EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD961/2015
CLAIM OF:
Agnes Maranan
Claimant
Against
Beechfield Nursing Homes Limited
Appellant
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms N. O'Carroll-Kelly BL
Members: Mr M. Noone
Mr J. Maher
heard this claim at Dublin on 10th August 2016
Representation:
Claimant: Mr William Aylmer, Aylmer & Co., Suite 2, 2nd Floor, Iceland House, Arran Court, Smithfield, Dublin 7
Respondent: Ms. Davnet O’Driscoll, Amorys Solicitors, Suite 10, The Mall, Beacon Court, Sandyford, Dublin 18
The determination of the Tribunal was as follows:-
Background:
The claimant was employed as a Health Care Assistant in the respondent’s nursing home from January 2004. There were no major disciplinary issues regarding the claimant until the 27th of May 2015.
On this day the claimant was taking a female resident for a shower. There are two shower rooms on the floor on which the claimant worked. The claimant entered the empty shower room and placed some toiletries she required. She left to collect her resident and bring her to the shower room. On her return she discovered another Health Care Assistant inside the shower room showering a male resident. The claimant entered the room with her female resident turning her towards the wall while her colleague finished showering the male resident.
A colleague of the claimant’s (LF) knocked on the door to ascertain if the male resident and his Health Case Assistant were inside. The claimant opened the door, said nothing and closed the door. A second Health Care Assistant (PF) knocked on the door and asked who was in the shower but the claimant gave no reply. At midday PF notified the Director of Nursing (EK) of the incident.
EK visited both residents to assess their well-being. EK also notified the HR Manager (MMcG). EK notified both Health Care Assistants involved in the incident, including the claimant, that she wished to speak to them regarding the incident in the shower with the male and female residents present. EK and MMcG met with the claimant and the other Health Care Assistant involved. Both were advised their meetings were potentially of a disciplinary nature and an investigation would take place. The claimant declined having a representative present.
At the claimant’s meeting she accepted she had done the wrong thing and apologised. The claimant was then suspended with pay pending the outcome of the investigation. EK and MMcG met with the all the witnesses and statements were taken and signed off.
The following day, the 28th of May, MMcG contacted the claimant and requesting her attendance at a meeting in the nursing home the following day. The claimant was again advised she could bring a representative with her.
On the 29th of May the claimant attended the meeting alone with EK and MMcG. She was informed her behaviour was entirely inappropriate and she had failed in her duty of care which amounted to elder abuse of both residents. The claimant requested to speak to MMcG alone and said she was very sorry for what had occurred. MMcG said she understood the claimant had made a mistake but the treatment of vulnerable adults in the respondent’s care was unacceptable and could not be tolerated.
The claimant’s employment was terminated on the 29th of May 2015 on the grounds of gross misconduct. She was given the right to appeal.
The claimant contacted her solicitor and submitted a letter to appeal the decision to dismiss her. An appeal hearing was held on the 30th of July 2015. The decision to dismiss was upheld.
Respondent’s Position:
The Director of Nursing (EK), another Care Assistant (LF) and the HR Manager (MMcG) gave evidence.
The respondent’s case is the claimant was an employee with ten years service. She was well trained in company policies and procedures including elder abuse and was well aware of her responsibilities to act in an appropriate manner with vulnerable adults and was aware of the respondent’s zero tolerance of elder abuse.
MMcG stated that there was no alternative but to dismiss the claimant in the circumstances.
Claimant’s Position:
The claimant gave evidence. She accepted what she had done on the day in question had breached company rules but did not deem it as so unacceptable to the respondent as to dismiss her.
Determination:
The claimant accepts that her actions were in breach of company policy. She stated that she had received that policy and had made herself familiar with it. She did however underestimate the gravity of the breach. She, unlike the respondent, did not equate her actions with actions that could amount to gross misconduct.
The Tribunal note that there were flaws in the respondent’s disciplinary process. MMcG who was the investigating officer also carried out the disciplinary meeting and made the decision to dismiss. The investigation and the disciplinary hearing should be two separate processes and should be conducted by two individuals. However in this situation we find the claimant was not prejudiced by the flaw as there was agreement in relation to the issue between all parties. The only non-meeting of minds was in relation to the gravity of the situation.
In all the circumstances the Tribunal find that the claimant’s dismissal was fair and proportionate. It must follow from that finding the claimant’s claim under the Unfair Dismissals Acts, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)