, the complainant’s qualifications were not a match for a role in that service.

The Complainant’s Appeal Against his Dismissal

On July 13th, the complainant sent an email to Mr McSherry to appeal against the decision to dismiss him.  He said that his line manager and other senior managers caused him to be late on more than one occasion (separate from the occasions under investigation) when he had to meet them on his way to work to get vouchers for David’s shopping.  He also said that he received only one session of supervision between August 2020 and May 2021.  He said that David was permitted to be alone in the house with his girlfriend and that this was comparable to him not being present.  His appeal was considered by the deputy social care manager, Ms Leanne McMahon, at a meeting on July 23rd.  Ms McMahon was satisfied that there were no arguments advanced and no new evidence provided by the complainant that could overturn the finding that his conduct was not grossly negligent, did not put the young person at risk or that the decision to dismiss was unreasonable.

Evidence of the Decision-maker, Mr Mark McSherry

In his evidence at the hearing, Mr McSherry described the young person, who we referred to as “David,” and the particular vulnerabilities being managed by the organisation.  He said that, having been in the respondent’s care for a number of years, David is now living independently in his own home.  During his period of care, David had very poor engagement with this family and the social care staff were a substitute for his family.  David had three full-time and one part-time carers and Mr McSherry said that a lot of trust was invested in them.  The social care workers were required to keep an hour-by-hour record of activities with David, and to notify management of any significant events. 

Referring to the specific complaint about the complainant, Mr McSherry said that a manager visited David’s house and he told him that the complainant was arriving late and leaving early.  David said that he had spoken to the complainant about this, but that he was now telling the management.  Mr McSherry gave evidence about the various meetings that took place during the disciplinary process.  When the outcome of the investigation meeting on June 16th was that the complainant had left David unattended, Mr McSherry requested him to attend a disciplinary hearing.  He said that the decision to terminate his employment was not reached lightly and that the organisation never dismissed anyone before the complainant was dismissed.  The young person in question was at extreme risk of self-harm and that this was known to the complainant.  Mr McSherry said that he was most concerned by the complainant’s failure to acknowledge the seriousness of his actions and the need to notify someone in management if he wasn’t going to be at work.  Mr McSherry said that supports are in place for staff who are in difficulty and that they place the care of employees on an equal footing with the care of residents.

Cross-examining of Mr McSherry

The complainant was not represented and he cross-examined Mr McSherry to the best of his ability.  He said that, in his view, he was qualified to work in the children’s service.  Mr McSherry disagreed and said that, for employees in that service, a social science degree is required, or 50% of employees may have a qualification in social care practice or applied social studies.  Mr McSherry said that the complainant does not have an equivalent qualification.  He said that he is qualified to work with people with disabilities.

Following the complainant’s evidence, Mr Quinn re-examined Mr McSherry.  Mr McSherry said that if he was aware that a social care worker wasn’t in attendance with a young person, he could contact the young person himself and ensure that all was well.  He said that he has a vague memory of meeting the complainant to give him shopping vouchers.  He said that the most important thing for young people like David is reliability and routine.

The Reasonableness and Procedural Fairness of the Respondent’s Decision

Asserting that the decision to dismiss the complainant was reasonable, in the respondent’s submission, Mr Quinn referred to what is now conventionally known as “the British Leyland test” and the band of reasonable responses available to an employer.  He quoted the precedent at the Circuit Court of Allied Irish Bank plc v Purcell[2] where Judge Linnane expressly approved the British Leyland test which requires the adjudicator to ask if it was reasonably open to the employer to make the decision it made.  With regard to how the test should be viewed, Mr Justice Linnane held that,

“It is clear that it is not for the EAT or this court to ask whether it would dismiss in the circumstances or substitute its view for the employer’s view but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the court would have taken.”

The respondent’s submission also referred to the 1982 decision of the former Employment Appeals Tribunal in Bunyan v United Dominions Trust (Ireland) Limited[3] where the chairman endorsed the view that,

“…the fairness or unfairness of dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business would have behaved.  The Tribunal therefore, does not decide the question whether or not, on the evidence before it, the employee should be dismissed.  The decision has been taken, and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded.”

Considering the issue of procedural fairness, the respondent submitted that section 6(1) of the Unfair Dismissals Act makes clear that regard must be had “to all the circumstances” and not to one circumstance to the exclusion of all others.  The respondent referred to the case at the High Court of Loftus and Healy v An Bord Telecom[4] where the Court found that it was not a question of whether the ex-employees were deprived of procedures to which they were entitled, but,

“..whether the denial to them of such procedures is such that the defendant must be deemed to have failed to establish [the basis of its dismissal] as the whole or the main reason for and justifying their dismissal.”

Summary by Mr Quinn

Concluding the respondent’s case that the dismissal of the complainant was not unfair, Mr Quinn said that it was in the complainant’s control to alert a manager to his absences. 

The complainant gave evidence that he had only one session of supervision; however, the respondent has a record of three sessions, in October and November 2019 and in August 2020.  Copies of the notes of these meetings were included in the respondent’s book of papers.

The complainant suggested that the young person didn’t want to make a complaint.  Mr Quinn said that it is a fundamental aspect of the care of vulnerable people that they are free to complain about the service being provided to them.

Mr McSherry reiterated that the issue that gave him most concern about the complainant’s conduct was his failure to acknowledge that the young man, who we referred to as David, was at risk.  Mr McSherry said that 24-hour telephone support is available for staff, and the complainant failed to make a phone call.  Mr McSherry acknowledged that the care of the complainant’s wife must be his priority, but he said that his failure to inform a manager that he was leaving David unattended is the problem.

Before the hearing, the complainant submitted around 20 documents related to the disciplinary process that led to his dismissal.  Following the hearing on August 29th 2022, he submitted evidence of text messages which show that he looked for cover for his shifts in March 2021 when his wife was in hospital and also when she was diagnosed with Covid-19.  He also provided a copy of a reference he received from the respondent and a copy of a contract which shows that he started a new job in September 2021, meaning that he was out of work for 12 weeks.  He did not provide a written submission setting out his response to his employer’s decision to dismiss him and I have based my conclusions on his evidence at the hearing, supported by the documents he provided in advance of and after the hearing.

Evidence of the Complainant

The complainant said that it is his belief that the procedure for minor offences was not followed by his employer.  He believes that he should have been issued with a verbal or written warning.  He referred to the respondent’s disciplinary procedure which provides that, in the first instance, the response to misconduct is generally a verbal and then a written warning.

The complainant argued that the young person who complained about him did not want to complain and that he was encouraged to do so by the senior care lead, Mr Costello.  He claims that there was no danger to the young person when he left and he said that the respondent’s report gives a distorted view of the young person.

The complainant said that, on two occasions when his shift finished at 8.00am, he left work at 7.40am and he left at 7.30am once.  He said that he had to leave to take care of his wife and son.  His wife was ill and not able to look after their son.  The complainant submitted text messages that show that he tried to get cover when he needed to take care of his wife.  By not leaving work early, he would have endangered his son’s safety.  He said that he had no time to advise his employer that he had to leave.

The complainant said that he had the benefit of only one supervision session between August 2020 and May 2021. 

He said that he met Mr McSherry on his way to work one morning to get shopping vouchers.  Mr McSherry knew that the young person was left on his own.  He said that Mr McSherry said that it was okay to keep in touch with him.  He said that he was told to leave the house when the young person’s girlfriend was visiting him.  He thinks that this wasn’t safe.

It is the complainant’s view that David was not in danger when he wasn’t there.  There were several occasions when he had to meet a manager and leave him on his own.

At the conclusion of his evidence, the complainant acknowledged that he received more than three sessions of supervision, but he said that he only had one session in the year before he was dismissed.  He said that the job can be very lonely and that there is no one to bounce things off.  He said that supervision is key.

The complainant said that there was a problem with his email, which was only resolved on the day that he received a copy of David’s complaint.

The Legal Framework

Section 6(1) of the Unfair Dismissals Act 1977 – 2015 (“the Act”) provides 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)(b) of the Act provides that;

“…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 …the conduct of the employee.”

The burden of proof rests with the respondent to establish the substantial grounds justifying the dismissal of the complainant in this case.  On the second page of the letter of dismissal, Mr McSherry summarised the conduct that led to his decision to dismiss the complainant:

“1.  Throughout the investigation it was found that you did leave the young person unattended on a number of occasions and this is something you admitted to.  Never did you use the appropriate channels to report you would not be present for your shift.  It was noted that you informed management during this process that your wife was unwell however, this was not disclosed until the process had begun and management were not made aware of this previously as a reason for you not being present on for your full shift.

“2.  The young person has an extensive history of self-harm of which you are aware.  We are commissioned by the HSE to provide support to the vulnerable young person between the hours of 2pm-8am.  You left the vulnerable young person unattended during those hours on a number of occasions which you admitted.  We were not aware of your absence and could have been dealing with a much more serious issue if an incident occurred with no staff member present during the hours of 2pm-8am.”

Was it Reasonable to Dismiss the Complainant?

I note the reference in the employer’s submission to the decision in Allied Irish Bank v Purcell and the opinion of Mr Justice Linnane that it is not for the EAT, and now, not for me, as the adjudicator, to consider if the complainant should have been dismissed, but to ask if it was reasonably open to the respondent to make the decision it made.  I am mindful also of the view of the chairman of the EAT, Mr Donal Hamilton in the Bunyan decision, and my role to test the decision of the respondent against what a reasonable employer would have done. 

There was no dispute about the fact that the complainant arrived late for work on three occasions, and on another three occasions, he left early.  I accept that the complainant had an explanation for his absences, although the failed handbrake and the flat tyre seem to be unfortunate coincidences.  When his wife was ill, it was not unreasonable for him to leave work to take his son to school.  The problem is not that the complainant was late or had to leave early, but that he decided that he did not have to inform his manager that he wasn’t at work.  The effect of this was that his manager assumed that he was at work.

While he was dismissed for leaving the young man in his care unattended, it is apparent to me that, for Mr McSherry, it was the complainant’s attitude to this conduct as a minor issue that was critical to his decision to dismiss him.  The complainant repeated this view at the hearing, asserting that a verbal or a written warning would have been more appropriate.  I find myself in agreement with Mr McSherry, who, as the chief executive, has a right to expect employees to be at work during their scheduled hours, and to report instances when, for whatever reason, they are not able to attend.  For the job in question, the care of a vulnerable young person, being present in the workplace is more critical than in most jobs, particularly when there is no immediate replacement available. 

I therefore disagree with the complainant’s position that leaving the young person unattended was a minor offence.  It is my view that his failure to see things from his employer’s perspective, and to appreciate the risk of his absence on the young man in his care, meant that the trust that the employer is entitled to have in this employee was entirely severed.

The complainant argued that, by agreement with his manager he was absent from the house where he cared for the young man, when he had to meet his manager or the chief executive to collect shopping vouchers.  He also argued that David was unsupervised in the house with his girlfriend.  The difference with regard to these examples is that the managers were aware that the complainant was not in the house with David at these times, and he was not there with permission.  Also, David was informed that he would not be there, giving the young man the option to ask for support.  The complainant failed to understand, or, at least, he gave the impression that he did not understand the difference between the management knowing that David was on his own, and assuming that he was in the care of the complainant.

I reject the complainant’s assertion that his manager encouraged the young person to make a complaint.  No evidence was submitted about why the manager might have been motivated to do so and the manager’s report stated that the young person himself spoke to the complainant about his absences and that he told him he would complain.  Even if the young person had not made a complaint, I find that, on discovering that the complainant was absent from work without informing a manager, the employer was entitled to conduct a disciplinary investigation and to reach the conclusion that was reached.

Having regard to the specific circumstances of this case and, taking my authority from the Bunyan decision, I find that another reasonable employer in the social care sector would have reached the same conclusion and, for the reasons set out above, I find that the dismissal of the complainant was not unfair.

Was the Process Fair?

Apart from his assertion that it would have been more appropriate to issue him with a lesser sanction, the complainant made no argument that the procedure followed by the respondent in the lead-up to his dismissal was unfair.   I find that, in all respects, the procedure was consistent with the standard of fairness set out in the WRC Code of Practice on Grievance and Disciplinary Procedures in Statutory Instrument 146 of 2000 and in accordance with the respondent’s own disciplinary procedures.

I have found that the decision of the respondent to dismiss the complainant in this case was reasonable and proportionate and I also find that the process was fair.  On this basis, I have decided that the complaint under the Unfair Dismissals Act is not well founded.

Complaint submitted outside the time limit, conduct, social care worker, not unfair