UD501/2012

EMPLOYMENT APPEALS TRIBUNAL

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr M. Gilvarry

Members:     Mr D. Morrison

                     Ms R. Kerrigan

heard this claim at Letterkenny on 1 August 2013

and 4 March 2014

Representation:

Claimant:

                    Ms Fiona Browne, Browne & Co. Solicitors,

                     Forte Lynne House, Letterkenny, Co. Donegal

Respondent:

         Ms Donna Ponsonby, Gallagher & Brennan Solicitors,

         House B, Carnamuggagh Upper, Kilmacrennan Road,

         Letterkenny, Co. Donegal

The determination of the Tribunal was as follows:

This being a claim of constructive dismissal it fell to the claimant to make her case

The claimant was employed as a health care assistant in the respondent’s nursing home from 6 September 2010. This was the second occasion on which she had been employed by the respondent. The employment was uneventful until 30 August 2011 when the claimant and a colleague (AC) another health care assistant had a disagreement in the presence of an elderly resident of the nursing home and her daughter at around 8-00pm. This disagreement developed after the claimant and AC left the resident’s room and resulted in both of them becoming very upset.

The nurse in charge (NC) and her night relief (NN) both became aware of the incident and another care assistant (CA) informed the respondent, who whilst living on the premises was not on the premises at the time of the incident. The following day, 31 August 2011, the respondent began to interview those employees who had some knowledge of the previous night’s events.

The respondent met AC at 2-00pm, NC at 2-30pm, the claimant at 4-00pm, CA at 6-30pm, NN at 10-30pm. She also met another care assistant (CA2) who had met AC immediately after the incident.

The notes taken by the respondent of her meeting with the claimant on 31 August 2011 conclude in the following terms

I stated that I am not apportioning “blame” but having spoken to staff who were on duty on 30/08/2011,

• The incident/s did take place
• Claimant version of the events which took place are inaccurate
• I asked the claimant for a written statement regarding the incident and events which took place and to bring this to me by 3pm on September 01^st

It was common case that AC reported the incident between her and the claimant to NC as a complaint. The claimant’s position was that she too complained to both NC and NN about AC’s conduct during the incident. The respondent did not accept that the claimant formally complained about AC’s conduct and her position was further that the claimant never produced her own statement as to the events of 30 August 2011.

On 1 September 2011 the respondent wrote to the claimant to confirm that she was suspended from duty with pay to facilitate a full investigation. The claimant was again reminded of the respondent’s request for a statement of the events of 30 August. A copy of the nursing home’s disciplinary procedure was enclosed with this letter.

On 16 September 2011 the respondent wrote to the claimant inviting her to a disciplinary meeting which was to be held on 21 September 2011. The allegations against the claimant were

• Shouting at a member of staff in a hostile manner within full view/earshot of residents and visitors at 8-00pm on 30/08/2011
• Threatening behaviour towards a staff member at 8-00pm on 30/08/2011
• Insulting and offensive behaviour towards staff members throughout the day 30/08/2011

The claimant was again reminded that she had not supplied any statement relating to the events of 30 August. She was advised of her right to be accompanied at the disciplinary meeting and warned that the outcome of the process may result in her dismissal.

At the disciplinary meeting the claimant was accompanied by her brother, the respondent was accompanied by the assistant manager (AM) of the nursing home. After going through the notes of the meetings with the individual members of staff from 31 August 2011 and taking a recess the respondent then informed the claimant that she was dismissed for gross misconduct as a result of fighting with a member of staff. The respondent told the claimant that she would write setting out her decision, the respondent also advised the claimant of her right of appeal.

Later that day, after speaking with Citizens Information, the claimant submitted her notice of appeal to the respondent. Shortly thereafter the respondent furnished the claimant with a letter entitled “Outcome of Disciplinary Hearing”. This letter made no mention of the fact that the claimant had been told at the end of the hearing that she was to be dismissed. Regarding her finding the respondent states “I do not accept that the matter did not happen as described in the various statements and I do believe that a very serious altercation took place, which was overheard by residents and relatives, which ultimately left a colleague in an extremely distressed state following the incident and in fear of leaving the nursing home following her work”. The claimant was advised of her being issued with a final written warning of twelve months’ duration. The claimant was advised of her right of appeal against this finding. The claimant was invited to return to work on Monday 26 September.

On 23 September 2011 the claimant wrote to the respondent setting out her confusion over the divergence between what she was told at the conclusion of the disciplinary meeting and the contents of the “Outcome” letter. The claimant stated that she neither wished to be dismissed or to be held guilty of gross misconduct. She made it clear that she wished for her appeal hearing to include an appeal against the contents of the “Outcome” letter, in other words an appeal against the final written warning.

The appeal hearing was held on 6 October 2011 and was conducted by the owner of another nursing home unconnected to the respondent. The appeal officer made the following observations

• It is not clear if any investigation has taken place in relation to allegation by the claimant in respect of AC
• The investigation was narrow in scope and could have been extended to all the witnesses
• There was confusion in the communication process
• A return to work interview with the claimant should be arranged at an early date

The appeal officer gave the following outcome

1. There was no dismissal in this case, and no letter of dismissal was issued
2. The claimant is a member of staff at the nursing home
3. There was no letter of final written warning issued; the letter of 23/09/2011 from the respondent is a letter of intention to issue a letter of warning
4. A return to work interview should be arranged as soon as practical

The appeal officer wrote to the claimant enclosing a copy of his findings on 11 October 2011. This letter concludes “You will note that I have recommended that you attend at a return to work meeting with the management at the nursing home as soon as possible, the matter of whether a warning is issued or not is still active and a matter for management at that stage.

The respondent wrote to the claimant on 12 October 2011. After referring to the appeal findings the respondent stated “Following your appeal hearing on 06/10/2011 I write to confirm that the outcome following the incident of 30/08/2011 is a final written warning. You have the right to appeal this decision”

The claimant was then invited to a return to work meeting with a view to her return to work on Monday 17 October 2011. On 14 October 2011 the claimant wrote to the respondent asserting that she felt that the appeals procedure was now exhausted and that she should be able to return to work as the decision to dismiss her was incorrect, she was further of the opinion that the written warning did not and should not arise. The claimant stated that she would only meet to discuss matters further when it was confirmed that she had not been dismissed and that no written warning would issue against her.

On 16 October 2011 the respondent wrote to the claimant proposed a return to work meeting for 21 October 2011. Whilst acknowledging receipt of the claimant’s letter of 14 October she did not address the issues raised therein.

Determination:

It is not necessary to rehearse the details of the interaction between the claimant and AC on 30 August. It is clear that they had a serious falling out as a result of which the professional relationship which they were required to display when working together, especially when in the presence of elderly residents and their relatives, broke down on that day. It is not for the Tribunal to apportion blame for that breakdown, the Tribunal’s role is to be satisfied that fair procedures were adopted when dealing with the issues that arose.

It is clear from the notes of the respondent’s meeting with AC on 31 August 2011 that no issue was taken with the information provided by AC on that occasion. This is in stark contrast to the notes of the meeting with the claimant

• The incident/s did take place
• Claimant version of the events which took place are inaccurate
• I asked the claimant for a written statement regarding the incident and events which took place and to bring this to me by 3pm on September 01^st

The Tribunal is satisfied that at this very early stage in dealing with the events of 30 August the respondent demonstrated manifest prejudice against the claimant. It is very clear from reading the notes of the meetings with NC and NN that they both told the respondent that the claimant came to their office shouting and saying something about reporting an incident. During the disciplinary hearing on 21 September 2011 the respondent sought to deny that the claimant had gone to the nurses’ office to complain about being abused by AC despite it being in the notes of the respondent’s meetings with the nurses.

Despite having told the claimant that she was to be dismissed at the end of the disciplinary meeting when the respondent later wrote to the claimant to say she was issuing a final written warning no mention was made of the earlier decision to dismiss. Not only was the claimant told she was dismissed, she was told that it was for fighting, the Tribunal is not aware of any evidence to support this finding.

The Tribunal note the finding of the appeal officer that it was not clear if any investigation into allegations by the claimant against AC. The Tribunal is satisfied that no full and fair investigation into the events of 30 August 2011 was ever carried out by the respondent. There was always a presumption that the claimant was the instigator.

For all these reasons the Tribunal is satisfied that the claimant has shown that the conduct of the respondent in relation to the claimant was so unreasonable as to allow her claim of constructive dismissal to succeed. The Tribunal deems an award of €5,750-00 under the Unfair Dismissals Acts, 1977 to 2007 as being just and equitable in all the circumstances.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)