Council chiefs in Co Donegal who accused the county lifeguard supervisor of failing to get “life-or-death” safety inspections on ring buoys done had only “hearsay” to back up their allegations against her.
The finding was made as the Workplace Relations Commission upheld Lisa Dalton’s statutory challenge to her sacking in November 2021 on the grounds of alleged “underperformance” in a decision published on Thursday.
Upholding her complaint under the Unfair Dismissals Act 1977, Donegal County Council was ordered to pay Ms Dalton €10,000.
A senior council engineer, Joe McCarron, had said the council had concerns that inspections were not appearing in an app database and that trust had “broken down” between Ms Dalton and her bosses.
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He also alleged that beach lifeguards under Ms Dalton’s supervision had been given the message that ring-buoy inspections “didn’t matter” and the job of recording their condition in a phone app “wasn’t to be done”.
“It certainly did not come from me,” Ms Dalton said.
The tribunal heard there were about 800 life-rings in the county which had to be inspected regularly, with inspections logged to a database using a mobile app.
Mr McCarron said it was put to Ms Dalton at meetings in the spring of 2020 that “there was a lot of excuses that the work wasn’t being done”.
“Thank God there was no open-water fatalities in that season that would have left us exposed,” Mr McCarron said.
Ms Dalton’s position was that she had been authorised to file paper records on the inspections in 2020 because of “glitches” with the app and that when these were “ironed out” the following season, she only had access to the app dashboard to see what the lifeguards were logging once or twice a week when she could use a desktop PC in the council’s offices.
“All my own personal ring-buoy inspections were uploaded on to the app and were completed,” she said of her work in 2021.
“I didn’t have access to a laptop or computer and I was out on the road. I had asked on a number of occasions for a laptop and it wasn’t provided. I was sharing a [council desktop] PC with a colleague – that was difficult at best,” she said.
She told the tribunal that when she got back to work in July 2020 after being out sick with Covid-19, she discovered that there were “no ring-buoy surveys carried out” by beach lifeguards other than at Bundoran and Rossnowlagh.
“In relation to lifeguards’ info, some of them weren’t complete, and that is a fact, but my own personal ring-buoy inspections were completed, 100 per cent,” she said.
Mr McCarron said he had been assured by council IT staff that the app was “working okay the vast majority of the time” but admitted he “wasn’t party” to discussions in 2020 about the inspection programme, when the glitches issue had been raised.
However, at a hearing last month, the council’s legal representative, Keith Irvine of the Local Government Management Agency, admitted that he could not produce either the complainant’s line manager, county water safety officer David Friel, or any of the officials who had been directly involved in the process of sacking the complainant to give evidence.
“Is there any other witness that can deal with, specifically, from the respondent, the ring buoys? I know Mr Friel is absent and he was the person who dealt with the complainant – because the respondent’s defences to this are that she wasn’t doing her job correctly,” said adjudicating officer Emilie Daly. “This witness stepped into the role relatively recently and was one step away from line management,” she said of Mr McCarron, and asked: “Is there anyone else?”
Mr Irvine asked for time to take instructions, but said it would not be possible to produce another witness on the day.
“Well, we’re finishing this matter today,” Ms Daly said, adding: “The onus is on you, Mr Irvine.”
The council had initially argued that Ms Dalton had been sacked at the conclusion of what it called a “probation review period” between April 2021 and November 2021 following an earlier six-month extension to probation, claiming she had no right to take a claim under the Unfair Dismissals Act.
“Why have a probation review of a period that had finished,” Ms Daly asked Mr Irvine.
“It had not finished, it had continued,” Mr Irvine said.
“Nobody had told her that,” Ms Daly said.
“I accept that,” Mr Irvine said.
“I’m not persuaded by your argument,” the adjudicating officer went on to tell the council’s representative. “If you don’t have a robust defence available to you there’s very little use hearing evidence giving effect to the argument when I can’t see a basis to it,” Ms Daly said.
Ms Dalton’s trade union representative said the complainant had not been notified of any extension to probation.
Ms Dalton said herself that she didn’t know her job was on the line when she was called to a 10-minute “probation review” meeting with Mr Friel on November 31st, 2021, with the “flippant” statement: “I must get a meeting with you to get this tied off.”
“I wasn’t told it was a final review. I wasn’t prepared at all for it. It wasn’t an easy working relationship,” she said, adding that she just wanted to get the meeting over and done with at the time and that signing the review papers was a regret.
“If I’d known how it would end I would have had someone there, a representative, or evidence. I could have argued the case,” she said.
In her decision, the adjudicator Ms Daly wrote that Mr McCarron was relying on “hearsay” from Ms Dalton’s line manager, county water safety officer David Friel when he contradicted Ms Dalton on the ring-buoy inspections, with the evidence being “what the complainant’s line manager told him as opposed to his experiencing the complainant’s work performance directly”.
“As the employer is required to prove that her poor work performance contributed to her dismissal, that evidence should be available to be cross-examined and it is not,” Ms Daly wrote – adding that that she was “unable to find [Ms Dalton] contributed to the dismissal by her conduct”.
Upholding her complaint under the Unfair Dismissals Act 1977, Ms Daly ordered the council to pay €10,000.
The complainant had been seeking redress for in excess of €30,000 in lost earnings, but Ms Daly wrote that Ms Dalton had failed to meet her obligation to mitigate her losses.
Noting Ms Dalton’s argument that she was looking for a job which suited her and her family and to further her career, Ms Daly wrote that nine job applications in 2022 was “not adequate”, particularly “when the country is in near full employment and when there are work vacancies even in economically disadvantaged counties”.