Laura won her case
A DONEGAL CHILDCARE claimed she had been scape-goated and ‘wrongly blamed’ for leaving an 18-month old toddler unsupervised outside a creche for 10 minutes has won her Employment Appeals Tribunal.
Laura Johnston was the only qualified creche assistant on duty in the playground of Letterkenny Community Playgroup Limited when confusion led to the boy being left outside after playtime on March 22, 2011.
A tribunal heard that on the day of the incident an unqualified student was with her looking after 12 children aged between 18 months and three.
She had been organising the children into a queue to return inside when she had to leave the queue to bring another child over. She noticed the door to the premises was open and the children had already gone inside and she was unable to do a headcount.
Another boy had been left outside before he was noticed missing ten minutes later.
Ms Johnston was suspended from her post the next day before being dismissed from her position after being found guilty of gross misconduct.
After an internal appeal she was reinstated to her job but a decision of “serious misconduct” was kept on her record and she was given a final written warning which she refused to accept.
The case heard that on her return to work she was told by creche manager Geraldine Burke that the mother of the toddler did not want Ms Johnston near her child again and she was assigned other duties.
She objected to the findings of the creche appeal panel, left her job and was later declared unfit for work by the Department of Social Protection.
In its ruling the Employment Appeals Tribunal found in favour of Ms Johnston.
The tribunal referred to a HSE expert on the case and noted: “The witness stated the 12 children and 1 adult (the claimant) present in the yard on the day in question was against the Regulations.
“A student present in the yard, although with level 7 training, was employed as a student and therefore did not count as an experienced adult to assist the claimant supervising the 12 children on the day in question. The student herself had to be supervised; she was there to observe and ask questions.”
In a majority finding, the tribunal panel said: “The majority find that the procedures that led to the original decision to dismissal were unfair. These are as follows:
“1. Child (B), who was relied upon by the Claimant, during the investigation, as a reason for her distraction, was believed, by the Respondent, not to have been in the room at the time of the incident. However, this belief, which supported their view that the Claimant was not being entirely honest during the investigation process, was never conveyed to the claimant during the investigative process.
“2. The Claimant was advised that some things would be discounted from the findings, namely that she tried to cover up the incident. However these were not discounted.
“3. No other staff member was scrutinised or investigated, this led the claimant to believe she was scapegoated. This belief is not without basis considering there were a number of staff directly involved in the events of that day.”
The finding ruled: “As a result of the design of the room and the staff present being inside the room, they could not get a full view of the children outside. The staff needed to be outside and not inside, to mind the children when the children were outside. There were insufficient staff numbers present at the material time to ensure that the children came back inside safely.
“The staff on duty and where they were located should have taken account of distractions that could arise, e.g., a child being upset or un-cooperative, which did in fact occur, and which distracted the claimant from doing the head count properly.”
It added: “The claimant was not solely guilty for a child being left outside, therefore the decision to dismiss was unfair.”