ADJUDICATION OFFICER DECISION

 Adjudication Reference: ADJ-00002777

Parties:

Complaint:

Date of Adjudication Hearing: 21st September 2016

Procedure:

On the 15^th April 2016, the complainant referred a complaint to the Workplace Relations Commission pursuant to the Unfair Dismissals Acts. The complaint was scheduled for adjudication on the 21^st September 2016. The complainant attended the adjudication and was accompanied by a family member. Two witnesses attended for the respondent.

In accordance with section 8 of the Unfair Dismissals Acts, 1977 - 2015 following the referral of the complaint to me by the Director General of the Workplace Relations Commission, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The complainant began employment with the respondent on the 5^th December 2012 and this came to an end on the 14^th March 2016. Her monthly remuneration was €1,842. She was dismissed on grounds of gross misconduct and challenges the fairness of the dismissal. The respondent asserts that the dismissal was fair.

Summary of Respondent’s Case:

The respondent outlined that it received a complaint from a family member of a client on the 9^th March 2016. The complaint related to monies being taken from the client without his permission. The complainant was suspended and statements taken from the family member, the client and the supervisor. The complainant was invited to a disciplinary hearing on the 14^th March 2016, where the HR manager also attended to take minutes. The disciplinary hearing was chaired by the then clinical director. It had been the clinical director and the managing director who made the decision to dismiss the complainant.

The respondent said that the decision to dismiss was based on taking money from the client without his permission. This had been €35 in notes taken from the client’s wallet and €5 or €6 in coins. On this occasion, the client had been left without food in the house and without money. The complainant should have done the shopping as soon as she took the money from the client. There had also been no receipts provided for the previous amounts of €100 taken by the complainant. The client had provided a receipt for a week of shopping paid for with a debit card, but no receipt was left on the client’s file.

The respondent outlined that the complainant had not appealed the decision to dismiss her. The complainant’s practice of cooking meals and eating with the client contributed to the dismissal. The respondent said that its services were there to provide for the needs of clients and not to have meals. There had been no care plan or no sample care plan provided in this case. No financial plan had been prepared. The respondent outlined that training had been provided regarding the preparation of such plans. It was practice for a carer to be introduced to a client and they would go through the care plan, covering washing, dressing, shopping and medication. Employees watched a video regarding how to manage money. This included placing receipts in the care plan and this would be checked four times a year. The respondent acknowledged that there had been no issues identified in the 18 months the complainant worked with this client. It also submitted that the complainant did not do shopping for any other client.

The respondent outlined that during the investigation, the complainant had not provided good enough responses and had plenty of time to do so. This raised issues of performance, trust and insight; this was not satisfactory and the complainant’s position became untenable. There was mounting evidence against the complainant, for example her opening the client’s wallet at a time when he was on the phone. This was described as “arrogant” and “breathtaking”. The complainant had crossed boundaries and it was not possible to repair the relationship with the client’s family.

In reply to the complainant, the respondent said that the actions of the complainant had been inappropriate as the client had objected to her taking the money and had said that he did not have enough money. It was not permissible to reach into a client’s wallet and this client had been left without money or food. Furthermore, it was not permissible to leave doing the shopping until the Thursday of that week. The issues were the taking of the money, not going to do the shopping straight away and not leaving the client with enough. The complainant should have done the shopping immediately. The complainant had not provided receipts from previous occasions she shopped for the client.

Summary of Complainant’s Case:

The complainant outlined that she always handed over receipts for shopping she bought for this client and left the receipts on a counter. This was known to the client’s family. The complainant did not know of any pouch in the care plan. She said that her supervisor called to the client once a month and would verify that everything was okay. She stated that the client would give her differing amounts of money for shopping and she would return any change. She did not recall the purchases made by debit card. The complainant said that the family were aware that she would cook for the client and that this occurred at most once or twice a week.

The complainant visited the client from 12 to 1 and 6 to 7 on Tuesdays, 12 – 1 on Wednesdays, 12 – 1 and 6 -7 on Thursdays and 12 – 1 on Fridays. She would do the shopping on a Tuesday as the house would be empty. Other carers attended on Mondays and over the weekend.

The complainant was told of the allegation and suspended. She handed back the keys of the client’s home and also the amount of €40. She had this money in her possession as she had not had the chance to go shopping. The complainant said that she was asked to attend a meeting. She felt that the meeting was overwhelming and she had been railroaded at the meeting. She had a good relationship with one of the client’s daughters, who had not made a statement to the respondent. The other daughter made a statement and she did not have the same relationship with this daughter.

The complainant outlined that she would tick the care plan to indicate whenever she had shopped for the client. In respect of the 8^th March 2016, the complainant said that the client was on the telephone to his daughter in the UK when she was leaving. She told the client that she was taking the money and he did not raise any issue. She had taken €35 in notes and €5 in coins. She had taken this money as there was no food in the house and the shopping needed to be done. It was her practice to do the shopping and to give the receipt. Shopping did not have to be done on the same day as she took the money. The complainant was not aware if her supervisor also did shopping for this client. She also shopped every fortnight and not every week as claimed. She always returned change and provided receipts.

In respect of redress, the complainant said that she sought reinstatement and also wished for a reference. She said that she was currently working and that it had taken a while to find other work. She outlined that the decision made to dismiss her was harsh. She acknowledged that on the Tuesday she was aware that she was taking the last of the client’s money as he had told her he was “skint”.

Findings and Conclusions:

The complainant commenced employment with the respondent on the 5^th December 2012 and this came to an end on the 15^th March 2016. The complainant worked as a home carer for the respondent, a provider of home care services. The complainant was dismissed on grounds of gross misconduct.

In respect of the legal test for unfair dismissal on grounds of conduct, the relevant parts of section 6 of the Unfair Dismissals Act provide as follows:

6. — (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

…

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

…

(b) the conduct of the employee,

(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so —

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7(2) of this Act. 

“The procedures for dealing with such issues reflecting the varying circumstances of enterprises/organisations, must comply with the general principles of natural justice and fair procedures which include:

…

• That details of any allegations or complaints are put to the employee concerned;

• That the employee concerned is given the opportunity to respond fully to any such allegations or complaints;

• That the employee concerned is given the opportunity to avail of the right to be represented during the procedure;

• That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors or circumstances.”

   

  In Frizelle v New Ross Credit Union Ltd [1997] IEHC 137, the High Court set out the following legal principles in addressing employee misconduct under the Unfair Dismissals Acts. Flood J held:

1. The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

2. Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

3. The employee should be interviewed and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

4. The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered.

5. The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

   Put very simply, principles of natural justice must be unequivocally applied.”

    

   The Labour Court in Kilsaran International Ltd v Vet (UDD1611) held:

   “It is quite clear from the case law of the superior courts in this jurisdiction, that there is no fixed standard of natural justice which lays down that certain specific matters must be complied with. The protection to be afforded to a person whose conduct is being investigated will vary according to the circumstances. However, there are a certain fundamental requirements of fair procedures that cannot be dispensed with regardless of the particular circumstances that arise in an individual disciplinary matter. They include: (i) the requirement to make the employee who is the subject of the investigation aware of all the allegations against him or her at the outset of the process; (ii) the requirement that an employer who has published a disciplinary procedure to its employees follow those procedures scrupulously when conducting a disciplinary process; and (iii) in the event that an allegation against the employee is upheld, any disciplinary sanction imposed is proportionate to the complaint that has been substantiated.”

    

   Having set out the pertinent evidence of the parties and the legal test for a procedurally and substantively fair dismissal, I make the following findings and comments in relation to this case. It goes without saying that the position held by the complainant was one of significant responsibility, in particular as it involved the provision of caring services to vulnerable members of the community.

    

   The issues leading to the termination of the complainant’s employment arose on Tuesday, 8^th March 2016. On this day, the complainant took €40 or €41 from the client in order to shop for him. There is a dispute between the parties over whether the client gave permission for this money to be taken. It appears that the complainant had developed a practice of shopping for the client and to do so, took money from the client on a Tuesday to later shop for him, usually on a Thursday. The respondent suspended the complainant on Thursday, 10^th March 2016, at which time, the complainant still had the client’s money with her. She handed over the money to the respondent. There was no evidence that the complainant acted for any personal financial gain. It is clear, however, that holding onto money in circumstances where the client needed to have shopping done and was “skint” represents a breach on the part of the complainant. The question is whether her subsequent dismissal was substantially and procedurally fair. It is, of course, alarming that the complainant was aware during these days that the client had very little food at home and had no money. She is reported as saying in the minutes of the investigation meeting of the 14^th March 2016 that the client had milk, soup and a few slices of bread.

    

   There was a conflict in evidence between the parties as the extent and frequency of the complainant’s shopping for the client. The evidence of the respondent at the adjudication, in the letter of the 10^th March 2016 and in minutes of the 14^th March 2016 was that the complainant spent €100 per week on shopping for the client, but no change was given back to the client and it appeared to the client’s daughter that such an amount of shopping was not left in the cupboards of the client. The complainant said that she shopped fortnightly and it was never as much as €100. There were also allegations that the complainant failed to leave receipts or to record this in the care pack. The respondent referred to the care pack being checked four times per year. It is striking that the care pack was not submitted as evidence at the adjudication. The complainant said she left receipts on the counter and that there had been no previous issues or complaints in the preceding 18 months. It is also striking that no issue was raised by the other carers or a family member over the preceding 18 months. Had such large amounts of money been taken from the client on a weekly basis or had she retained the change, the matter would have come to light at a much earlier stage. If the care pack had been missing such important information, it is likely that this would have been identified at an earlier stage by other carers or the supervisor.

    

   On the same day the complainant was informed of her suspension, she also received a notice dated the 10^th March 2016 to attend a compulsory interview. This stated that the allegation was financial abuse of a vulnerable person. It set out, in detail, particulars of the allegation, referring to statements from colleagues, the client and one daughter. The author of the letter is the clinical director and she sets out her interviews with the client and the family member. She states “I am concerned that, should the allegations be found to be true, that your alleged behaviour raises serious concerns regarding your ability and trustworthiness to carry out your duties of a Care Assistant. I take this opportunity to advise you that unacceptable and unprofessional conduct will not be tolerated…” The letter of the 10^th March 2016 reproduces extracts from the statements, but the statements themselves are not attached. They were not subsequently provided to the complainant. The letter also referred to a 2013 warning for a financial matter, where the clinical director states that the complainant’s behaviour has not improved and that the complainant “may have continued to let [the respondent] down.” This does not appear to relate to this client and the matter is not mentioned in later correspondence. It is not clear whether this warning had expired through the effluxion of time.

    

   The clinical director chaired the investigation/disciplinary meeting of the 14^th March 2016. This went through the extracts of statements recorded in the letter of the 10^th March 2016. The issue of the complainant cooking and eating with the client was raised; the complainant said this was done in the knowledge of the client’s family and this is refuted by the clinical director, calling it “theft”. The clinical director raises the events of the 8^th March 2016, describing them as “appalling”; the complainant states that the client gave her permission to do a small shop. The clinical director raises the issue of the complainant taking €20 the previous week and the complainant states that this was done with the client’s knowledge and that she returned change. The letter of dismissal refers to these issues, i.e. her admission of taking €20 from the client’s wallet, cooking and eating with the client and a further admission of taking €35 for the same client’s wallet as the grounds of dismissal. The letter also states “Management has considered your responses to each of the above issues and has concluded that your performance, trustworthiness, consideration, care, insight and reliability in your role as a care assistant is completely unsatisfactory and consequently untenable.”

    

   The letter of dismissal of the 15^th March 2016 acknowledges that the respondent informed the complainant on the 14^th March 2016 that she was being dismissed. The investigation report states that the investigation meeting took place between 14.50 and 15.50. The decision to dismiss was, therefore, made immediately after the meeting. On that day, the respondent collected all its property from the complainant, i.e. company car, uniform, ID badge and mobile phone. While the respondent states that the complainant did not appeal the decision to dismiss, no option of appeal is provided in the letter of dismissal and nor was any disciplinary procedure produced that refers to any such appeal.

    

   There are a number of fundamental procedural flaws in the process. They include not supplying the relevant statements to the complainant in advance of the meeting of the 14^th March 2016. This meeting is described as an interview, but it appears to have been a fused investigation-disciplinary meeting, where the clinical director acted as investigator and disciplinary decision maker. It is unclear how the respondent resolved conflicts of fact between the statements it collected and what the complainant said in reply; it appears to have discounted any rebuttal advanced by the complainant. This arises, for example, in whether the complainant shopped every week or every fortnight and how much was spent. The care pack was not submitted as evidence. The complainant did not have the opportunity to consider the minutes of the meeting in order to correct them or to make submissions as to sanction and proportionality. There is also no evidence of a separate consideration of sanction and proportionality by the respondent. It may be the case that a written warning or a final written warning was the appropriate sanction. This is clear as the decision to dismiss was communicated to the complainant very shortly after, and on the same day, as the meeting. No appeal was offered to the complainant, nor the opportunity to refer the matter to anyone other than the clinical director. Taking these factors together, the respondent has not discharged the legal burden of showing that the dismissal was not unfair.

    

   Having made the finding that the dismissal was unfair, the next issue to address is redress. Section 7 of the Unfair Dismissals Act provides as follows

   “(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

   (b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

   (c) (i) If the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under s. 17 of this Act) as is just and equitable having regard to all the circumstances, …

   (2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

   (a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

   (b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

   (c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

   (d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

   (e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14,

   (f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.”

    

   The complainant seeks re-instatement. I do not believe that re-instatement is appropriate in these circumstances, in particular on the basis of the complainant’s own evidence regarding the events of the 8^th March 2016. Taking the circumstances of the case, I award the complainant compensation in the amount of €3,500 pursuant to section 7(c)(1) and taking account of subsections 7(2)(d) [employer compliance with a Code of Conduct] and (f) [employee contribution to the dismissal].

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

CA-0000-3862-001

Pursuant to section 7 of the Unfair Dismissals Act and for the reasons outlined above, I find that the complaint is well founded and that the respondent shall pay to the complainant €3,500 as redress for the unfair dismissal.

Dated:   29 August 2017

Key Words:

Unfair Dismissals Act

Conduct dismissal