EMPLOYMENT APPEALS TRIBUNAL
CASE NOS.
UD547/2015
MN265/2015
CLAIMS OF
Sharon Fogarty
– claimant
against
Catholic Institute for Deaf People
– respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr D. MacCarthy SC
Members: Mr D. Peakin
Mr J. Maher
heard this claim at Dublin on 26 April, 16 June and 29 August 2016
Representation
Claimant: Mr Will Joyce of Business & Commercial Solicitors, Leeson Chambers, 28 Lower Leeson Street, Dublin 2
Respondent: Mr Donagh Tanham of Maxwells Solicitors, 19 Herbert Place, Dublin 2
The determination of the Tribunal was as follows:-
The claim under the Minimum Notice and Terms of Employment Acts 1973 to 2005 was withdrawn.
Background Information
The claimant worked as a care assistant in the respondent’s residential care home. The HIQA inspected the home on 20 February 2014. One part of the inspection was a review of a sample of staff files and it was found that they did not contain the required documents as outlined in Schedule 2 of the Health Act 2007.
The respondent’s legal representative told the Tribunal that following this finding the respondent undertook an audit of all staff files. The claimant’s file was not compliant with the legislation because she has said in her CV that she had obtained a qualification in Community and Care Practice but a copy of her certificate was not on file. The claimant was requested on 26 November 2014 to provide evidence of her qualification. When she failed to provide the requested proof the claimant was dismissed for gross misconduct by letter dated 6 March 2015.
The Tribunal granted an adjournment to enable the claimant make enquiries and obtain a copy of her certificate. On the final date of hearing the Regional Development Manager of City & Guilds told the Tribunal that a search of their records yielded no certificate awarded to the claimant. He considered it likely that the course the claimant claimed to have attended was run under a quality assurance model with FÁS.
The claimant’s representative told the Tribunal that the course the claimant attended had been given by St Michael’s House at facilities in All Hallows College. Neither of these organisation had any record of a course that commenced in 1999.
The HIQA inspector told the Tribunal that no formal qualification is specified for a care assistant in the legislation. She said that a care-assistant should be recruited on the basis of training, experience and suitability. The claimant’s situation was not unusual. Her file could have been brought to compliance by removing the reference to the qualification or by providing additional training. The inspector heard of enforcement of the regulations by dismissal.
Determination
The Tribunal carefully considered the evidence adduced and the documents submitted in this case. In the letter of dismissal dated 6th March 2015 the claimant is told “your actions constitute Gross Misconduct namely for ‘Deception on employment application or medical forms, or at interview”. The respondent’s representative asserted that the dismissal was fair under the terms of Section 6(4) (d) of the Unfair Dismissals Act 1977, ‘the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute’.
The Tribunal does not accept the respondent’s assertion of gross misconduct by the claimant. Clearly her failure to obtain a copy of her certificate created a difficulty for the respondent but other solutions could have been explored and in this case the sanction of dismissal was unwarranted. The Tribunal makes no finding in relation to whether the claimant did or did not ever earn the certificate in question. The issue for the Tribunal is whether the respondent acted in a reasonable and fair manner in terminating the claimant’s employment.
Regarding Section 6 (4) (d) of the 1977 Act the evidence of the HIQA inspector contradicts the respondent’s position on this. The ‘lost’ certificate was not a prerequisite for the claimant’s role. The Tribunal is satisfied that the claimant could have continued in her role without the certificate and that deleting all reference to it in her CV could have sufficient action to bring her file into compliance with the regulations.
The claim under the Unfair Dismissals Acts 1977 to 2007 succeeds and the claimant is awarded the sum of €5,500.00.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)