ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00041041
Parties:
| Complainant | Respondent |
Anonymised Parties | Complainant | Respondent |
Representatives | Michael Kinsley BL instructed by M.E. Hanahoe Solicitors | Tom Mallon BL instructed by Black & Company Solicitors |
Complaint:
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-00052254-001 | 15/08/2022 |
Date of Adjudication Hearing: 09/03/2023 &23/05/2023
Workplace Relations Commission Adjudication Officer: Kara Turner
Procedure:
On 15 August 2022, the complainant referred a claim under the Unfair Dismissals Acts 1977-2015 to the Workplace Relations Commission.
In accordance with section 8 of the Unfair Dismissals Acts 1977 – 2015,following the referral of the claim to me by the Director General, I inquired into the claim and gave the parties an opportunity to be heard by me and to present to me any evidence and information relevant to the complaints.
The adjudication hearing took place in Lansdowne House on 9 March 2023 and 23 May 2023. Written submissions were received from both parties prior to the hearing. Two witnesses gave sworn evidence on behalf of the respondent on the first hearing day of 9 March 2023. A third witness for the respondent and the complainant gave sworn evidence on the second hearing day and the hearing concluded with oral submissions by the legal representatives on the evidence and relevant law.
The hearing was conducted in private and I have anonymised this decision due to the existence of special circumstances. The hearing of this case involved discussion of allegations made against the complainant by a third party which are extremely sensitive in nature. There are criminal proceedings sub judice. In circumstances where disclosure may have an impact on the rights of those involved in, and/or prejudice, criminal proceedings, I determined that special circumstances existed to conduct a private hearing, and exist, to anonymise this decision. For clarity, notwithstanding the measures taken to ensure that identifying information in respect of the parties is not published, I have fully taken account of the submissions made to me regarding the particular circumstances of the parties in coming to my decision.
I have fully considered the oral evidence tendered by the parties, the written and oral submissions on behalf of the parties and all documentation provided to me.
Background:
The complainant was employed by the respondent from April 2009 to February 2022. The respondent terminated the complainant’s employment on grounds of serious misconduct. The respondent disputed the complainant’s claim of unfair dismissal. |
Summary of Complainant’s Case:
The complainant was employed by the respondent from 2009 until his dismissal in February 2022. The complainant was informed by An Garda Síochana in 2019 that historical complaints had been made against him by a third party. The complainant immediately informed the respondent of the allegations made against him and provided some background information. The complainant was shocked and upset to be the subject of the allegations. The complaints do not in any way relate to the respondent organisation and are alleged to have occurred during a period that predates the complainant’s employment with the respondent. The complainant fully denies any wrongdoing on his part. The complainant was upfront with the respondent from the time the complainant was informed by An Garda Síochana that historical complaints had been made against him. The assertion that the complainant failed to inform the respondent of the complaints or that the respondent was not aware of the nature of the complaints is rejected. The presence of a charge or allegation on a garda vetting report did not render the employment contract inoperable. The respondent’s own policies on garda vetting do not support this proposition. The complainant was garda vetted and there were options, other than dismissal, available to the respondent to deal with issues arising from the garda vetting report. The dismissal of the complainant arising from unproven allegations is a breach of his constitutional right to the presumption of innocence. The respondent failed to identify the exact basis for the complainant’s dismissal and cannot, in such circumstances, discharge the burden of proof on it under the Unfair Dismissals Acts 1977-2015 An investigation, disciplinary and appeal process conducted by the respondent was in breach of fair procedures and in breach of the express terms of the complainant’s contract of employment and respondent’s disciplinary procedures. The investigation and disciplinary process was conducted in a pre-determined and biased manner; the decision to dismiss was taken without proper assessment of available evidence and was procedurally flawed in circumstances where the alleged misconduct on the part of the complainant was unclear and the respondent’s CEO acted as complainant, investigator and decision maker. The appeal board acted in a biased and unfair manner in dealing with the complainant’s appeal; the complainant submitted comprehensive grounds of appeal and made detailed submissions which were not considered or addressed by the appeal board. The appeal process was inadequate and in breach of the complainant’s right to fair procedures. The complainant has been unemployed since February 2022. His mitigation efforts have been seriously hampered by the garda vetting. He has spent his whole career working in the area. He fully denies the accusations against him. It was submitted that reinstatement is the only adequate and appropriate form of redress. Case-law was cited in support of the submissions on behalf of the complainant. Summary of the complainant’s evidence On 4 August 2019, two garda detectives called to the complainant’s house and informed him that a complaint of inappropriate behaviour had been made against him by a named individual. The complainant understood the allegations to be serious in nature and the term used of inappropriate behaviour to mean violation of another person. The detectives could not discuss the matter any further with the complainant, he was asked to attend at a garda station and advised to get a solicitor. The complainant was extremely distressed and worried. The complainant telephoned his line manager (“AB”) on 5 August and asked to meet with her. At a meeting that afternoon, the complainant told AB what had happened the previous day and what he had been told by the detectives regarding a historical complaint of inappropriate behaviour against him. The complainant told AB he was going to see a solicitor the next day. He was clear about the nature of the inappropriate behaviour alleged. At a meeting with AB and the HR manager on 8 August, the complainant provided some background information. He did not have any information regarding the allegations other than having been told it concerned inappropriate behaviour. The complainant agreed that he was not aware of the specific details of the allegations at the time. The complainant did not object to the respondent placing him on leave or the respondent’s referral of the matter to Tusla. The complainant was familiar with the Tusla referral process and their involvement in referrals in the child protection area. The complainant did not want to put the respondent organisation at risk; he loved his job and working for the respondent. The complainant realised how serious this was for his job. The complainant was very distressed, anxious and fearful. Both the HR manager and AB saw him get very upset. He attended his doctor as he was feeling panic and anxiety, and was traumatised. He didn’t feel like he was coping very well. The complainant was certified fit to return to work in October 2019. The Tusla investigation was ongoing. The complainant was removed from frontline practice and returned to work in a temporary office-based role working on projects. It was very different to the complainant’s normal role as centre manager. The complainant met with Tusla in November 2019 as part of their investigation. On being informed by Tusla of its determination that the allegations against him were unfounded, the complainant telephoned the respondent’s HR manager before he told anyone else about the outcome. The complainant sent the HR manager a photo of the Tusla outcome letter. He asked about returning to his normal role and this duly happened in early December 2019. The complainant had no contact from An Garda Síochana from November 2019 until August 2021 when he was contacted by a detective about his vetting application. There had been no communication at all about the allegations until the complainant’s garda vetting was requested. The complainant had been hoping the complaints would be dismissed or thrown out, and he felt that his garda vetting would be sorted out. The complainant told the respondent about the letter he received from An Garda Síochana in August 2021. The complainant did not avail of the opportunity provided by the National Vetting Bureau to make a submission in relation to the information being assessed. He knew the letter was going to be sent to the respondent and he spoke with AB and the HR manager and told them that he wasn’t making a submission. The complainant went to a solicitor with the letter. The complainant telephoned the CEO regarding the letter, and he expressed how upsetting it was to see reference to abuse beside his name. This was the first time the allegation had been stated as such. There were meetings between the complainant and respondent in September 2021 and January 2022 in relation to the complainant’s outstanding garda vetting. The complainant had no interaction with An Garda Siochana between September 2021 and January 2022 when he was informed on 14 January 2022 that he was to be charged with offences. This came out of the blue for the complainant. He was given no further information other than when to attend at a garda station the following week. The complainant telephoned the respondent’s CEO on 17 January to inform her that he was to be charged. The complainant did not recall saying to the CEO that he was being charged with the same issues that Tusla had investigated. The complainant had a meeting with the CEO and HR manager on 21 January 2022 where he outlined to them his attendance at a garda station and court and having been charged with offences. The complainant found it very difficult to talk about. He recalled the CEO expressing concern about the complainant’s garda vetting still not having come through. The complainant sensed from this meeting that things were going in a particular direction with regards his employment and he knew that it was very serious. The complainant did not take issue with the decision taken to suspend him with pay and understood the safeguarding basis both for himself and the organisation. The complainant was unable to clarify the matter of concern, referred to in the letter confirming his suspension. There was no contact of note between the complainant and the respondent organisation between 21 January and 8 February 2022. The complainant understood the meeting on 15 February 2022 to be to discuss the garda vetting disclosure and the respondent’s concern that the complainant had misled it, and that following on from that meeting there might be an investigation. The complainant was devastated on receipt of the letter because he knew it was a disciplinary process. The complainant felt from the meeting of 15 February that he was moving into a fait accompli situation. He was giving all the information he could but there was a very different feeling and he felt that a decision would be made against him. The complainant had attempted to have the HR manager or AB accompany him to the meeting but he received a text from the HR manager advising him to contact the CEO. The complainant’s brother-in-law accompanied him to the meeting. Following receipt of the dismissal letter dated 16 February 2022, the complainant was trying to come to terms with the decision and figure out what to do as he had lost the biggest support structure in a very difficult time for him in his life. He lodged an appeal against the dismissal with the assistance of his solicitor. His appeal letter addressed each of the three points from the dismissal letter and raised various issues. The complainant saw this as his last opportunity to save his job and he was trying to address the respondent’s concerns. The complainant was hoping for an outcome that he would be put on a protective notice short of dismissal. He asked that he be allowed have his solicitor accompany him to the appeal hearing on 22 April 2022. The complainant felt the appeals process was cosmetic and therefore he was expecting the outcome whereby the decision to dismiss was upheld. Prior to the appeal hearing, there had been an internal notification that the complainant had left the organisation with immediate effect, and the complainant had been asked to return all property of the respondent. The complainant described the effect of the decision on him; he felt like his career was ruined and his life was in disarray. He loved his work and job with the respondent. He has not been employed since the dismissal and does not know how he will be able to secure future employment. He has spent his whole career working in the professional area. Under cross-examination, the complainant confirmed that it was like a bombshell went off for him in 2019 on being informed by An Garda Síochana of the allegations. The terminology used by An Garda Síochana was that of inappropriate behaviour. The complainant was asked about the background information he had spoken to his line manager about on 5 August 2019; this was information provided by the complainant and not An Garda Síochana. He could not expand on what the inappropriate behaviour allegation referred to. When he attended at the garda station, there was no reference to the nature of the offences. The complainant accepted that the respondent’s report to Tusla of inappropriate behaviour was the correct report to make based on the available information and that the respondent did not have any control over, or involvement in, Tusla’s investigation. The complainant agreed that the allegations Tusla assessed concerned the background information the complainant had provided to the respondent and were not in the same terms as the subsequent criminal charges. The complainant accepted that the specified information referred to in the August 2021 letter from the garda vetting unit was totally different and on a different scale to the background information the subject of the Tusla assessment. The complainant also accepted that he did not relay the detail of the specified information in the August 2021 letter to the respondent. The complainant agreed that the garda vetting received would not be acceptable for someone reporting to him in a centre and would result in someone not getting hired. The complainant has not sought work since the dismissal. He has struggled to deal with the situation. Explaining how he left the respondent’s employment is a problem. He has been in receipt of illness benefit at different times; including from January 2023 to May 2023. It was not yet clear when he would be fit for work. In 2022, he received unemployment benefit for approximately 5 months and illness benefit. |
Summary of Respondent’s Case:
The respondent is a not-for-profit public service organisation which provides a range of support services to families and children. All employees in the respondent organisation are subject to garda vetting. Garda vetting notifications record prior and pending events. The respondent must maintain the highest standards in relation to child protection and safeguarding of children. Any violation of child protection guidelines, the respondent’s safeguarding obligations, or garda vetting protocols are addressed in the strongest possible terms. A garda vetting disclosure in respect of the complainant, received by the respondent in February 2022, recorded specified information in relation to pending charges. The complainant was dismissed by the respondent on 16 February 2022 because of unsatisfactory garda vetting; a garda vetting disclosure of a number of very serious charges pending and concern that the complainant had misled, or failed to disclose, by advising the respondent that the charges related to minor allegations. The respondent ultimately concluded the complainant’s position within the organisation was untenable due to the garda vetting disclosure. The decision to dismiss was taken after a disciplinary investigation and hearing and was the subject of an appeal process. The respondent adhered to its policies and procedures and at all times complied fully with the principles of natural justice. The respondent sought to reach a balanced and reasonable decision considering all stakeholders. The respondent’s decision was reasonable having regard to the nature of the organisation, the services it provides, the service-users and the type of charges pending against the complainant. The respondent’s case was that an organisation such as the respondent could not maintain a person in employment who had been charged and convicted of the type of offences with which the complainant was charged, or against whom such offences were pending. The respondent had to have regard to pending events recorded on a garda vetting disclosure. The pending charges undermined trust and confidence and constituted a substantial reason for the complainant’s dismissal. The respondent referred to Delaney v Aer Lingus (Ireland) Limited [2021] IEHC 72 in support of its position that the complainant’s continued employment had become untenable. Summary of AB’s evidence AB was a senior manager in the respondent organisation at the time relevant to this claim. In 2019, she was responsible for the supervision of centre managers, and had responsibility for child protection within and outside the organisation. She was the complainant’s line manager in 2019. The complainant contacted AB on the bank holiday, 5 August 2019, and asked to meet with her as soon as possible as something had blown up in his personal life. The witness had no idea what it was about and travelled to meet with the complainant that evening. AB was alone when she met the complainant and his wife. The witness had no idea about what she was to be told. The complainant advised that An Garda Síochana had called to his house and informed him that allegations of inappropriate behaviour had made against him by an individual known to the complainant. The complainant provided some background information. The only detail provided by the complainant regarding the allegations was the term inappropriate behaviour. AB didn’t know what it was about. Given the nature of the complainant’s work as a centre manager, there needed to be a meeting with regards a safety plan. The witness had a meeting the following day with the HR manager and the CEO. AB and the HR manager met with the complainant on 8 August 2019. The complainant provided a bit more detail by way of background information. The organisation had to do a retrospective abuse report based on the issues outlined. The complainant said he was going to attend his doctor. AB wrote to the complainant subsequently by way of follow-up on what was agreed at the meeting, including to confirm that that she had submitted a retrospective abuse referral to Tusla. AB did not see a copy of the outcome letter from Tusla and was not involved in the decision to dismiss. After the complainant returned to work from certified sick leave and annual leave, he did project work for a couple of months. The complainant was promoted in January 2020. Under cross-examination, AB said that she did not have a particular role in relation to child protection rather all senior managers had a child protection role. The witness agreed the complainant was very upset on disclosing to her the inappropriate behaviour allegations in August 2019. In relation to the 8 August 2019 meeting and the placement of the complainant on authorised absence, the witness said she knew there was a safety risk. The complainant was put on authorised absence to make sure there was no risk whatsoever given the profile of the respondent’s service users. The report to Tusla detailed what the complainant had told her. Summary of HR Manager’s evidence The HR manager confirmed he attended a meeting with the complainant on 8 August 2019, the purpose of which was to discuss a safety plan. Detail of the inappropriate behaviour allegations was limited to background information provided by the complainant. The witness had a meeting with the complainant on 14 October 2019, on the complainant being deemed fit to return to work. The complainant returned to work in the respondent’s management office as a safeguarding measure, namely the removal of the complainant from frontline service. In November 2019, the complainant sent the witness a photo of Tusla’s letter to the complainant with the outcome of their assessment. On receipt of this, the witness notified the Senior Management Team of Tusla’s conclusion that the allegations against the complainant were unfounded. The witness was not aware of Tusla having spoken to anyone in the course of their assessment. His understanding was that Tusla were tasked to investigate allegations of inappropriate behaviour. The witness was asked in cross-examination about the 2019 allegations and being aware of the nature of the alleged inappropriate behaviour; the witness disagreed because he said this would be pre-judging. When asked why otherwise would the organisation have considered safeguarding measures necessary, the witness said the suspicion was there. The witness was not asked to give evidence in the disciplinary hearing. The witness agreed that the complainant’s actions were not consistent with someone trying to conceal these matters from the organisation. Summary of CEO’s evidence The CEO outlined the respondent’s function, operations, stakeholders and service users. The complainant was a centre manager in 2019. The witness received a report from AB on AB’s meeting of 5 August 2019 with the complainant. A decision was taken to place the complainant on safeguarding or protective leave. This was not a punitive sanction; its purpose was to support the complainant and to safeguard the organisation, the complainant and service users. AB’s report to Tusla was based on what the complainant had reported to her. The respondent did not have a role in the Tusla investigation process. The witness was aware of correspondence from AB to the complainant which referred to the complainant having advised that he was not aware of the specific details of the allegations against him. In late November/December 2019, the complainant informed the HR manager that Tusla had concluded its investigation and found that the allegations made against him were unfounded. Tusla did not formally tell the respondent the outcome of its investigation. The total period of protective leave and the complainant undertaking office-based project work was approximately 4 months. During the 4 months, there had been periods of certified sick leave and annual leave. All protective measures ceased from December 2019. A senior manager vacancy arose, and the CEO asked the complainant to temporarily cover the role from January 2020. The complainant was formally offered the role in September 2020. The senior manager role involved the complainant having responsibility for operations and management of nine centres and upholding child protection across the organisation. The complainant’s garda vetting was due for renewal in May 2021. The HR manager started the vetting process for the complainant. There were some delays, but the process was completed and garda vetting was applied for the following month. The respondent requires garda vetting for all staff in accordance with a service level agreement. Everybody in the respondent organisation is garda vetted. The respondent must ensure its child protection standards are beyond reproach, therefore the senior management team must consider a vetting disclosure with anything of concern. The information in a garda vetting disclosure is considered in light of the line of work the person might do. Garda vetting in and of itself is not what it’s about. The witness outlined the garda vetting process. At the time, it was generally taking 2-4 weeks for the garda vetting outcome to issue but it wasn’t a quick turnaround in the complainant’s case. On 24 August 2021, the complainant contacted the witness to advise that he had received a letter from the Garda Vetting Unit which said that it was considering relevant information for disclosure to his employer and giving the complainant time to respond. The witness asked the complainant about the information. There was another conversation between the witness and the complainant on 14 September 2021. The witness asked the complainant if he could share the letter he had received from the Garda Vetting Unit. The complainant said he would ask his solicitor for a copy. At a meeting on 12 January 2022, the witness raised with the complainant concern that the organisation had still not received garda vetting for the complainant. The witness again asked the complainant for sight of the letter he had received from the Garda Vetting Unit. Safeguarding measures were put in place at this meeting whereby the complainant was not to visit centres and was to remain working remotely. The complainant never provided the letter dated 17 August 2021 from An Garda Síochana in relation to his vetting application. The first time the witness saw this letter was when it was received with the complainant’s submission to the Workplace Relations Commission. The witness described the information in the 17 August 2021 letter as a very different disclosure to what the complainant had referred to in 2019, and it was absolutely not the same as what the complainant had disclosed. Had this information been brought to the respondent’s attention, it would have responded differently, it would have had to investigate the matter and place the complainant on safeguarding leave. These would have been considered as new allegations. In a telephone conversation on 17 January 2022, the complainant informed the witness that he was to be charged on matters related to his outstanding garda vetting. The witness wrote to the complainant on the same date placing him on paid authorised absence and requiring him to attend a meeting on 21 January 2022 to provide an update. The 21 January meeting took place remotely. The complainant advised that he was to face charges linked to allegations previously investigated by Tusla. The witness acknowledged that the complainant was saying he was being honest and transparent. The witness informed the complainant that the appropriate course of action was that he be suspended on full pay pending an investigation. The garda vetting disclosure for the complainant came through after the meeting on 21 January 2022. It detailed a number of counts and court dates. This was the first time the actual level of the allegations was disclosed to the witness. By correspondence to the complainant dated 8 February 2022, the witness referred to the garda vetting received and outlined very serious concerns regarding the disclosure of very serious offences pending against the complainant and that the complainant had misled or failed to disclose to the organisation by advising the charges related to one or two relatively minor issues that were reviewed by Tusla. This correspondence informed the complainant that the witness was considering the matter pursuant to the respondent’s disciplinary policy and that the outcome of her investigation could lead to the complainant’s dismissal. Under the disciplinary policy, the CEO is the only person who can consider dismissal. It was important to the respondent to manage the process internally, therefore it was up to the witness to do the investigation. The focus of the witness’ investigation was the garda vetting disclosure and concerns that the complainant misled or failed to disclose by advising the respondent that that charges related to one or two relatively minor issues that were reviewed by Tusla. The complainant made oral submissions at a meeting with the witness on 15 February 2022. The witness did not discuss the matters the subject of her investigation with anyone else following her meeting with the complainant on 15 February. She had all the information regarding the 2019 allegations, contemporaneous notes, emails between the complainant and HR manager, and all of this informed her decision. The witness did not ask anyone else what she should do. The witness confirmed her decision to dismiss in correspondence dated 16 February 2022 to the complainant. The witness stood over her decision and believed it was the right decision to make. The complainant’s appeal of the decision was unsuccessful. Under cross-examination, the witness maintained that the allegations that came to the respondent’s attention in late 2021 and 2022 were new allegations. She did not accept that the respondent’s position on this was inconsistent in light of what the respondent was told in 2019 and the response of the organisation at the time. The complainant’s 2019 disclosure was in relation to inappropriate behaviour and the nature of same was not disclosed. The organisation did not analyse what inappropriate behaviour meant. All it needed to do was take in good faith what was disclosed to it by the complainant. The respondent made a report via the Tusla portal which consisted of what the complainant had disclosed to the respondent. It was a matter for Tusla whether to investigate or not what was reported to it. Following the Tusla conclusion that the allegations were unfounded, the complainant returned to work and the complainant did not report to the respondent any further communications between him and An Garda Síochana from the end of 2019 to summer 2021. In August 2021, the complainant advised that he had received a letter from the Garda vetting unit. The witness did not recall the complainant having referred to the nature of the offences. The witness did not know whether the criminal charges concerned the same matters Tusla had investigated. In response to the assertion that these were exactly the allegations Tulsa had investigated, the witness said it only had the information the complainant had given to them, the witness did not know what Tusla’s investigation had involved. The witness accepted that the complainant had not objected to being suspended when he informed the respondent of the criminal charges. In relation to the initiation of the disciplinary process and the serious concern that the complainant had failed to disclose the full extent of the charges, the witness said that the complainant was aware of information in August 2021, on receipt of the communication from the garda vetting unit but did not advise the respondent of that. The witness did not interview or meet with anyone other than the complainant in her investigation and disciplinary process. The witness outlined the documentation she had before her in making her decision. The witness did not seek information from Tusla as to what they had investigated. The witness did not make a report to Tusla as part of her investigation. In the circumstances of the case, the witness was the appropriate and appointed person to conduct the investigation and take the disciplinary decision to dismiss; the complainant reported to the witness and there were sensitive matters involved. The witness did not accept that it was fundamentally unfair that she was the person who decided there was an issue; investigated the issue and made a decision on the issue. The meeting of 15 February 2022 comprised of two parts; the investigation and disciplinary meeting. There was no report from the investigation. The letter of 16 February 2022 issued in respect of the meeting. With respect to the inclusion of a third matter of concern in her letter of 16 February, this was indicated as a concern to the complainant previously when he was placed on authorised leave. The witness stood over her decision to dismiss; she had fully considered and weighed up the evidence and facts from her investigation and formed a reasonable belief on the matters. Alternatives to dismissal, such as suspension or placement on restricted duties, were not appropriate because the organisation did not have satisfactory vetting for the complainant. The witness disputed that she had no regard to the presumption of innocence in respect of the complainant; the criminal charges were completely different from the respondent’s internal investigation. On re-examination the witness was referred to the notes of the disciplinary meeting and asked about when she showed the complainant the garda vetting disclosure; the complainant confirmed the first time he had heard about the nature of the offences was on 19 January 2022 and that he had no knowledge prior to that date of what he was being charged with. The witness confirmed for me that she was not involved in the 2019 referral to Tusla. |
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Findings and Conclusions:
The complainant was summarily dismissed on 16 February 2022 following a disciplinary process in relation to a garda vetting disclosure and a failure to disclose all relevant information to the respondent. The respondent considered the actions of the complainant to amount to serious misconduct. The complainant appealed the decision to dismiss, which appeal was unsuccessful. In August 2019, the complainant advised the respondent that he had been informed by An Garda Síochana of an allegation of inappropriate behaviour made against him by a third party, which allegation is unrelated to the respondent organisation and alleged to have occurred during a period that predates the complainant’s employment with the respondent. The respondent put in place safeguarding measures on foot of this disclosure by the complainant. The respondent made a retrospective abuse report to Tusla in accordance with its policies and procedures and Children First legislation. Tusla determined the allegations against the complainant were unfounded. On the respondent being so informed, the safeguarding measures were removed, and the complainant returned to normal duties. The complainant was promoted in a temporary capacity in January 2020; this promotion was confirmed on a permanent basis in September 2020. The complainant’s garda vetting fell due for renewal in May 2021. The complainant received a letter from the National Vetting Bureau of An Garda Síochana in August 2021 concerning his garda vetting application. The letter outlined specified information concerning allegations against the complainant, which was being considered by the Vetting Bureau for the purpose of determining whether it should be disclosed to the respondent. The complainant was given an opportunity to make a submission to the National Vetting Bureau in relation to the information being assessed, which he did not avail of. The complainant advised the CEO he had received a letter from the Garda vetting unit informing him that it was considering making a disclosure to the respondent. The respondent told the complainant to take the day as authorised absence so that he could contact his solicitor for advice. The respondent asked the complainant on two occasions subsequently, 14 September 2021 and 12 January 2022, for sight of the August 2021 letter from the National Vetting Bureau. The respondent put in place safeguarding measures from 12 January 2022 with regards the complainant carrying out his role. The complainant contacted the respondent’s CEO on 17 January 2022 to advise that he had been informed by An Garda Síochana that he was to be charged with offences. The complainant was put on paid authorised leave. The complainant provided an update by telephone on 20 January and referred to the category of the offence during this telephone call. At a meeting on 21 January, the complainant was suspended on full pay pending an investigation. The respondent subsequently received a garda vetting disclosure which detailed a number of criminal charges pending against the complainant along with the nature of the offence. The respondent advised the complainant by correspondence dated 8 February 2022 of its serious concerns regarding the garda vetting disclosure and the complainant having misled or failed to disclose to the respondent by advising that the charges related to one or two relatively minor issues which were reviewed by Tusla, and that the matter was being considered under the respondent’s disciplinary policy. The complainant availed of the opportunity to make oral submissions at a meeting with the CEO on 15 February 2022. The complainant was informed of the CEO’s decision to dismiss by correspondence dated 16 February 2022. The complainant availed of the right to appeal the dismissal decision. He was advised on 15 March 2022 of the appeal process. The process included the CEO’s response to the complainant’s grounds of appeal, the complainant’s written submissions and a meeting with the complainant. By correspondence dated 26 April 2022, the chairperson of the respondent’s board informed the complainant of the appeal committee’s decision not to uphold his appeal. The Relevant Law Section 6(1) of the Unfair Dismissals Acts 1977 – 2015 (the “Acts”) provides as follows:- “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 Acts deems for the purposes of the Acts a dismissal resulting wholly or mainly from the conduct of the employee, not to be an unfair dismissal. In accordance with section 6(6) of the Acts, it is for the employer to show that the dismissal resulted wholly or mainly from the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) of the Acts provides that in determining whether a dismissal is unfair, regard may be had:- “(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 …” This claim and my adjudication concern the complainant’s dismissal on 16 February 2022 and the grounds for that dismissal. The right of appeal was expressed to be in relation to why the complainant believed the disciplinary action taken was either inappropriate or too severe. The appeal process outlined to the complainant in March 2022 was of a paper-based review, although I note there was subsequently a meeting with the complainant to ensure that he was satisfied that all relevant information was before the appeal committee for consideration. The committee deliberated and considered the CEO’s decision to be both proportionate and appropriate. The complainant’s appeal did not operate to suspend the dismissal decision. I further note the submission on behalf of the complainant in relation to the inadequacy of the appeal process and decision of the appeal committee. In the foregoing circumstances, it is the dismissal decision at first instance that is the subject of this adjudication. The burden of proof rests with the respondent to establish the substantial grounds justifying the dismissal of the complainant. The disciplinary process initiated by the respondent in February 2022 was stated to be in respect of two matters of serious concern to the respondent: (i) the garda vetting disclosure of a number of very serious offences pending against the complainant, and (ii) concern that the complainant misled or failed to disclose to the organisation by advising that the charges related to the one or two relatively minor issues which were reviewed by Tusla. The CEO’s decision to dismiss was by reference to three matters of concern: (iii) no current satisfactory garda vetting in place, (iv) the garda vetting disclosure of a number of very serious charges pending against the complainant, and (v) concern that the complainant misled or failed to disclose to the organisation by advising that the charges related to the one or two relatively minor issues which were reviewed by Tusla. It is clear from the CEO’s letter of dismissal that in coming to the decision to dismiss, regard was had to the nature of the charges pending, the garda vetting received and the complainant’s disclosure to the respondent. The letter stated that the complainant was summarily dismissed as his actions amounted to serious misconduct. How the reasons and grounds for dismissal were formulated by the respondent differed in the letter of dismissal, during the appeal process and in its defence of the unfair dismissal claim. The respondent’s concern and finding that the complainant failed to disclose relevant information in the circumstances of this case may reasonably be considered to relate to the complainant’s conduct. The concerns and findings regarding satisfactory garda vetting and the garda vetting disclosure were presented as substantial grounds justifying his dismissal. The respondent’s defence to the claim was essentially that the dismissal was warranted where the complainant’s position and continued employment with the respondent was untenable in circumstances where it did not have satisfactory garda vetting for the complainant. I have considered the decision of the High Court in Delaney v Aer Lingus (Ireland) Limited [2021] IEHC 72 but do not find it to have a bearing on this case. The judgement concerned the plaintiff’s application for various interlocutory injunctions restraining the defendant from giving effect to his purported dismissal and directing payment of his salary until the trial of the action. The judgement addressed the plaintiff’s arguments in relation to the terms of his employment and that his dismissal was by reason of misconduct and found that the plaintiff had failed to establish a strong case that was likely to succeed at the hearing of the action. In this case however, the respondent relied on the complainant’s conduct as a reason for his dismissal and the dismissal was not based solely on a requirement to have satisfactory vetting. A further distinguishing feature is that the respondent reviewed the vetting disclosure received and determined it unsatisfactory, whereas in Delaney the plaintiff’s garda vetting resulted in a third party not issuing the plaintiff with an airside pass, which was needed to fulfil his role as a member of cabin crew with the defendant. My role is to assess the respondent’s decision to dismiss and its reasonableness in the circumstances. The vetting disclosure received by the respondent in February 2022 outlined a number of serious charges against the complainant. The CEO described the charges as being of such a serious nature and the disclosure of same made the complainant’s continued employment impossible given the work of the organisation. The respondent’s vetting policy does not expressly address the situation arising in this case, namely a disclosure of offences with case pending. It does however provide that where there is a garda vetting disclosure of conviction/s relating to a current employee, it will be addressed by the Senior Management Team (“SMT”). I accept that the respondent required the complainant to be garda vetted and note from the introduction to the employee handbook that following the vetting policy contained in the handbook was a condition of the complainant’s employment. I have reviewed the relevant section of the handbook and it is clear that the respondent requires all staff to be garda vetted prior to taking up employment and for employees to have their garda vetting renewed at least every three years. The respondent’s evidence was that this requirement applied to all staff in the organisation and the section in the handbook supports this. I also accept the respondent’s submission that the garda vetting outcome must be reviewed and determined satisfactory. If it were the case that the requirement was limited to undergoing vetting, it would render the requirement meaningless. The handbook discusses garda vetting prior to a person commencing employment and provides that the SMT will review the garda clearance received and determine whether it is suitable to the position applied for. Whilst the terms “garda clearance” and “garda vetting” appear to be used interchangeably throughout the section, I am satisfied from a reading of the entirety of the section that the appropriate term is garda vetting. I accept that it is a priority for the organisation to have satisfactory garda vetting in an effort to remove risk to service users, clients and the organisation, particularly so having regard to the nature of organisation’s work and the profile of its service users. I cannot however find that the respondent’s decision to dismiss in the circumstances was reasonable for the following reasons. The complainant’s garda vetting was due for renewal in May 2021. There was no updated garda vetting in place for the complainant from May 2021 until February 2022. By reference to the respondent’s own garda vetting policy, this was an issue. The complainant advised the respondent in August 2021 that the garda vetting unit had informed him it was considering making a disclosure to the respondent. Information is disclosed to an employer by An Garda Síochana where it is necessary, proportionate and reasonable in the circumstances for the protection of children and/or vulnerable persons. It was not until January 2022 that the respondent, by reason of the garda vetting policy not being met, required the complainant to remain working remotely and not to attend at centres. The respondent’s CEO determined the complainant’s vetting to be unsatisfactory on foot of an investigation and disciplinary process. I consider this to be problematic where the respondent was considering unproven charges and in circumstances where it had previously put in place safeguarding measures for the complainant in not dissimilar circumstances. In addition the respondent’s vetting policy provided for convictions to be addressed by the SMT, and there was no reference in the policy to the SMT addressing a vetting disclosure issue under the disciplinary procedures. In relation to the safeguarding measures previously applied, the respondent sought to distinguish how it dealt with the 2019 allegation on the basis that what was disclosed to it in 2019 was not the same or as serious as the 2022 garda vetting notification, and that in 2019 the complainant had garda vetting. This reasoning does not make sense to me. The organisation had in place updated vetting for the complainant in 2019, it was satisfactory at the time it was provided but the complainant then disclosed to the respondent that An Garda Síochana had informed him of allegations and he was asked to make a statement. Whilst I am satisfied that there was no detail or information disclosed or available to the respondent regarding the 2019 allegations, in my opinion this lack of information could be even greater cause for concern in that the respondent did not know what it was dealing with. What the respondent was aware of in 2019 was that An Garda Síochana was involved, a report had to be made to Tusla and the complainant presented in a very vulnerable state on foot of the allegation. The respondent immediately placed the complainant on authorised leave. I am satisfied that the respondent could not have thought the 2019 allegations were trivial in nature. It was conceded in evidence that the respondent had its suspicions as to what the allegations related to. Accordingly, I consider the 2019 circumstances of disclosure to have been the same or similar to the circumstances of the 2022 vetting disclosure notification. The complainant maintains his innocence in relation to the offences with which he is charged, and he held the presumption of innocence during the respondent’s investigation and disciplinary procedures and on the date of dismissal. I accept that the respondent’s investigation was separate from the court process facing the complainant. However, I am not satisfied, as was submitted, that the respondent’s investigation did not assess anything to do with the court charges. A concern on the part of the respondent was that the garda vetting disclosed a number of very serious offences pending. The dismissal letter referred to this concern and an additional concern that the organisation did not have satisfactory garda vetting in place for the complainant. This inconsistency, the reference in the dismissal letter to the complainant’s actions amounting to serious misconduct and the fact that the garda vetting disclosure was addressed by way of an investigation and disciplinary process, rather than by the SMT, are indicative in my view of a dismissal based on the nature and gravity of the charges against the complainant. The respondent did not, and could not, investigate or determine the charges outlined in the vetting disclosure, however the dismissal was based on the nature of the criminal charges faced by the complainant. An unsatisfactory garda vetting disclosure, by reference to charges pending, should not have been addressed as a conduct issue on the part of the complainant. At the hearing, the parties differed in their submissions and evidence on the import of the complainant’s disclosure to the respondent in August 2019, the complainant’s knowledge in August 2021 of the nature of the allegations, and his failure to disclose to the respondent material information regarding his vetting and the criminal charges pending against him. In this regard, I note that the decision to dismiss was ultimately based on the CEO’s belief that the complainant had failed to disclose relevant information to the respondent despite indicating he would; it was not based on a finding or belief that the complainant had misled the organisation. It is not possible for me to determine what Tusla investigated nor is it necessary for me to do so. The parties differed as to when the respondent was made aware of the nature of the allegations against the complainant. It appears to me that the 2019 allegations were sidelined by the background information provided by the complainant at the time. The complainant was given detail of the allegations against him by way of the specified information in the August 2021 letter from the National Vetting Bureau. I am satisfied that he did not convey to the respondent in August 2021 the type of detail contained in the specified information section of the letter. I am satisfied that the respondent became aware of the number, and specifics, of the offences with which the complainant was charged on receipt of the vetting disclosure in February 2022. I find, from my review of the disciplinary and appeal process documentation, that the CEO’s belief that the complainant failed to disclose relevant information to the respondent was in respect of information the complainant became aware of on 19 January 2022 on being charged and did not share with the respondent, and of which the respondent became aware on receipt of the garda vetting disclosure on 2 February 2022. The respondent was not at this stage aware of the content of the letter of 17 August 2021 from the National Vetting Bureau to the complainant, although I accept that the fact the complainant had received a letter from the Bureau could have legitimately been considered by the respondent given what ultimately issued to it by way of vetting disclosure. It is relevant to recall that the complainant had been placed on authorised absence on 17 January 2022 for the purpose of dealing with criminal charges, of which he had just been advised. I note that in a telephone call with the respondent’s HR manager on 20 January, the complainant referred to a specific offence category to which the charges related. I further note that it was at a meeting the following day, 21 January 2022, attended by the complainant, the HR manager and CEO, that the CEO informed the complainant that the correct course of action was to suspend the complainant on full pay pending an investigation. Whilst the respondent may not have become aware of the full extent and technical nature of the charges until the garda vetting was received on 2 February 2022, I am satisfied on the evidence before me that the respondent was aware from the complainant on 20/21 January 2022 that the allegations and charges were serious in nature. A reasonable belief the complainant had not disclosed all relevant information may have amounted to a disciplinary breach, but it did not warrant the disciplinary sanction of dismissal. I am not satisfied the decision to dismiss was within the band of reasonable responses so that the respondent can dislodge the presumption that the dismissal was unfair. There was no reference in the letter dated 8 February 2022 initiating the disciplinary process, the disciplinary hearing or the decision to dismiss to lesser sanctions, dismissal was the only option expressed. There was also no evidence presented by the respondent in this case of a lesser sanction having been considered by it. I accept the submission that there were other options open to the respondent, including suspension and the implementation of safeguarding measures. This is what occurred in 2019 when there was no information available about the allegations made against the complainant. I note also the fact that the complainant held a more frontline role in 2019 to that which he held at the time of his dismissal. I therefore find that the complainant’s dismissal was unreasonable and substantively unfair. Procedural fairness In determining this case, I have considered it appropriate, pursuant to s.6(7) of the Acts, to have regard to the reasonableness or otherwise of the respondent’s conduct in relation to the dismissal. It was submitted on behalf of the complainant that the procedures invoked by the respondent in relation to its investigation and disciplinary process were flawed. I have very carefully considered the process followed by the respondent and cannot find that it accorded with the basic tenets of fair procedures. A letter dated 21 January 2022 suspended the complainant with full pay in line with the respondent’s disciplinary procedures. It was stated that the duration of the suspension was for as long as it took for the matter to be concluded or to complete the investigation. The letter indicates an investigation into the substance of a matter of concern but does not state or clarify what the matter of concern is. It is unclear to me exactly what was being investigated on 21 January 2022. The letter dated 8 February 2022 informing the complainant of the initiation of the disciplinary policy details two matters of serious concern, one of which is a concern that the complainant misled or failed to disclose to the organisation by advising that the charges related to the one or two relatively minor issues reviewed by Tusla. Following the detail of the concerns is included the statement “clearly, in the circumstances you should have advised us of the full extent of the charges”, which calls into question a fair and impartial determination of the issue. The meeting of 15 February transpired to be a conjoined investigation and disciplinary meeting however this was not clear in advance of the meeting. It was reasonable to infer from the 8 February communication that the meeting of 15 February was an investigation meeting. I am satisfied that the complainant was not informed that the meeting would be investigative and disciplinary in nature and further note that the respondent’s disciplinary procedures do not provide for same. The dismissal letter issued the day after the investigation and disciplinary meeting and included a third matter of concern, which I note was raised by the CEO in the first part of the meeting as a matter of concern, in addition to the two other concerns. On review of the CEO’s report to the appeal committee dated 31 March 2022, it is clear that the CEO investigated three matters of concern however the complainant was not informed of the third concern in writing in either the letter of 8 February 2022 or in advance of the investigation and disciplinary meeting. A third concern could possibly have been fairly included and addressed through separate investigation and disciplinary meetings. I find that the complainant’s right to a fair and impartial determination of the issues was compromised by the structure of the meetings and that it did not leave scope for the complainant’s submissions to be fully and fairly considered. I further find that the inclusion of a third concern in the course of the investigation and disciplinary meeting meant that this concern was not fairly put to the complainant and that he did not have an opportunity to prepare and respond fully and fairly to the concern. In the circumstances, I find that the complainant’s dismissal was both substantively and procedurally unfair. Redress I have found that the complainant was unfairly dismissed for the reasons set out above and I must consider appropriate redress. Reinstatement was sought on behalf of the complainant however I do not consider either re-instatement or re-engagement to be appropriate redress in the circumstances of this case; the vetting disclosure in February 2022 warranted some form of response or action on the part of the respondent. Section 7(1)(c) of the Acts provides for redress in the form of compensation:- “ (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or (ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances, …” I find that the complainant has incurred financial loss attributable to the dismissal on foot of his dismissal in February 2022. In determining the amount of compensation payable, I have had regard to the matters set out at section 7(2) of the Acts. I acknowledge the complainant’s evidence that he does not know how he will secure future employment. I note also that he was unfit for work from January to May 2023 and did not know on the May hearing date when he would be fit for work. The complainant received social welfare unemployment benefit for a five-month period in 2022. It was submitted on behalf of the complainant that the complainant’s unfitness for work was directly attributable to the actions or conduct of the respondent. I am not satisfied that this has been substantiated. I determine compensation of €32,000.00 to be just and equitable having regard to all the circumstances. This is equivalent to approximately 5 months’ salary. |
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
I decide that the complainant was unfairly dismissed for the reasons set out above and the respondent shall pay to the complainant compensation of €32,000.00.
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Dated: 01-11-2023
Workplace Relations Commission Adjudication Officer: Kara Turner
Key Words:
Unfair Dismissal – Vetting disclosure – Case pending - Conduct - Procedures |