A former care worker, who was convicted and fined for kicking an autistic man while trying to break up a fight between residents of a Cork care home, has lost his appeal against being fired from his job.
The Employment Appeals Tribunal has ruled that the decision of the Cope Foundation to dismiss David Atkinson was fair and “within the range of reasonable responses”. However, it criticised the charity for applying standards that “fall far below acceptable” levels in how it conducted disciplinary procedures against him.
The tribunal said such standards were “at best contradictory in nature” as it had allowed Mr Atkinson to return to work despite having a policy that it would not employ anyone charged with a criminal offence.
Atkinson, aged 42, of Thornton Park, Whitegate, was convicted in May 2015 of assaulting Joseph Duane at the charity’s centre in Montenotte on October 22, 2013.
In the trial, Judge Aeneas McCarthy said Atkinson had used greater force than was necessary to end a confrontation between Mr Duane and another resident.
The judge accepted as mitigating factors that the care worker had been on his own in a high-dependence unit as well as a 13-year unblemished record with the Cope Foundation before the incident.
Atkinson admitted he had made an error of judgment but said he was confronted with an emergency that required immediate intervention.
The tribunal heard the Cope Foundation launched a disciplinary hearing into Atkinson’s conduct in early 2014, resulting in him being issued with a final written warning. He was also obliged to undergo a personal improvement plan.
Atkinson was suspended during the five-month process which concluded in May 2014, but did not return to work at another care centre until August that year.
In October, Atkinson was suspended again pending a court appearance related to the incident and was informed that “matters will be reviewed” after its conclusion.
Cope Foundation’s head of human resources told the tribunal the letter was sent in the knowledge that once a charge of assault was proceeded with, then Atkinson could no longer remain in its employment.
Its board met on the evening after Judge McCarthy indicated in a court hearing in November 2014 that Atkinson would be convicted of assault and decided he would be dismissed.
In evidence, Atkinson admitted to the tribunal that he made physical contact with a disruptive resident.
While he was shocked at being given a final written warning, Atkinson said he accepted the decision and felt it was the end of the matter.
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