Complainant

Respondent

Parties

Peter  Butler

Sligo Social Service Council Ltd

Representatives

Michelle Connaughton Forsa Trade Union

Francis Gaughan Hegarty & Armstrong LLP

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-00066176-001

23/09/2024

The complainant, Mr Peter Butler, was dismissed by the Respondent, Sligo Social Services Council Ltd following an investigation.  The complainant alleges various breaches of the disciplinary procedure.

Evidence was given under oath/affirmation by the Complainant Mr Butler, and for the respondent by Mr Finbarr Sweeney, Service Manager, Ms Roisin McLoughlin, Service Manager Cornerstone, and Ms Orla Barry, ex Chairperson of the Respondent organisation.  All evidence was subject to cross examination. 

All documentation and submissions received in advance of, and at the hearing, were considered by me in reaching my decision.

The complainant was employed as a Contact Worker with the respondent. He was contracted for 7 hours per week but worked hours way in excess of this on a consistent basis.  The complainant’s role was to attend to general upkeeping of the hostel and as first point of contact with the service users, to provide support and assistance to allow them to discuss their issues and receive advice and support in addressing those issues.  The Contact Worker works as part of a team, and shares information with fellow workers to provide the support that the service users require.

On 26th August 2023 the complainant was called to a meeting with the Homeless Services Manager, Mr Finbarr Sweeeney and the Services Manger, Ms Roisin McLoughlin.  He was not informed that he could bring a representative to that meeting.  At the meeting he was informed that serious allegations had been made against him by staff members and a servicer user.  These allegations were that he had advised a service user to have an abortion.  It was also alleged that this was done because he wanted a relationship with this service user.  He was informed than an investigation had already commenced and was given a copy of the complaint and statements from those making the complaint.  He was suspended on full pay pending the outcome of an investigation.  The complainant was informed that Ms McLoughlin would be one of the investigation team.

Mr Butler confirmed to the investigation team that he had, in his role as Contact Worker, discussed all options available to the service user who had an unplanned pregnancy.  The service user never made a formal complaint and stated to the investigators that she did not wish to make a statement, but agreed to be interviewed. 

An issue arose concerning the complainant when, on 18th August 2023, a service user disclosed a conversation she had with the complainant to another member of staff (Ms A).  The service user told Ms A that she felt pressured by the complainant to have an abortion and felt that he was hinting at having a personal relationship with her.  Statements were taken from various staff members.  Thereafter the matter took its course under the Disciplinary Procedure culminating in the dismissal of the complainant on 15th April 2024.

At no stage has the complainant ever challenged the actual allegation against him in respect of having a conversation with the service user in relation to having an abortion.  The service user should have been re-directed to their keyworker.  The complainant should not have been discussing these kinds of issues with the service user.

The respondent’s policies provide that ‘all employees must abide by agreed policies and procedures with regards to personal boundaries with clients, residents, visitors and conduct themselves in a professional manner at all times’.  The complainant failed to this by discussing the issues with the servicer user rather that redirecting the service user to their key worker.

It is accepted that the complainant was not notified of his right to bring a colleague to the initial meeting with Mr Sweeney and Ms McLoughlin on 26th August 2023.  However, this was merely a notification meeting and, in any event, at the meeting between the Investigation Team and the complainant on 19th September, the complainant had a union representative present.

It is denied that the complainant was told that the investigation had already commenced at the meeting on 26th August.  One member of the Investigation Team was away at that time and therefore it could not have commenced.

The respondent does not accept that Ms McLoughlin was not independent.  The doubling up of roles was inevitable given the small number of management staff in the organisation.

The Terms of Reference were provided on request by the union at the first meeting with the Investigation Team on 19th September.  The complainant refused to sign to acknowledge receipt.

The Final Report issued on 11th March.  The complainant received a letter dated 7th March stating that the report was complete and had been circulated.  This was a clerical error.  It had been anticipated that the Report would be available on 7th March and Mr Sweeney had prepared a letter on that basis and omitted to change the date.

The complainant was given ample opportunity to respond to the allegations including time consuming cross examination of witnesses.

Under Section 6 of the Unfair Dismissals Act, a dismissal is presumed unfair until the employer proves otherwise. Once the employee establishes he or she was dismissed, the employer must prove they had substantial grounds for the dismissal (e.g., capability, conduct, or redundancy) and that they followed fair procedures and, in particular, the employer must demonstrate that natural justice was afforded to the employee throughout the process. In this regard, s 6(7)(b) of the Unfair Dismissals Act 1977 provides that, in determining whether a dismissal is an unfair dismissal, an adjudication officer or the Labour Court, as the case may be, may have regard to the extent (if any) of the compliance or failure to comply by the employer with their own disciplinary procedure or the provisions of the Code of Practice on Grievance and Disciplinary Procedures.

 A decision to dismiss must be a reasonable response to the conduct or situation.  In the current case there is no dispute that the complainant was in fact dismissed.

The arguments presented by the complainant’s side in this case focussed primarily on potential breaches of procedure which they say were such as to render the dismissal unfair.

The alleged breaches were;

The process for suspension in the employer’s own Disciplinary Procedure provides that the Chief Executive should write to the staff member.  This did not happen as Mr Sweeney signed the letter.

The suspension should have been signed by both manager and employee.  This did not happen.

These particular procedural issues arise from the respondent’s own procedures rather than the Code of Practice on Disciplinary Procedures.  This procedural issue related to the suspension of the complainant and was not a fundamental issue relating to the dismissal process and therefore I do not believe that it rendered the decision to dismiss unfair.

The impartiality of the investigation does not meet requirements of fair procedure. One of the investigation team was involved in the meeting to suspend the complainant and no consideration was given to a member of the team being from outside of Sligo Social Services (an option provided for in the formal procedure).

The decision to suspend is pending an investigation into the substantive issue and usually a precautionary decision.  It should have no bearing on the investigation itself.  The respondent is a small employer and I accept that they did not have many managers from whom they could select membership of the investigation committee.  The objection to Mr Sweeney’s participation was confined to the fact that he had been part of the decision to suspend.  Other than that, no evidence was put forward that Mr Sweeney had any involvement in the substantial complaint made against the complainant. The option to include someone from outside the Respondent’s employment was not a compulsory component of the Respondent’s Disciplinary Procedure.  I do not believe that anything in this point rendered the decision to dismiss unfair.

The procedure provides that ‘It is important that the person commissioning the investigation provides both the Investigation Team and the Evaluation Committee with a written summary of the incident \event that has dictated that a formal investigation is warranted.  This document should be included with the Terms of Reference’

This summary was not attached to the Terms of Reference.

The fundamental entitlement for the person against whom the allegations are made is that they should be fully aware of the allegations and have an opportunity to respond.  There is nothing to suggest that the complainant was not made fully aware of the allegations and given the opportunity to respond.  The respondent should have complied with this part of their own procedures.  However, of itself this failure of procedure could not be construed as fatal to the process and therefore I do not believe it could render the dismissal unfair.

The role of the investigation team was to ‘establish the facts of the issue only’.  The report at various points refers to ‘probability’ which is not consistent with establishing facts.

‘Facts’ in the context of an investigation, or indeed any disciplinary process, are based on the standard of proof applicable in civil cases.  This means that a ‘fact’ meets the threshold of ‘balance of probability’.

The company’s procedure states that a disciplinary procedure will follow the meeting of the Evaluation Committee.  This did not occur.  There was no process after the Evaluation Committee’s review.

The complainant attended and was represented at the Evaluation Committee meeting which reviewed the investigation.  This was the Committee who took the decision to recommend dismissal.  In effect therefore, that meeting was part of the disciplinary process.

The Evaluation Committee should have consisted of three people.  Only two were on it, one of whom was Mr Sweeney.  Therefore only one member of this committee was unconnected with investigation.  When this was raised Mr Sweeney informed the complainant that there was an appeal available and that they would continue with the process no matter how flawed the complainant thought the system was.

There is an obligation on the respondent to adhere to its own disciplinary procedures.  If these procedures are not fit for purpose, for example due to the size of the organisation and the difficulty in securing internal nominees for a committee such as the Evaluation Committee in this instance, then the organisation should review its procedures.  There was a requirement to have three people on this committee, which acted on behalf of the organisation in reviewing the investigation and determining whether or not disciplinary action was warranted.  Failure to have the third person was a breach of procedures.

Parties were interviewed before the Terms of Reference were shared with the complainant.  It was stated that all notes of these meetings would only be issued with the Draft Report.

From the evidence given it would appear that the respondent thought that the terms of reference should go to the investigation committee.  I note that on request these were provided to the complainant.  No evidence was presented that there were deficiencies in the Terms of Reference or that the complainant had objections to these.  Good practice would involve consultation with the Complainant on the Terms of Reference.  However, of itself, this error is not fatal to the disciplinary process.

The Appeal hearing only lasted 10 minutes.

A central argument in the complainant’s case related to breaches of procedure.  These alleged breaches were repeatedly raised and it was the complainant’s view that they were never properly considered.  The Evaluation Committee Report was circulated, for the first time, at the hearing.  It is clear that this committee did consider the procedural issues raised.  However, the letter appealing the decision to dismiss focussed on the same procedural issues.  In evidence on behalf of the respondent, the then Chairperson of the organisation, who was part of the Appeal Board, confirmed that the Board had not seen or considered the Evaluation Committee Report. It is clear from the evidence presented at the hearing, that this Report should have been available to both the complainant and the Appeal Board in order to properly consider the issues raised by the complainant that formed the basis of his appeal.  I therefor conclude that the appeals process was inadequate.

While some of the deficiencies in the disciplinary process were relatively minor, I conclude that the composition of the Evaluations Committee (two people instead of three) and the deficiencies in the appeals process were of such magnitude as to undermine the disciplinary process and therefore the dismissal was unfair. I do not feel reinstatement is appropriate in light of the breach of trust between the parties and the appropriate remedy is compensation. The complainant’s actions contributed very significantly to the dismissal and this would ordinarily result in an appropriate reduction in compensation.  However, the complainant has been ill  since shortly after the dismissal, and therefore not available to mitigate his losses as is required under the Act.  His compensation is therefore limited to four weeks pay which amounts to approximately €3000.

The complainant was unfairly dismissed, and I order the respondent to pay him the sum of €3,000 in compensation.

Deficiencies in the appeals process and breaches of the respondent’s disciplinary procedure.