ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00019197
P.D. Gardiner & Co., Solicitors
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: 29/03/2019
Workplace Relations Commission Adjudication Officer: Kevin Baneham
On the 16th January 2019, the complainant referred a dispute pursuant to the Industrial Relations Act. The dispute was referred to adjudication on the 29th March 2019. P.D. Gardiner solicitors attended with the complainant, while IBEC represented the respondent. Two HR managers attended for the respondent.
In accordance with Section 13 of the Industrial Relations Act 1969following the referral of the dispute to me by the Director General, 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.
The complainant challenges the fairness of her suspension from work from January to October 2018; the respondent asserts that it was entitled to suspend the complainant as a precautionary measure.
Summary of Complainant’s Case:
The complainant was suspended by the respondent from the 18th January to the 18th October 2018. She said that this was unjustified. She was the only staff member who was suspended, and she was scapegoated. The suspension related to the use of restrictive interventions in a school. The manager who commissioned the investigation Commissioner was also the manager responsible for overseeing the use of restrictive practices.
On the 17th January 2018, the complainant approached the Clinical Manager to say that the school had been misapplying the CALM process. The complainant said that she was naïve and thought that she should be honest. The school is a school for children with special needs who are not suitable for other schools in the respondent group. The CALM process is a procedure to deal with challenging behaviour and the misapplication related to not getting authorisation from a management group prior to initiating CALM on a child. The use of the procedure was always recorded on an audit form.
The CALM set of interventions were introduced in 2010 and in the case of some children, were used daily. It had been the practice in the school to use CALM on the children without prior authorisation.
The complainant outlined that a Performance Improvement Place was put in place in 2017 and was not active. She could not follow up on emails with more emails and she needed to think before sending an email. She outlined that she has autism but could not be autistic in the respondent and was required to monitor who she was. She was now placed in a portacabin and this is a difficult for someone with her sensory difficulties. She wished to be relocated to a different location.
The complainant outlined that there were no issues until August 2017 when she asked for help from a line manager because of burn-out. She was told that there was no one who wanted to work at the school. She should have gone on sick leave in 2017. She was unhappy giving her diagnostic report to her line manager, but she said that she could then get help.
The complainant outlined that CALM was incorrectly implemented in the school even after her suspension. It was only in May 2018 that the respondent established a committee within the school to implement CALM in a way more suitable to children. This work is ongoing. She commented that it is still necessary to restrain children daily. She said that the respondent health and safety manager was often in the school and was fully aware of the use of CALM.
The complainant outlined that she had asked the respondent to lift the suspension. She referred to the meeting minutes of 18 April 2018, which show that the psychologists did not know how CALM should be used.
Summary of Respondent’s Case:
The respondent submitted that it had complied with fair procedures when it suspended the complainant and no sanction was applied to her. This matter arose when the complainant emailed to admit a significant breach of procedure, referring to this as a “horrendous failure”. The respondent decided to suspend the complainant because of the seriousness of the issue and the potential impact on vulnerable children. The suspension was precautionary and not a disciplinary sanction. An investigation was carried out between the 10th April and the 31st July 2018. This reported on the 27th August 2018 and the complainant later returned to work.
The respondent outlined that the complainant was its only employee on the school site. The issue was considered as professional misconduct. The respondent could not comment what steps the psychologist appointed in the complainant’s place had done in her absence. It did not report its concerns regarding the complainant to any regulatory body. It commissioned the investigation in March 2018 when occupational health had declared that the complainant could attend for interview. The respondent rejected the assertion that it did not accommodate the complainant’s disability.
The respondent outlined that the issue of communication was addressed in the PIP, which also addressed other issues. There were two grievances, one of which is ongoing. There was limited space in the location the complainant wished to work, and her current location of work is well equipped, albeit a portacabin. She is located there as this is the place of work of the principal psychologist.
The respondent outlined that, as an employer, it must have the right to suspend an employee in circumstances where there is an allegation of professional misconduct or serious wrongdoing. It did so in this instance and a detailed investigation was carried out. This reported that there was no professional misconduct by the complainant.
Findings and Conclusions:
This case is marked by the challenging environment for the children and staff, including the complainant, in the respondent school. In the case of some of the children, the evidence points to CALM interventions being applied several times a day. The complainant has been greatly stressed, as noted in the detailed investigation report, and obvious during the adjudication hearing. She complained of significant burn-out. She did this role for seven years.
There was significant confusion over the application of CALM, in particular whether prior authorisation was required for each child in the school. It is obvious from the complainant’s own account and the evidence of the school staff garnered in the investigation that they were under the misapprehension that such pre-authorisation was not required. It is important to acknowledge that all CALM interventions were properly recorded once they were applied. The lack of clarity was addressed in professional development meetings in 2018, for example the minuted 16th April 2018 meeting. It is a missed opportunity that the complainant was not able to participate in this learning exercise.
I accept that the respondent has the right to suspend an employee as a precautionary step. I note, however, that the respondent was only aware of the issue in this case because it was told of it by the complainant. It was obvious from the complainant’s email that she was very much owning up for any fault and was effusively open as to what the practice had been. This was not an employee seeking to hide anything.
Even allowing for the benefit of the doubt, there is no justification for the complainant’s suspension continuing to October 2018. This is especially the case when the complainant’s solicitor asked for the suspension to be reviewed on the 17th May 2018.
First, it is obvious from the first investigation interviews with school colleagues that there was general confusion whether pre-authorisation was necessary. This was immediate corroboration of the complainant’s position. The minutes of the 16th April 2018 meeting records that there was no consistency across schools in using CALM and that psychologists needed “clear direction” from the management group regarding their role. This demonstrates that there was no basis to continue the complainant’s suspension after the 17th May 2018.
Second, there was clearly no basis after July 2018 to continue the complainant’s suspension for the reason stated by the respondent, i.e. the CALM issue. This is because the only issue raised in the preliminary report of July 2018 was why the complainant had missed a day of school the previous year. This was nothing to do with CALM and something the complainant was readily able to explain (her child was ill). Even taking the respondent’s case at its height, there can be no justification to continue the suspension from July to October 2018.
I accept that the priority must be the welfare and safety of the children attending the school. Even if the respondent was justified in suspending the complainant as an initial precaution, there was no basis to continue the suspension as the investigation did its work and in particular after the preliminary investigation report. The complainant was unfairly treated in the protracted suspension and I recommend that the respondent pay her €4,000 as redress.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
For the reasons set out above, I recommend that the respondent pay to the complainant redress of €4,000.
Dated: 30th May 2019
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Reasons for suspension / review of suspension