ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00001614
Complaint(s)/Dispute(s) for Resolution:
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
Date of Adjudication Hearing: 26/05/2016
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
In accordance with Section 13 of the Industrial Relations Act 1969, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
Complainant’s Submission and Presentation:
The complainant is a social care worker working with young people for 17 years. She was faced with two fictitious allegations in May 2015. One allegation was withdrawn and the other went to investigation. The allegations which were of a sexual nature, were horrific for the complainant, and totally untrue and unfounded. Such was the situation that she felt she had no choice but to remain absent from work pending the outcome of the investigation. As a result, she lost income in the order of €9,685 and her sick leave record has been affected. It is argued that this was a case where the Trust in Care policy should have been implemented, whereby a staff member could be placed on Administrative or Protective leave pending the outcome of the investigation. It is argued that as the process took a number of months, and was not fully concluded until October 2015, the complainant should be re-imbursed for earnings lost and her sick leave record should be cleared. The complainant suffered enormous stress due to this unfounded and untrue allegation.
Respondent’s Submission and Presentation:
The complainant works as a social care worker in a residential centre which caters for young people who present with significant challenges and needs, both emotionally, behaviourally and physically. In the case of many residents, sexually inappropriate behaviour often is a feature of presenting behaviour. The centre has the services of a psychotherapist to help guide the staff team in addressing these needs. Two allegations were made by young persons (YP1 and YP2). YP1 withdrew the allegation, re-instated it, and withdrew it again. Following receipt of his first complaint, a risk assessment was carried out and protective measures were put in place to ensure that the complainant was not alone in the company of the YP1. On May 7th 2015 the mother of YP2 reported that her son had made an allegation against the complainant. On May 8th 2015 the complainant failed to report for duty and subsequently forwarded a GP certificate which certified her unfit for work due to “work related stress”. On June 12th 2015, the social worker team leader verbally advised that there was no child protection concern and that he would issue his report. Management met with the complainant in late July and gave her a copy of the draft report and a copy of management’s response. The respondent’s position is that the complainant was on certified sick leave from May 8th 2015 to October 25th 2015 and while on sick leave she was paid sick pay in accordance with the Sick Leave Regulations. It is submitted that her assertion that as a result of an allegation being made against her that she “was absent from work during the investigation and my sick pay was exhausted” is factually incorrect, as she was absent from work on the basis that she submitted a medical certificate which certified her medically unfit due to work related stress. The placing of a staff member on administrative leave/protective leave is not a decision taken lightly and such a decision would only be taken if following a risk assessment it was deemed that the staff member posed a risk to a service user or that the staff member was at risk by remaining on duty. In this case neither was applicable, as protective measures were put in place to ensure she was not working on her own with the service users concerned. It is submitted that the respondent gave support to the complainant throughout the process and facilitated a phased return to work.
Section 5 (1) of the Trust in Care policy puts a responsibility on management to
“ensure insofar as possible, that confidentiality is maintained and the staff member against whom the allegation is made is fully protected throughout the process”.
I note the Service Manager’s evidence at the hearing that when the allegation was made she requested that the complainant be “taken off the floor”, but the complainant had already gone home on sick leave, having been told of the allegation. There is no doubt that the allegation(s) had a very serious impact on the complainant, and the option of putting her on protective leave does not seem to have been discussed with her. Section 5 (2) of the policy states that the views of the staff member should be taken into consideration when determining the appropriate protective measures, but the final decision rests with management.
The complainant may have jumped the gun somewhat by absenting herself on sick leave in the immediate aftermath of the unfounded allegation, however, some account should be taken by management of the impact on her. While I am not proposing backdated Protective or Administrative leave, I recommend that in order to conclude this dispute, the complainant’s sick leave record be cleared of the related absence and that a compensatory lump sum of €4,500 be given to her as a contribution towards her earnings loss as a once off settlement.
Dated: 19th July 2016