The Complainant commenced employment with the Respondent as a Support Care Leader in 2016. She submitted that she had a blemish free track record with the Respondent.

An incident occurred on the 23rd of April 2020 involving the Complainant and one of the service users of the Respondent. The Complainant, in evidence, said she had a firm exchange with a service user following his exit from another service user’s bedroom.  The Complainant categorically denies the charge of physical abuse toward a service user and said in evidence that the service user had a previous history of sexualised behaviour.

A colleague of the Complainant did not intervene during the exchange and did not make a verbal complaint until a week later, demonstrating, what the Complaint submits, was the minor nature of the incident.  The Complainant believed that the internal process was flawed as she was not offered representation at the first meeting with the Respondent. Confidentiality was also breached as she was told by a colleague a complaint had been submitted in advance of this meeting.

The Respondent Residential Services Manager (RSM) advised the Complainant that the incident was a serious matter, and she was to be placed on protective leave for the duration of the investigation. An independent person with expertise in this area was engaged to carry out a full investigation.

The investigator had found that the allegation of physical abuse was upheld. The Complainant and her Union representative attended a meeting to learn the outcome of the decision of the which was that the Respondent had decided to dismiss the Complainant. An appeal was allowed and made to the Board of Management, but this was not upheld.

The Complainant submitted that the investigation was flawed as the investigator chose to believe a colleague of the Complainant’s account of the incident, despite there being no other witnesses.  In addition, the Complainant stated that the investigator and only considered written records regarding the service user’s behaviour in the period prior to the incident to contradict the Complainant’s account and did not interview other care support workers for a balanced approach.

The Complainant also submitted that the subsequent decision of the Respondent to dismiss her was disproportionate in the extreme. No consideration was given to alternative options less than dismissal by the decision makers or at appeal stage.

The Adjudication Officer emphasised the fact that there is a responsibility on the Respondent to provide safe care to vulnerable users of the services and therefore it was reasonable of the Respondent to place the Complainant on protective leave on full pay pending the investigation of the complaint of verbal and physical abuse against the Complainant.

The outcome of the investigation was that the allegation of physical abuse was upheld. The Adjudication Officer was satisfied that on the balance of probabilities, the Complainant did restrain the service user in the manner described. The Complainant did something that she should not have done and there was evidence that she had apologised to her colleague in a text exchange after the incident.

The key question to be answered is if decision to terminate the Complainant’s employment fell "within the range of reasonable responses of a reasonable employer to the conduct concerned"

The Respondent validly argued that it has a ‘zero tolerance’ policy towards physical abuse. The incident in this case was serious and required a reasonable and appropriate response from the Respondent. Dismissal from employment is the ultimate penalty.

However, before making such a decision, there was an obligation on the Respondent to consider all the circumstances of the case including the amount of the inappropriate restraint used in the incident and the effect, if any, it had on the service user, the circumstances leading to the incident and the unblemished record of the Complainant.

The Respondent gave no evidence other than the decision to dismiss was based solely on a finding of ‘physical abuse’ by the investigator. The decision to dismiss did not take account of all the circumstances and cannot be regarded as coming within the range of reasonable responses of a reasonable employer as alternatives to dismissal were not considered.

The Adjudication Officer found that the Respondent was also deficient when it came to the application of fair procedures in making the decision to dismiss. The right to be heard is a fundamental component of fair procedures and the denial of this right to the Complainant at the disciplinary stage clearly disposed of any argument by the Respondent of having applied fair procedures.

Therefore, the Adjudication Officer considered that the Complainant was unfairly dismissed.  As the Adjudication Officer was satisfied that the Complainant’s conduct contributed significantly to her own dismissal, the Adjudication Officer ordered that the Respondent pay compensation in the sum of €12,000.00 to the Complainant. 
https://www.workplacerelations.ie/en/cases/2021/july/adj-00029377.html