Anne O'Connell Solicitors | View firm profile
In the recent decision of the Labour Court in the case of Frederick Hobson v Praxis Care, UDD2172 the Labour Court was so critical of the Respondent not subjecting the other employee involved in the incident to investigation or disciplinary process and its failure to facilitate an independent process, that it increased the award from €20,000 to €31,868.37.
Facts: The Complainant was employed by the Respondent as a Healthcare Support Worker on 4th November 2013 until he was dismissed on 18th January 2018. The Respondent is a major provider of services for adults and children with a learning disability, mental ill health, acquired brain injury and for older people, including people with dementia. The Respondent submitted that the Complainant had deviated from the Respondent’s care plan when he allowed the client out of his line of sight and the Respondent therefore had lost all trust and confidence in the Complainant. Therefore, the Respondent submitted that the dismissal was well within the band of reasonableness in this case.
The Respondent was only informed of the incident seven weeks after the event and the Complainant had worked without issue during that period. Nevertheless, the Respondent found it necessary to suspend the Complainant due to potential risk that he may present to the client.
The Respondent conducted an investigation and disciplinary hearing only into the Complainant’s involvement in the incident. The reason put forward was that the other employee involved in the incident was the person who reported it, albeit seven weeks later. The Labour Court was critical of blatant flaws in the procedure followed by the Respondent, in particular:
- Not requiring the employee who made the allegation to submit it in writing.
- Not providing the Complainant with the allegation in writing as required by the Respondent’s own disciplinary procedure.
- The excessive participation by HR which removed the independence of the investigator and the person conducting the disciplinary hearing. HR had summarised the allegation, provided a list of people HR had decided should be interviewed as relevant witnesses and drafted the script for the disciplinary hearing in advance of the person being appointed to hear it.
- The fact that the second employee on the day of the incident was not subjected to an investigation or disciplinary process into her conduct which was the same as the Complainant.
Decision: The Labour Court determined that regardless of the Complainant’s admission to the conduct, there were such significant flaws in the procedure that the decision to dismiss was not within the band of reasonableness. It was extremely critical of the decision by the Respondent to treat two workers involved in the incident in such a disparate manner. The Court held that the sanction was not proportionate in circumstances where what was at stake was not just the loss of the Complainant’s job but also the loss of his career.
The Court concluded that that the dismissal was unfair having considered the submissions of both parties, mitigation of loss by the Complainant and there was minimum contribution by the Complainant to his dismissal as his co-worker was not even investigated in respect of the same incident. The Court awarded the Complainant compensation of €31,868.37, an increase of over €10,000 from the award of the WRC.
Takeaway for the Employers: Employers should ensure that when investigating an incident, all parties involved are subjected to an investigation. Employers should also be mindful of the level of HR’s involvement in the processes where it is being conducted by a separate person and always ensure that allegations are furnished in writing from the person making such allegations before the commencement of an investigation.
Authors – Eva Lindsay and Anne O’Connell