Unfair Dismissals and Alternative Sanctions

Introduction to Unfair Dismissal and Alternative Sanctions

A recent case before the Workplace Relations Commission (WRC) highlights the need for solid decision and documentation processes, if and when an employer decides to terminate the employment of an employee (see: ADJ-00025193). A failure to strictly adhere to one’s own disciplinary processes and procedures, as well as considering all the options available, could count against an employer, if challenged.

Background

The complainant was employed as a social care worker (Employee) in a care facility which provides residential care and day services to adults and children with complex support needs (Employer). 

A service user of the care facility submitted a complaint concerning an incident that took place, wherein the Employee had called her ‘fat’ and as a result she felt insulted and dejected. When questioned about the incident, the service user quoted the Employee saying, “I am not trying to be funny, but you are fat”. The service user noted that this was not the first time the Employee had expressed such an opinion. The service user’s version of the incident was supported by statements from other members of staff who had been present. The service user was quite distressed after the incident.

As a result of this interaction, the Employee was dismissed, after a relatively comprehensive investigation and disciplinary process.

Unfair Dismissal in Ireland

In a complaint of unfair dismissal arising from the employee’s conduct the relevant statutory provisions and the factors to be considered are set out in Section 6 of the Unfair Dismissals Act, 1977 including:

6. (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

Was the Dismissal Reasonable?

The Employer submitted that any form of inappropriate behaviour towards a service user and failure to maintain their safety and wellbeing could only be deemed to be gross misconduct as per their disciplinary policy. They contended that the Employee’s actions amounted to gross misconduct.

The Employer argued that a “reasonable employer in the same position and circumstances” would have reached the same determination in the circumstances of the within case. As such, they claimed their decision to dismiss the Employee was reasonable and fair in the circumstances. Therefore, to the employer, the dismissal was not unfair.

‘Band of Reasonable Responses’ Test

The ‘band of reasonable responses’ test in the context of Section 6 of the Unfair Dismissals Act, 1977 was set out by Noonan J in The Governor and Company of the Bank of Ireland v Reilly as follows:

“It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned – see Royal Bank of Scotland v. Lindsay.

It is also useful to look at the language of Judge Linnane, in Allied Irish Banks v. Purcell, where she commented:

“Reference is made to the decision of the Court of Appeal in British Leyland UK Ltd v. Swift and the following statement of Lord Denning MR:

‘The correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.’ It is clear that it is not for the EAT or this court to ask whether it would dismiss in the circumstances or substitute its view for the employers view but to ask was it reasonably open to the Employer to make the decision it made rather than necessarily the one the EAT or the court would have taken.”

The WRC accepted that the company provides residential care, community outreach and day services to adults and children with complex support requirements on both the intellectual disability and mental health spectrums. As such, there is a responsibility on the care facility to maintain a high standard of compliance with health and safety regulations and provide care to vulnerable users of the services. The provision of such services requires well trained and committed staff with an understanding of the issues associated with working with vulnerable users of the services.

The WRC further accepted that the Employee did something that he should not have done. His comments were inappropriate and caused a vulnerable service user to become upset. The Employee could not provide any valid reason for his actions. He acknowledged that this service user could have reacted to his comments by self-harming or absconding. The WRC recognised that what took place was a very serious error that caused great upset to the service user. 

However, the WRC noted the Employer’s disciplinary policy includes the following statement;

"Summary Dismissal – this occurs where a team member is in serious breach of a company policy, procedure or practice or who’s conduct or behaviour is deemed to be a serious concern, under the terms of Gross Misconduct. In this instance disciplinary action may result in the team member’s contract of employment being terminated. The team member will be dismissed without notice or pay in lieu of notice.” 

The use of the word ‘may’ indicated that dismissal is not always the penalty to be imposed. Each case must be decided on the facts and any penalty imposed must take account of all the relevant circumstances of the individual case.

Alternatives to Dismissal?

Dismissal from employment is the ultimate penalty. The WRC noted that the letter of dismissal gave no indication that any alternative to dismissal was considered.

There were six outcomes of a disciplinary procedure listed in the Employer’s disciplinary policy;

·        No further action

·        Informal Caution / Counselling

·        Verbal Warning

·        First Written Warning

·        Final Written Warning

·        Dismissal.

Appropriate Alternative Sanction to Dismissal?

The Employee had received a first written warning for a separate disciplinary not involving a service user. The first written warning was not referred to in the disciplinary decision. The WRC noted that this was the first time a complaint of this nature had been made against the Employee.

Therefore, given a lack of consideration of alternative sanctions and a relatively ‘clean’ disciplinary record, it was held by the WRC that a dismissal was disproportionate to the infringement complained of. Finding the dismissal unfair, the WRC awarded the Employer €6000.

Conclusion 

The incident in this case was serious and required a reasonable and appropriate response from the Employer. As it was the first time such an incident occurred it would have been reasonable to consider all the possible sanctions available before deciding on the ultimate sanction of dismissal. The WRC was satisfied that the decision maker, having decided the allegations were well founded, did not consider any alternative penalty to dismissal. The decision to dismiss did not take account of all the circumstances. The decision to dismiss cannot be regarded as coming within the range of reasonable responses of a reasonable employer as alternatives to dismissal were not considered, or at least, recorded.

The key takeaway for employers is to consider all the options available and record, not only the decisions made, but also the factors leading to that final decision.