Complainant

Respondent

Parties

Alan  Kealy

St John Of God Community Services Clg

Complainant

Respondent

Anonymised Parties

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Representatives

Conor Hannaway SHRC Limited

Cait Lynch IBEC

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-00048146-001

13/01/2022

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and his representative gave their evidence under affirmation, four witnesses for the respondent gave their evidence under affirmation.  All witnesses provided testimony and were cross-examined.

At the start of the hearing, the parties indicated that this matter should be anonymised so as the patient at the centre of the incident should not be identified.  The complainant indicated at the close of the hearing that he did not believe that the decision should be anonymised. 

Written submissions were made by the parties up to an including 4 October 2023 which were taken into account by the Adjudicator.

The respondent submitted that the complainant was fairly dismissed and that it complied with the Act when it applied the correct procedure to the dismissal. It submitted that there was a full and thorough external investigation which upheld the allegations made against the complainant and resulted in a disciplinary process and subsequent dismissal of the complainant. It was further submitted that there was a separate appeal hearing and the complainants appeal was not upheld. The respondent submitted that the complainant was dismissed for gross misconduct when his actions destroyed the respondents trust and confidence in him.

The respondent submitted that it followed the Code of Practice and afforded representation to the complainant and that the evidence in its entirety was considered in all respects.  The respondent noted that a consistent and uniform approach was taken in relation to this complaint and that the complainant is entirely responsible for his own dismissal.

Notwithstanding its submissions, the respondent is opposed to reinstatement or re-engagement if the adjudicator considers the dismissal to be unfair.

The respondent's first witness was a social care worker.   She noted that she filled out a preliminary incident form and spoke to the person in charge in relation to the incident regarding the complainant. She noted that she subsequently gave a written statement to be passed on to the gardai. The witness took time to reflect upon making an incident report but understood that the safety of the resident was paramount. She noted that the delay between the incident taking place and reporting of it, some two days, can be accounted for by the fact that she was not working on the day in between. She noted that the resident had a behaviour support plan in place which noted that it may be useful to remove the resident or de-escalate matters but that there were things in the plan relating to restraining the resident.

The witness noted that the investigator was very thorough in examination of the statement and took perhaps two hours asking lots of questions. When asked how often is training on safety policies refreshed, the witness noted that it is refreshed every two or three years.

Under cross examination when asked about the delay in reporting the incident the witness noted that she was extremely busy that day and only reflected on what had happened at the end of the day. When asked why she did not report it on her day off she noted that she wasn't on duty the next day. It was put to her that the Trust in Care policy states that an incident should be recorded on the same day. She was asked had she received training in the Trust in Care policy and responded no, but noted that she did have training in the safeguarding policy.

It was put to her that the policy states that the incident should have been written up as soon as possible so that it is fresh in a person's mind.  It was also put to her that her recall may not have been the best when outlining the incident.  It was noted that the resident had some issues with temperament and a history of property destruction and issues with communication. It was put to the witness that the complainant’s position is that this was not a serious incident.  The witness stated that she thought the resident might have a heart attack, but it was put to her that there was no GP report sought at the time.  It was put to her that, although the resident bruises easily, there were no marks or bruising and it was noted that the incident followed a moment of rage on the part of the resident.  The witness responded that she only reported what she had seen and stated that there was a bear hug involved.  She reiterated that she could only report what she has seen.

The second witness for the respondent was the operations manager who also has oversight of human resources. She noted that the Trust in Care policy is there in support of the person in charge to establish if an incident could have happened.  She noted that there is a low bar outlined in policy to establish whether an incident had happened. She noted that the first issue considered is whether an incident could not have happened, i.e. that the person accused was not in the vicinity. Thereafter there is a graduation in the policy. If an incident could have happened, then the usual option is to go on leave with pay or administrative leave, as happened in this case.

Under cross examination it was put to the witness that the complainant was not surprised that she didn't have training in the Trust in Care policy, that the Person-in-charge put the complainant on administrative leave, and it was also noted that the spectrum of severity was denied in relation to this incident.

The third witness for the respondent was the interim Regional Director of Health. She confirmed that there was usually an investigation report and then a disciplinary hearing if it was warranted.  She noted that she usually meets the parties involved and their representatives. In relation to this investigation, she noted that the complainant was given the opportunity to hear the complaints, to contribute and to discuss the matters arising and to be accompanied.

The witness was involved in the disciplinary hearing, she noted that there was a conclusion of physical abuse in the investigation report and felt that there was no option but to dismiss the complainant. She noted that any physical abuse will lead to dismissal and that there is no scale, physical abuse is just that. She noted that the complainant raised concerns that the investigator didn't get oral evidence from one witness who had since left the employment. The witness noted that an outcome letter was issued and noted the matters that had been considered.

Under cross examination she noted that she took procedures that were followed into consideration and that she had no concerns. It was put to her that the policy requires a medical, physical and psychological assessment of the resident which was not undertaken. It was also put to her that the evidence of the first witness was that the resident suffers from a condition that shows that they bruise easily. She was asked whether the procedures were properly followed and replied that her understanding was that they were followed. The witness noted that the complainant was put on administrative leave until the matter was investigated and noted that the reason for this is to protect the complainant from further allegations. The witness noted that the judgement of the investigation was that there was physical abuse, and that physical abuse is physical abuse. She noted that the disciplinary meeting arrived at the conclusion that this amounted to gross misconduct.

The fourth witness for the respondent was the National Director of Operations. He noted that he allowed the appeal process to go ahead despite it being submitted outside the time limits. He noted that the complainant was written to in advance and was given an opportunity to set out his case. He noted that there was no discussion prior to the hearing with the investigation officer nor the disciplinary officer. He noted that the appeal was a challenging meeting.  He noted that the issue of administrative leave was raised but noted that it was appropriate in the circumstances.  He noted that dismissal was the appropriate outcome, and that the outcome of the process was correct.

Under cross examination he was asked about the severity of the offence but responded that he doesn't believe there is any spectrum of offences. He noted that any form of physical abuse was very serious. He was asked regarding the severity of the sentence and whether mitigation was taken into account at the appeal hearing but noted that a length of services would simply have given the complainant heightened awareness. He noted that the appeal was not a court of law and that he would not be an expert on legal matters.

Respondent Closing Statement:

The respondent noted that when dismissing a person, it was under an obligation to follow the rules of natural justice and fairness. Although not exhaustive, dismissal for a breach of trust falls under the range of options available to a reasonable employer. In this case physical abuse occurred and it absolutely was reasonable for the employer to dismiss the complainant on that basis. Scales of abuse do not exist under any of the policies. The respondent noted that the complainant was afforded his rights at all times and was given time to respond to all matters.

The respondent submitted that should the adjudicator not find in their favour, the remedy sought by the complainant of re-instatement is not appropriate as trust has been undermined. The responded noted that it had acted reasonably at all times. 

The respondent made written submissions on the matter of the complainant’s loss and mitigation of loss in writing following the hearing of the matter.

The complainant submitted that he was unfairly dismissed when the respondent did not follow its Trust and Care policy that it had in place. He submitted that the investigation was not properly conducted and was not sufficiently robust. He submitted that the investigation did not ask highly significant questions and that the treatment of the evidence was an area of concern as the respondent did not properly reconcile the evidence which was in contention between the parties involved in the incident. He noted that in its findings the respondent dismissed the rage incident that had happened in the bedroom and noted that it did not have a bearing on subsequent matters.  However, something must have happened to necessitate the restraint of the client. The complainant submitted that there is no rationale for the conclusions reached by the respondent. He noted that the disciplinary hearing was hostile from the very beginning and that there was no presumption of innocence afforded to him. The respondent seemed to have been predisposed against the complainant.

The complainant noted that he received a phone call but that no mention was made of an allegation of abuse. It was noted that he brought his union representative with him to the meeting with the respondent and was immediately put on administrative leave and given a disciplinary letter. It was noted that he was informed that there was another statement regarding the incident. It was noted that a draught report issued, comments were made in response.  This was followed by a final investigative meeting and report issued arising from that. The complainant noted that only some of his comments were taken into account, specifically the one considering the size of the client who was a man of about 16 or 17 stone weight and was a man who was too large to pull with one hand.

The complainant noted that the investigation report was the foundation for the disciplinary meeting and that nothing other than that report was taken into account.

The complainant noted that he immediately sought to mitigate his loss by working with his brother but that his income was €10,000 less per annum. He also noted that the benefits to which he was entitled working for the respondent would no longer apply. 

The complainant noted that the manner of his termination meant that he could no longer work in his chosen field as his qualifications did not automatically continue following his dismissal and it would take a long period of time, together with financial resources, to build back up those qualifications.

Complainant closing statement:

The complainant submitted that the incident that brought about his dismissal was never properly explored but was simply a box ticking exercise. The respondent relied on the testimony of someone who was not interviewed as part of the investigation process. It was noted that the person who made the original complaint was supposed to make a report on the day of the incident but did not make the complaint for some three days afterwards. The investigator in his report asked the organisation to look at the severity of the charge laid against the complainant. The disciplinary process took the view that this was a case of automatic dismissal, but the complainant submitted that if this process was to result in an automatic dismissal, then he should have had the right to cross examine all witnesses involved in the investigation and disciplinary process. However, he was denied his request to do so.

The complainant noted finally that he would not like the complaint to be anonymised, as no patient confidentiality was breached nor was the patient likely to be identified.

Over the course of the evidence given by the witnesses it became apparent that an incident occurred in the residential facility whereby an allegation was put forward that one of the caregivers (the complainant) grabbed hold of a patient's foot and pulled him. The complainant disputes this allegation and only one of the two people who put forward the allegation was interviewed. In the investigation stage the complainant was not provided with the opportunity to cross examine the witnesses.

Although there may have been some deficiency in the investigation stage, the final investigation report concluded that there was physical restraint of the patient and that this was consistent with the definition of abuse contained in the Trust in Care policy. The independent investigator found that there was physical restraint used by the complainant which was consistent with the definition of emotional/psychological abuse contained in that policy document. He noted where the finding placed the abuse, within the context of the policy. He noted that this his finding related to a single incident and there was no evidence of this being anything other than an isolated or one-off incident. He went on to state that the finding whereby the complainant grabbed and pulled the patient by the foot is consistent with a form of non-accidental injury that causes harm or could cause harm to the patient.

The findings of the investigator are important because the Trust in Care policy feeds into the disciplinary policy.  This policy normally operates on a progressive basis with four different stages: oral warning, written warning, final written warning, and dismissal or action short of dismissal. This policy provides for the first two stages to be bypassed where the employee’s performance, conduct or attendance warrant such action.  This procedure includes abuse/non accidental injury, as one of the possible examples of behaviours.  The policy also outlines gross misconduct for which the progressive stages of this disciplinary procedure would not apply. This includes violent behaviour towards a member of staff, client or member of the public.

From the evidence given by the witness who conducted the disciplinary meeting, it was obvious that she differed from the independent investigator and considered that what had happened amounted to violent behaviour. She repeatedly used the phrase “physical abuse is physical abuse” and noted that this had to result in dismissal and that there was no leeway to consider somebody's employment record in mitigation.  The person who held the disciplinary hearing made-up her mind that the offence which the complainant was accused of, amounted to gross misconduct. This was not borne out by the investigation report.

From the evidence put forward in relation to the appeal, it became apparent that the person conducting the appeal did not re-read the investigation report in sufficient detail so as to understand that the finding fell within the progressive procedure rather than amounting to a summary dismissal offence (i.e., gross misconduct).

The complainant also submitted that dismissals are deemed to be unfair unless there are substantive grounds justifying dismissal. He noted that even in such cases, the process followed must be fair. He referred to a handwritten note in relation the High Court case of Frizzel v New Ross Credit Union 1997 wherein it was said: “………put very simply, principles of natural justice must be unequivocally applied.”

The complainant also noted the case of Borges v The Fitness to Practice Committee and noted that it established a right to cross examine during the investigation process in specific circumstances which result in denying him the right to work in his chosen field. He submitted that essentially if the finding of the investigative process automatically results in serious disciplinary action, then the right to cross examine witnesses exists. 

The complainant noted that in the case to hand, the respondent declared that there are no degrees of abuse and that there are no mitigating circumstances. He submitted that the findings of the investigation report, automatically result in a dismissal and the case falls within the cases envisaged in Borges above and he should, accordingly, have been allowed to cross examine any witnesses that were relied upon.

The respondent submitted a number of times that the disciplinary process was conducted in accordance with the principals of fairness and natural justice.  The respondent sought to draw the Adjudication Officers attention to the case of UDD2216 and outlined that the Labour Court considered whether or not the respondent in the case acted in a reasonable manner in coming to the decision to dismiss. The respondent cited that following extract from that judgement:

The Court in its deliberations noted that the test for reasonableness was set out in Noritake(Irl)Ltd v Kenna(UD 88/1983) as follows:

1) Did the company believe that the employee misconducted himself as alleged?

2) if so, did the company have reasonable grounds to sustain that belief?

3) if so, was the penalty of dismissal proportionate to the alleged misconduct?

The issue was further considered in Bank of Ireland v Reilly [2015] IEHC 241, where Noonan J. noted that s6(7) of the Act makes it clear that a court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. However,

“that is not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned”

The Labour Courts deliberations did not stop at that point however, and they continued as follows:

In this case it is not disputed that an incident occurred. The Complainant in his submission does not raise any procedural issues with the process that could be considered to be fatal.

The witness who was involved with the appeal hearing gave evidence of considering options other than dismissal. In his evidence he set out why taking into account the nature of the incident and the service of the Complainant that following consideration of the other options they were not viable.

The Court is of the view that, applying the ‘ratio’ of the cases cited above to the facts of this case, the decision to dismiss falls within the “range of reasonable responses of a reasonable employer” and therefore, the Court determines that the decision to dismiss was fair.

In the current case, more than one witness gave evidence that no sanction other than dismissal was ever considered in relation to this case.  The complainant did raise an issue with the process that, given that only dismissal was the only option being considered, could be considered fatal in that he was not provided with the opportunity to cross examine key witnesses.  It also appears that the process did not interview all the available witnesses.  Additionally, it appears that the disciplinary meeting does not appear to have had due regard to the conclusions of the investigative process.  Finally, it appears that the appeal process did not consider the original investigation outcome in sufficient detail to realise that there was a jump from the conclusion of the investigation of a lower-level infraction to the higher-level infraction concluded by the disciplinary meeting.

As for the test in Noritake, the respondent believed that the complainant misconducted himself, but I find that this belief does not seem to have been supported by the investigation process. No medical assessment was conducted as provided for in the procedure, and no evidence was given that their resident suffered from bruising as a result of the complainant restraining him, notwithstanding that evidence was given that the resident suffered from a condition which resulted in him bruising easily. I find that the respondent did not have reasonable grounds to sustain its belief.  Finally, I find that the penalty of dismissal was disproportionate, particularly where it resulted in the complainant being unable to pursue any employment in this field, where he had 15 years of experience.

The respondents’ own policies are sufficiently clear as to indicate that this matter falls within the progressive disciplinary structure rather than through summary dismissal. The final three paragraphs of the investigation report make direct reference to the breach found by the investigator and places the breach squarely within the progressive disciplinary structure under the respondents own disciplinary procedure.

Accordingly, I find that the complainant was unfairly dismissed.

The complainant sought reinstatement, however the respondent indicated that there was a breach of trust in this case and that this would not be appropriate.  Notwithstanding the respondents’ reservations about reinstatement, in a situation where the complainant has been penalised for an offence which he was never found to have committed, despite an investigation which concluded otherwise, the only remedy available to me to clear the complainant's good name is to direct that he be reinstated to his position with effect from the date of his dismissal, the complainant should be paid any back pay to that date and his pension entitlements and professional accreditation should not reflect any break in service.

On the issue of anonymisation, having regard to all the written and oral evidence put forward by the parties, and in accordance with the principals of open justice, I am not satisfied that any patient would be identified and accordingly, I am naming the parties.

Having regard to all the written and oral evidence presented to me in relation to this complaint, my decision is that the complainant was unfairly dismissed, and I direct that he be reinstated to the position he held prior to his dismissal with effect from the date of his unfair dismissal.  The complainant should be paid any back pay due to him and his pension entitlements and professional accreditation should not reflect any break in service.

Unfair dismissal – procedures not followed – no allowed to cross examine investigation witnesses – no remedy other than dismissal considered – reinstatement - restoration of complainant to role only manner to rectify unfair dismissal