In Alan Kealy v St John of God Community Services Clg ADJ-00036899, the Complainant referred a complaint to the Workplace Relations Commission (the “WRC”) under the Unfair Dismissals Acts, 1977-2015 claiming that he was unfairly dismissed from his role as a caregiver with the Respondent. The Adjudicator, Conor Stokes, found that the Complainant was unfairly dismissed and ordered reinstatement of the Complainant to his role.
Facts: The Respondent’s position was that the Complainant was fairly dismissed after a full and thorough external investigation which upheld allegations made about the Complainant. The allegation was that he grabbed a patient’s foot and pulled him. This resulted in a disciplinary process and the Complainant was dismissed for gross misconduct. His appeal against his dismissal was unsuccessful. The Respondent submitted that it followed the Code of Practice throughout the process.
The interim Regional Director of Health was one of four witnesses who gave evidence on behalf of the Respondent. She told the WRC that the Complainant was given the opportunity to hear the complaints, to discuss the matters, and to be accompanied. This witness was involved in the disciplinary hearing. She gave evidence that because there was a finding of physical abuse in the investigation report, she felt that there was no option but to dismiss the Complainant. In her evidence, she stated that any physical abuse will lead to dismissal and it was decided that the physical abuse was gross misconduct.
The National Director of Operations gave evidence that he allowed the Complainant’s appeal to proceed despite his appeal having been submitted outside the relevant time limit. He noted that the Complainant was written to in advance and was given an opportunity to set out his case. He was satisfied that dismissal was the appropriate outcome and he upheld the decision to dismiss the Complainant. Under cross examination, he was asked about the severity of the physical abuse and responded that any form of physical abuse was very serious and that a “spectrum” of abuse does not exist. In relation to the question of mitigation, the witness responded that the Complainant’s length of service ought to have meant that his awareness was heightened.
In closing, it was submitted on behalf of the Respondent that the Complainant was afforded his rights and given opportunities to respond at all stages of the process. The Respondent also submitted that if the Complainant was to suceed in his claim, the remedy of reinstatement would not be appropriate as the relationship of trust and confidence had broken down.
The Complainant submitted that the Respondent did not follow its Trust and Care policy, that the investigation was not properly conducted and was not sufficiently robust. He submitted that there was no “rationale” for the conclusions reached by the Respondent and that the incident with the patient was never properly explored by the Respondent.
The Complainant gave evidence that his dismissal meant that he would not be able to continue working in this chosen field. He gave evidence of having sought to mitigate his loss by working with his brother but was earning €10,000 less per annum.
Decision: The Adjudicator accepted that there may have been some deficiency in the invesitgation process. He noted that the final investigation report found that there had been physical restraint of a patient which was consistent with abuse as defined in the Trust in Care policy. The Adjudicator noted that the finding referred to a single once-off incident. He pointed out that the finding in the investigation report that the Complainant grabbed and pulled the patient by the foot was consistent with a form of non-accidental injury that causes harm or could cause harm to the patient. He pointed out that the Trust in Care policy, which “feeds into” the disciplinary policy, makes provision for the first two stages (oral warning and written warning) to be bypassed where there has been abuse/non-accidental injury.
The Adjudicator noted that the witness who conducted the disciplinary meeting repeatedly used the phrase “physical abuse is physical abuse” and that her view was that this must result in dismissal. There was no consideration of mitgation or the individual’s employment record. No sanction other than dismissal was considered. The witness appeared to regard the incident as “violent behaviour” which is an example of gross misconduct in the Respondent’s policy and which differed from the investigator’s finding of non-accidental injury.
The Adjudicator noted that not all available witnesses were interviewed, nor was the original investigation report considered in sufficient detail at the appeal stage to realise that there was a jump from the conclusion of the investigation of a lower-level infraction to the higher-level infraction concluded by the witness who carried out the disciplinary meeting. The Adjudicator found that the Respondent’s belief that the Complainant was guily of gross misconduct was not supported by the invesitgation process, and that it was not a reasonable conclusion to reach from the evidence. The sanction of dismisal was disproportionate, particulary considering that the Complainant would be unable to continue working in his chosen field, in which he had worked for fifteen years.
The Adjudicator found that the Complainant was unfairly dismissed.
In considering the appropriate remedy, the Adjudicator noted that the Complainant sought reinstatement, which the Respondent indicated would be inappropriate because there was a breach of trust. Notwithstanding the Respondent’s position, the Adjudicator ordered reinstatement, nothing that
“in a situation where the complainant has been penalised for an offence which he was never found to have committed, despite an investigation which concluded otherwise, the only remedy avaialble to me to clear the complainant’s good name is to direct that he be reintstated to his position with effect from the date of his dismissal, the complainant should be paid any back pay to that date and his pension entitlements and professional accreditation should not reflect any break in service.”
Takeaway for Employers: This decision is a reminder of the high burden of proof on employers in unfair dismissal cases. Dismissal must be a proportionate sanction to the offence found to have been committed, and mitigating factors, including length of service, must be taken into consideration. Employers should note that, while compensation remains the most common form of redress ordered in unfair dismissal cases, it is also open to an Adjudicator to order reinstatement or re-engagement instead. This was the case here, notwithstanding the Respondent’s argument that the relationship of trust and confidence had broken down.
Link – https://www.workplacerelations.ie/en/cases/2024/march/adj-00036899.html
Authors – Jane Holian and Jenny Wakely
26th April 2024
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