EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Maureen Watson - claimant UD1478/2014
Against
Irish Home Care Medicare Limited
- respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. McGrath B.L.
Members: Mr M. Noone
Mr J. Jordan
heard this claim at Tullamore on 15th October 2015.
Representation:
Claimant: In person
Respondent: Mr. Grahame Pickett, 32 Green Lawns, Skerries, Co. Dublin
The determination of the Tribunal was as follows:-
Determination:
The Tribunal has considered the evidence adduced in the course of this hearing.
The claimant has appealed her dismissal for gross misconduct which was effected by a letter of dismissal dated 30th May 2014. The claimant had been engaged by the respondent company for upwards of six years and was placed as a carer for elderly persons living in their homes. The claimant had many clients and many placements over her six years engaged by the respondent company. It is true that not all placements worked out but the Tribunal recognises that it is in the nature of these types of home placements that not every relationship will work and there is a certain amount of trial and error to be expected before an exact fit is reached.
Over the five year period preceding her dismissal, the claimant had been engaged to attend with an elderly lady M.C. four to five times a week to provide a little companionship and home help.
The evidence was that the claimant went to M.C.’s home for about an hour or an hour and a half to fix a lunch and generally give company and care for the lady in question.
On 9th May 2014 the respondent employer received a letter from the son of M.C. outlining a number of concerns with respect to the way in which M.C. is being treated and talked to by the claimant. The Tribunal fully accepts that the content of this letter (raising as it did up to six different complaints) would have to have been of some concern to the respondent company and it was appropriate that the claimant would be notified that an investigation be launched.
What was clear to the Tribunal at this hearing and indeed from the initial investigation interview with the claimant was the backdrop in M.C.’s home being a factor. In particular it seems a new daughter-in-law in M.C.’s home did not see eye to eye with the claimant on how M.C. should be treated in the home. The Tribunal accepts that there is only so much the respondent can do with respect to strained interpersonal relationships and the Tribunal accepts that the claimant was going above and beyond the parameters of her brief in the workplace. That said it is in the very nature of the service provided that there is an expectation that those engaged as carers will give more of themselves than an average workplace employee. Being a carer of the elderly has an almost vocational quality to it.
The Tribunal has to look to the investigation and disciplinary procedures to determine whether or not a finding of gross misconduct was warranted in these circumstances. On balance, the Tribunal finds the investigation was not adequate. The six items raised in the letter were not dealt with systematically. Interviews were conducted but the content was not necessarily put to the claimant. There was no verification of phoning family members, making pass remarkable statements, timing of the dinners etc. The Tribunal cannot see where there would be a difficulty in visiting a person, for whom you have regard, in a respite home.
The principle allegation in the letter was one of speaking harshly and cursing at M.C. by the claimant.
This was consistently denied by the claimant and whilst the son did say she was shouting and hassling his mother on one occasion the nature of this incident was not explored and the claimant has given evidence to the effect that M.C. was hard of hearing.
On balance, the Tribunal finds that an incident of some sort did occur which resulted in a letter of complaint being written. However, the Tribunal remains unconvinced as to just how bad this incident was and whether on balance the employer would possibly feel entitled to dismiss the claimant summarily for this event.
An appeal hearing did not pick up on the gaps in the investigation and in fact the person conducting the appeal herself interviewed a few extra people without taking statements and putting them to the claimant - a fatal flaw to the appeal provided.
The Tribunal recognises an able attempt made by the claimant’s friend to represent her interests throughout, but the seriousness of the matter was such that someone with a better understanding of hearings of this type (e.g. Citizens Advice) would have been preferable.
The Tribunal finds that the claimant was unfairly dismissed and awards her €10,000.00 under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)