gross misconduct | 

Care worker dismissed after failing to disclose suspended prison term for slapping son

The father of six was not aware that corporal punishment was made illegal in Ireland

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Gordon Deegan

A care assistant was dismissed for gross misconduct for failing to disclose to his employer that he received a suspended three month prison term for slapping his son at a school meeting with the School Principal.

The care assistant worked for a Disabilities Service and sued for unfair dismissal and now Workplace Relations Commission (WRC) Adjudicator, Gaye Cunningham has dismissed the man’s unfair dismissal claim.

Ms Cunningham has concluded that it was not an unfair dismissal in October 2020 “and I do not find the complaint to be well founded”.

The care assistant - who commenced work for the Disabilities Service in 2016 - was born in Nigeria and moved to Ireland 17 years ago.

Concerning the 2018 school incident, the man said that he called to his son’s school and during the meeting, apparently when his son misbehaved, he slapped the boy.

As Teachers are “Designated Persons”, they were obliged to report the matter to Tusla, the Child and Family Agency (CFA)

The matter was subsequently referred to the Gardai and the father received a court conviction of a three month prison sentence suspended for two years.

At the WRC, the father explained that corporal punishment is widely used in his country and he was not aware of it being banned in Ireland.

The father explained that he was taught that it was his job as a parent to discipline his child.

The man’s employer learned of the conviction when renewing the Garda vetting for him in 2019 and he was then subject of disciplinary procedures resulting in his dismissal for his failure to disclose the conviction and the conviction itself.

SIPTU submitted on the man’s behalf that the dismissal was unfair as he had a flawless record as an employee which was not taken into account and while corporal punishment is not justified, cultural differences are a factor.

It was argued on the man’s behalf that it is agreed that this kind of physical punishment has no place in society, and its prohibition is fully supported.

SIPTU stated that nevertheless, it should be pointed out that corporal punishment by parents was legal in Ireland until 2015.

SIPTU pointed out that as a recent immigrant, the father of six was not aware that corporal punishment was made illegal in Ireland a few years ago - as evidenced by the fact that he slapped his son during the meeting with his teacher.

SIPTU stated that the man was a dedicated and conscientious employee with his employer and obtained numerous qualifications as a Care Assistant.

However, in her findings, Ms Cunningham stated that the employer in its submission and evidence at the hearing emphasised the nature of its business as protecting the most vulnerable children and adults who, in many instances may not be in a position to speak for themselves.

Ms Cunningham stated that the effective zero tolerance of the employer for violence of any kind, in or out of the workplace is therefore understandable.

Ms Cunningham stated that she noted the employer’s point that having heard the ‘defence’ of cultural differences, they were more convinced that it would be reckless on their part to retain the man in employment.

Ms Cunningham found that the man was dismissed following a procedure which gave him a fair hearing, right of representation and right of appeal.

Ms Cunningham stated that the evidence in relation to ‘cultural differences’ indicates that alternatives to the penalty imposed were not unreasonably rejected by the employer.

As part of its case, the employer stated that the man was employed on a series of fixed-term contracts from November 23rd 2016, February 19th 2018 and September 18th 2019.

The employer stated that in each contract it was made clear that the offer was subject to satisfactory medical examination, references and Garda clearance.

The employer also stated that the man’s contracts of employment provide that an employee’s employment may be summarily terminated in the event of gross misconduct.

The employer stated that as a result of a Garda vetting of the man, he was put off work with pay and a disciplinary meeting was held on March 20th 2020.

The employer stated that following the disciplinary hearing, the man was advised that due to the failure to disclose the conviction and the fact of the conviction itself, that his conduct had resulted in a substantive breach of trust in the employment relationship and the decision had been made to summarily dismiss him.

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