EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Roy Hogan UD438/2013
-claimant
Against
Sparantus Limited
T/A Highfield Healthcare
-respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. P. O'Leary B L
Members: Mr. G. Mc Auliffe
Mr. J. Flannery
heard this claim at Dublin on 26th March 2014 and 4th September 2014
Representation:
Claimant: Ms Ann Sheridan BL instructed by Ms Ann O'Sullivan,
Mackey O'Sullivan Solicitors, 10 Merrion Square, Dublin 2
Respondent: Ms Colleen Cleary, Colleen Cleary, Solicitors, 127 Lower
Baggot Street, Dublin 2
Summary of respondent’s case:
The respondent is a healthcare home. The claimant worked as a health care assistant. The Tribunal heard evidence from KD a witness for the respondent. He is an activity therapist and had worked as a healthcare assistant. He works in the “Royal” unit of the facility, which is a high dependency unit. The residents have little or no speech or movement. A mission statement is placed at the entrance to the unit.
On 28th August 2012 a patient (UM) who was a high dependency patient was agitated and he had to calm her down. Apparently the claimant had taken a newspaper that she had been holding from her. UM pulled the paper back but the claimant just took it from her and left to go on his break. The witness understood this to be psychological abuse. He reported the incident to the clinical nurse manager (CNM) a Ms EB. He gave a statement to the patient’s family. The witness opened the statement to the Tribunal.
The Tribunal heard evidence from the Director of Operations, Ms OS. She explained that the Royal unit was a maximum dependency unit and the patients were severely dependent. The patients were entrusted to their care and were at all times given privacy and dignity. The CNM reported the incident or complaint of the incident to Ms SmcM who is the person in charge of the Royal unit. There was an investigation about the alleged psychological abuse re: the newspaper incident and neglect because a towel was allegedly thrown at a patient by the claimant.
HIQA investigated the matter and were satisfied that the respondent had dealt with the incident and that the patient was not at risk.
The witness was asked if the claimant ever complained or objected to the complaint of KD re the incident and the witness said “No never”.
The Tribunal heard evidence from Ms.ME the human resource manageress. She confirmed that the claimant had received a contract of employment and a hand book containing inter-alia, disciplinary policies and procedures.
The claimant was placed on suspension with pay at a meeting on 6th September 2012. A complaint form had been signed off by Ms. EB. He was told that an investigation would ensue.
SmcM commenced an investigation and kept him informed.
A disciplinary meeting took place but it was cut short because the claimant’s side requested statements. They gave the claimant copies and adjourned the meeting
The witness told the Tribunal that at one point in time the claimant admitted the towel incident and newspaper incident. The claimant said to her that he would normally communicate better with residents. The claimant was asked if he took the paper for himself to read and he said “no”. The witness explained that she was disappointed because she thought that the claimant would have a defence; the claimant only said that he would normally communicate better. The witness further explained that the decision to dismiss was not pre-determined. She was trying to establish matters. She told the claimant that people were normally dismissed for elder abuse and the claimant and his representative thought that it was pre-determined but that it was not. She was simply making it clear that this would be the outcome if there was no defence. The claimant and his representative assured her that if further training was given then incidents would not occur. She spoke to a MR. C and he said that no further training would be given because any further training would only be a re-hash of training that had already been given.
The claimant accepted at the meeting he had acted wrongly but the claimant “had not taken the matter seriously up to a point”.
The respondent felt that the claimant breached policy regarding elder abuse and therefore it constituted dismissal.
In cross examination, the witness, in answering questions stated that the claimant’s defence was not adequate.
The Tribunal heard evidence from PK who is the resident Advocate. His role is to protect the dignity safety interests of the residents.
When asked by Ms ME for his opinion about the incident he felt the incident constituted abuse.
The Tribunal heard evidence from SE who is the Chief Executive. He heard the claimant’s appeal of his dismissal. He had not been involved in the matter up to that point. He was given all the documents prior to the appeal meeting. The claimant and two union representatives attended the meeting.
The claimant told him that he was giving out drinks and the claimant stated quite clearly to him that when they were giving out drinks they would take the newspaper away. The witness told the Tribunal that he felt that the claimant was changing his defence, that he was making up stories as he was proceeding through the matter.
The witness told the Tribunal that the respondent has a zero tolerance to elder abuse and that it was gross misconduct and that the claimant had to be dismissed.
Summary of claimant’s case:
The Tribunal heard evidence from a siptu representative. The claimant had asked for a full time union representative. At the meeting on 9th October he raised two points, one that the claimant had not received the complaint / matter in writing and that they needed time to reflect and to know exactly what he was being charged with. At the first dispute meeting there was no written statement. At the second meeting on 18th October it was stated by the respondent that the claimant would be dismissed so therefore it was pre-determined from the claimant’s point of view.
Regarding what was said in relation to the claimant changing his mind giving the drinks example, the witness stated that the claimant had been consistent.
The claimant put forward his side of events for each of the incidents. The claimant took all the allegations very seriously. The claimant put forward the question of training and raised the point/s that the claimant’s record was exemplary that he had not come to the notice of management before.
Any suggestion at the meeting that he would not work with patients again i.e. to work in another area of the respondent was not accepted, because by doing so, it would be admitting that the claimant did something wrong.
On day two of the hearing, the respondent introduced a further witness, AB, who gave evidence “in camera”.
Giving evidence AB for the respondent told the Tribunal that on 28 August, 2012 he was visiting his father who was a resident at the healthcare centre. He stated that the claimant took the newspaper from the tray of one of the residents, UM. The resident pulled it back but the claimant took it from her and said “no no no”. The claimant then put the newspaper behind the counter. AM indicated that the claimant did not appear to be cleaning UM’s hands nor was the claimant distributing drinks.
AB reported the matter to UM’s daughter, who then lodged a complaint. AB indicated that he did not have a grudge against the claimant.
In cross-examination, in reply to the fact that it was not unusual to remove a newspaper from a resident, AB explained that normally two staff members would approach a resident and one person would distract the resident while the other would remove the relevant item. AB went on to say that the resident became agitated.
Continuing in evidence, the claimant told the Tribunal that UM’s hands were dirty, he took the newspaper from her and she became agitated, although she did not resist him taking it. The claimant stated that he should have said something to her and did not take it to upset her. He said he could have dealt with the matter in a more professional manner. The claimant confirmed to the Tribunal that what AB stated actually did happen with regard to the newspaper incident.
On 5th September, 2012 the claimant became aware of the complaint while he was off work for a few days. He received a call from the respondent and went to the office the following day, 6th September and met SMcM.
SMcM asked the claimant about one of the resident’s vomiting and also referred to an allegation that he had placed a towel on the tray where the resident had vomited. The claimant could not re-collect the incident but stated that he would normally put a towel on the tray and then get cleaning equipment. When he was asked about the newspaper incident, he explained he had removed the paper in order to clean UM’s hands. The claimant did not receive any statements at the meeting on 6th September and stated he did not know what he had done.
The claimant stated that at the meeting on 18th October, 2012 it was clear that his dismissal had been pre-determined.
Following an appeal, the claimant was dismissed in November, 2012 for gross misconduct.
Determination
The Tribunal having given careful consideration to all the elements in this case, find that the employers main reason for dismissing the claimant was the newspaper incident. The claimant admitted that he should have handled the matter differently and spoken to the resident.
The incident was not of such a nature that would constitute gross misconduct but could be classed as misconduct simpliciter that would not entitle the employer to dismiss the claimant.
In the circumstances, the Tribunal determines that the claimant was unfairly dismissed but that he contributed to the dismissal to a substantial extent.
The Tribunal therefore awards the claimant the sum of €8,000 under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)