In the wake of the recent RTE Prime Time investigation, and our previous post on Childcare, we look at a recent EAT case where an employee was dismissed for allegedly assaulting a child in her care, and was awarded €26,000 due to lack of fair procedures.
The case is particularly important given the Tribunal's comments on the burden of proof and fair procedures that must be followed by the employer given that this has the "gravest consequences" for securing future employment.
In the case of employee -v- employer (UD1569/2011) the employee was employed as a Montessori teacher from 2008 - 2011, and was dismissed for allegedly slapping a child on the hand, having received a complaint from a parent. The employer argued that a Childs Protection was "paramount" and must supersede everything, however the employee argued that she was never told the date this alleged incident occurred.
The Tribunal noted that a child's protection is very important but that does not override the constitutional right to fair procedures. It was stated that the Tribunals test for conduct dismissals would be
- the nature and extent of the enquiry carried out by the employer prior to the dismissal
- the conclusion arrived at by the employer ont he basis of the information gained
The Tribunal further noted that the investigations must be fair (open-minded) and full (no issue left unexplored), and if a decision to dismiss fails to meet these requirements then it is likely to be found unfair. In order for an investigation to fulfill these principles it must ensure that;
- the employee was aware fo the allegations and complaints
- the employee had the opportunity to deny or explain the circumstances before the decision was made to dismiss
- the evidence of other witnesses was sought where the facts are in dispute
This case was deemed to be as "far removed from fair procedures as could be imagined" and it is incumbent ont he employer to recognise the employees right to fair procedures given the consequences that a dismissal would have on their professional career.
The Tribunal awarded €26,000 for unfair dismissal in this case and it is a strong case to show that the right to a fair hearing cannot be overstated and should be maintained at all times by employers. Even in circumstances where negative publicity is a possibility, the employer must preserve this fundamental right and ensure that should a dismissal take place then it will only have occurred following the full investigation of the matter.
