Complainant

Respondent

Anonymised Parties

A Healthcare Assistant

An organisation supporting people with severe disabilities

Representatives

Forsa Trade Union

Ibec

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 8 of the Unfair Dismissals Act, 1977

CA-00070695-001

09/04/2025

The Complainant was employed by the Respondent as a healthcare worker since 2012.  He was dismissed in January 2025 for gross misconduct.  It is the Complainant’s case the dismissal was procedurally unfair in that he was denied an opportunity to cross-examine witnesses and denied an impartial investigation under the Disciplinary Procedure, and that the decision to dismiss was disproportionate.  It is the Respondent’s case the dismissal was both substantively and procedurally fair.

Oral testimony of the Complainant (on affirmation)

The Complainant outlined he did not feel supported on 29 June 2024.  He apologised to everyone for his conduct on this date.  It was a once off.  The Complainant feels dismissal was a disproportionate sanction and that a written warning would have been more appropriate.  His dismissal has affected him considerably as there is a blemish on his CV and it affects his ability to obtain employment.  He outlined that he is currently unemployed.  He has done up his CV and intends to do some courses. Due to health issues, he has not commenced any of those courses at this time. 

In cross-examination, the Complainant confirmed he has not applied for any jobs since his dismissal.  He was asked, given he had accepted the wrongdoing that led to his dismissal, what would have been gained from cross-examining witnesses.  The Complainant responded, “maybe a chance to redeem, maybe asking why I wasn’t asked if I was alright, maybe the outcome would have been different”.  The Complainant accepted that he never raised the issue of cross-examination of witnesses during the Trust in Care investigation or the subsequent disciplinary process and accepted that the Trust in Care policy does not preclude same.  The Complainant accepted that while the incidents occurred on one day, there were several incidents on that date.  It was put to the Complainant that he had alcohol the night prior to 29 June 2024 by his own admission.  The Complainant responded that his conduct had nothing to do with being out the night before.  The Complainant was asked if he brought it to anyone’s attention on the 29 June 2024 that he needed help that day as he was not in the right headspace.  The Complainant accepted that he had not done so.  The Complainant accepted that he was given every opportunity to raise mitigating factors.  He added he should have got a written warning and further training as he was remorseful for his conduct.

Closing & Written Submission

It was submitted on behalf of the Complainant that the Respondent errored in conflating the Trust in Care and Disciplinary policies.  Rather, a separate disciplinary investigation should have been instigated thus allowing the Complainant the right to cross-examine any witnesses called and ensuring natural justice.  The written submission outlines the jurisprudence with regard to due process, and the right to cross-examine or challenge one’s accusers.  Jurisprudence with regard to the reasonable employer test to be applied was also referenced in the written submission.  The Complainant fully co-operated with the investigation and was remorseful for his conduct on the relevant date.  Trust and care should not trump a person’s reputation.  The sanction of dismissal was disproportionate.  It was one blip over a couple of hours and should not blemish 13 years of good service.  The Complainant seeks reinstatement or compensation.

Oral testimony of W1 (on affirmation)

The witness outlined that she was employed by the Respondent for 28 years, and in the capacity of HR Officer for the last 19 years.  The Respondent is a s. 38 organisation fully funded by the HSE and contracted to support 80 persons with profound and severe physical and intellectual disabilities.  Many of the person supported are non-ambulant and non-verbal which places them amongst the most vulnerable in society given they cannot verbalise any conduct that may cause them distress or harm.  The Respondent is obliged to follow the national “Trust in Care Policy”. 

The Complainant worked in a named location where he was required to support two males both of whom had high care needs, and one of whom was non-verbal.  A concern about the Complainant’s behaviour on 29 June 2024 was brought to the Respondent’s attention by a social care worker.  It was alleged the Complainant (i) used profanities on several occasions when the person supported by them refused to take a shower; (ii) verbally abused a support person and a colleague causing a person supported to become upset; (iii) entered the bathroom of a person supported (this person was not supported by the Complainant) just after she was supported to take a shower causing the person supported to become distressed and scream; and (iv) removed a mattress and bedding from the bed of a person supported preventing them from relaxing in their bed as preferred, resulting in an allegation of neglect and emotional abuse. 

A decision was made to place the Complainant on paid leave.  A preliminary Trust in Care screening took place conducted by the Person in Charge (“the PIC”).  The purpose of this screening is to determine whether an alleged incident may have occurred. The result was that an incident may have occurred, and accordingly a full investigation was deemed necessary.  The Complainant was advised of this on 9 August 2024.  The witness and another PIC conducted a Trust in Care investigation the purpose of which is to establish if an alleged incident did occur.  The witness is often involved in Trust in Care investigations.  The witness met with the Complainant and six other witnesses.  The Complainant had representation at all meetings.  The Complainant acknowledged the allegations to be true, with the exception of entering the bathroom of a female.  He also acknowledged that he knew the protocols to be followed in each instance.  The Complainant initially denied the female was in the bathroom.  However, he later acknowledged that this was not the truth, and that he had entered the bathroom just after she was supported to shower.  The Complainant had no need to enter this separate house and entered without permission.  The outcome of the investigation was that all allegations were upheld.  At no time did the Complainant request to cross-examine witnesses or the opportunity to put questions to them.  He never raised any issue with the investigation.  He was provided with all statements and reports throughout the process. 

In cross-examination, the witness was asked why HR engage in Trust in Care investigations.  The witness responded that it is a small organisation and a limited number of people are trained to conduct investigations.  Further, neither the Complainant nor his trade union representative raised an issue with HR being involved in the investigation. 

In redirect, the witness outlined that the PIC was also part of the investigation team and neither the witness nor that PIC had any previous involvement in the matter. The Trust in Care Policy is a national policy, and it does not preclude the involvement of HR persons in investigations conducted under that policy.  The investigation findings were handed over to the Trust in Care Commissioner.

Oral testimony of W2 (on affirmation)

The witness is the Director of Strategic Development and has been employed by the Respondent for 10 years.  She was asked to conduct a disciplinary hearing by the Trust in Care Commissioner.  The union on behalf of the Complainant stated that there should have been a disciplinary investigation.  This was deemed not necessary as a full investigation had been conducted albeit under the Trust in Care Policy, and accordingly it was appropriate to progress the matter to a disciplinary hearing.  The Complainant was represented at the disciplinary hearing by his union representative.  The first hearing was suspended pending an occupational health referral.  It was reconvened when the Complainant was deemed fit to participate in the hearing.  At the disciplinary hearing, the Complainant confirmed he engaged in the behaviours alleged.  By way of mitigation, he stated that he was not in the right headspace on 29 June 2024.  No other mitigating factors were given despite being asked more than once if there was anything he wished to bring to the Respondent’s attention.  No issues were raised regarding the process being followed.  He did not ask to cross-examine or question any witness.  Following the hearing, a decision was made to dismiss the Complainant.  Alternatives to dismissal were considered such as a final written warning but deemed not appropriate due to the nature of the abuse;  the fact it was repeated several times on that date; the nature of the one-to-one work provided; and the vulnerable position of the person supported as they cannot articulate abuse.  The level of trust that must exist is extremely high and that trust was irreversibly broken.

In cross-examination, the witness was asked that if the Respondent’s concerns about the behaviour of the Complainant were so grave, why did they not report same to the Gardaí.  In response the Complainant stated that as s. 19 was triggered, the HSE are obliged to notify the Gardaí.  It was put to the witness that the dismissal was disproportionate as the behaviour, which was fully accepted by the Complainant, was confined to one day only.  The witness responded that the conduct on that date was repeated and severe.  It was put to the witness that the Complainant was not adequately trained.  This was denied by the witness who stated that all staff are fully trained in safeguarding vulnerable adults and children, and that lack of training was not raised at any time during the investigation or disciplinary hearing.  Further, he was asked at the disciplinary hearing if there were any other mitigating factors, to which he said ‘no’.

Oral testimony of W3 (on affirmation)

The witness was the CEO at the time of the incident.  She has a nursing background.  She conducted the disciplinary appeal hearing following the outcome of the disciplinary hearing.  The appeal grounds did not include any procedural concerns regarding the investigation and or disciplinary hearing.   During the appeal hearing, the Complainant stated he worked for 13 years, that he had apologised for his behaviour on 29 June 2024, and had explained that it was out of character for him, and that the decision to dismiss was heavy handed.  He also at that point raised the issue of moving from a Trust in Care investigation to a disciplinary hearing without a separate investigation under the Disciplinary Procedure.  He outlined that he was willing to undergo additional training but never questioned the training he had already received.  There was no mention of not being permitted an opportunity to cross-examine witnesses.   

A decision was made not to uphold the appeal.  The actions of the Complainant completely undermined trust.  The Respondent serves the most vulnerable persons who are completely at the mercy of the care they receive.  He was front line staff thus the highest level of trust was essential in that role.  His position was no longer tenable. He accepted what happened.  Dismissal was warranted in all the circumstances, and accordingly no alternatives to dismissal were deemed appropriate in the circumstances.

In cross-examination, the witness was asked why 13 years of service did not mitigate against one day of wrongdoing.  The Complainant accepted the wrongdoing and apologised.  The witness responded that the Complainant’s service and admission of wrongdoing was considered but did not outweigh the wrongdoing and the rights of those affected by the Complainant’s misconduct.  He acknowledged that what he did constituted abuse.  It was put to the witness that it is highly unusual for a person to be dismissed following a Trust in Care investigation.  The witness responded that the Respondent is a s.38 and s. 39 provider and is obliged to work under these national policies.

In re-direct the witness confirmed that while the behaviour was confined to the 29 June 2024, there were four separate incidents of misconduct on that date.

Closing & Written Submission

The Respondent’s representative outlined various decisions regarding the appropriate test for determining claims of gross-misconduct and the importance of trust in the employment relationship.  The Respondent had no alternative but to dismiss the Complainant for serious misconduct, as the bond of trust between them had been severed.  His dismissal was not unfair as it resulted wholly from the conduct of the employee, in accordance with s. 6(4)(b) of the Unfair Dismissals Act 1977-2015.  The employer did what any reasonable employer would do.  Further, the Respondent acted fully in accordance with due process, and internal procedures.  The Complainant admitted the wrongdoing which constituted gross misconduct which led to the complete undermining of trust necessary for the employment relationship.  The sanction of dismissal was proportionate.  The Complainant contributed fully to his dismissal and failed to mitigate any loss arising from his dismissal.

Relevant Law

The Unfair Dismissal Acts, 1977-2015 (“the Acts”)

Section 6(1) of the Acts provides:

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”.

Section 6(4) of the Acts provides:

“Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following: (b) the conduct of the employee . . . .”

Section 6(6) of the Acts provides:

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.”

Section 6(7) of the Acts provides:

“Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) of section 7 (2) of this Act” (emphasis added).

In Bunyan v. United Dominions Trust (Ireland) Ltd [1982] ILRM 404, the Employment Appeals Tribunal held:

“The fairness or unfairness of dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances and in that line of business would have behaved. The Tribunal therefore does not decide the question whether or not, on the evidence before it, the employee should be dismissed. That decision has been taken, and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded”. 

The range or band of reasonable responses test has been applied not only to the question of whether the suspected misconduct may have taken place but also to the reasonableness of the investigation and the reasonableness of the decision to dismiss (Iceland Frozen Foods v. Jones 1983 1 ICR 17 and J Sainsbury PLC v Hitt 2003 ICR 111).  It was noted by the Labour Court in Kilsaran Concrete, Kilsaran International Ltd v. Vitalie Vet (UD1611) that “[o]ne of the key principles regulating the reasonableness of a dismissal is compliance with the principle of proportionality”.  In Frizelle v. New Ross Credit Union [1997] IEHC 137, Flood J. stated that in cases of misconduct “the actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee”. 

In considering the proportionality of the sanction, the fact that an Adjudication Officer would have taken a different view, is not relevant (Bigaignon v. Powerteam Electrical Services Ltd [2012] 23 E.L.R. 195). 

Where a decision may adversely affect a person’s good name or livelihood, a range of procedural protections are engaged.  In Re Haughey [1971] IR 217 the Supreme Court interpreted Article 40.3 of the Irish Constitution as encompassing a guarantee of fair procedures in any proceedings where a person’s conduct is impugned. The right to fair procedures is not absolute, and the requirements of fair procedures will vary according to the circumstances of the case, however, at a minimum a person is entitled to be informed of the charge against him and to be given an opportunity to answer it and to make submissions in their defence (Mooney v. An Post [1998] 4 IR 288).  Fair procedures does not mean perfect procedures (Murphy v. College Freight Ltd, UD867/2007).  The role of an Adjudication Officer is to establish if the process followed by the employer conformed to the generally accepted standard of fairness and objectivity normally followed in like cases.  A central consideration is whether any purported breach of due process endangered a fair hearing or a fair result (Shortt v. Royal Liver Assurance Ltd (2008) IEHC 332. 

Findings

The fact of dismissal is not in dispute and accordingly the burden of proof rests on the Respondent in this case to show that the dismissal of the Complainant resulted wholly or mainly from one or more of the matters specified in s. 6(4) of the Acts or other substantial reason.  I must apply the standard of ‘reasonable employer’ which requires that I determine whether it was reasonably open to the Respondent to make the decision it made.  This requires a determination of the range of responses which a reasonable employer could have taken having regard to the nature of the case and then a consideration as to whether the Respondent’s decision lay within that range (Governor and Company of Bank of Ireland v. James Reilly [2015] IEHC 241, approved in An Bord Banistíochta Gaelscoil Moshíolog v. Labour Court [2024] IESC 38).  It is also well established that an employee has a right to fair procedures within a disciplinary process.  It is therefore necessary to consider whether an employee’s dismissal is both substantively and procedurally fair. 

It is the Respondent’s position that the decision to terminate the Complainant’s employment was within the band of reasonable responses open to the Respondent and was both substantively and procedurally fair.  It is the Complainant’s position that the sanction of dismissal was disproportionate and that the process followed by the Respondent did not fully comply with the requirements of fair procedures and natural justice.

It is common case the Complainant admitted to engaging in 4 separate acts of misconduct on 29 June 2024.  He fully accepted his behaviour constituted misconduct and apologised for same.  The wrongdoing concerned, which was outlined to the hearing in evidence, was found following an investigation into same, to constitute emotional/psychological abuse and or neglect/omission.  The outcome of the disciplinary hearing was a decision to dismiss.  The Complainant appealed that decision.  The appeal was not upheld.  It was not in dispute that the Complainant had 13 years of unblemished performance in his role as a healthcare assistant prior to the events of 29 June 2024.  According to the evidence given on behalf of the Respondent, these were matters which were duly considered, however, given: (i) the nature of the work performed by the Complainant; (ii) he had been trained in the correct protocols to follow; (iii) the nature of the needs of the recipients of his care; (iv) the nature of the wrongdoing; and (iv) the absence of mitigating factors, the Respondent concluded that the bond of trust required had been irretrievably broken and dismissal was a proportionate sanction in all the circumstances. 

The Complainant contends that his dismissal was unfair on the grounds that (a) the sanction imposed was disproportionate in the circumstances, and (b) there were procedural deficiencies, namely: (i) the absence of a separate investigation under the Disciplinary Procedure, and (ii) the failure to facilitate cross-examination of witness statements.

For the reasons set out below, I am satisfied the Respondent has discharged the onus of proving that the Complainant’s dismissal was both procedurally and substantially fair in this case.

The investigation was conducted under the Trust in Care Policy.  This is a national policy agreed with the unions within the care sector for the purpose of managing allegations of abuse.  I note one of the aims of that policy is to ensure that allegations of abuse against health service staff are managed in accordance with ‘natural justice’.  Section 5.3 of that policy provides that where an allegation is upheld following an investigation into same, the matter may be referred to the CEO who is empowered to take disciplinary action up to and including dismissal.  The Grievance and Disciplinary Procedure, opened to the hearing by the Respondent, provides: “In all cases of alleged serious misconduct, a full investigation will be carried out . . . .”  I am satisfied that a full and impartial investigation was conducted albeit under the Trust in Care Policy.  No reason was given in the hearing by the Complainant or his representative as to why a second investigation was necessary under the Grievance and Disciplinary Procedure or how the Complainant would have benefitted from same or what disadvantage he suffered by its absence.  Therefore, I cannot find that the approach adopted by the Respondent, with regard to the procedure under which the investigation was conducted, was unreasonable or contrary to fair procedure or a fair result.

The requirements of fair procedure in an internal disciplinary process depend on the circumstances of the case.  Where dismissal is a possible outcome, stronger procedural protections may be required.  The right to challenge one’s accusers, as a tenet of fair procedures, is not absolute.  It may arise in a case, particularly where an allegation is serious and there is a conflict of evidence.  If the employee accepts or does not contest the allegations or core facts, then the need for cross‑examination is significantly reduced.  Even in serious disciplinary cases, where dismissal is flagged as a potential sanction, employers are not obliged to replicate a courtroom-style hearing.

At the hearing, the Complainant submitted that he should have been afforded an opportunity to cross-examine or otherwise challenge the statements of the witnesses interviewed.  In circumstances where there was no conflict of evidence, it is questionable if the necessity arose for the cross-examination of witness statements in this case.  I am nevertheless satisfied that, at no stage, was the Complainant denied an opportunity to challenge the witness statements.  The Trust in Care Policy was nationally agreed with the union to ensure due process where an allegation of abuse is made.  This policy does not prohibit cross-examination.  It was not in dispute that the Complainant was provided with all witness statements.  He was given a copy of the investigation report prior to any action been taken by management.  He was represented by the union at all stages of the process.  A lack of opportunity to cross-examine or challenge the witness statements was not raised by the Complainant or his representative at any time during the process.  He fully admitted the wrongdoing, and at no time did he challenge anything in the statements or seek to do so.  No good reason was given to the hearing to support how the Complainant had been disadvantaged in terms of the outcome as a result of him not being expressly informed of a right (if such a right existed in this case) to cross-examine/challenge the witness statements.  Therefore, I cannot find that the approach adopted by the Respondent in this regard was unreasonable or contrary to fair procedure or a fair result.    

It is not in dispute that the Complainant was otherwise afforded due process throughout the Trust in Care investigation, and subsequent disciplinary process.  In light of all the foregoing,  I am satisfied the investigation and disciplinary process, objectively assessed, was reasonable in all the circumstances.

The next matter for consideration is whether the decision to dismiss, in light of the results of the investigation and disciplinary process, was a reasonable response.  The Complainant contends the sanction of dismissal was disproportionate.  I note this was one of his grounds of appeal under the disciplinary process.  An appeal hearing was conducted by the CEO and an outcome issued in writing on 7 February 2025.  The appeal outcome letter outlined the grounds of appeal and then stated: “Having reviewed the contents of the Final Report and taking into account your grounds of appeal I advise you that your appeal is not upheld”.  I note that there was no substantive engagement, within the outcome letter, with the grounds of appeal, nor were any reasons provided for their rejection.  Engaging with the grounds of appeal and giving reasons for their rejection or otherwise is important so the person affected by that decision understands why the appeal was not upheld. 

The decision to dismiss has been taken by the Respondent.  It is not for me to substitute my own judgment as to whether the dismissal was reasonable; rather, the question to be determined is whether “. . . a reasonable employer in those circumstances in that line of business . . .” would have dismissed (Bunyan v. UDT(Ireland) Ltd. [1982] ILRM 404).  Having considered all the evidence in this case, I am satisfied, on balance, that a reasonable employer in the same ‘line of business’, faced with the same circumstances as the Respondent, would have reached the same determination.  

I accept the oral testimony of the Respondent witnesses as to why the initial decision to dismiss was made and why same was upheld on appeal.  In particular, it was stressed that the Respondent supports people with severe and or profound intellectual and physical disabilities.  Many of those supported are unable to express themselves verbally and so it is critically important that the healthcare assistant can be fully trusted in the proper discharge of their duties.  The Complainant was employed as a frontline carer to these vulnerable people: a position of considerable trust.  He was trained in the protocols to follow but did not adhere to same on 29 June 2024.  He accepted he engaged in the wrongdoing as alleged.  There were no mitigating factors proffered by the Complainant, other than he felt he was not in the right ‘headspace’ that day.  The Complainant was medically assessed and certified fully fit to engage in the investigation and disciplinary process.  None of the foregoing was disputed by the Complainant. 

I accept the submission of the Respondent that the Complainant’s 13 years of service, on balance, did not outweigh the admitted acts of abuse of 29 June 2024.  I accept the submission of the Respondent that it’s overriding duty is to protect the most vulnerable persons they support, who cannot defend themselves and are completely at the mercy of those who care for them.  I accept the Respondent’s submission that the actions of the Complainant on 29 June 2024 destroyed the Respondent’s trust and confidence in him rendering the continuation of the employment relationship untenable thereby justifying his dismissal.  The Respondent considered alternatives to dismissal, including a final written warning, but concluded that it had no option but to dismiss in the circumstances. 

Considering all the foregoing, I find the decision of the Respondent to dismiss the Complainant was within the range of reasonable responses of a reasonable employer to the conduct concerned, and therefore the decision to dismiss the Complainant in this case was not unfair.

I decide the Complainant was not unfairly dismissed, and accordingly I decide this complaint under the Unfair Dismissal Acts, 1977 - 2015 is not well founded.

Gross misconduct.