ud567/2013

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                                                                                                                                CASE NO.

Denise Tchakounte,                                                                                                                                                                                                 UD567/2013

against

Mowlam Healthcare Limited T\A The Park Nursing Home,

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman: Mr J. Lucey

Members: Ms H. Henry

                 Mr J. Horan

heard this claim at Limerick on 10th November 2014

Representation:

Claimant:

             Mr Kieran O'Donovan, Dorothy Tynan & Co., Solicitors,

             78 O'Connell Street, Limerick

Respondent:

            Alastair Purdy. Purdy Fitzgerald Solicitors,

             Kiltartan House, Forster Place, Galway

Respondent’s case:

The respondent operates a residential care facility for the elderly and the claimant was employed as a care assistant from 1^st August 2009 until her dismissal on 7^th January 2013.

On 28^th December 2012 a colleague of the claimant complained to the Manager (JS) that she had recently witnessed the claimant striking two residents. On receiving this complaint JS called the claimant to the office and placed her on paid suspension pending investigation. On 3^rd January 2013 the claimant attended an investigation meeting conducted by JS and the Operations Manager. The outcome of this meeting was that the claimant was referred onwards to a disciplinary meeting scheduled for 7^th January 2013.

During the investigation and disciplinary meeting, which were both conducted by JS and the Operations Manager, the claimant said that she did not remember striking the residents but also said that she did not do it. JS found this confusing and on the balance of probabilities decided that the claimant was guilty of gross misconduct and found she had no alternative but to dismiss the claimant. A letter of dismissal was prepared prior to the disciplinary meeting and handed to the claimant at the end of that meeting on 7^th January 2013. It was the respondent’s position that because of their duty of care to the residents there was no option but to dismiss the claimant and that this was a fair and reasonable dismissal.

Claimant’s case:

The claimant denied ever striking any of the residents. She blocked one person who tried to kick her but denied pushing him. She explained to the Tribunal that she denied the allegations put to her during the investigation and disciplinary meetings but that she also said she did not remember because she felt under pressure at the time. The claimant did not avail of the internal appeals procedure because she felt there would be no point.

It was the claimant’s position that she was not given an opportunity to properly address the allegations made against her and that the procedures followed in reaching the decision to dismiss her were flawed and unfair.  

Determination:

Having carefully considered the evidence adduced at the hearing the Tribunal finds that the claimant was unfairly dismissed from her employment with the respondent.

Fair procedures and natural justice were not adhered to in arriving at the decision to dismiss the claimant. The claimant was not given an opportunity to respond to the allegations made against her and her dismissal was presented to her as a “fait accompli”at the disciplinary hearing.

The Tribunal are not fully satisfied with the claimant efforts to mitigate her loss and taking into account other earnings the Tribunal awards the claimant €15,000.00 under the Unfair Dismissals Acts, 1977 to 2007.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)