EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Miriam McGrath UD1482/2013
-Claimant
against
Irish Primary Medical Practice (Sandyford) Limited T/A
GP Now
-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. J. O'Neill
Ms N. Greene
heard this claim at Dublin on 14th January 2015
Representation:
Claimant: Ms M.P. Guiness BL instructed by Mr. Peter Murphy,
O Mara Geraghty McCourt Solicitors, 51 Northumberland Road, Dublin 4
Respondent: Ms Michelle Timon, Kilrane O'Callaghan & Co, Solicitors,
Ballaghaderreen, Co Roscommon
Respondent’s case:
The Claimant is a “Practice Nurse” and worked in the Respondent which is a medical establishment. The Tribunal heard evidence from the operations director, (also known as EM). He told the Tribunal that he commenced employment with the Respondent after July 2013. He explained that prior to his commencing the National Employment Rights Authority (NERA) visited the company. NERA instructed the Respondent company to implement certain requirements.
As a consequence the Claimant was asked to fill out or sign a time sheet. He explained that “the whole issue” was that the Claimant refused to fill out or sign a time sheet. The Claimant told him that “she was not a docker” that she “was a medical professional”. The Claimant would not sign the document so he spoke to senior management and they decided that this was “the final straw”. They decided to dismiss the Claimant. When the decision was made he typed a letter. The witness was asked to clarify who made the decision to dismiss the Claimant and he replied “myself and the directors of the company”.
A letter dated 12/9/2013 was opened to the Tribunal:
“Over the past number of months it has come to our attention that there have been numerous problems between yourself and various members of the management team. Despite our best efforts to satisfy your expectations, it appears that we continue to have issues.
In the most recent incident today, the company has a legal requirement to record all employee's hours and breaks. We have given you the recommended OTVV1 form from the National Employment Rights Authority, which you have refused to sign We are no longer prepared to put up with your insubordination and we find that we have no alternative but to terminate your employment as of today, and we will pay you in full in lieu of notice.”
The witness was asked to clarify what he meant by final straw and he explained that there were issues regarding the inflexibility of the Claimant and that she spoke in a negative way about management in front of patients. The witness was asked if he had warned the Claimant about these matters and he replied “these were before my time”.
The witness in clarifying if the claimant was dismissed because of failure to carry out legitimate instructions of management replied “yes because of the letter from NERA”.
It was pointed out to the witness that the letter from NERA dated 12/9/2013, does not refer to “failure to keep records…”. The witness was asked if the Claimant’s contract of employment stated to sign time sheet and the witness replied that he did not know because he was not in the company at the time.
The witness told the Tribunal that he typed the letter of dismissal and drove to the location where the Claimant worked, he called her into a room and met her. He read the letter to her and handed her the letter. She “snapped” the letter from his hand and left the room.
In cross-examination the witness was asked if he had checked the legal requirement re SI 473 / 2013 [Organisation of Working Time (Records) (Prescribed Form and Exemptions) Regulations, 2001] before he dismissed the Claimant and he replied that he did not.
The witness agreed that the NERA letter did not say that there was an obligation on the Claimant to sign the time sheet. The witness was asked if he had considered another sanction other than dismissal and he replied “No”.
Claimant’s case:
The Claimant gave evidence to the Tribunal. She worked as a nurse and midwife. She commenced with the Respondent in June 2012, She outlined concerns that she had with the Respondent’s practices, such as recording blood samples, “smears” and vaccines amongst other things. She had raised these with the Respondent plus issues regarding hygiene, biological waste and oxygen not on-site.
She arrived into work one day and the receptionist told her that EM had instructed that she fill in the time sheet form and sign it. The Claimant phoned EM and told him that she would not sign the form and told him why. He told her that all of the other employees signed the forms and she told him that she would not sign it as she did not know what it was.
Later on that day EM arrived into the premises into the nurses room and read a letter to her. He handed her the letter and she took it away.
She had never been issued with a verbal warning previously or involved in disciplinary proceedings.
The Claimant gave evidence as to her loss.
Determination:
The Tribunal determines that the Claimant was unfairly dismissed. Regarding the record and time sheet there is no legal requirement on an employee to keep a record of the times of their functions and if an employer requires such times for any function then they should seek to have this provision incorporated into the employee`s contract in the usual and in a reasonable manner. The Claimant is not required by statute to sign the time record sheet or to keep a record and the Tribunal does not accept that there is any statutory provision placed on the employee to so do.
The Claimant was not given any or any adequate warnings prior to the decision to dismiss. The dismissal was totally unreasonable and disproportionate in the circumstances.
The Tribunal determine that the most appropriate remedy in this case is compensation, and awards the Claimant the sum of €26,000.00, as being just and equitable having regard to all the circumstances.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)