Childcare Worker Fairly Dismissed for Failing in her Duty of Care to Infant

July 19, 2022

This case highlights that in certain circumstances and workplace settings, the employee’s duty of care and the Safety and Health of the children in the facility is priority. Although the employer’s procedures were flawed, it did not alter the appropriateness of the final decision to dismiss.

The Complainant worked as a Childcare Worker for the Respondent who is a Childcare Provider and sought adjudication by the Workplace Relations Commission (WRC) under Section 8 of the Unfair Dismissals Act, 1977.

The Complainant believed that aspects of the disciplinary process were unfair and that the decision to dismiss for Gross Misconduct was disproportionate.

The Complainant who had been dealing with infants noticed a little blood where a young boy was lying. The Complainant claimed they searched for the source of the blood but was satisfied that there was no evidence of a significant or any cut or injury. They then fully explained to the mother of this boy that evening.

The next day, the Creche Manager questioned the Complainant why the incident had not been written up in the incident book. They said that they had forgotten and was duly remonstrated for the delay. The Complainant was shown CCTV footage which had been taken which showed their interaction with two children in the room, including the infant boy.

The Manager had determined that the manner of the handling of the children was rough, and it was in these circumstances that they played the footage to the Complainant. The Complainant claimed they were just re-arranging the children’s position in their beds.

The Complainant was suspended and advised that there would have to be a full investigation into the handling of the children as observed on the CCTV. The investigation and disciplinary hearing were conducted over 3 weeks, before the Complainant was notified of their dismissal. An Appeal was conducted by a third-party HR company which upheld the decision.

The fact of a dismissal having occurred was not in dispute, and the burden of demonstrating that the dismissal was reasonable and fair in all the circumstances rested with the Respondent Employer.

The Adjudicator noted that the investigation and disciplinary hearings were flawed. The employee did not receive written communications from the employer during the process, including invitations in advance of meetings or minutes of meetings held, "nor was made it clear to the Complainant of the potential consequences of the hearings.

On balance, the Adjudicator accepted that the overriding issue in this matter must be the Safety and Health of the children. There is a duty of care to provide a safe and secure environment for these children, as was pointed out in the Disciplinary outcome letter and other company documents. The failure to correctly take the child out of the bed to have him closely watched amounted to a breach of trust and a breach of the duty of care owed to that child.

The Complainant’s own admission and description of how they handled the unexplained appearance of blood on a toddler’s face fell below the standard that a parent might legitimately expect. Once this Employer was on notice of the failure to instinctively give appropriate care to the child, it had no alternative other than to terminate the employment. It just was not possible or feasible to allow the Complainant to stay in the workplace after a level of negligence had been demonstrated. It is noted, of course, that this workplace only allows for interaction and care of children there was no other alternative source of employment for the Complainant.

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