ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00010704
Complaint(s):
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-00014499-001 | 26/09/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00014499-002 | 26/09/2017 |
Date of Adjudication Hearing: 07/03/2018
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 [ and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and/or Section 11 of the Minimum Notice and Terms of Employment Act , 1973] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Summary of Respondent’s Case:
It was submitted that a Service Manager , a Safeguarding Manager and a Quality Manager met with a client on the 20th.June 2016 to enquire if the client had any concerns he wished to raise – the client is non verbal and communicates with eye movements only.The claimant indicated that he had issues with some staff members and became anxious when the claimant’s name was read to him.It was submitted that the client indicated that the claimant’s actions towards him were inappropriate that she sometimes swore and directed derogatory names at him.It was submitted that he indicated that her attitude was poor and she was sometimes rough while assisting him to eat or get ready for bed – he indicated that he felt pain when handled by the claimant.
A preliminary enquiry was conducted - arising from which a recommendation emerged that a full investigation get underway.The claimant did not provide a service to the client during this period and the investigation was conducted under the respondent’s policy and procedure on Safeguarding Vulerable Persons.Disciplinary proceedings ensued on foot of the findings of the investigation team – the team concluded that the allegations made by the client were indicative of abuse , including physical abuse , psychological abuse and/or neglect.It was submitted that the findings were of a nature that would be considered abuse under Trust in Care.
The disciplinary panel decided that the claimant would be dismissed as they had concluded based on the balance of probabilities that the claimant had misconducted herself as alleged ; that the respondent had reasonable grounds to sustain that belief ; that the respondent had carried out as much investigation as was reasonable and that the sanction of dismissal was proportionate to the alleged misconduct.It was submitted that the respondent’s trust in the claimant was irreparably breached.The claimant appealed the dismissal but the appeal was not upheld.In her appeal the claimant had contended that she did not receive the Trust in Care policy , that her length of service and good relationship with the client had not been taken account of , that the client did not speak , that insufficient detail regarding dates and other people were presented to the claimant and the unsatisfactory deployment of the claimant on her return from sick leave.The panel concluded that the claimant did not set out sufficient mitigating factors to warrant an upholding of her appeal.The respondent invoked the provisions of Noritake (Ireland ) Ltd v Kenna (UD88/1983) and British Home Stores v Burchell [1978}IRLR 379 in support of their position.
The respondent’s witness outlined the claimant’s disability and explained that he could reply to questions on a Yes or No basis.It was submitted that the findings of the Investigation Team had found that abuse had taken place and that in those circumstances “ we felt we couldn’t consider alternative sanctions to dismissal.It was acknowleged that there were no witnesses to the alleged abuse – the respondent was satisfied that on examination , the claimant did not indicate any confusion.The respondent was satisfied with the consistency of the questions put to the service user and with his answers.It was submitted that as far as the respondent was concerned , training or any lack thereof was a factor that influenced the alleged offending behaviour.It was submitted that the respondent conducted mandatory training every 2 years.
Summary of Complainant’s Case: Background:
- The claimant commenced employment as a Personal Assistant to JG, a service user with the respondent company in 2000. She also worked for the respondent commencing on the 4th August 2003 doing relief work as a Care Support Worker. The claimant ceased employment with another service provider and she was then on a 15hr week contract with the respondent company.
- When the claimant returned from sick leave on the 12th August 2016 she was informed by JMcK, Service Manager that a complaint had been made against her by JG, a service user on the 20th June 2016.
- The Service Manager informed the claimant that she was carrying out a preliminary enquiry of the complaint and she needed the complainant to provide a written response to the complaint. The claimant wrote to the Service Manager on the 7th September 2016 requesting details of the alleged incidents so that she could respond to the complaint. She also requested copies of the complaints policy and procedures. However, the Service Manager advised that she was unable to supply any further information such as dates and she informed the claimant that she needed to respond. Subsequently the complainant responded on the 8th September 2016.
- Following the claimant responding to the complaint the Service Manager issued the Preliminary Enquiry Report which determined that further investigation was required (see Appendix 3). The Terms of Reference for the formal investigation dated the 31st August 2016 were attached .
- At the first investigation meeting on the 26th October 2016 it was discovered that the claimant had been provided with a draft of the Preliminary Enquiry Report and the meeting was adjourned to allow a copy of the final report to be provided and considered. A second meeting was held on the 1st December 2016 and a copy of the record of the meeting was submitted into evidence .
- On the 12th December 2016 the Investigation Team forwarded a copy of the draft investigation report and notes from interview with JG on the 27th October 2016, copy attached to the claimant and she was requested to make any comments on the documentation. A copy of the claimant’s response to the draft investigation report was presented
- The Investigation Report & Findings were issued on the 17th January 2017
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- On the 27th February 2017 the claimant was requested to attend a disciplinary hearing on the 10th March 2017. Following the hearing the complainant was informed by letter that “It is the decision of the disciplinary panel that you be dismissed from the employment of the respondent from today’s date of 29th March 2017 on the grounds of Gross Misconduct”. Copy of dismissal letter attached.
- The claimant appealed her dismissal and copy of appeal letter dated the 11th April 2017 to the respondent’s Head of HR was submitted.
- An appeal hearing was held with on the 4th May, 2017 and a copy of meeting notes was submitted.
- The claimant was informed by letter dated the 7th July 2017 that it was decided to uphold the decision of the disciplinary team to dismiss her from the employment effective from the 29th March 2017.
- Subsequently the complainant referred a complaint under the Unfair Dismissal Act to the Adjudication Service.Union’s Position:We refer to the complaint form which refer to “the actions of staff members” and “they”, the complainant is not mentioned in the complaint. Due to the general nature of the complaint the complainant wrote to the Service Manager requesting the dates, details of the incidents and specific allegation as she was unable to respond to a generalised complaint. However, she was informed that no further information could be provided. Therefore, the complainant was only able to respond in a general manner.Whilst we understand the difficulties with communications for the service user, in the interest of fairness and natural justice the complainant was left with major difficulties when she was unable to respond to specific allegations. In addition, the claimant had to request a copy of the complaints policy and procedures as this was not provided when she was given a copy of the complaint.Prior to the complainant returning to work from sick leave she was informed by three people not employed by the respondent that there was a complaint made against her. The complainant found this breach in confidentiality very upsetting and stressfulAlthough management were notified of the complaint on the 20th June 2016, the complaint form was only completed on the 4th July 2016. The complainant requested an explanation for the delay but none was provided.The complainant was informed of the complaint on the 12th August 2016. The Preliminary Enquiry Report issued on the 14th September 2015 and it stated that “JMcK consider employee number 169’s written response of 08/09/16 to CHO172’s complaint and determined further investigation is required.” However, the Terms of Reference for the formal investigation is dated the 31st August 2016 prior to the date the preliminary report was completed. It would appear that the decision for further investigation was made prior to taking the complainant’s response into account. Clearly this is breach of fair procedures.It stated in the Terms of Reference that “The investigation team will endeavour to conclude theinvestigation within 25 working days” and that “The investigation team must endeavour toconclude the investigation within 3 months.” The Investigation Team commenced in September 2016 and the final report was issued on the 17th January 2017, four months later which was a delay of one month. However, the claimant was informed of the complaint on the 12th August 2016 and the process only completed on the 7th July 2017 when the outcome of her dismissal appeal issued. Eleven months to conclude the process is extremely long and unacceptable. The claimant was left in limbo, she was very upset and distressed throughout this period to the extent that she had to attend her Doctor.In addition, the claimant was removed from her normal duties while the investigation process was ongoing. The work allocated to the claimant was to review company policies and procedure, and review clients file. She was working in the conservatory on her own and she felt isolated from all her work colleagues. The claimant found this period very stressful. Although she asked from other more productive work, this was not provided.We refer to the interview notes of meeting with JG, service user on the 27th October 2016, see and some of the question asked by the investigation team are leading questions for example,Is 169 rough? Conclusions:The respondent has stated that they have satisfied all the questions to result in a fair dismissal. Whilst we accept that the company believe that on the balance of probabilities the respondent misconducted herself as alleged, we do not accept that the company had reasonable grounds to sustain that belief. Finally, we do not accept that the penalty of dismissal was proportionate to the alleged misconduct. When all the circumstance and facts of this case are considered summary dismissal was not warranted and the disciplinary sanction was excessive. Therefore, the respondent has not satisfied all the grounds to justify a fair dismissal.Adjudicator for all of the above reasons and taking all the circumstance of this case into account we ask you to find that the dismissal was unfair and award the complainant the maximum award under the Acts.In her direct evidence the claimant submitted that the questions used by the investigation team were leading and that this was unfair – she questions why the alleged behaviour was allowed to continue if there was any doubts about her standard of care. She asserted the service user showed no sign of distress when he met her on the floor and suggested that the findings of the preliminary screening were issued before she was interviewed at all. She asserted that the investigation team’s conclusion that the service user meant no when he stared was incorrect. She took exception to the breach of confidentiality which resulted in other staff relaying to her the fact that she was under investigation. She advanced that it was unfair to expect her to answer generalised complaints without specific dates and times. The claimant insisted that the preliminary screening had predetermined a full investigation before the screening report was presented to the claimant. She submitted that allegations of abuse of the service user by other staff members had been made and the staff member was not dismissed.The claimant asserted that training by the respondent was totally inadequate and that staff had been “crying out” for training on Manual Handling for 3-4 years with no response.
- It was a summary dismissal and we believe that the above points demonstrate that the disciplinary sanction was not warranted. The facts and circumstance of this case do not justify summary dismissal which was excessive. The complainant had almost 15 years’ service and she would have been entitled to 6 weeks notice.
- The respondent stated that the complainant did not set out sufficient mitigating factors to warrant a reversal of the decision of the disciplinary panel. We disagree that the grounds for her dismissal appeal as set out in letter dated the 11th April 2017 do not provide sufficient mitigating factors to reverse this decision. In particular we refer to the claimant’s long service and excellent record. The claimant has never received a complainant against her by a service user or member of staff. The allegations made against her are out of character with her previous record with the respondent.
- Throughout the investigation the claimant has totally refuted all the allegations made against her. She has worked with the JG for 17years, firstly as his P.A. and then working directly for the respondent. She is shocked at the allegations as she believed that she had a good friendship with JG. The complainant outlined her response to the draft Investigation Report by letter dated the 9th January 2017.
- Has 169 ever used bad language when working with you?”
- “Do you feel worried when 169 is on duty?
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
[.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.
Section 11 of the Minimum Notice and Terms of Employment Act 1973of the Protection of Employees (Employers’ Insolvency) Acts, 1984 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 9 of that Act.]
Unfair Dismissals Acts 1977-2015 I have reviewed the evidence presented at the hearing and noted the respective positions of the parties and the authorities relied upon.
I note the claimant is relying significantly on the matter of the manner in which the investigation was conducted. I have considered all of the submissions made in this regard – while I acknowledge that the questions put to the service user were leading , I have considered how else an employer could conduct an investigation in circumstances where the service user cannot speak and have concluded there were no other means available to the respondent and that it was not an unreasonable approach in these circumstances. I fully accept the respondent’s contention that the absence of speech should not be a barrier to investigating any complaint of abuse. I accept the union’s contention that the respondent did not offer a plausible explanation for the issuing of terms of reference in advance of the preliminary screening and consequently I consider it reasonable for the claimant to argue that a preconceived belief of guilt may have been present. While I acknowledge that the respondent’s policy provides that the line manager conducts the preliminary screening , this served to compound the claimant’s reservations about the process given that the line manager was involved in the initial interviewing of the service user and in conducting the preliminary screening. I acknowledge the training issues raised by the union and the claimant and find that no compelling evidence of a proactive and dynamic ongoing training policy was presented. The respondent’s witness indicated that an alternative to dismissal could not be considered where an investigation upheld a complaint of abuse – this is indicative of a policy of zero tolerance and I have concluded that no compelling evidence was advanced to demonstrate that staff were appraised of and aware that they were potentially facing dismissal as a non discretionary sanction in the event of a complaint of abuse being upheld. For all of the foregoing reasons , I find the dismissal was unfair. I found the evidence of the respondent’s witness who participated in the investigation to be convincing and consequently accept that it was reasonable of the respondent to have cause for concern about the claimant’s care practises. I am taking this into account in the quantum of the award for unfair dismissal. I require the respondent to pay the claimant €10,000 compensation.
Minimum Notice and Terms of Employment Act 1973 In light of my finding that the claimant was unfairly dismissed , I am upholding the complaint of a breach of the Act and require the respondent to pay the claimant her statutory notice entitlement. |
Dated: 11/09/2018
Workplace Relations Commission Adjudication Officer: Emer O'Shea