A man who was dismissed from his job at a care home for the disabled after being accused of saying “not my circus” and leaving work when an alarm went off has won €12,500 for unfair dismissal.
Aidan Fitzgibbon, a social care worker, won the award following a Workplace Relations Commission ruling that his dismissal in January 2022 from his job of 15 years with the disability support organisation Autism Initiatives was unfair.
The company’s position was that it was entitled to dismiss Mr Fitzgibbon for gross misconduct over “unprofessional, discriminatory, dehumanising, and flippant” language he was alleged to have used towards disabled service users.
A workplace complaint against Mr Fitzgibbon in November 2021 said that upon being asked one evening how the service users were, he replied: “They still have autism.”
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The complaint also alleged that when an alarm sounded in the home, Mr Fitzgibbon – who had just been relieved from duty – remarked: “Not my monkey, not my circus” and left.
A company disciplinary report concluded it was “credible” Mr Fitzgibbon made the first alleged remark, though he had said he could not recall it. The disciplinary officer said Mr Fitzgibbon “admitted” making the “circus” remark.
Mr Fitzgibbon had told the disciplinary officer that if he did make the “still autistic” comment, it was “in jest” and that both of the remarks were “taken out of context”.
“I find this language unprofessional, discriminatory, de-humanising, and flippant to use in a special service when an alarm had sounded,” the company disciplinary officer found. “Your actions after making the comments, in leaving the service without checking what the alarm was, or if any help would be needed, was indicative of an attitude of disrespect towards the people we support.”
Mr Fitzgibbon, who represented himself before the WRC, said he had received copies of various statements but said these had “never articulated” how exactly he breached any particular workplace policy.
His position was that his former line manager and a colleague “made it up because he had made a complaint about them”.
Summarising the evidence before him in his decision, adjudicator Conor Stokes wrote: “The complainant made two comments which were held to amount to gross misconduct and was held to have acted in an unprofessional manner when he left the workplace while an alarm was going off.”
Mr Stokes wrote that he was left with “concerns” about the employer’s investigation and the process that led to Mr Fitzgibbon’s dismissal.
The decision to suspend Mr Fitzgibbon was based on a decision that the remarks were gross misconduct, he wrote. “Someone must have made the decision, but no-one is taking responsibility for it,” Mr Stokes wrote – remarking that it seemed to have been “taken as given”.
He added that there was a lack of fair procedures in the failure by the company investigator to interview either the person who raised the complaint or Mr Fitzgibbon himself. The disciplinary decision-maker was also not informed that Mr Fitzgibbon had referred a grievance against that colleague – meaning the question of “possible witness bias” was not addressed.
Mr Stokes decided that the dismissal process “lacked procedural rigour, resulting in procedural unfairness towards the complainant” and upheld Mr Fitzgibbon’s complaint.
He wrote that the “depth of antagonism displayed by both parties towards one another at the hearing” ruled out the order for reinstatement that Mr Fitzgibbon wanted.
Upholding Mr Fitzgibbon’s complaint under the Unfair Dismissals Act 1977, Mr Stokes concluded that an award for €12,500 for loss of earnings due to unfair dismissal was “just and equitable in all the circumstances”.
