UD1164/2013, TE158/2013

EMPLOYMENT APPEALS TRIBUNAL

APPEALS OF:                                                                                                CASE NO.

Vitolds Malijs                                                                                               UD1164/2013

-appellant                                                                                                       TE158/2013

against the recommendation of the Rights Commissioner in the case of:

Vitolds Malijs

-appellant                                          

-v-

Bloomfield Care Centre Limited

-respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

TERMS OF EMPLOYMENT (INFORMATION) ACT, 1994 AND 2001

I certify that the Tribunal

(Division of Tribunal)

Chairman:      Peter O’Leary BL

Members:       Mr. J.  Horan

Ms M. Mulcahy

heard this appeal at Dublin on 29th January 2015

                                                and 30^th January 2015

Representation:

Appellant: Mr. Shane Kelly BL instructed by Mr. Noel O'Hanrahan,

O'Hanrahan Lally, Solicitors, Dublin Law Chambers, 77 Talbot Street, Dublin 1

Respondent:  Ms MP Guinness BL instructed by Ms Christian Carroll solicitor,

Orphen Franks Solicitors, 28/30 Burlington road, Dublin 4

Background:

The above cases are before the Tribunal by way of an employee (the appellant) appealing a Rights Commissioner Recommendation under the Unfair Dismissals Acts, 1977 to 2007, ref: r-127501-ud-12/JC and a Rights Commissioner Recommendation under the Terms Of Employment (Information) Act, 1994 and 2001, ref: r-128454-te-12/JC.

The respondent is a private psychiatric hospital and nursing home.  They care for patients with acute mental health conditions.   The appellant is a care assistant.   Dismissal is not in dispute. The respondent dismissed the appellant for falling asleep whilst caring for a patient.

 Respondent’s case:

The Tribunal heard evidence from HR who is a registered psychiatric nurse and is the assistant director.  She explained that the hospital is an approved psychiatric hospital and care for types of patients that have dementia schizophrenia etc.    The appellant was a care assistant.   The client that the appellant had to care for was an acute patient who had a severe CBA, and was extremely paranoid, psychotic and extremely unpredictable.   The client had a history of violence against women, and had “low triggers”.  There had been previous two serious  violent incidents.   The client had to have a male carer on a one to one basis.  the witness described it as  a “male only special” and “specialing” entailed a male only carer on a 24 hour seven day a week basis.  the carer had to keep visual sight of the client at all times.  The patient did not sleep at night and so required the same level of care.

The Tribunal heard evidence from UD who is head of Human Resources.  At the time she was a supervisor.  The witness explained that she met NB who is a staff nurse and who had made an adverse report regarding the Appellant.   She had a meeting with the appellant on 25^th June 2012.  The appellant had a representative (DC) of Siptu, at the meeting and the Appellant signed off on the notes of the meeting.    The witness opened correspondence to the Tribunal.   The witness also outlined other meetings, one or some of which the Claimant did not attend.  At some point in time the appellant was put on administrative leave.  The Appellant attended other meeting and signed off on the minutes. Regarding a report by MRC she could not find that report but asked MRC to give a report and she then sent it to the appellant and to DC, his representative.  Regarding breaks the witness explained that the nurse on duty determines the break times.

The Tribunal heard evidence from NB.  She was the staff nurse on the night in question.  Her responsibilities included co-ordinating the ward and to make sure that the unit is staffed appropriately and safely.   On 18^th May 2012 she called into a room to check the situation.  She saw that the Appellant was asleep.  She called the appellant twice and he woke up.   She told the appellant that he should not be asleep and that if he was tired he should come to the nurse’s station and tell a staff member.  The appellant did not answer her.  She telephoned the Clinical Nurse Manager (CNM), also known as MRC.

Later on that shift she was doing some checks and saw that the appellant was asleep.  She saw his side profile and saw that he was asleep, she had no doubt at all that he was asleep.   She woke him and explained the importance of the situation and told him to let them know if he was tired and he “could be covered” and go and get a coffee. 

On a third occasion on 03^rd June she opened the door and saw that the appellant was asleep.  She spoke to him and he jolted and looked at her and he left the room and returned with a beverage.

The witness was asked if she was aware of there being bad relations between herself and the appellant and she replied that she was unaware of this.

The Tribunal heard evidence from RS, who is the deputy CEO and the financial controller.  

He had reviewed all of the information regarding the matter and he was the person who decided that dismissal was the appropriate sanction. The dismissal  letter dated 04^th September was opened to the Tribunal.

The Tribunal heard evidence from TF who heard the appeal hearing of the appellant.  The result of the appeal was that the dismissal of the appellant was upheld.

Appellant’s case:

The Tribunal heard evidence from the appellant.   He commenced employment in April 2007 with the Respondent as a care assistant.  There were no incidents between 2007 and 2012. His relationship with colleagues was very good.  He described the patient’s room and the lay out of the room.  There were two chairs in the room; one had a hard surface and no armrests.  There was another chair that was next to the patient and he never sat in the comfortable chair.  He reported for his shift which was a twelve hour shift.  He got a report about the patient. 

The appellant had to keep watch on a patient who was an acute patient. He was allowed to be outside the patients room but he had sight of the patient all of the time e.g. for this purpose he left the door open.   If he needed to go on a break he had to ask the staff nurse.   The appellant explained that the staff nurse that he had previously was a male and he gave breaks whenever the Appellant requested them. But the new staff nurse (NB) who is a female staff nurse did not give him the breaks that he had asked of her.   On 18^th / 19^th May the NB was walking up and down the hallway many times.   NB called to the room and came to the doorway and asked him if he was asleep.  He responded immediately by saying no.  She called to the room twice.  No one else called into the room that night.  MRC the nurse manager did not call into the room.  MRC spoke to him about matters a few days later.  MRC told him that everything was going to be fine. 

On 03^rd June 2012 a similar situation occurred.  The nurse came to the doorway; she did not walk into the room.  She asked him if he was asleep, she began to tell him his duties and he told her that he knew his duties.  She said to him if he was tired to make tea/ coffee.  He did not argue, he left and made tea and returned directly back to the room. 

The Appellant told the Tribunal that he had a difficult relationship with the nurse from the first shift they worked.  She had refused him a break and he told her that he was not asleep.  There was an occasion when NB was angry with him, saying hello into his face.

He received a letter dated 12^th June 2012.  He attended a meeting on 26^th June to investigate matters.  Ultimately he received a letter of dismissal.    The Appellant gave evidence as to his loss.

The appellant was cross-examined.  There was a dispute as to whether he said at the meeting that NB entered the room and whether in his evidence he said she did not.

Determination:

The above cases are before the Tribunal by way of an employee (the appellant) appealing a Rights Commissioner Recommendation under the Unfair Dismissals Acts, 1977 to 2007, ref: r-127501-ud-12/JC and a Rights Commissioner Recommendation under the Terms Of Employment (Information) Act, 1994 and 2001, ref: r-128454-te-12/JC.

The Tribunal having heard the evidence adduced in the case under the Unfair Dismissals Acts, 1977 to 2007, determines that the Appellant was unfairly dismissed.  The procedures that the Respondent followed were far from ideal in that the Appellant was allowed to continue working after what the Respondent claimed was gross misconduct.  It is for the Respondent to evaluate the performance of an employee and their action should be a reflection of their attitude. In this case the Respondent did not deem the Appellant’s performance sufficient to justify his dismissal at the time of the alleged actions. In this case the employer did not deem the actions of the Appellant to merit immediate suspension and continued his employment subsequent to the alleged events.  Therefore the employer was not entitled to dismiss the Appellant in this case.

However the Claimant contributed significantly to his dismissal. Accordingly, the Tribunal upsets the Rights Commissioner Recommendation, ref: UD1164/2013, and awards the Appellant the sum of €4,000.00.

The appeal under the under the Terms Of Employment (Information) Act, 1994 and 2001, ref: TE158/2013, was not prosecuted.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)