UD836/2012

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                               CASE NO.

Imelda Cooke-Daly      -claimant                                                                            UD836/2012

against

The Listowel Old Folks Home Company

t/a Aras Mhuire Nursing Home         -respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms. K. T. O'Mahony B.L.

Members:     Mr J. Hennessy

                    Mr J. Flavin

heard this claim at Killarney on 2nd May, 30th June, and 1st July 2014

Representation:

Claimant :       Mr Caoilte O’Connor B L instructed by

                       Michael Dowling & Co, Solicitors,   Church Street, Tralee, Co Kerry

Respondent :   Mr. Michael Purtill B.L.

                       Pierse & Fitzgibbon, Solicitors, Market Street, Listowel, Co Kerry

Summary of Evidence

The respondent operates a nursing home in a modest sized town located in County Kerry. Following an investigation and a disciplinary hearing the respondent dismissed the claimant (a care-worker) in February 2012 on grounds of gross misconduct in that she allegedly slapped an elderly and disabled resident (the resident) on the morning of 1 November 2011 causing bruising and marking to his face. The resident who was in his early eighties was blind and practically confined to bed. He had been a resident in the home since 2006.

On or around 8.45 a.m. on the morning of 1 November 2011 as BM (an experienced care assistant and the claimant’s work partner), was walking towards the men’s room she heard the resident shouting, “Get away from me”. As BM was attending to her duties in the men’s room the shouting got louder and on enquiring what was wrong the claimant who was washing the resident (behind drawn curtains) called her over. On entering through the curtains BM saw that the resident’s face was “all red” by his left eye and he was agitated and kept shouting, “She hit me”. When BM asked what had happened the claimant replied that she did not know. BM reported the injury to the night nurse (NN) around 8.50am and asked her to see the resident; she also informed the day nurse (DN). BM had given the resident his breakfast about half an hour earlier and he was in good form and there had been no marking on his face at that time.

The claimant’s position was that while washing the resident’s face on the morning of 1 November she noticed “a tiny mark” on the side of his face. She did not report it as the mark was so small. When she asked the resident what had happened, he did not reply and when she later asked if it was sore, he said he didn’t know. While the claimant was drying the claimant’s face he got very agitated and roared, “Stop hitting me”, the claimant replied that she was not hitting him. He said, “Take that wet cloth away”. As she explained to him that she was drying him he again said, ‘Stop hitting me.’ The claimant called BM to look at the resident and BM commented that the mark had not been on the residents face at breakfast time. The claimant was adamant that it was she, and not BM, who suggested that the marking on the resident’s face should be reported.

NN and the day nurse (DN) went to the resident’s bedside shortly before 9.00am. NN noticed what she described as a slap mark in the form of a clear imprint of a hand on his face and he was very agitated and hyperventilating and saying, “Get away from me”. NN was upset to see him in such a distressed state. She remained with him for around forty minutes until around 9.30 a.m. when he had calmed down. Some days later the injury manifested as a large area of bruising. DN confirmed that the resident was very upset and very agitated, and had a very red mark and bruising on his face and said, “Get away from me….She hit me…the one that was washing me”. She had never seen the resident so agitated and was adamant that Resident D was not in the room at the time. NN and a carer had found the resident in good form and singing when they were with him on their rounds earlier that morning and there had not been any marks on his face at that time. The carer who had done the rounds with NN confirmed that the claimant was in good form and had no marks on his face. The nurses asked the Acting Director of Nursing (the Acting Director) to see the resident. On her way to the men’s room the Acting Director heard the resident shouting, “She slapped me. She hit me.’ When she asked him what had happened, the resident repeated ‘She hit me… She slapped me…. the one that was washing me…. the one with the gruff voice.’ The Acting Director confirmed that the resident had fresh red marks on his face. She took photographs s of the marks on the resident’s face at 9.36am. The photographs were submitted to the Tribunal.

The Acting Director moved the staff around so that the claimant was working in another part of the building, away from the resident. She took witness statements from all the staff that had been on duty or had contact with the resident that morning but the resident was so upset she took his statement later that day in the presence of the Registered Provider. KB reported the incident to the resident’s next of kin and the gardai. She noted that the claimant had failed to report the marking on the resident’s face as required by her job description. She had not received any report that the resident had complained on 31 October 2011 that his hair was being pulled, as alleged by the claimant during the course of the investigatory process. Whereas the resident could be confused and challenging at times the Acting Director had never seen him so distressed and traumatised. He was on his usual medication at the time. Due to his distress and the visible marks on his face the Acting Director did not doubt that something had happened to the resident to cause the injury. The doctor examined the resident’s injury that evening. The Acting Director had not interviewed the other residents of the men’s room because, apart from Resident F who was in extremis, they were not in the room at the relevant time. In any event, the curtains had been drawn around the resident’s bed at the relevant time as he was being washed. The bruising and marking had not occurred during the removal of the nebuliser as it had been removed by the night staff before he was given his breakfast.

Later on that day, the Acting Director, suspended the claimant. By her own admission, the claimant was the only member of staff present with the resident between 8.20 am and 8.50am that morning when the injury was sustained. Due to the serious nature of the incident HCI, an independent specialist firm, were appointed by the respondent to carry out the investigation. Following a thorough investigation during which members of staff including the resident were interviewed and their statements and other documentation were reviewed. HCI concluded:

‘Based on the interview, and documentation reviewed it can be concluded that there are reasonable grounds evident to indicate that abuse has occurred.’

A copy of the investigation report including its conclusions was furnished to the claimant and she furnished her response on 30 November 2011. Having considered the report and the claimant’s responses the respondent invited the claimant to a disciplinary hearing by letter dated 23 December 2011 and enclosed inter alia the written statement of the witnesses to be interviewed as part of the disciplinary hearing. The respondent’s Disciplinary and Grievance Panel, comprising two members of the respondent’s Management Committee and an independent chairman conducted the disciplinary hearing on 9 February 2012. The claimant was represented by her solicitor, who cross-examined the respondent’s witnesses.

A number of possible alternative explanations for the resident’s injury were put forward by the claimant’s legal representative including, that another staff member could have inflicted the injury or that it could have been self-inflicted or that the removal of his nebuliser mask could have caused the injury. However, the Disciplinary and Grievance Panel noted:

‘(The resident) was observed by several people to be in a peaceful state around 8.30am on 1^st November 2011. (The claimant) was the only person present with (the resident) between 8.30am and 8.50am. Everyone else who saw (the resident’s) injury said it was serious and obvious, whereas, (the claimant) states that she was washing him for some time and said what she noticed was a tiny mark, which she did not report. When (another witness) saw the injury, she immediately reacted and went to report it immediately. All witnesses gave evidence as to their distress when they saw the injury on (the resident’s) face. However, (the claimant) said it was tiny. The evidence of all the other staff was that injury on (the resident’s) face was fresh, and extensive.’

It unanimously concluded that there were reasonable grounds to establish that abuse amounting to gross misconduct probably occurred and that this shattered the confidence and trust that must exist in a nursing home, where vulnerable, elderly people are being cared for.  

The claimant appealed the decision to dismiss her on the sole ground that there was insufficient evidence of abuse to support a dismissal. The claimant’s appeal was heard on 29 March 2012. The appeal panel was made up of 5 members of the respondent management committee. Each of the four witnesses on behalf of the respondent and the claimant put forward her version of the events of 1 November. The claimant was represented by her solicitor and a barrister at the appeal hearing and was afforded the facility of having any witnesses she wished present.

The claimant appealed the decision to dismiss her on the ground that there was insufficient evidence to conclude that abuse had occurred “as there had been no finding of fact”. At the appeal hearing the claimant was represented by her solicitor and a barrister. The appeals panel was satisfied that an incident occurred which caused injury to the residents face, that the resident was upset and distressed, that he was not upset or distressed prior to 8.30am, that the claimant was the only person with the resident from 8.30am to 8.50am and that in that time the injury, as evidenced by the photographs, probably occurred. The decision to dismiss the claimant was upheld on grounds that the infliction of such an injury amounted to gross misconduct.

The claimant’s evidence to the Tribunal was that when she was about to wash the resident she noticed a tiny mark by his left eye and that was the only mark on his face when she left him at around 9.00am. The marks as shown in the photographs were not there when she was with the resident but when she saw him at midday the whole left side of his face was destroyed. “It was like his face had smacked up against a wall.” The claimant accepts that something definitely happened to the resident that morning but she was not responsible for it.

Determination

The function of the Tribunal is set out in Looney & Co. Ltd. v. Looney (UD 843/1984):

“It is not for the Tribunal to seek to establish the guilt or innocence of the claimant, nor is it for the Tribunal to indicate or consider whether we, in the employer’s position, would have acted as (the respondent) did in his investigation, or concluded as he did or decided as he did, as to do so would substitute our mind and decision for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in (the respondent’s) position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s action and decision be judged.”

Thus, the function of the Tribunal is not to substitute its decision for that of the employer but to determine whether in the particular circumstances a reasonable employer would dismiss the employee. Applying the reasonable employer test the Tribunal asks itself whether the employer in this case had a reasonable belief, arising from a fair investigation, that the employee was guilty of the alleged misconduct and whether the sanction of dismissal was disproportionate. Noritake (Irl.) Ltd. v Kenna (UD 88/1983) & Martin v Audio Video Services Centre Ltd. [1992] ELR 216 applied.

It was common case that that something had happened to the resident on 1 November 2011 to cause the injury to his face and his agitation. The preponderance of the evidence before the employer was that the marking to the resident’s face was extensive and that it had occurred between 8.30am and 8.50am at a time when the claimant was on her own with the resident. Having considered the evidence on the investigation and disciplinary and appeal meetings the Tribunal finds that the reasonable belief test is satisfied. In light of the nature of the respondent’s business caring for vulnerable residents the decision to dismiss the claimant was not disproportionate. Accordingly, the dismissal was fair and the claim under the Unfair Dismissals Acts, 1977 to 2007 fails.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)