EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
Tracey Keogh – appellant UD439/2013
Against the recommendation of the Rights Commissioner in the case of
Cloverland Healthcare Limited – respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms M. Levey BL
Members: Mr M. Noone
Mr Al Butler
heard this appeal at Dublin on 28th October 2014
Representation:
Claimant: Mr Fergal Doyle BL instructed by Seamus Taaffe of
Francis B. Taaffe & Co Solicitors, Edmund Rice Square,
Athy, Co. Kildare
Respondent: Ms Catherine Day of Peninsula Business Services (Ireland) Limited
Unit 3 Ground Floor Block S, East Point Business Park, Dublin 3
The determination of the Tribunal is as follows:
This case came before the Tribunal as an appeal by an employee of the recommendation of the Rights Commissioner under the Unfair Dismissals Acts 1977 to 2007 reference number r-128097-ud-12/JW.
Background
The appellant started work as a care assistant for the respondent in 2004. There were no issues with her work. HIQA changed the regulations for Nursing Homes to require Garda Vetting of nursing home employees. Garda Vetting revealed that the appellant had a number of convictions that pre-dated her employment with the respondent.
The appellant was on Maternity Leave when the respondent contacted her saying that her Maternity Leave would end on 17 October 2012 and asking her to attend a meeting on 18 October 2012.
At the meeting the appellant was informed that the respondent had no choice but to terminate her employment.
Determination
The Tribunal considered the submissions made by both parties. The respondent’s business was a nursing home where vulnerable adults were cared for. The respondent had an obligation to protect the people in its care. However the respondent also had obligations towards its employees. These competing obligations need to be balanced.
When the regulations changed the respondent concluded that they could be retrospectively applied regardless of the circumstances. The Tribunal finds that the respondent erred in not carrying out a risk assessment to determine whether the appellant could continue in employment in light of both the information raised by Garda Vetting and of her long service with the respondent.
The Tribunal finds that the summary dismissal of the appellant amounted to an unfair dismissal under the Unfair Dismissals Acts 1977 to 2007. Taking all the circumstances into account, the Tribunal award the appellant the sum of €20,064.00.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)