Complainant

Respondent

Anonymised Parties

A childcare worker

A childcare provider

Representatives

  self

William Wall 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-00045698-001

16/08/2021

The Complainant was employed by the Respondent as a childcare team leader. Employment commenced in August 2017 and ended on 17th March 2021.

This complaint was received by the Workplace Relations Commission on 16th August 2021.

Due to the nature of the complaint, I have decided that the published decision should be anonymised.

Background:

1.      The Respondent operates as a childcare facility.

2.     The Complainant was employed as a Team Room Leader Childcare Practitioner from August 2017

3.     The Complainant has taken one claim under the Unfair Dismissals Act,1977.

4.     The Respondent denies this claim.

Factual Background:

1.      The Complainant was employed with the Respondent as a Team Room Leader from August 2017 to March 2021.

2.     The Complainant was provided with an Employment Contract, and employee handbook at the outset of her employment with the company in or around August 2017.

3.     Throughout her employment the Complainant completed numerous trainings in respect of her role including but not limited to:

·       Child Protection

·       Child Safeguarding Awareness Training

·       Fire Safety Awareness

4.     On 15th February 2021 an incident was reported to Ms RD (manager) by acting manager GM. A staff member alleged witnessing the Complainant treat a child, in what the staff member considered an unfair manner, in giving every child a treat, and refusing to give a treat to one child.

5.     The Respondent having received complaints in respect of two separate incidents, reviewed CCTV footage of the Complainant on the day of the alleged incident, 12th February 2021, and came across an incident in which the Complainant appeared to push a distressed child away from her.

6.     A fact-finding meeting in the form of an investigation meeting was held on 4th March 2021 between Ms GM and the Complainant.

7.     By letter dated 8th March 2021, the Complainant was invited to a disciplinary hearing to be held on the 10th March 2021, with Ms RD, Creche Manager. This letter contained details of the allegations of gross misconduct against the Complainant, notified her of the opportunity to answer the allegations, her right to attendance with a trade union representative or colleague, if she so wished, and of the possible outcome.

8.     The allegations against the Complainant were stated as follows:

“• Allegation that on February 5th, 2021, you left a child in a room on their own with partially closed-door constituting maltreatment of the child.

•       Allegation that on 12th February 2021, you pushed a distressed child away from you constituting maltreatment of the child.

•       Allegation that on 12th February 2021, you treated a child unfavourably to other children in terms of giving them sweets as a treat constituting maltreatment of the child.”

9.     The Complainant attended the hearing with Ms X as witness.

10.   On the 17th March 2021, a Zoom meeting was held between the Complainant and Ms RD. The Complainant was informed of the outcome of the disciplinary hearing and notified of the opportunity to appeal the decision.

11.    By letter dated 23rd March 2021, the Complainant notified the Respondent of her intention to appeal the outcome of the disciplinary hearing.

12.   By letter dated 31st March 2021, the Respondent acknowledged receipt of the Complainant’s appeal request.

13.   By letter dated 23rd April 2021, the Respondent invited the Complainant to an appeal hearing to be held on the 26th April 2021. This meeting was rescheduled.

14.   By letter dated 28th April 2021 the Respondent wrote to the Complainant to inform her that the appeal hearing would be held by an independent human resource management company, Graphite HRM.

15.   An appeal hearing was held via Zoom by Ms RC of Graphite HRM, with the Complainant present and Ms SM present as the Complainant’s witness.

16.   A Disciplinary Appeal Outcome report dated 18th May 2021, was issued and sent to the Complainant by letter dated 18th May.

17.   The appeal outcome found the Complainant’s grounds for appeal to be unsubstantiated and upheld the Respondent’s decision to dismiss on the basis of gross misconduct.

18.   The within claim was filed with the WRC on the 16th August 2021.

Legal Submission:

1.       The Respondent relies on section 6 (4) of the Unfair Dismissals Act 1977 – 2015 which states as follows:

“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:

(a)  ……..

(b)  The conduct of the employee

(c)  ……..

(d)  ……..

2.       It is the Respondent’s position that the Complainant was dismissed due to gross misconduct following allegations made against the Complainant on 15th February 2021.

3.       The Respondent asserts that the Complainant was afforded natural justice and fair procedure throughout the disciplinary process.

4.       The Respondent relies on the Employment Appeals Tribunal decision in Hennessy -v- Read & Write Shop Ltd UD 192/1978 which set out the general approach in respect of dismissals for conduct:

“In deciding whether or not the dismissal of the Complainant was unfair we apply a test of reasonableness to

1.      The nature and extent of the enquiry carried out by the respondent prior to the decision to dismiss the Complainant, and

2.      The conclusion arrived at by the respondent that, on the basis of the information resulting from such enquiry, the Complainant should be dismissed.”

5.     In respect of the nature and extent of the enquiry carried out by the Respondent, the Complainant was invited to attend an investigation meeting to address allegations raised. An investigation report was furnished to the Complainant in advance of a hearing whereby the Complainant was determined to have acted in a manner that demonstrated gross misconduct.

6.     The Complainant was then provided with an opportunity to appeal the decision of the Respondent with the Respondent engaging with Graphite HRM Limited in a means of ensuring fair procedures. Respectfully the conclusion of the appeal was to uphold the original decision.

7.     The Respondent submits that the Complainant was informed of the allegations against her at the earliest opportunity and was given the opportunity to reply to the allegations made, and the outcome of the disciplinary process. The Complainant was notified of her right to attend the disciplinary hearing and appeal hearing with a witness of her choosing.

8.     The Respondent replies on the Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) S.I. No. 146 of 2000 insofar as there is no mandatory requirement for the allegations to be set out in writing prior to the presentation of same to the Complainant.

9.     In the High Court decision of Frizelle -v- New Ross Credit Union Ltd [1997] IEHC 137, Flood J set down a list that must be established by the Respondent in order to support their assertions that the dismissal for conduct of the Complainant was fair.

10.   The list set down by Flood J is as follows:

3.    “The Complaint must be a bona fide complaint unrelated to any other agenda of the complainant.

4.    Where the complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

5.    The employee should be interviewed and his or her version noted and furnished to a deciding authority contemporaneously with the complaint and again without comment.

6.      The decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in the light of the explanation offered.

7.      The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.”

11.    It is submitted that in this current matter before the WRC, all the above premises were met by the Respondent and as such the decision to dismiss for conduct was fair in the circumstances.

12.   It is therefore submitted that the Complainant was fairly dismissed and as such, the complaint relating to the alleged unfair dismissal should be struck out and no award made.

13.   Should the Adjudication Officer determine that there may be some procedural issues surrounding the dismissal, which is denied by the Respondent, it is respectfully submitted that such issues do not necessarily negate the fairness of the outcome

14.   It is respectfully submitted in the present case; the Respondent was mandated to treat every allegation of aggressive behaviour towards a child in their care extremely seriously.

15.   As such on the balance of probabilities and the evidence put before the Respondent, the decision to dismiss for gross misconduct was justified.

16.   It is submitted that the Respondent acted reasonably and proportionately in the circumstances of this case.

17.   It is submitted that the Respondent engaged the services of an independent human resource management company in order to ensure the appeal process was carried out in a fair and impartial manner. The Appeal Officer found the Complainant’s grounds for appeal were not substantiated stating at page 9 of the Appeal Outcome Report:

“The defence provided was inadequate and the deliberate mistreatment of the child in question is a serious concern. It was an unnecessary act that had the potential to give rise to serious health and safety concern……

…..The intentional breach of policies in this way is severe and should be treated as such. The CCTV in this case has demonstrated that at a moment in time TM raised her hand to a child’s back causing him to fall forward. It is difficult to undermine the evidence put forward by the CCTV in this case.

….It is acknowledged that there has to date been no previous disciplinary action taken against TM in her nearly four -year tenure with the company, however given the seriousness of the behaviour TM displayed and on the back of the evidence presented the Appeal Officer has not found TM’s grounds substantiated.”

18.   The respondent refers to the decision of Barry v Precision Software Ltd. (UD 624/2005) [2006] 10 JIEC 1801, where the Tribunal said:

“[I]n determining whether the dismissal was unfair or not, section 6(6) of the Unfair Dismissal Act 1977 provides that it will be for the employer to ensure that there were substantial grounds justifying the dismissal… It is not for the Tribunal to intrude into the Respondent's managerial decisions. The Tribunal has to look at what a reasonable employer would do in the circumstances. Neither is it for the Tribunal to consider what sanction it would impose. The Tribunal's function is to decide whether the employer's reaction and sanction came within the range of responses, which a reasonable employer might make”

19.   The respondent also refers to the decision of Allied Irish Banks Plc v Brian Purcell [2012] 23 E.L.R. 189. In this case Linnane J. reinforced the above stating:

“…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.”

20.   The Respondent submits that the investigation into allegations of maltreatment of a child were instigated by not one, but a number of instances where the Complainant had not followed the Respondent’s code of ethics and deliberately chose to isolate and punish a single child. It is submitted that the Respondent’s “reaction and sanction came within the range of responses, which a reasonable employer might make” as was held in Barry v Precision Software above.

21.   The Respondent submits that the welfare of the child is at the centre of this matter and refers to the decision of a Childcare Worker v a Childcare Provider; ADJ- 00028637 where the Adjudicating Officer stated:

“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. …..

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 was just 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 the workplace only allows for interaction and care of children there was no other alternative source of employment for the Complainant.”

22.   The Respondent submits that the safety and welfare of children is at the foremost of the Respondent’s responsibilities. Given the allegations against the Complainant were corroborated, and evidenced by CCTV footage, together with the Complainant’s inability to provide a reasonable explanation for each instance of poor judgement in respect of her treatment of the child, and against the company’s policies, procedures and code of ethics.

23.   It is further submitted that as was found by the Adjudicating Officer in Childcare Worker - v- Childcare Provider, ADJ-28637, “the workplace only allows for interaction and care of children there was no other alternative source of employment for the Complainant” this was also true of the Respondent’s circumstances in respect of alternative employment.

Conclusion:

1.       The Respondent wholly denies that the Complainant was unfairly dismissed.

2.       The Complainant was dismissed following an investigation in allegations of a serious nature, made against her.

3.       The Complainant was afforded the right of appeal to the decision of the disciplinary officer and that appeal subsequently upheld the decision to dismiss.

4.       In light of the above, The Respondent respectfully invites the Adjudication Officer to find that the claim for Unfair Dismissal is not well founded and should fail.

In late February 2021 the Complainant was informed that following some complaints from other staff members. In the course of this investigation the Respondent checked some CCTV footage and formed the opinion that the Complainant was seen to be pushing a child away from her. The Respondent informed the Complainant that this matter would now proceed to a disciplinary process. From that point to the date of her dismissal (17th March 2021) the Complainant continued to work with the child in question without incident.

On 3rd March 2021 an investigation meeting was arranged. Ms GM conducted the investigation and Ms NA was note taker. It should be noted that Ms NA was one of the members of staff who had made a complaint about her. Being questioned about the complaint from Ms NA in front of her was, in the opinion of the Complainant, unprofessional.

When the Complainant asked the investigating officer who had made the complaints the investigating officer refused to tell her. The Complainant reminded the investigating officer that she was entitled to such information.

The Complainant contends that she was given no time to prepare for this meeting and also that she was not informed that it was permissible to be accompanied by a friend or colleague or trade union official at said meeting.

On 4th March Ms GM called the Complainant to a meeting at which Ms GM informed her who had made the complaints. Also, at this meeting the Complainant was given minutes of the meeting from the previous day. The Complainant commented that these minutes contained a number of mistakes. Corrections were made and re-issued to the Complainant on 8th March 2021.

On 8th March 2021 the Complainant received an invitation to a formal disciplinary hearing to answer the following allegations:

1.       She had left a child on their own in a room with a partially closed door.

2.       She had pushed a distressed child away from her.

3.       She had treated a child unfavourably to other children by giving treats to other children.

Complaints 1 and 3 had been made by other staff members and Complaint 2 had been seen on CCTV footage.

The Complainant provided the following explanations:

Complaint 1 – The child was left alone in the room but in the Complainant’s full view at all times. The Complainant had taken all other children from the room as the child allegedly left alone was being violent. No child was left unattended.

Complaint 2 – The Complainant states that she did not push any child. The Complainant contends that when she obtained a copy of the CCTV footage and slowed it down, she can be seen brushing her hand along the child’s back.

Complaint 3 – the Complainant states that she was sure she gave the child a sweet.

On 17th March 2021 a Disciplinary Outcome Meeting was held via Zoom and the Complainant was dismissed.

The Complainant appealed the decision to dismiss her. An independent HR company was asked to hear the appeal.

The independent HR company upheld the Respondent’s decision to dismiss the Complainant.

In Looney and Co Ltd v LooneyUD 843/1984

the Employment Appeals Tribunal stated the following:

‘It is not for the EAT to seek to establish the guilt or innocence of the Complainant nor is it for the EAT to indicate or consider whether we in the employer’s position would have acted as it did in its investigation or concluded as it did or decided as it did, as to do so would be to substitute our own mind and decisions for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decision are to be judged’.

In the instant case the question therefore to be answered is did the Respondent follow the correct procedure and was the Respondent’s decision one which a reasonable employer would have made.

In looking at the process followed by the Respondent I note that the Complainant stated that she was not informed of her right to be accompanied at meetings. This was a mistake on behalf of the Respondent however I do not believe that this should change the outcome.

In one of its final legacy cases the Employment Appeals Tribunal held:

‘What is required of the reasonable employer is to show that s/he had a genuine belief based on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged misconduct and that the sanction of dismissal was not disproportionate’. Abdullah v Tesco Ireland plc UD 1034/2014.

The Respondent has provided the example of a Childcare Worker v a Childcare Provider.

The Respondent submits that the welfare of the child is at the centre of this matter and refers to the decision of a Childcare Worker v a Childcare Provider; ADJ- 00028637 where the Adjudicating Officer stated:

“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. …..

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 was just 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 the workplace only allows for interaction and care of children there was no other alternative source of employment for the Complainant.”

In concluding on this complaint, I do not believe the Complainant was unfairly dismissed and therefore I find the complaint as presented is not well-founded.

In concluding on this complaint, I do not believe the Complainant was unfairly dismissed and therefore I find the complaint as presented is not well-founded.