Complainant

Respondent

Parties

Iulia Cupeti

Cos Clubs Afterschool Centre

Representatives

Self-Represented

Ms. Andrea Montanelli, Peninsula

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-00055393-001

03/03/2023

The Complainant commenced employment with the Respondent on 21st June 2021. The Complainant was a permanent, full-time member of staff, in receipt of an average weekly wage of €490. The Complainant’s employment was terminated by the Respondent on 29th November 2022.

On 3rd March 2023, the Complainant referred the present complaint to the Commission. Herein, she alleged that her dismissal was substantively and procedurally unfair and that she had been unfairly dismissed within the definition of the Act. By response, the Respondent submitted that the Complainant had committed gross misconduct and that they engaged in the comprehensive internal process in respect of the same.

A hearing in relation to this matter was convened for, and finalised on, 24th May 2024. Both parties issued extensive submissions in advance of the hearing. These submissions were expanded upon and contested by the opposing side in the course of the hearing. The Complainant gave evidence in support of her complaint, while a manager of the service gave evidence in defense. All evidence was given under oath or affirmation and was opened to cross examination by the opposing side.

No issues as to my jurisdiction to hear the complaint were raised at any stage of the proceedings. As the fact of dismissal was not in dispute, the Respondent accepted the subsequent burden of proof imposed by the Act, and presented their evidence first.      

By submission, the Respondent stated that the Complainant commenced employment on 21st June 2021. At all relevant times, the Complainant’s role was described as that of “childcare worker”. On the morning of 8th November 2022, the Respondent became aware that the Complainant had allegedly escorted a large group of 24 children on a school bus on her own. The Respondent submitted that this was clearly against the relevant guidelines and the Respondent’s own internal policy regarding the ratio of children to adults on such trips. Later that afternoon, the Complainant was invited to a meeting to discuss the incident. During this meeting the nature of the allegation was put to the Complainant. At this juncture, the Complainant became quite confrontational and refused to engage with the meeting. The Complainant left the premises before the meeting had concluded and advised that she intended to consult her legal representative regarding the issues. The Complainant also refused to sign an incident report in relation to the matter.

Thereafter, on 11th November 2022, the Respondent corresponded with the Complainant advising that she was to be suspended pending a full investigation into the alleged wrong doing. In particular, the Respondent stated that the allegation in question related to an “alleged breach of safeguarding protocol, further particulars being exceeding the maximum number of children allowable under the supervision of a single member of staff.”

On 29th December 2022, the Complainant was called to a meeting with the Respondent. Given the gravity of the misconduct in question, the Respondent stated that the Complainant had committed gross misconduct and that the appropriate sanction in this regard was dismissal. In addition to the same, the Respondent was concerned the other members of staff had raised allegations of bullying against the Complainant.

In evidence, the Manager of the Respondent stated that they carry an enormous duty of care to the children attending the facility. A central part of this duty of care is ensuring that the relevant ratios are adhered to, and that sufficient staff are engaged to mind the children in their care. On the morning in question, the Complainant breached this duty of care by knowingly allowing a bus containing 24 children be supervised by herself only.  The manger stated that the Complaint was qualified childcare professional and that she would have been well aware of the consequences of such a breach. She further stated that other staff members were on hand to assist with the transport if needed. The witness stated that given the nature and gravity of the misconduct, the bond of trust had been irretrievably broken between the parties, and that dismissal was the only appropriate outcome in the circumstances.

In answer to a question posed by the Adjudicator, the witness accepted that the allegations bullying contained in the letter of dismissal had not been proven, and that the investigation had not commenced in any material fashion. In addition to the same, the witness accepted that the Complainant had not been formally invited to the meeting of 29th December 2022 and that the correspondence confirming her dismissal had been prepared in advance of the same.

From the outset, the Complainant submitted that her dismissal was unfair both on substantive and procedural grounds.

Regarding the incident that led to her dismissal, the Complainant stated that on the morning in question the centre was short staffed due to the illness of another staff member. In such circumstances, the Complainant completed the school run on her own to ensure that the children completed their school run. On her return from the trip, the manager of the Respondent spoke with the Complainant and asked about the run. When the Complainant explained that she had completed the same herself, the manager stated that this was fine but to ensure another member of staff was present in the future. On the Complainant’s return to work in the afternoon the manager asked if she could have a word with her. During this meeting, the Respondent presented the Complainant with an incident report that has already been completed and demanded that she sign it. When the Complainant refused to sign this document, she was informed that she was to be suspended pending further investigation.

Thereafter, the Complainant received no further communication regarding this investigation, or any other developments elated to the same. On 29th December, the Complainant was asked to attend the Respondent premises to discuss a prospective transfer of undertakings. When the Complainant attended this meeting, she was handed a letter stating that she was to be dismissed with immediate effect. When the Complainant enquired as to the status of the investigation, she was informed that the same was at an end as she had been dismissed.

By submission, the Complainant stated that her dismissal was clearly and unambiguously unfair. In particular, the Complainant stated that the wrong-doing in question, which was absolutely denied, had never been properly investigated by the Respondent.

Regarding losses, the Complainant stated that she found alternative employment two weeks following her dismissal. Nonetheless, she submitted that the same had an extremely detrimental impact on her. 

Regarding the instant case, the Respondent has submitted that the Complainant committed gross misconduct by breaching the staff to child ratios on a school run. In such circumstances they submitted that the Complainant’s dismissal was fair on the grounds of misconduct and that her application should not succeed. By response, the Complainant stated that she completed the run out of necessity and that the issue with staff ratios arose from the Respondent’s failure to assign adequate staff to the area. She further submitted that her dismissal was procedurally unfair for a variety of reasons.

In this regard, Section 6(1) of the Unfair Dismissals Acts provides that,

“Subject to the provisions of this section, the dismissal of an employee shall be deemed for the purpose 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) provides that where a dismissal arises “wholly or mainly” as a consequence of “the conduct of the employee” such a dismissal “shall be deemed…not to be an unfair dismissal” for the purposes of the Acts.

Section 6(6) of the Unfair Dismissals Act provides that,

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection [6](4)”

Section 6(7) 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…with the procedure…or with the provisions of any code of practice….”.

The matter of Noritake (Irl) Ltd v Kenna (UD 88/1983) sets out the following three criteria to determine “reasonableness” for the purposes of the Acts:

·       “Did the company believe that the employee misconducted himself as alleged?

·       If so, did the company have reasonable grounds to sustain that belief?

·       If so, was the penalty of dismissal proportionate to the alleged misconduct?”

Regarding the present case, it is clearly apparent that several procedural issues arise on the part of the Respondent. In this regard, it is common case that the Complainant was not formally invited to a disciplinary meeting in respect to the issue that led to her dismissal. On the contrary, it is again common case that the Complainant was invited to a meeting ostensibly arranged to discuss a prospective transfer of undertakings. At this meeting, the Complainant was simply handed correspondence stating that she was to be summarily dismissed and that this was, in effect, the end of the process. Clearly many procedural defects arise in such a situation. By failing to formally invite the Complainant to a disciplinary meeting, the Complainant was denied any opportunity to present her version of events, to explain any apparent wrongdoing on her part or to advocate for her continued employment. Regarding the final point, the Complainant was at no stage informed that her dismissal was in contemplation during the process and had no ability to make submission regarding her ongoing employment. The meeting itself took the Complainant entirely by surprise, with the consequence that she had no opportunity to arrange any representation. The point to which the Complainant took most exception was that no substantive investigation took place into the incident in question. In this respect, the Complainant was not presented with any witness statements nor was it clear that the Respondent conducted any investigation into the circumstances surrounding the incident itself. In this respect, the Complainant submitted that the maintenance of correct staff to child ratios is to responsibility of management of the Respondent, and that she was obliged to complete the school run in any event. While the Respondent has submitted that other members of staff were present that could assist in this duty, the appropriate venue for such a discussion is internal investigation and disciplinary meetings. In circumstances whereby the Respondent bears the burden of proof in relation to such matters, it is clear that they have not, in any sense, discharged the burden of proof imposed by the Act.

Finally, it is noted that the letter of dismissal states that the Complainant was dismissed as allegations of bullying had been made against her. These allegations had not been investigated, much less proven, at this juncture, and the inclusion of the same in the letter of dismissal was clearly unfair and prejudicial towards the Complainant.

Having regard to the accumulation of the foregoing points, I find that the dismissal of the Complainant was clearly both procedurally and substantively unfair within the meaning of the Act, and consequently her application succeeds.

I find that the Complainant was unfairly dismissed within the definition of the Acts and consequently I find that her application is well-founded.

In relation to redress, Section 7(1) empowers me to order re-instatement, re-engagement or a payment of compensation to be made to a successful Complainant under the Act. Given that neither party wished for the employment relation to recommence, compensation is the most appropriate redress in this circumstance.

In calculating such compensation, regard must be had to the Complainant’s attempts to mitigate her losses following her dismissal. In this regard the Complainant submitted that she found alternative employment at a similar rate of pay some two weeks following her dismissal. As a result, it is apparent that the Complainant’s losses arising from the dismissal are minimal.

Notwithstanding the same, Section 7(1)C(ii), as inserted by the Unfair Dismissals Act 1993, empowers me to award compensation not exceeding four weeks remuneration in such circumstances. Having regard to the totality of the evidence presented, I award the Complainant the sum of €1,960.00, or the equivalent of four week’s remuneration, in compensation.

Dismissal, Process, Unfair, Investigation