Tribunal: Childcare worker’s dismissal was fair

A childcare worker sacked from her post after being accused of slapping a child has failed in her action for unfair dismissal.

The Employment Appeals Tribunal determined that the decision by Liam Egan, trading as Little Sunflowers Creche and Montessori, to dismiss Pamela Burke in January 2012, was not disproportionate.

Ms Burke was dismissed from the creche in Callan, Co Kilkenny, after a colleague claimed to have witnessed her slapping a child’s hand to separate the boy from another. The witness said the boy who was slapped was dragging the other child.

The tribunal report recorded that the child who was slapped began to cry and Ms Burke began to console him. It states that Ms Burke’s work colleague “was alarmed because she heard the slap and having completed a child protection course was conscious of the obligation to report anything untoward”.

The centre manager saw that Ms Burke and the witness were acting out of character and the witness outlined what she had seen.

Ms Burke strenuously denied ever hitting the child. The tribunal report states that at the hearing in Kilkenny, Ms Burke said she did not slap the child and “he cried because he could not finish what he started”.

The report states that Ms Burke “explained that while doing some cleaning she heard a child cry and saw that child A had grabbed child B [who was crying] by her T-shirt”.

“She told child A to let go and as he had not heard her she repeated her instruction in a raised voice and went towards the children who had fallen onto a giant cushion and she separated them by picking up child A. She did not slap ‘child A’.”

Ms Burke made the case that she had been working with Little Sunflowers for six years and a complaint had never been made against her.

The report recorded that having discussed the two versions of the incident with the manager, the director accepted the witness’s version and concluded that Ms Burke’s behaviour amounted to gross misconduct warranting dismissal.

It states: “The director’s position was that he had no alternative but to dismiss the claimant [Ms Burke]. To not dismiss would be the easier option and no questions would arise. Had he not dismissed the claimant there would be serious repercussions should another incident occur.”

The director stated that he had a duty of care to both the staff and children, so no lesser sanction would be appropriate.

The report states that “on her return from leave of absence, the HSE pre- school service officer carried out an investigation and concluded that the respondent [Mr Egan] had taken appropriate measures.”

The tribunal noted observations of both Ms Burke and the witness in the immediate aftermath to support the witness’s version of the incident.

It stated: “In light of these observations, the director had reasonable grounds for believing the allegation.” It found the sanction was not disproportionate and that the dismissal was fair.

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Tribunal: Childcare worker’s dismissal was fair
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