Brickley v Extern Ireland Ltd [EAT]
Jurisdiction | Ireland |
Judgment Date | 06 April 2011 |
Judgment citation (vLex) | [2011] 4 JIEC 0603 |
Docket Number | UD1348/2008 |
Date | 06 April 2011 |
Court | Employment Appeal Tribunal (Ireland) |
EMPLOYMENT APPEALS TRIBUNAL
CASE NO. UD1348/2008
CLAIM OF:
Claimant: Mr Ed Dwyer BL instructed by Mr Ger O'Donoghue of White O'Donoghue & Company, Solicitors, Market Square, Abbeyleix, County Laois
Respondent: Mr Alan Barry, IBEC, Confederation House, 84/86 Lower Baggot Street, Dublin 2
Mr David Keane, IBEC, Confederation House, 84/86 Lower Baggot Street, Dublin 2
Ms Caoimhe Scolard, IBEC, Confederation House, 84/86 Lower Baggot Street, Dublin 2
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal (Division of Tribunal)
Chairman: Mr J Flanagan BL
Members: Mr J Hennessy Mr F Barry
heard this claim at Portlaoise on 15 th April 2009
and 29 th July 2009
and 30 th July 2009
and 22 nd October 2009
and 23 rd October 2009
and 18 th December 2009
and 21 st December 2009
and 22 nd December 2009
and 3 rd March 2010
and 4 th March 2010
and 25 th May 2010
and 26 th May 2010
and 15 th February 2011
and 6 th April 2011
The determination of the Tribunal was as follows:
A girl (referred to hereafter as KO) had admitted to having full unprotected sexual intercourse when aged fifteen years and two months with a young male in the respondent's premises in Northern Ireland. This incident occurred in January 2008, when the age of consent in Northern Ireland was17 years of age. The girl involved in the incident was an Irish national ordinarily resident in Ireland.Since then the Sexual Offences (Northern Ireland) Order 2008 Number 1769 became operational on2 nd February 2009 and has lowered the age of consent in that jurisdiction to 16 years of age. Theage of consent was, and remains, 17 years of age in Ireland.
The respondent is an agency which cares for young persons by way of providing youth projects in Ireland. The respondent also operates a residential facility (hereafter referred to as R) in Northern Ireland. The claimant had been employed by the respondent in one of its youth projects in the South. KO was a client of this project and the claimant had been in charge of KO at the time of this incident which occurred while KO was on a residential weekend away in the respondent's premises in the North.
The Tribunal enquired as to whether or not this incident of underage sexual intercourse involving a minor had been reported to the relevant authorities. According to the respondent the incident had come to light when KO had admitted having sexual intercourse to a member of staff of the HSE run facility in which KO ordinarily resides. The respondent stated that the HSE was the relevant reporting agency in Ireland and therefore the HSE was aware of the occurrence of the incident. The Tribunal did enquire and failed to obtain an adequate response when it asked if the incident had been brought to the attention of the relevant officials within the HSE and not merely to the attention of the HSE personnel in the residential facility. The Tribunal also pointed out to the respondent that the incident had occurred in Northern Ireland and not within the jurisdiction where the HSE could be regarded as the appropriate reporting authority. The Tribunal specifically asked if the incident had been reported to the relevant authorities in Northern Ireland. The respondent was unable to say if the HSE had brought the incident to the attention of the relevant reporting authority in Northern Ireland. It was only on pressing the point that it became clear to the Tribunal that the respondent itself had taken no steps whatsoever to bring the claim by a minor that she had been the victim of the statutory rape to the attention of the relevant reporting authorities in Northern Ireland nor had the respondent taken any steps to ensure that the incident had been brought to the attention of the relevant section of the HSE.
KO normally resided in a residential facility run by the HSE. The respondent had been engaged by the HSE to operate a youth project in a town in the South, hereafter referred to as P. KO was a client of the respondent's project in P. The respondent employed the claimant at the project in P andthe claimant had a particular responsibility for KO within the project. The claimant was alsorequired by the respondent to bring KO on the residential weekend away in the respondent's facilityin Northern Ireland. The claimant was required to provide one-to-one supervision for KOthroughout the weekend including on the journey to and from R. The claimant is female and was inher late twenties at the time of the incident. The claimant was accompanied by another femaleemployee of the respondent at the project in P, referred to hereafter as AL. AL was required by therespondent to provide one-to-one supervision of another young female client from the project in Pand all four females were to share the same chalet in R on the weekend away. The residentialfacility in R comprised of a number of chalets. The respondent also operated a similar project inanother town in the South hereafter referred to as M. Also present that weekend was a group fromM consisting of three young male clients under the supervision of two adult male employees of therespondent.
The claimant, a social care worker, lodged a claim on 5 th November 2008 under the Unfair Dismissals Acts, 1977 to 2007, after an employment with the respondent that had commenced in 5 th September 2005 and ended in October 2008. The claimant alleged that she had been constructively dismissed. For the claimant it was alleged that there had been unfair procedures in the disciplinary hearing and appeal and that there had arisen thereby and also on other grounds an absence of mutual trust and understanding in the relationship of employer and employee justifying the claimant in not returning to work such that the employment had been terminated by way of constructive dismissal.
The respondent contended that the claimant had not been dismissed by the respondent from her employment, either constructively or at all, but rather that the claimant resigned from her former employment with the respondent such that she had no claim under the Unfair Dismissals Acts, 1977 to 2007. The respondent argued that the claimant had been the subject of a fair and procedurally sound disciplinary process. The decision to dismiss the claimant made at first instance was appealed by the claimant. For the respondent it was claimed that it was a mark of the fairness of the employers disciplinary procedures that the claimant succeeded in having the decision to dismiss overturned at the internal appeal. The claimant was ultimately issued with a final written warning. The respondent argued that the reduction in sanction from dismissal to placing the claimant on a final written warning demonstrated the effective and independent role of the appeals procedure. The claimant went on sick leave and refused to return to work. The respondent stated it would call evidence of its efforts to facilitate the return of the claimant to work. The claimant never returned to work despite the respondent's best efforts. It was the respondent's case that the claimant resigned in mid-October 2008. The respondent claimed that it had behaved appropriately at all times throughout the disciplinary procedure and at no material time did the respondent's conduct justify the claimant's decision to refuse to return to work.
This was a lengthy case heard over a prolonged period of time and both parties made extensive written submissions to the Tribunal subsequent to the final day of the hearing. Given the large amount of oral evidence heard and the number of issues raised it may add clarity to this determination to provide excerpts and/or summaries of their submissions at this point. The Tribunal does not intend to deal specifically in this determination with those elements of the written submissions that merely reiterate well accepted and general principles of law but will instead focus primarily on those points most germane to the particular facts of this case.
For the claimant it was accepted that this is a constructive dismissal case and that the burden of proof rests on the claimant to show that she was dismissed. The claimant's case is that she was forced to resign from her employment because the conduct of the respondent entitled and/or made it reasonable for the claimant to terminate her contract of employment.
The claimant was justified in leaving her employment on the basis of the conduct of the respondent which included:
- The failure of her line manager to deal adequately with certain issues such as overnights, the mobile phone policy and the conduct of risk assessments. 2 The failure of her superiors to resolve the claimant's complaint about her line manager's behaviour and the fact that no progress was achieved in respect of her complaint even up to the occurrence of the incident involving KO. 3 That initially following the incident involving KO the claimant was not told that she was under disciplinary investigation. 4 The respondent failed to clarify at the outset which part of the disciplinary procedures was being applied. 5 The investigation team failed adequately or at all to analyse and/or take account of the true position in respect of key ingredients in the said investigation such as (a) the so-called mobile phone policy, (b) the use of risk assessments and failure to take account of the claimant's hazard risk assessment, (c) the method of booking overnights in R, (d) the line manager's role in respect of these matters, (e) the residential proximity of the male and female teams and in particular the fact that the...
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