EMPLOYMENT APPEALS TRIBUNAL
CLAIMS OF: CASE NO.
Trevor Murtagh UD1425/2012
MN821/2012
against
TLC Health Services Limited
under
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms N. O'Carroll-Kelly BL
Members: Mr F. Moloney
Mr N. Dowling
heard this claim at Dublin on 6th December 2013, 12th June 2014 and 1st August 2014
Representation:
Claimant:
Spelman Callaghan, Solicitors, Corner House, Main Street, Clondalkin, Dublin 22
Respondent:
Aidan Phelan. Peninsula Business Services,
Unit 3 Ground Floor Block S, East Point Business Park, Dublin 3
Respondent’s case:
The respondent is a nursing home and the claimant was employed there as a chef from 1st October 2008 until he was dismissed on 6th June 2012.
The claimant had received a number of written warnings including two final written warnings prior to the decision to dismiss him on. An investigation was carried out into complaints against the claimant by two of his colleagues in relation to his behaviour over the weekend of 28th and 29th April 2012. During the course of the investigation statements were taken from all staff members on duty over that weekend. A statement was also taken from a member of staff who was not on duty that weekend but it was felt that this person had something to contribute to the investigation. The investigation disregarded the majority of statements (approximately 14) as not adding to or subtracting from the investigation as these people did not witness any of the alleged behaviour/incidents. Therefore these statements were not given to the claimant during the investigation process. CCTV footage was also viewed by the investigator but not shown to the claimant during the investigation as it was deemed by the investigator to be of no consequence. The investigator referred the matter onwards to the disciplinary process on the basis of three statements alleging inappropriate behaviour on the part of the claimant.
The person who carried out the disciplinary hearing provided copies of the statements from staff who said they witnessed the claimant’s behaviour/incidents and provided the claimant with an opportunity to ask them questions. However the claimant did not avail off this opportunity. The claimant was also provided with copies of the statements taken from other employees. These statements were forwarded by e-mail to the claimant the evening before the rescheduled hearing date of 29th May 2012. The claimant failed to attend this meeting and the disciplinary process culminated in the dismissal of the claimant.
The claimant appealed the decision to dismiss him by way of a letter from his solicitor which outlined the claimant’s grounds for appeal. The person who heard the appeal decided to uphold the decision to dismiss the claimant and confirmed this decision by way of letter dated 2nd August 2012.
Claimant’s case:
The claimant denied the allegations made against him from the outset of the investigation and contended that the investigation was biased and unfair.
The decision to dismiss him was based on the statements of three of his colleagues one of whom was not present on the weekend the behaviour/incidents were alleged to have occurred. The other two allegations were made by the claimant’s ex-girlfriend and her friend, a fact that was not considered relevant at any stage of the investigation, disciplinary or appeal process.
The claimant also held that the process leading to his dismissal was flawed and unfair insofar as he was not given a copy of the other fourteen statements until approximately 6pm on the evening before the final disciplinary meeting. These statements were from people who were present on the weekend in question but saw or heard nothing to corroborate what his accusers alleged to have happened. The claimant also told the Tribunal that he was never given an opportunity to view CCTV footage which had been viewed by the respondent’s officer’s during the disciplinary and appeal process.
Determination:
The tribunal have considered all of the evidence adduced during the two day hearing, the documentation submitted and the legal argument made.
It would appear at first glance that the respondent had a very comprehensive disciplinary process. However, when a more carefully analysis is carried out its flaws become more obvious. The Tribunal must decide if these flaws acted to prejudice the claimant.
The Claimant was accused of four separate matters as set out in the letter date 3rd May, 2012.
- It is alleged that you said “Would you ever get that Fucker to shut up”. A statement allegedly made by you on the 29th April 2013 in relation to one of the Residents who was in an agitated state.
- It is alleged that you purposely ignored one of the residents who had requested her lunch and that you knowingly delayed responding to her or serving her, making the statement “ let her wait”
- It is alleged that you knowingly gave a Resident a cold plate when you know she gets a hot plate.
- Your alleged inappropriate behaviour, namely it is alleged that you behaved in a manner that is completely unacceptable and inappropriate to the company. Allegedly on the 29th April 2012 during lunch service you could be heard shouting “Let her Wait” from the restaurant service area by a waitress who was serving food to the residents at the far side of the dining room. Your behaviour has brought your professional conduct into disrepute as a result of your actions.
In relation to the first matter, the person who made the allegation was an ex-girlfriend of the claimant. No investigation was pursued or questions asked to verify the legitimacy of the allegation. That is particularly important in light of the fact that of the three others that corroborated the allegation, only one was actually present on the premises on that day and the one that was present was a good friend of the claimant’s ex-girlfriend. The respondent took statements from everyone who was in the vicinity of the dining room. They completely disregarded those statements exonerating the claimant on the basis that “they heard nothing” and therefore had nothing to add to the investigation. The fact that those statements lend themselves to the claimants defence didn’t seem to dawn on the respondent. To disregard those statements exonerating the claimant and to rely only on those accusing the claimant is a fundamental breach of claimant’s right to fair procedure. What is even more alarming is that the Respondent placed no importance on the fact that two of the statements, relied on by the respondent, accusing the claimant, were made by individuals who were not present at all. That too is a fundamental breach of the claimant’s right to fair procedures. Both of the aforementioned breaches seriously prejudice the claimant’s right to defend himself and his reputation.
Following the Tribunals queries into the 2nd, 3rd and 4th allegations it transpired that the claimant was not responsible for giving food to the residents. There are employees on the dining room floor who are responsible for taking the food from the kitchen hatch and serving it to the residents. The resident to whom the comment “ let her wait” was allegedly made did not have any special dietary requirements and therefore the serving staff could have given her any of the meals delivered to the hatch. For reasons not established during the investigation or not disclosed at the hearing they decided not to. The serving of meals to residents was something outside of the claimant’s control. It is noteworthy that one of the staff serving the meals was the claimant’s ex-girlfriend.
The claimant was denied access to the CCTV footage, until close to the end of the process, on the grounds that it “showed nothing”. The very fact that it showed nothing could have been used by the claimant as a defence. Again the claimant’s rights to fair procedures were breached.
In every disciplinary process the claimant is entitled to have sight of each and every piece of evidence the respondent has sight of, regardless of the respondent’s views on its evidential value. The claimant is entitled to have sight of it and to use it in his defence however he sees fit. Vital pieces of information were withheld from the claimant at various stages of the process and that is fundamentally unfair and potentially prejudicial.
In all of the circumstances the Tribunal find the claimant was unfairly dismissed and award the sum of € 30,000.00 under the Unfair Dismissals Acts, 1977 to 2007.
It is noted that the respondent agreed to pay the claimant in respect of minimum notice and on that basis the claimant withdrew his claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)