EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Pamela Burke - claimant UD902/2012
Liam Egan t/a Little Sunflowers Creche & Montessori - respondent
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. K. T. O'Mahony B.L.
Members: Mr J. Hennessy
Mr J. Maher
heard this claim at Kilkenny on 16th December 2013
Claimant: Mr Thomas A Walsh, Thomas A Walsh & Company, Solicitors,
23 James Street, Kilkenny
Respondent: Mr. Richard Downey B.L. instructed by,
Grace, Solicitors, Old Courthouse, Green Street, Callan, Co Kilkenny
Dismissal is not in dispute in this case.
Summary of Evidence
The claimant worked in the respondent’s crèche as a childcare worker with the 18-24 month olds and MH worked in the adjoining playschool room with the 2-3 year olds. There is a viewing panel between the two rooms.
As MH was cleaning up in her room on 18 January 2012, she heard the claimant in the adjoining room twice call to child A to let go of child B and as MH looked through the viewing panel she witnessed child A dragging child B. MH both heard and saw the claimant slap down on child A’s hand to separate them. The claimant looked up and realised that MH had seen her. Child A began to cry and the claimant began to console him. Shortly thereafter the manager came to the rooms to distribute payslips.
MH was alarmed because she heard the slap and having completed a child protection course was conscious of the obligation to report anything untoward. She sought advice from a colleague (the Montessori teacher) as to what she should do.
Meanwhile, the manager reported to the director that in the course of distributing the payslips she had noticed that the two carers had been ‘acting out of character’. MH had looked at her blankly, which was out of character for her and the claimant, on the other hand, was consoling a crying child and was being overly nice to the child, which was not characteristic of the claimant. The manager decidedto look into the matter. On questioning, MH outlined and demonstrated the incident she had witnessed and at the manager’s request she accompanied her to the kitchen where she outlined and demonstrated what she had observed to the director. MH provided a written statement. The partners of the claimant and MH were friends and the two families used to socialise together and their children played together but their relationship had cooled when MH and her partner separated and they no longer socialised outside of work. MH had no grievance with the claimant, her falling out was with her husband.
The manager checked the respondent’s disciplinary procedure and concluded that the claimant’s actions might be gross misconduct. At around 5.30 pm the manager invited the claimant to the office where she explained the allegation and suspended the claimant on pay for the alleged gross misconduct pending a full investigation and handed her a letter. The letter confirmed her suspension, outlined the alleged incident and called the claimant to a disciplinary meeting on 20 January, where she would have the opportunity to put forward her version of the incident. MH’s statement was enclosed with the letter. Prior to this the manager had observed that the claimant’s treatment of the children was not the gentlest and had reminded her not to hold the children by the arms or wrists as it looked as if the children were being dragged. The manager had again noticed the claimant holding children by their wrists earlier on the day of the incident. The claimant’s position was that she did not have an opportunity to talk in the office and was told she would have an opportunity to put forward her side of the incident at the disciplinary meeting on 20 January. The claimant was asked to hand over her keys. Child B was examined about 45 minutes after the incident had occurred and he had no marks.
The following day, the director interviewed the manager, MH and the Montessori teacher about the incident and did a walkthrough of the incident to visualise where everyone was positioned. The manager, on the advice of a HSE child protection worker, spoke with child A’s mother who confirmed to her that child A was in good form and that she had no concerns about the incident. Her designated pre-school officer was on leave at this time.
The meeting on 20 January 2012 was conducted by the director and the manager was present, mainly as a note-taker. The claimant was accompanied at the meeting. The purpose of the meeting was to give the claimant the right to reply and put forward her version of the incident. The claimant categorically denied MH’s version of the incident. She explained that while doing some cleaning she heard a child cry and saw that child A had grabbed child B (who was crying) by her t-shirt. She told child A to let go and as he had not heard her she repeated her instruction in a raised voice and went towards the children who had fallen onto a giant cushion and she separated them by picking up child A. She did not slap child A. He cried because he could not finish what he started. The claimant knew that MH was standing at the viewing panel and when she went to the cushion her body would have blocked MH’s view of the children. The claimant made the case that she had been working with the respondent for six years and there had never been a complaint against her. The manager reminded her that within the past month she had to remind her not to catch the children by the wrists or arms as it looked as if the children were being dragged and that on the morning of the incident she had engaged in the same behaviour. Earlier in January a mother had complained that a child’s nappy had not been changed.
Having discussed the two versions of the incident with the manager, the director accepted MH’s version and concluded that the claimant’s behaviour amounted to gross misconduct warranting dismissal. The director’s position was that he had no alternative but to dismiss the claimant. To not dismiss would be the easier option and no questions would arise. Had he not dismissed the claimant there would be serious repercussions should another incident occur. The respondent has a duty of care to both the staff and children so no lesser sanction would be appropriate. At a meeting on 25 January 2012 the minutes of the first meeting were agreed and the director informed the claimant of his decision to dismiss her and of her right to appeal the decision. At this meeting the respondent also raised the issue of a breach of confidentiality in that MH’s statement had been given to a third party but this did not form part of the respondent’s decision to dismiss. The claimant’s appeal was heard by the business partner of his accountant and the dismissal was upheld.
In her evidence to the Tribunal the claimant agreed that she had been spoken to before about the way she handled children but did not agree with the manager’s assertion that she was rough with the children.
On her return from leave of absence the HSE pre-school service officer carried out an investigation and concluded that the respondent had taken appropriate measures.
The claimant was dismissed for allegedly slapping down on the hand of a child who was pulling at another child’s t-shirt. It is common case that an incident occurred on 9 January 2012 but there is a conflict of evidence as to the fact whether the claimant administered a slap in the circumstances that obtained. The respondent’s disciplinary policy, which forms part of the claimant’s contract of employment, provides that ‘slapping, shaking or treating children under your supervision roughly constitutes gross misconduct.’
The function of the Tribunal in cases of unfair dismissal is set out in Looney & Co. Ltd. v. Looney (UD843/1984):
“It is not for the Tribunal to seek to establish the guilt or innocence of the claimant, nor is it for the Tribunal to indicate or consider whether we, in the employer’s position, would have acted as (the respondent) did in his investigation, or concluded as he did or decided as he did, as to do so would substitute our mind and decision for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in (the respondent’s) position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s action and decision be judged.”
Thus, the standard to be applied in determining the fairness or otherwise of the dismissal is that of the reasonable employer.
The reasonable employer test is satisfied if the employer had a genuine belief based on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged misconduct and if the sanction of dismissal must not be disproportionate (See Noritake (Irl.) Ltd v. Kenna (UD 88/1983) and Martin v Audio Video Services Centre Ltd. (UD617/1991).
Clearly, the meeting of 20 January 2012, although labelled a disciplinary meeting, was in fact an investigation meeting where the claimant had the opportunity to put forward her version of the incident and answer the allegation against her, which was first notified to her on the day of her suspension. MH’s statement which was enclosed with the manager’s letter of 18 January inviting the claimant to the meeting on 20 January, put the claimant on notice that she may be dismissed and informed her of her right to bring a fellow employee or other appropriate representative to the meeting.
There was a conflict of evidence as to whether the claimant had administered a slap to child A. MH was the only witness to the alleged incident. However the manager’s noted observations of both the claimant and MH in the immediate aftermath of the incident tend to support MH’s version of the incident. In light of these observations the director had reasonable grounds for believing the allegation.
Taking cognisance of the nature of the respondent’s business and the disciplinary policy (see above) which forms part of the claimant’s contract of employment, and which provides that slapping, shaking or treating children under a carer’s supervision roughly constitutes gross misconduct and the director’s evidence on this issue, the Tribunal finds that the sanction of dismissal was not disproportionate.
While the claimant was accompanied at the meeting on 25 January the director ought to have invited the claimant or her representative to make submissions in relation to the dismissal.
For the above reasons the Tribunal finds that the dismissal was fair and while the respondent’s procedures were flawed, they were not so flawed to render the dismissal unfair. Accordingly, the Tribunal finds that the claim under the Unfair Dismissals Acts 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal