Swimming instructor who smacked special needs child in face loses unfair dismissal case

WRC says dismissal after 2018 incident was ‘fair and reasonable’

The WRC ruled that the instructor’s actions had breached her duty of trust and confidence.

A swimming instructor who slapped a young schoolboy with special needs in the face has lost her claim for unfair dismissal after she was fired over the incident.

The Workplace Relations Commission ruled that the dismissal of the instructor who had been in her job for 17 years was “fair and reasonable”.

The WRC heard the original incident occurred on May 21st, 2018 when a primary school had booked swimming classes for some of its pupils with special needs.

The swimming instructor, who was in charge of two children, slapped one of them across the face after he had hit her in the face while splashing in the water.

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Following the incident, the instructor was suspended on full pay while the matter was investigated.

A report by an independent investigator accepted the instructor’s evidence that she was not trying to discipline or punish the child when she hit him.

At a disciplinary hearing, her employer found the instructor’s behaviour amounted to gross misconduct notwithstanding that he accepted her action was a reaction to being hit in the face and that her apology and expressions of regret were genuine.

She was formally dismissed following an unsuccessful appeal on April 16th, 2019.

The leisure centre told the WRC that its procedures were fair and transparent and the swimming instructor had been dismissed following a comprehensive fact-finding investigation and disciplinary procedure and appeal.

Siptu official, Deirdre Canty, who represented the claimant, said the leisure centre should and could have looked at other alternatives to terminating her employment as she had given “loyal and good service” for 17 years.

The WRC heard the instructor had received three hours training in teaching children with behavioural difficulties but had not received any subsequent refresher training or ongoing assessment training.

Ms Canty pointed out that a safety notice for the swimming pool asked for any child requiring a special needs assistant during school to have their SNA to help them in the pool during their lessons.

She also noted that the school’s own procedures stated that “children with special needs must be accompanied in the water at all times by their SNA”.

WRC adjudication officer, Jim O’Connell, said the issues around training and ongoing assessment for dealing with children with special needs were a matter that needed to be addressed “going forward”.

The WRC ruled that the instructor’s actions had breached her duty of trust and confidence and the decision to dismiss her was “fair and reasonable” in the circumstances.