Case Number: ADJ-00014984. Workplace Relations Commission
| Docket Number | ADJ-00014984 |
| Date | 01 February 2019 |
| Year | 2019 |
| Court | Workplace Relations Commission |
| Parties | Care Support Worker v Residential Consulting |
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
BACKGROUND.
The Complainant was employed as a Care Support Worker with the Respondent from 23rd June 2013 until the employment was terminated without notice by the Respondent on 2nd May 2018. The Complainant was paid €1035.00 gross per fortnight and she worked 70 hours a Fortnight. The Complainant was provided with a written statement of her Terms and Conditions of Employment, including the Respondent’s Handbook which included the Grievance and Disciplinary Procedures of the Company. The Complainant referred three complaints to the Workplace Relations Commission on 29th May 2018 alleging she had been unfairly dismissed under the Unfair Dismissals Act, 1977 – 2015 – a complaint under the Minimum Notice and Terms of Employment Act, 1973 and a complaint under the Organisation of Working Time Act, 1997.
The Complaint under the Organisation of Working Time Act, 1997 CA-00019539-003 was withdrawn at the Hearing.
SUMMARY OF RESPONDENT’S POSITION.
Unfair Dismissals Act, 1977 – The Respondent provided a detailed account of the services they provide to clients of the service and they operate under the Trust in Care Policy for Health Service Employers – Trust in Care. They also operate under the Respondent’s Policy on Safeguarding Vulnerable Persons at Risk of Abuse Policy and to keep the service users safe and free from abuse and neglect. Every employee is expected to demonstrate conduct, competence and capability that will not place the service user at risk.
There was a complaint from a service user, named, in relation to the Complainant’s alleged conduct on 9th August 2017. This service user is a vulnerable adult who is confined to a wheel chair. An investigation was conducted under the Trust in Care Policy in relation to the service users complaint that he was psychologically abused by the Complainant on 9th August 2017. The Complainant was accompanied by her full-time Trade Union Official from SIPTU, named. The Investigation Report was issued to the Complainant for her comments. The Complainant confirmed she had nothing to add.
The Complainant was invited to attend a Disciplinary Hearing on 16th April 2017. The Complainant was again represented by her Trade Union SIPTU. The outcome was communicated to the Complainant in a letter dated 2nd May 2018 setting out in detail the Concern, the Finding and the Conclusion in relation to 8 issues of concern. It was found that on 9th August 2017 the Complainant had called the service user a little shit – she had raised her voice to the user – she had pointed her finger at the user and she had threatened the user with retaliatory violence. In considering the appropriate sanction the Respondent noted that in her Staff Supervision Meeting on 31st July 2017 she had expressed issues regarding how she felt about service users and she was reminded to walk away from situations where she felt frustrated. The decision was made to terminate the Complainant’s employment for gross misconduct with immediate effect. The employment terminated on 2nd May 2018.
The Complainant was afforded a right of appeal. The Complainant had indicated her intention to appeal her dismissal but she did not do so.
The Respondent argued that – they believed the Complainant had misconducted herself as alleged – the Respondent had reasonable grounds to sustain that belief – the Respondent carried out an investigation as was reasonable before taking action to dismiss and the sanction of dismissal was proportionate to the alleged misconduct.
SUMMARY OF COMPLAINANT’S POSITION.
The Complainant asserted that the procedures of the Respondent in relation to the dismissal of the Complainant were unfair as the Complainant was not afforded legal representation at the Investigation and Disciplinary process although they accepted the Complainant had been represented by her Full-time Trade Union Official from SIPTU. The Complainant was not informed prior to the Disciplinary Process that this could lead to her dismissal. She was not informed nor was she afforded a right to cross examine the service user and the witness, named, to the incident. The Complainant referenced the Decisions of the Higher Courts in Castlerea and Lyons.
The Complainant asserted that the service user, named, had a history of violence and she was placed in danger in having to deal with him. She also asserted that as part of his medication he was provided with Pornography on stream and that putting a female employee in to deal with this service user was appalling. The Complainant stated that in relation to the incident she had reacted to a risky situation. She asserted that this service user should have been assigned a male employee. She stated that rather than being dismissed she should have been assigned to other clients.
The Complainant stated she had been in receipt of Jobseekers Benefit from the Department of Social Protection and that she had recently commenced work earning €11.75 an hour. The Complainant was requested to provide evidence from the Department of Social Protection – to provide evidence of her recent employment and when she commenced this employment and also evidence of mitigation of loss as required by the Act.
FINDINGS AND CONCLUSIONS.
Preliminary issue – Legal Representation.
The issue to be addressed now is whether, following a fair and transparent investigation and disciplinary process, the Respondent’s decision to dismiss the Complainant was one that a reasonable employer might make. The issue of legal representation was also raised by the Legal Representative of the Complainant. There are a number of High Court Decisions to be considered in relation to the application of fair procedures, including legal representation. In Lyons v Longford Westmeath Education and Training Board IEHC 272/2017 the Judge held “where investigative processes can lead to dismissal, cross examination is a vital safeguard to ensure fair procedures………..It is the actual investigation that requires the right to cross examination and representation, that takes place prior to initiation of the disciplinary procedure under Circular 71/2014”. It is clear that in the particular circumstances of that case findings were made against the Complainant prior to the Disciplinary Hearing which would not be considered during the Disciplinary process.
This issue was also addressed by the High Court in EG v The Society of Actuaries in Ireland IEHC 392/2017 in which the Judge held “The Court is satisfied that the Investigating Committee was not obliged to conduct an oral hearing or to give the applicant an opportunity to cross-examine others in determining whether a prima facie case existed. The Court was satisfied that the decision to proceed on the basis of the statements and documents furnished was reasonable and fair in the circumstances”. In that case it is clear that the investigation decided there was a prima facie case of misconduct which was then put before the Disciplinary Tribunal. Similarly in the Decision of the High Court in NM v Limerick and Clare Education and Training Board IEHC308/2015 THE Judge held that “The decision to be taken by the investigators in this case could not be regarded as a final or binding finding of fact against the applicant. The procedure under the Circular requires an extensive hearing before determination could be made by the Chief Executive that a particular sanction should be applied”.
However, this issue has been addressed in a Decision from the Court of Appeal in the Case of Iarnrod Eireann/Irish Rail and Barry McKelvey – 2018 IECA 346 in which it is clear from this Decision that a Disciplinary Process is not rendered unfair by a refusal to allow an employee legal representation in the conduct of the disciplinary hearing or investigation. Such a requirement could only arise in exceptional cases involving issues of factual or legal complexity which could not be adequately addressed without the assistance of a lawyer.
I have read in detail all the appendices provided to the Hearing by the Respondent. I note the Investigation was conducted from 18/10/2017 to 9/1/2018 and the final investigation report was provided to the Complainant and she was requested to make any comments on this report. This was done twice, first on 9th January 2018 and the second letter dated 14th February 2018. The Complainant indicated she had no comments to make in an email dated 20th February 2018. I note that the Complainant was represented by her Full-Time SIPTU Trade Union Official.
The Complainant was invited by letter dated 22nd February 2018 to attend a Formal Disciplinary Hearing on 16th April 2018. The Complainant was afforded a right of representation by a Trade Union or fellow employee but she was informed that Legal Representation of other third party representation was not accepted as the internal process was not exhausted. She was also informed of the free access to the Employee Assistance Programme. This was conducted on 16th April 2018. The Complainant was represented by SIPTU. The Complainant was informed of the outcome by letter dated 2nd May 2018 and in a detailed report it deals with 8 concerns of the Respondent in relation to the incident on 9th August 2017. This stated...
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