A Service for Persons with Intellectual Disability (Represented by Irish Business and Employers' Confederation) v A Worker (Represented by Irish Municipal, Public and Civil Trade Union)

• Jurisdiction: Ireland
• Judgment Date: 19 February 2018
• Judgment citation (vLex): [2018] 2 JIEC 1905
• Docket Number: DETERMINATION NO.UDD1813,FULL RECOMMENDATION,ADJ-00004653 CA-00006652-001
• Court: Labour Court (Ireland)
• Date: 19 February 2018

Labour Court (Ireland)

FULL RECOMMENDATION

UD/17/101

DETERMINATION NO.UDD1813

ADJ-00004653 CA-00006652-001

PARTIES:

A Service for Persons with Intellectual Disability (Represented by Irish Business and Employers' Confederation)

and

A Worker (Represented by Irish Municipal, Public and Civil Trade Union)

DIVISION:

Chairman: Ms Jenkinson

Employer Member: Mr Marie

Worker Member: Ms Treacy

SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015

SUBJECT:

1 1. Appeal Of Adjudication Officer Decision No: ADJ-00004653 CA-00006652-001.

BACKGROUND:

2 2. The Claimant appealed the Decision of the Adjudication Officer ADJ-00004653 to the Labour Court in accordance with Section 8A of the Unfair Dismissals Act, 1977 to 2015. A Labour Court hearing took place on January 30th 2018. The following is the Determination of the Court:

DETERMINATION:

3 This is an appeal by an employee against the Decision of an Adjudication Officer ADJ-00004653, CA-00006652 under the Unfair Dismissals Acts 1977 – 2015 (the Acts) in a claim made against his former employer, a Service for Persons with Intellectual Disability. By decision dated 7 ^th July 2017, the Adjudication Officer held that the complaint was well-founded and awarded the sum of €8,000 in compensation.

4 For ease of reference the parties are given the same designation as they had at first instance. Hence the employee will be referred to as “the Complainant” and the Service for Persons with Intellectual Disability, will be referred to as “the Respondent”.

5 The Complainant referred his case to the Workplace Relations Commission on 25 ^th August 2016. On 9 ^th June 2017, the Complainant appealed the Adjudication Officer's Decision against the quantum of compensation awarded. The appeal came before the Court on 30th January 2018.

6 Due to the sensitive nature of this case the Court has decided to anonymise the parties.

7 Basis for the Appeal

8 The only issue for determination in this appeal concerned the matter of redress/remedy as it was not contested that there were procedural shortcomings in the disciplinary process. The Complainant sought reinstatement, whereas the Respondent was opposed to the Complainant returning to his role in the Service.

Background

9 The Complainant was employed as a Health Care Assistant with the Respondent from 17 ^th April 2012 until his dismissal on 12 ^th August 2016.

10 The Respondent is a campus and community based residential and day service for adults and children with intellectual disabilities. A board of directors, comprised of volunteers, was replaced in 2016 by the HSE.

11 On 29th September, 2015, an allegation of physical abuse towards a resident was made. The Complainant was accused of forcefully pulling a service user to his feet and he was immediately suspended with pay.

12 The Respondent drew up Terms of Reference under its Trust in Care policy for an investigation into the incident and an Independent Investigator was appointed to conduct the investigation. The investigators investigated the allegation that the Complainant had engaging in verbal psychological and physical abuse of a resident. Towards the completion of the investigation the Complainant accepted that the allegations made against him were true. The Investigation was concluded in November 2015 and found as follows:-

• “The confirmed allegations and behaviours — psychological, verbal and physical abuse — displayed by [the Complainant] constitute inappropriate practiceswithin the sphere of major misconduct and the organisation should consider this in deciding on appropriate courses of action.”

13 On 10th December 2015, the Complainant was informed that he was dismissed with immediate effect. The Complainant appealed the decision and the decision to dismiss was overturned. He was reinstated and put back on the payroll with effect from 10th December 2015. A new Board of Management was appointed by the HSE in April 2016. On 12th August 2016 he was informed that he was not “suitably qualified” for the work and was dismissed with immediate effect.

Summary of the Respondent's Position

14 Mr Robin McKenna, Ibec, on behalf of the Respondent submitted on receipt of the final investigation report, the Respondent considered the situation in its entirety and was left with no other option but to dismiss the Complainant, which took effect on 10th December 2015. He said that this decision was due to the Respondent's zero tolerance of abuse and it was one of the sanctions contained in its Serious Misconduct Policy. In line with its disciplinary process, the Complainant was afforded the opportunity to appeal this decision, which he duly did. Mr McKenna said that the then Chairman of the Board heard the appeal on 8th January 2016 and recommended that the Complainant be reinstated. He was put back on the payroll with effect from 10th December 2015.

15 A new Board of Management appointed by the HSE held its first meeting in April 2016. Due to there being grave concerns over the safety and welfare of people with disabilities in the Service, and in compliance with an ethos and stated policy of zero tolerance of abuse, the Board considers that the Complainant was not suitably qualified to work with the residents of the Service and determined that he should be removed from the payroll.

16 This decision was made at the Board meeting on 28th June 2016 and communicated to the Operations Manager on 29th June 2016. The Complainant's employment was terminated with effect on 12th August 2016.

17 Mr McKenna said that due to its responsibility to provide day and...