EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
Majella Flavin, - claimant UD945/2012
against the recommendation of the Rights Commissioner in the case of:
Cheshire Ireland, - respondent
Rathfredagh Cheshire Home - respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr J. Lucey
Members: Mr D. Hegarty
Mr J. Flavin
heard this appeal at Limerick on 22nd April 2014
Representation:
_______________
Appellant: Mr Ger Kennedy, SIPTU, Liberty Hall, Dublin 1
Respondent: Mr. Peter Flood, IBEC, Confederation House,
84/86 Lower Baggot Street, Dublin 2
This case came before the Tribunal by way of an employee appeal of the Rights Commissioner Recommendation ref: r-117838-ud-11 under the Unfair Dismissals Acts, 1977 to 2007.
Respondent’s Case
The respondent is a care facility that caters for people with a variety of conditions including brain injuries, MS, MD and locked in syndrome. Not all of the residents are able to communicate. The claimant was a care assistant who was dismissed for Gross Misconduct. The grounds for gross misconduct were;
‘A. Abuse of a Service User
B. Gross Negligence (with regard to the discharge of duties and dereliction of duties)
C. Erosion of Employment relationship due to diminished trust and confidence in (the
claimant’s) abilities.’
A fellow healthcare assistant (CA) gave evidence of the incident she witnessed. She initially reported the incident twice in April 2011 before providing a written statement on the 10th of May 2011. CA met with the investigation team on foot of her complaint. CA was not part of the group that made collective representations to the respondent.
A care assistant (NH) gave evidence of the incidents she witnessed. She outlined how the claimant threatened to blame NH for an incident in 2010 if she made a complaint, so she did not report the incident until 2011. NH was intimidated by the claimant and had also made a previous complaint to the respondent management that had not been followed up. NH was aware that she was ‘compliant’ by not pursuing the complaints. As a result NH and other colleagues came together to make complaints about various incidents they had witnessed involving the claimant. As the previous complaints had not been investigated, the group threatened to contact HIQA if the complaints were not investigated this time. NH is not aware of any issues between the claimant and a staff member that is part of the group that complained (her mother.)
The other care assistants that made complaints against the claimant gave detailed evidence of the incidents to the Tribunal. A number of factors delayed them in making their complaints; fear of retribution from the claimant and a belief that the complaints would not be investigated by the respondent.
The Service Quality Officer (GJ) undertook the investigation into the complaints. She was given terms of reference drawn up by the service quality manager, which included four allegations for investigation. GJ reviewed all the documentation and wrote to the claimant outlining the allegations and informed her of her right to representation throughout the process. GJ met with 19 staff members including the claimant on two occasions. The claimant had not been provided with all of the statements, but had all of the information by the meeting of the 20th of June. The claimant denied all of the allegations. The number of witnesses that corroborated the complaints led GJ to uphold the allegations and recommend disciplinary action.
The National HR Manager (AH) was part of the disciplinary panel formed on foot of the investigation report. A disciplinary meeting was organised for the 2nd of August 2011. The claimant’s representative outlined some deficiencies in the investigation documentation provided to the claimant so the disciplinary meeting was adjourned until the 12th of August to rectify this.
The claimant again denied all of the allegations and was informed that the complainants had not been individually named as they feared retribution. On careful consideration the allegations were upheld against the claimant. The allegations equated to Gross Misconduct and merited dismissal. A detailed decision was issued to the claimant on the 18th of August 2011. The claimant appealed this decision by letter dated the 25th of August 2011. The appeal upheld the decision to dismiss the claimant.
Claimant’s Case
The claimant had been employed by the respondent since 2003. The allegations were ‘a big shock’; she had no previous issues in her employment. The claimant maintains that the group that made the complaints were bullies and she was the target. The claimant denies all of the allegations made against her. Another care assistant was also dismissed at the same time as the claimant; she was also the victim of the group of bullies.
The claimant was not provided with all of the witness statements during the investigation process.
Determination
Having carefully considered the evidence adduced by both parties, the Tribunal are satisfied that the claimant was fairly dismissed. The respondent acted reasonably in all the circumstances.
The Tribunal find that the appeal of the Rights Commissioner Recommendation ref: r-117838-ud-11 under the Unfair Dismissals Acts, 1977 to 2007 fails and the Rights Commissioner Recommendation is therefore upheld.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)