EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Philomena Farnan
UD847/2012
against
Km Healthcare Enterprises Limited T/A Castleross
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr P. O'Leary B L
Members: Mr M. Carr
Mr O. Nulty
heard this claim at Monaghan on 15th October 2013 and 11th March 2014 and 12th March 2014
Representation:
_______________
Claimant: Mr Peter Coyle, Coyle Kennedy Maccormack, Solicitors,
Thomas Street, Castleblayney, County Monaghan
Respondent: Vivienne O'Neill, DAS Group, Europa House, Harcourt Street, Dublin 2
Mr Paul McGlynn, HRS Consultants, Knockglass, Kells, Co Meath
Respondent’s case:
The Director of Care SD told the Tribunal that she is responsible for the clinical care for 98 residents with 130 employees. She worked for 10 years in other facilities and this respondent offers a completely different type of care in a purpose built environment. There is a flat structure in place, no uniforms required and great opportunities. SD had a prior relationship with the claimant at a previous location in 2008 and said that the claimant didn’t work out, she failed her probation, mainly due to communication skills and her loud behaviour.
SD told the Tribunal that she had no issues with the claimant at the new location where she was appointed director of care in 2010. She hoped that she had matured but four complaints were received, all around the same time, from co-workers of the claimant. This was in December 2011/January 2012. The complaints ranged from not carrying her fair share of work and taking excessive breaks to aggressive behaviour and verbal altercations.
Some of the team said they felt they were being put under pressure and intimidated by the claimant, her language was totally inappropriate and she was not shy about verbally attacking anyone, even in public.
SD undertook an investigation, interviewed everyone on the team and went through it all again to be sure. She gave the claimant a copy of all the statements made by her co-workers and also asked that she sign a confidentiality agreement stating that any breach of same would lead to summary dismissal. An investigative meeting with the claimant took place on 10th February, all the complaints were gone through one by one. The claimant had drafted a letter in defence of the allegations. She was asked about aggressive behaviour and her inappropriate actions. The claimant said that it was all lies, she helped everyone and carried her fair share of the work load. She also said that she was a loud bubbly person, never aggressive and that everyone was conspiring against her. She also stated that she couldn’t understand why things had gone so far up the line and asked why had S the co-ordinator not been involved. The claimant became upset and the meeting was adjourned until 14th February. At the resumed meeting the claimant said that she was dyslexic and had never admitted to it, maybe that held her up doing the notes, she treated the residents like her family and again reiterated that the contents of the complaints were mostly false.
SD said that the claimant had no real replies except that everybody was wrong. She did a second round of interviews with the team and enclosed a copy of the minutes of the investigation to the claimant on 16th February. SD’s recommendation was that, because of the insurmountable evidence, that the claimant be found guilty of gross misconduct and the matter be forwarded for disciplinary action to PG. He was HR advisor to the respondent.
Under cross examination SD said that there were no issues with the claimant until the complaints received in December 2011. The termination of the claimant’s previous employment was not in any way connected to this investigation, it was three years previous and a different employment. S the co-ordinator was unable to handle the complaints “they were outside her realm of expertise”. SD said she was not judge and jury in the decision and that was why the matter was referred to PG
In reply to an allegation that the claimant was not dismissed as originally stated, SD said that the claimant was taken into her office because of complaints by senior members of staff. The claimant wouldn’t take instruction from them and in turn said she wanted to complain about them, accusing them of bullying her. It was normal interaction but the claimant couldn’t see it.
Four witnesses for the respondent concurred that that the claimant didn’t do her fair share of work, took long breaks and spent a long time doing charts. Asked by the Tribunal what was meant by aggressive behaviour CD said it was her body language that was aggressive, her raised tone of voice and her hand gestures.
PG told the Tribunal that he provides HR support to the respondent. He provided e-mail and telephone support and also provided copies of draft letters to be used by management. The disciplinary process was referred to him as an external/impartial party. He met with the claimant and her representative on 28th February and went through four main complaints as outlined by SD one by one. PG considered what the claimant had to say, she was very determined in what she was saying but there was a lot on inconsistency in it.
He found the claimant guilty of gross misconduct in two instances, (a) being abusive to a staff member and (b) exhibiting aggressive or abusive behaviour towards a staff member in the presence of residents. A letter of dismissal was sent to the claimant on 29th February. It was his decision and his alone but both he and SD as director of care signed off on the letter.
PM the owner of the respondent business told the Tribunal that he dealt with the appeal only. The claimant was given one week to appeal and that time had elapsed but after receiving a letter from her solicitors agreed to meet for an appeal hearing on 29th March. He considered all the facts and upheld the decision to dismiss.
Claimant’s case:
PC a former work colleague of the claimants told the Tribunal that the previous employment did not come to an end as had been described by SD. She said that the claimant was dismissed because she had an issue with another carer and when she brought the issue to SD she was called to the office and returned to her duties crying. She was sacked the next day. PC said that the claimant was not an aggressive person, she was loud with a great personality, and a very good worker.
The claimant’s doctor said that she presented to him on 13th February feeling unwell and stressed because of a work situation. When dismissed in March he prescribed anti-depressants and referred her for counselling. He said that she is currently unfit for work but he hoped that the conclusion of the Tribunal hearing would help to alleviate her stress.
RK the claimants representative told the Tribunal that during the investigation meeting she was told to stop speaking, she was there as a witness, not a representative. She never had any issues with the claimant who was a good worker, good with residents and had a loud personality.
GJ said that she is a care worker in the unit since the day it opened. She thought that the claimant worked well, was a good carer and wasn’t aggressive. Asked about her statement and a heated discussion in the store room she said that she didn’t hear anything, it was SD who kept saying about a heated discussion. She did sign her statement but asked that “ heated discussion” be taken out of it and that didn’t happen.
The claimant told the Tribunal that when she complained about a member of staff (at her initial place of work) not doing her job SD called her to the office shouting “who did she think she was” and saying how dare she complain about a senior member of staff. She made a laugh of the way she walked and talked. Two days later she was told get her bag and coat and leave and not to show her face again. Her dismissal had nothing to do with probation.
She worked at her new job totally without incident but when SD arrived and knew it would be a nightmare all over again. All complaints about her were lies, she didn’t look at the clock if she was feeding someone, when it was done it was done. She never refused to help any nurse and didn’t refuse to carry out any duties on Christmas Eve as alleged, everyone hugged at the end of the shift.
She told the Tribunal that the incident with CD was when CD kept asking her if she was ok or what was wrong. She initially said she was fine but when asked again said no, she wasn’t ok. The claimant went into the storeroom and CD followed her. She told her that she felt that CD was always on her back, telling her what to do, watching her. It was a frank discussion between two work colleagues, her hands weren’t raised, it wasn’t agressive and they both worked together for weeks afterwards.
The claimant said she only realized the seriousness of the situation when she met with PG. She told him that SD was biased and an inappropriate person to do the investigation. Everyone knew what was going on except her, she was kept in the dark because of the confidentially clause.
Determination:
The Tribunal carefully considered the evidence adduced by both parties. It is evident that the respondent company did not utilise fair procedures in dismissing the claimant from her position, which she had held for three and a half years. The claimant was dismissed for gross misconduct following a series of interviews done by SD.
No evidence was produced to suggest that the claimant had any trouble with the respondent until these claims were made against her. A confidentiality clause was introduced which inhibited her from conducting her defence. The person conducting the investigation SD had, in a previous employment dismissed the claimant. This alone made the procedure biased.
The investigators report concluded that the incidents reported indicated gross misconduct. The investigation was a fact finding mission and should not have reached any conclusion. It appeared to the Tribunal that other sanctions, such as suspension without pay etc., was never considered.
The Tribunal noted that what was meant by “aggressive behaviour” was never questioned by the respondent and there appeared to be no clear management structure regarding the delegation of work.
In such circumstances the Tribunal finds the appropriate award to be compensation in the sum of €30,000 under the Unfair Dismissals Acts, 1977 to 2007
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)