We are often asked if employers can dismiss employees for failing to disclose prior convictions. In those circumstances, we note that the Workplace Relations Commission (WRC) has just dealt with such a case and found the dismissal to have been fair. Our Adrian Twomey looks at the recent decision in the case of A Care Assistant v A Disabilities Service, ADJ-00030649.
The Complainant, a care assistant, was employed by an organisation that provided services to individuals with intellectual disabilities. His employment commenced in 2016 and continued, pursuant to a series of fixed-term contracts until he was dismissed in 2020.
Following a Garda vetting exercise, the employer was concerned about the care worker's suitability and appears to have suspended him on full pay. He was summoned to a disciplinary hearing.
It then emerged that the care worker had attended a meeting with his son's school principal in 2018 and that he had slapped his child at that meeting. The school reported the matter to Tusla and the care worker was subsequently prosecuted and convicted of assault. He received a three-month suspended sentence. He did not disclose the conviction to his employer.
Following the disciplinary hearing, the employer dismissed the care worker on the basis that his failure to disclose the conviction was a substantive breach of trust in the employment relationship.
At the subsequent WRC hearing, the Complainant, who was born in Nigeria, stated that he had not been aware that corporal punishment is unlawful in Ireland. He argued that cultural differences were partly responsible for the situation arising.
The Complainant contended that there was no significant link between the conviction and his employment and the employer had had not taken his flawless work record into account.
Somewhat surprisingly, the Adjudication Officer concluded that the dismissal was not unfair. She appears to have been swayed by evidence given by the Respondent's Head of Human Resources that the organisation looks after vulnerable individuals and that violence against children was unacceptable.
Employers should note that each and every case is different and legal advice should be sought before dismissing any employee. Please feel free to contact our Adrian Twomey in that regard.
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