Labour Court Database __________________________________________________________________________________ File Number: CD86771 Case Number: AD86104 Section / Act: S13(9) Parties: DE MONTFORT NURSING HOME LTD - and - MS. MARY MURRAY |
Appeal by the worker against a Rights Commissioner's recommendation concerning alleged unfair dismissal.
Recommendation:
4. The Court, having considered the submissions made by the
parties, upholds the recommendation of the Rights Commissioner but
is of the view that the amount of compensation recommended by him
should be increased to #500.
The Court so decides.
Division: Mr Fitzgerald Mr Heffernan Ms Ni Mhurchu
Text of Document__________________________________________________________________
CD86771 THE LABOUR COURT AD104/86
SECTION 13(9) INDUSTRIAL RELATIONS ACT, 1969
APPEAL DECISION NO. 104 OF 1986
PARTIES: DE MONTFORT NURSING HOME
and
A WORKER
Subject:
1. Appeal by the worker against a Rights Commissioner's
recommendation concerning alleged unfair dismissal.
Background:
2. The worker was employed by the Home as a cleaner in February,
1985, and was dismissed in November, 1985. When first employed
the worker's hours of duty were from 9 a.m. to 6 p.m. daily and
her rate of pay was #2 per hour. The worker says that she had to
go into hospital in October, 1985, and on returning to work she
was instructed by the employer to take up night duty. Her hours
of work on night duty were from 9 p.m. to 9 a.m. for three
alternative nights, including week-ends, and her duties consisted
of helping the night nurses to care for the patients' needs in
addition to performing her cleaning duties.
3. The worker says that on the last night of her employment in
the home she was asked by a nurse to lift an elderly woman bed
patient to a sitting position. In the course of so doing the
patient fell back and struck her head against the bed rail. The
patient complained to the nurse who entered the incident in her
report. When the managing director of the Home arrived on duty
the same morning he dismissed the worker. The worker says she was
unfairly dismissed and served a claim on the Home for
compensation. The Employer rejected the claim and as no agreement
could be reached between the parties the matter was referred to a
Rights Commissioner. Having investigated the dispute the Rights
Commissioner issued the following conclusions and recommendation:-
"The contradictions and the absence of corroborative evidence
on any aspect of the case other than the dates of employment
leaves me with considerable doubts concerning the dismissal.
One aspect of this case concerns me greatly. I understand
that it is not approved practice, even for qualified nurses,
to lift patients without assistance. In this instance a
domestic cum cleaner was instructed to lift, unassisted, a
geriatric patient. As the claimant had no nursing training
whatsoever I am of the view that the health of the patient
was endangered by the instructions given to the claimant and
that the responsibility for the events that ensued following
the carrying out of such instructions rested on the
respondent company which exhibited a degree of negligence in
relation to patients in its care. Consequently, I am giving
the benefits of my doubts to the claimant.
I recommend that the claimant was wrongfully dismissed and
that the respondent company pay to the claimant the sum of
Three Hundred Pounds as compensation for such dismissal".
The worker appealed the Recommendation under Section 13(9) of the
Industrial Relations Act, 1969, to the Labour Court. The Court
heard the appeal on 17th November, 1986.
Worker's arguments:
3. (i) The worker had no experience of the type of patient
care which she was expected to provide and she advised
the managing director accordingly. In this regard,
patients had refused in the past to accept breakfast
from the worker on the basis that she was not a nurse.
Therefore, given that she should not have been
required to do this type of work in the first place,
and certainly not without assistance, the worker
should not have been dismissed because of this
incident.
(ii) The employer informed the worker on the morning in
question that she was dismissed without giving any
explanation as to why he was doing so. She was
unfairly dismissed and therefore should be paid
appropriate compensation.
(iii) The worker does not consider the award made by the
Rights Commissioner does justice to the circumstances
surrounding her dismissal and accordingly seeks an
improvement on the amount recommended.
Home's arguments:
4. (a) The worker was totally unsuitable for the position she
held and a number of complaints had been made to the
Matron by patients regarding her behaviour. This had
been brought to the worker's notice on a number of
occasions by the employer. The worker was dismissed
for gross misconduct, having assaulted a resident of
the Home.
(b) The worker was instructed not to lift patients on her
own and to call upon other members of the staff for
assistance when doing so. There are two nurses and
three assistants on night duty in the Home.
(c) The worker was not instructed to change to night duty
by the employer. She requested that she be allowed to
do so on the basis that she could not sleep at night.
(d) In all the circumstances, the employer considers that
the worker was not unfairly dismissed.
DECISION:
4. The Court, having considered the submissions made by the
parties, upholds the recommendation of the Rights Commissioner but
is of the view that the amount of compensation recommended by him
should be increased to #500.
The Court so decides.
~
Signed on behalf of the Labour Court
16th December, 1986 Nicholas Fitzgerald
T.McC./P. Deputy Chairman