EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD1373/2014
CLAIM OF:
Hanna Matthas
-claimant
against
G & T Gallen Limited
-respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms C. Egan B.L.
Members: Mr. D. Morrison
Mr. M. Mc Garry
heard this claim at Castlebar on 3rd March 2016 and 10th May 2016
Representation:
Claimant: Ms Clare Walsh BL instructed by Ms Catherine McDarby, McDarby and Co, Glebe Street, Ballinrobe, County Mayo
Respondent: Mr. Aidan Phelan, Peninsula Business Services (Ireland) Ltd, Unit 3, Ground Floor, Block S, East Point Business Park, Dublin 3
Background:
The Respondent is a care/ nursing home. The claimant worked there as a care assistant. The claimant was dismissed by the respondent for failing to properly check patients and for taking excessive rest breaks.
Respondent’s case:
The Tribunal heard evidence from GC who is the company director. He gave evidence as to the claimant’s qualifications and her role which was as a care assistant. He explained that the claimant did not properly check the patients and took excessive rest breaks. At a meeting she was asked about the taking of breaks and how long the practice had been taking place and she said it was for a year. The witness explained that the breaks were supposed to be one hour breaks. The witness disputes that there was any unofficial permission to take 2 hour breaks.
The witness was asked to explain the context of the dismissal. He explained that on the night in question there were 51 patients on “two wings”, one staff nurse to supervise and three care assistants “the claimant was one of four on duty the night in question”. The shift was a night shift from 9.00 pm to 8.00 am. The claimant was working on one wing with a colleague. They could also help check patients on the other wing, i.e. help colleagues. The duties included checking residents/patients, putting them to bed, making tea and changing dress wear. The residents had to be checked every half hour and it was important to check them. Each resident had their own room; they had a call bell in their room. Some of the residents might want to get up during the night. On the night in question the claimant and a colleague decided to go on a break at the same time from 2a.m. to 4a.m. The witness stated that they should not have done this and they also doubled up their break i.e. took a two hour break. Therefore, the claimant and colleague should not have taken their break together and neither should they have taken a two hour break. At 2.30 a.m. a nurse came to them and said that “a female resident was on the floor”. They went to assist and called an ambulance and the woman was transferred to hospital for observation.
The respondent representative was asked to clarify whether the wing where the particular incident occurred was not the wing that the claimant was working on; he agreed that it was not. He was asked, how therefore was the claimant implicated. He explained that the claimant and another left their wing unattended for two hours and “had signed a document” to say they had done the ‘checks.’
The witness explained that the matron, who was in charge, carried out an audit. The claimant and her colleagues were suspended. On 19th June 2014 there was a disciplinary hearing. The witness gave evidence as to the hearing. The claimant understood the residents were to be checked; she was doing the checks but “not at the right time”. She was aware of the abuse policy. The claimant also agreed that for the audit they took the official 1 hour break, but within a couple of weeks it was back to the 2 hour break. The failure to follow rules and procedures, namely, failure to carry out the checks in the correct manner, and taking excessive rest breaks amounted to gross misconduct in the eyes of this witness. The claimant was summarily dismissed by letter of the 26th of June 2014. The appeal procedure was outlined in this letter. The claimant did not appeal the decision to dismiss her; one of her colleagues did and her employment was re-instated.
The witness accepts that the nurse on duty is the supervisor of the 3 care assistants and was responsible for co-ordinating the breaks and instructing the claimant and her colleagues when to take their breaks. The nurse on duty also allocated the 2 staff to each wing and directed their work. All of the night staff took a 2 hour break; this practice was not confined to the claimant, but only the nurse, the claimant and the other 2 care assistants on duty that night were investigated and all were dismissed. The witness accepts that the claimant was not involved in the incident with the resident that night; the resident was on the other wing to the claimant’s allocated position. The witness was aware that the claimant was on holidays after the disciplinary meeting, but did not know that she would be out of the country and therefore would not get the dismissal letter before the time to appeal the decision would expire.
Claimant’s Case
The claimant worked for the respondent for 7 years. The claimant was working on the night of the 14th of June 2014. Following a handover meeting with the day staff the claimant, the nurse and the other care assistants had a meeting to allocate the work for the night. After she completed her work with her colleague on their allocated wing they checked in with the nurse to see if the other wing needed assistance. After they gave any assistance required, they then proceeded to other duties ie laundry/cleaning etc. The nurse instructed the claimant to take her break. Every member of the night staff including the nurse took a 2 hour break.
An incident occurred where a lady fell in the other wing. The claimant was not working on that wing. As a result of this incident the claimant was called to a meeting on the 16th of June 2014. The claimant explained that everyone took the 2 hour break as instructed to by the supervising nurse. The claimant was very stressed at the meeting and tried to explain that she was not working on the wing where the incident occurred. The claimant was suspended at that meeting which was confirmed by letter of the 18th of June 2014 and which also invited her to a disciplinary meeting. The claimant was not aware that the disciplinary meeting could lead to her dismissal. She was very stressed and had to get the letter translated. The claimant attended the meeting accompanied by someone whom she hoped had better English to translate for her. Again the claimant tried to explain her position in relation to the breaks and the incident that occurred on the other wing.
The claimant had not received an outcome to the disciplinary meeting by the time she left for holidays on the 30th of June 2014. The respondent was aware the claimant was going on holidays. On the claimant’s return from holidays she got the dismissal letter. She only had 7 days to appeal the decision and this time had already expired.
The claimant gave evidence of her loss and attempts to mitigate her loss.
The claimant disputes that it is her signature on the check list as she was on the other wing. The respondent was aware that the staff took 2 hour breaks. It was alleged that staff were told “you can take two hour breaks, but if anyone asks it’s a one hour break”.
Determination:
The Tribunal is of the view that it was the nurse who was the person in charge on the night of the 14th of June 2014 who was responsible for allocating the claimant’s work and directing when and for how long she took her break. The claimant was not working on the wing where the incident occurred. Furthermore, the respondent was aware that the claimant was on holidays and did not make allowances for that fact when setting the time limit for the appeal. Given the circumstances, the Tribunal believes that the sanction was too severe and disproportionate.
The claim under the Unfair Dismissals Acts 1977 to 2007 succeeds and the Tribunal make an award of €7,000 in compensation.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)