Worker

Employer

Anonymised Parties

Social Worker

Care Provider

Representatives

Ms. Aine Feeney, SIPTU

Ms. Ciara Ruschitzko, IBEC

Act

Dispute Reference No.

Date of Receipt

Dispute seeking Adjudication under the Industrial Relations Act 1969

CA-00035751

17/04/2020

The Worker commenced employment on 8th October 2018. At all relevant times, the Worker’s title is that of “Social Care Worker”.

On 17th April 2020, the Worker referred the present dispute to the Commission. Herein, she alleged that that the Employer engaged in a procedurally flawed disciplinary process, cumulating in the imposition of an inappropriate sanction. She further maintained her innocence regarding the substantive allegation. By response, the Employer denied these allegations, stating that the process was procedurally fair and that the sanction was appropriate in the circumstances.

A hearing in relation to this matter was convened for, and finalised on, 26th July 2020. The matter was listed alongside a parallel complaint for penalisation under alternative legislation. At the outset, it was agreed that he present dispute would relate to the procedural and substantive aspects of the disciplinary process only and would not relate to any allegation of penalisation.

Both parties issued substantial submissions in advance of the hearing. These submissions were expanded upon at that hearing and contested by the opposing side.

On 6th February 2019, the Worker presented herself for an assigned shift at a premises operated by the Employer. On arrival, the Worker examined the risk assessment for the service user she was assigned to that day. Some aspects outlined therein gave the Worker cause for concern in respect of health and safety issues. In this regard, the Worker was aware that the Employer’s internal procedures stated that when a service user is assigned to a new social worker, the worker should be partnered with an experienced member of the team. The Worker sought to contact her line manager with these concerns, however he did not offer to support her or address these concerns in any meaningful manner. Following this interaction, the Worker spoke with another member of management, who she later discovered was the Director of Operations. Following this conversation, the Worker proceeded to work with the service user for the day.

On 18th February, the Worker was invited to a investigation meeting in respect of a number of allegations. Included amongst these was an allegation that the Worker refused to conduct her role, that she refused to carry out a reasonable management instruction on the morning in question, that she had a lack of regard for management structure and that she unreasonably requested access to senior managers. Following a number of investigation meetings, the Worker was invited to a disciplinary meeting for 2nd September 2019. On 4th October 2019, the Worker received a final written warning in respect of the wrong-doing alleged. The Worker subsequently appealed the same, with the sanction being reduced to a written warning on 10th December 2019.

By submission, the Worker maintained her innocence regarding the substantive allegations. She stated that on the morning in question she attended the service and followed the Respondent’s own procedures. She denied any wrong-doing in relation to the same and stated that neither the Employer nor the service user suffered any form of detriment on foot of her actions. Further to the same, the Worker submitted that the process adopted by the Employer was fundamentally flawed. In particular, she alleged that while the initial investigation report stated that there was no case to answer, this was contradicted by subsequent correspondence that further engaged with the disciplinary process. The Worker submitted that she was not provided with sight of all of the relevant documentation, including reports relating to the service user in question.

On 6th February 2019, the Worker attended for her assigned shift at the Employer’s premises. Upon attendance at the centre, the Worker voiced her opinion that the staffing ratio for a particular service user was not sufficient. On this date the Worker refused to complete her assigned duties until a second worker was assigned to this particular service user. The Worker subsequently spoke with the deputy manager, who in turn spoke with the person in charge. At this point the Worker was informed that the if the Worker felt unsafe, she should leave the centre and she would be paid for the day. When the Worker was informed of this information, she refused to leave the premises and demanded to speak with a more senior member of management. Only upon speaking with the director of operations did the Worker elect to complete her assigned duties for the day.

Thereafter the Worker was invited to an investigation meeting in respect of her refusal to carry out reasonable management instruction and a lack of regard for the management structure within the service. In the course of the investigation, the Worker conceded that if she had consulted the service user’s file she would have been provided with comfort regarding her safety on the day in question. Following a comprehensive process, the Worker was issued with a final written warning in respect of her conduct on the date in question. Following an appeal hearing in relation to the matter, this sanction was reduced to a written warning.

By submission, the Employer submitted that the disciplinary process adopted respected the Worker’s natural and contractual rights. They submitted that following said procedure the wrong-doing alleged was firmly established and that the sanction duly imposed was appropriate in the circumstances.

In the present dispute involves the Worker’s contention that a disciplinary sanction imposed upon her was disproportionate and the process adopted in respect of the same was fundamentally flawed.

The subject matter of the disciplinary procedures arises from the events of the morning of 6th February 2019. On that morning, the Worker attended as scheduled and sought clarity regarding the ratio of care workers for a particular resident. She submits that she was concerned regarding some issues raised in the resident’s care plan. Following a discussion with the deputy manager present at the time, the Worker sought additional information from a further member of management. Thereafter, it is apparent that she completed her duties for the day without further incident.

The operative procedure in relation to such matters states that,

“…where possible, new team members working for the first time should never be assigned to working 1:1 in the Community with any service user”

And,

“…where possible, new team members should be assigned 2:1 in the first instance and furthermore, they should always be partnered with an experienced member of the team”.

The first point to note in relation to the same is the somewhat confusing mixture of conditional and absolute language within the section. From a plain reading of the section, it is not at all clear whether a new member of the team “should never” be assigned 1:1 or whether this is to be avoided “where possible”. Notwithstanding the same, it is apparent that on the morning in question, the Worker was a new team member and she was being assigned on a 1:1 basis. In such circumstances it is entirely reasonable for the Worker to query the same and to seek clarity in relation to the position. When a 1:1 assignment arises, the section states that the line manager “must contact the director of operations to seek guidance”. On the morning in question, it is apparent that the Worker sought guidance from her line manager. Thereafter, the Worker was put in contact with the Operations Manager in respect of the issue. Having regard to the same, the only apparent breach of this procedure is that the Worker, as opposed to the line manager, contacted the Operations Director to seek clarity.

Following the above-mentioned events, the Worker was invited to an investigation meeting in respect of no fewer than five separate allegations. Whilst some of these are fairly clear, others are somewhat vague in nature. In particular, the allegation that the Worker made “unreasonable requests for access to senior managers, demands to speak directly with directors and your ongoing expectations with regards to work shifts” is a cause for concern. This allegation appears to relate to an series of ongoing breaches on the part of the Worker, without the same being particularised. In this regard, it is not clear whether the allegations related to the events of the morning in question of the Worker conduct over a longer period of time. The matter is further confused upon consideration of the statement of the Operations Director. This statement, which appears to be the catalyst for the entire disciplinary process, opens with,

“I am aware that there has been a number of different complaints from different centres in relation to this lady. Can I get an outline of what has been done with this lady following these complaints.”

The statement closes with,

“I’m aware this lady has been an issue in an number of centres and I feel she is a risk to us as whom (sic) demands to speak to DOO re staffing ratios”.

It would appear that the allegation above stems from these statements. Throughout the process the allegations obliquely referred to above were not particularised or put to the Worker in any meaningful fashion. On foot of the same, it is apparent that the Worker did not have an opportunity to properly contest and defend these allegations.

In addition to the foregoing, having reviewed the relevant material in relation to this matter, it is apparent that the sanction imposed was disproportionate to the misconduct alleged. It is apparent that the Worker sought to abide by the Employer’s own rules in relation to staffing ratios. Such rules stipulate that an Operation Director must be contacted in certain situations. The only apparent deviation from this policy was that the Worker contacted the Operations Director herself rather than going through the person-in-charge. This being the case, the sanction of final written warning, or indeed written warning, is an entirely inappropriate outcome in the circumstances.

Having regard to the foregoing, I find that the disciplinary process was substantively and procedurally unfair. In circumstances whereby sanction imposed on foot of the same has long since expired, I recommend that the Employer pay the Worker the sum of €4,000 in settlement of the dispute.

I recommend in favour of the Worker. I recommend that the Employer pays the Worker the sum of €4,000 in settlement of the dispute.

Disciplinary process, sanction, disproportionate, allegation