EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
Willoway Nursing Home Limited T/A Harvey Healthcare UD690/14
Nursing - appellant MN630/13
against the recommendation of the Rights Commissioner in the case of:
Alberto Nobles
- respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr T. Taaffe
Members: Mr M. Noone
Ms. P. Ni Sheaghdha
heard this appeal at Dublin on 10th November 2014, 7th January 2015 and 9th January 2015
Representation:
Appellant: Mr. Brian Dolan, Peninsula Business Services (Ireland)
Ltd., Unit 3, Block S, East Point Business Park, Dublin 3
Respondent: Mr. Conor Bowman BL, instructed by Mr. Jeremiah McCarthy, Carney McCarthy, Solicitors, 1 Clonskeagh Square, Dublin 14
The determination of the Tribunal was as follows:-
This case came before the Tribunal by way of the employer (the appellant) appealing against the recommendation of the Rights Commissioner ref. r-139169-ud-13.
Appellant’s Case:
The appellant is a private nursing home with approximately fifty employees. The respondent was employed as a health care assistant with thirteen years’ experience and had been a good employee.
DS and SB are Directors. DS has been Director for ten years and is involved in the day to day running of the nursing home and has thirty to thirty five years’ experience in management.
At approximately 4.30 pm on 20th March 2013 he received a telephone call from AA, the staff nurse on duty that day. Resident MK had made a complaint about the respondent following MK’s return from a rehabilitation visit. The witness immediately drove to the nursing home to ensure that MK was ok. MK is a stroke victim and has a level of cognitive impairment. AA furnished a statement of her meeting with MK and also an account of her discussion with the respondent and heard his version of events. MK said that the respondent had hit her on the leg and had been very rude and wagged his finger at her. MK wanted an apology from the respondent. The respondent had not furnished a report of the incident.
The following day, 21st March 2013 the witness met the respondent and made him aware that an allegation of abuse had been made against him. The respondent was suspended with full pay pending an investigation into the incident.
The witness viewed CCTV footage relevant to the incident. The footage presented compelling evidence that the respondent had a case to answer. There had been inappropriate contact with MK’s leg and finger wagging at her also. He noted that MK appeared to be very upset and in distress. He did not take any statements from the other residents due to a high degree of cognitive deficit among the residents.
The witness held an investigative meeting with the respondent on 25th March 2013. The respondent was not represented at this meeting nor did the witness offer him representation. It was purely a fact finding mission, the witness was not a disciplinarian. He was gathering information. He kept an open mind. He did not offer the respondent a copy of AA’s statement nor did he offer him a copy of the CCTV footage in advance of the hearing due to data protection reasons. The witness wanted to hear the respondent’s version of events. No translator was provided as there had never been any communication issues with the respondent during his tenure. During the course of the meeting the respondent was afforded an opportunity to view the CCTV footage of the incident. He responded to questions put to him during the course of the hearing and apologised for his actions on the day of the incident.
AA was the second person assigned to the investigation. She interacted with MK on several occasions and also acted as a notetaker at meetings. The witness said AA had input into the investigation but that he made the final decision. He believed the respondent had a case to answer and that the matter should proceed to a disciplinary hearing.
The witness again spoke to MK on 27th March 2013. She did not want the appellant to take the matter any further. This was not communicated to the respondent at this time.
The witness concluded the meeting and recommended that the matter proceed to a disciplinary hearing.
SK conducted the disciplinary hearing. He was provided with the investigative findings in advance of this hearing. He viewed the CCTV footage numerous times. He saw the verbal exchange with MK, a strike on MK’s knee by the respondent, the sudden grabbing of MK’s stick and the finger wagging. He felt that MK was intimidated by this threatening action. The sudden and rapid swipe of MK’s walking stick caused the witness concern. This should not have occurred. At the commencement of the hearing the respondent read out a statement with his version of events. As the respondent had already viewed the CCTV footage he saw no reason to show it to him again. Had the respondent asked to view the footage he would have shown it to him. The witness believed that the incident fell into the elder abuse category and the appellant does not tolerate elder abuse. Responsibility rested on the appellant to act in the best interest of residents. The respondent said it was never his intention to hurt MK. He also said he had asked MK to move her leg and never struck her. MK’s stick fell and it was an accident and he passed it back to MK and she grabbed her stick. When he pointed his finger at MK it was merely to tell her that “no no that’s not the way to do things”. The witness did not believe the respondent needed to be retrained as he had received adequate training. He explored other options other than dismissal and factored in the appellant’s length of service and his clean disciplinary record. There was overwhelming evidence that the respondent’s treatment of MK had gone too far. The options of re-deploying or retraining the respondent were not viable. However, he believed remorse had been shown and that the respondent had not meant to cause any harm.
The witness deemed the respondent’s actions to be gross misconduct and required severe sanction. The respondent was dismissed with effect from 1 May 2013 and was offered a right of appeal.
EK was asked by the appellant to conduct the appeal hearing. She had done ad hoc work on a few occasions for the appellant and was known to them. The witness is a social worker and this was the first appeal hearing she conducted on her own. In advance of the hearing she was provided with the necessary documents. She did not interview MK as she did not think it was within her brief. It was a sad and unfortunate case. The respondent was accompanied by his union official and his sister at the hearing. CM who worked for the appellant acted as a notetaker. The respondent’s appeal cited three reasons which were; incorrect procedures, mitigating circumstances and the severity of the sanction. The respondent’s representative raised the issue that no investigation report had been provided in advance. It was the witness’s view that the investigation report was the CCTV footage of the incident. The bulk of the evidence was in the CCTV footage. To the witness’s mind abusive interaction took place, there was a threat and it was aggressive and in the realm of emotional abuse. She regarded this as a dismissive swipe. MK had been touched on the leg, she did not believe with great force. MK’s stick had been grabbed by the respondent. She saw an aggressive advance towards grabbing the stick, a lunge forward and in the overall picture it was threatening. She saw it as a violation of the resident’s rights and protection. She believed the respondent had the necessary training and had failed to put his training into practice. There was no doubt in her mind that elder abuse had occurred.
The incident had not been reported by the respondent but the witness believed he attempted to report it.
The witness did not make the respondent aware that she had carried out ad hoc work for the appellant and had also carried out work for HIQA on a nursing home owned by the appellant.
She did not see any conflict of interest in her independent work for the appellant but under the circumstances believed he could not return to work for the appellant.
She felt there was no alternative sanction to dismissal given the gravity of the breach of duty. The respondent said he had received relevant training. When the incident occurred he did not immediately remove himself from the situation. There was also a failure on his part to report the incident. While the respondent had worked in the kitchen at the commencement of his tenure she ruled out his returning to work there as he would still have contact with vulnerable residents.
The witness upheld the sanction of gross misconduct which led to the respondent’s dismissal.
Respondent’s Case:
The respondent commenced working for the appellant in 2001. During the course of his work on 20th March 2013 as he wheeled a resident into the day room he had to move a table to position the wheelchair against the wall. As he did so he hit against a table and as a result MK’s walking stick was about to fall. He grabbed it before it hit the ground and passed it to MK. She grabbed it from him and was very annoyed and aggressive. He then asked MK to please move back in her chair as she had been sitting too far forward. He touched her upper leg to show her the direction. MK then accused him of hitting her leg. The witness replied ‘no, no, no’ while using his finger. He then asked her why she had grabbed the walking stick and he imitated her actions and asked why she was angry with him. MK became angrier with the witness. The witness went to the nurses’ station to report the incident but there was no one on duty there. He subsequently told one of his colleagues what had happened.
DS asked to meet with him the next day. DS informed him that there had been an allegation of abuse made against him. He was suspended that day with full pay pending an investigation into the matter.
The witness attended an investigative meeting on 25th March 2013. He was not afforded a viewing of the CCTV footage in advance of the hearing. In attendance were DS and CM (notetaker). He was asked leading questions. DS did most of the talking at the hearing. He was shown CCTV footage of the incident during the meeting. He did not believe he was abusive towards MK.
The witness attended a disciplinary meeting on 16th April 2013 which was chaired by SB. His sister accompanied him to the meeting. He again explained that it was never his intention to hurt MK. He had spoken to AA about the incident during his lunch break.
He was unaware that EK who conducted the appeal hearing had carried out work for the appellant and for HIQA. He was remorseful and admitted he had made a mistake. He believed he should have been given a second chance. He had enjoyed working for the appellant.
Following the termination of his employment he secured some part time hours for a short period. He also left his CVs in nursing homes and in other establishments. He secured one interview in a nursing home but was unsuccessful in securing employment there. In the circumstances that arose the respondent indicated no desire to return to his employment.
At present he is not engaged in employment.
Determination:
The Tribunal has considered the evidence adduced both verbal and written and the submissions made.
Outline of the Appeal
The employer/appellant, who is a nursing home proprietor, has appealed a Rights Commissioner Recommendation which found that the employee/respondent had been unfairly dismissed, he being a care worker in this home. An award of damages only was made in respect of this claim which had included in respect of the unfair dismissal a claim for re-instatement and re-engagement. No claim for minimum notice was pursued.
It was agreed that (a) the claims arose as a result of a complaint to the appellant by a resident concerning the conduct of the respondent in the course of an incident which was documented on CCTV following which (b) the respondent was suspended on full pay pending (c) the enactment of an investigation into the incident the purpose of which was to establish whether a “prima facie” case arose in respect of an allegation of elder abuse by the respondent.
Following the investigator making such a finding it is finally agreed that a subsequent procedural process was engaged in which resulted in (a) a disciplinary hearing which decided that he was guilty of elder abuse and as a result was dismissed and finally (b) an appeal hearing which confirmed his dismissal.
Consideration of the appeal
The Tribunal has examined (a) the appointment of the investigator and (b) the manner in which he subsequently conducted the investigation.
Investigator Appointment
It is firstly found that one person conducted the investigation without any prior consultation as to his appointment with the respondent. This is clear both from the original letter of suspension and final letter furnished to the disciplinarian. It is accepted that the investigator was assisted in the course of his investigation but that this assistance did not represent the actions of a joint investigator.
In thus appointing a sole investigator without consultation the Tribunal is satisfied that the appellant has breached his regulations pertaining to procedures governing elder abuse. These adopt health board provisions which provide for the appointment of twin investigators after a consultative process being engaged in with the respondent.
Conduct of the Investigation
It is found (a) that the respondent prior to the commencement of the investigation was not offered a right of representation and was also at this stage not given the opportunity to see the CCTV footage so as to acquaint himself with an outline of what he was being investigated for, nor was he given any details of the complaint made against him by the resident or the medical consequences of the alleged abuse obtained by the appellant (b) that the investigator at his investigative meeting with the respondent failed to discharge his duty to act as a fact finder and clearly formed his own view of the conduct of the respondent both prior to giving him the opportunity to view the CCTV footage and afterwards, (c) that he failed to provide the resident with details of this meeting so as to provide her with the opportunity to consider it and make observations if desired (d) that he failed to show the CCTV footage to the resident so as to give her the opportunity to consider it and to put to her the respondent’s observations on it so that she could respond to same.
Findings
It is therefore clear that the investigative process engaged in by the investigator on behalf of the appellant was flawed. The flaws that have been set out are found to be of sufficient consequence so as to satisfy the Tribunal to conclude that a full and proper investigation was not carried out and it is so found and determined. It follows (a) that since the investigation is inadmissible (b) consequently the subsequent procedural steps following it are invalid and (c) that the dismissal was therefore unfair and it is so found and determined. Accordingly, the Tribunal upholds the Rights Commissioner’s finding of unfair dismissal but varies the award.
Mitigation of Loss
It is accepted that the respondent, despite the clear uphill task that it is found that he faced, made a sustained attempt to obtain alternative employment in his chosen profession albeit unsuccessfully.
Subsequent to this two attempts at seeking outside employment in a centra shop and an amusement arcade were made along with the carrying out of a number of small very part time jobs.
Award
The Tribunal varies the award made by the Rights Commissioner and awards the respondent a sum of €30,000.00 damages as compensation for his dismissal which is found and determined to be unfair. It makes no finding of re-engagement or re-instatement bearing in mind the evidence of the respondent in this regard.
Minimum Notice
The Tribunal dismisses the claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005, as no evidence was adduced under that Act.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)