EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Dolores Malone UD1486/2014
against
Galway Clinic Doughiska Limited T/A Galway Clinic,
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms C. Egan B.L.
Members: Mr P. Pierson
Ms H. Murphy
heard this claim at Galway on 6th December 2016 and 28th March 2017
Representation:
Claimant: Patrick O’Brien B.L. instructed by
Mr. Davitt Geraghty, Geraghty & Company, Solicitors, 1 Rosemary Avenue, Eyre Square, Galway
Respondent: Purdy Fitzgerald Solicitors, Block 1, GFSC, Moneenageisha, Galway
Background:
The claimant was employed as an Operating Department Practitioner in January 2010. She was suspended in March 2014 and dismissed in May 2014 following an investigation for an alleged verbal attack on her manager. She already had a warning on her file for a similar incident which was reported by a colleague in October 2013.
Respondent’s case:
JJB (head of HR) told the Tribunal that issues with the claimant initially arose in 2010, when he received a letter from a consultant expressing his concerns about her attitude/behaviour. The theatre manager had a meeting with the claimant and things seemed to improve. A colleague, AN, then made a formal complaint in October 2013. It was for alleged aggressive behaviour by the claimant on at least three occasions and accusations of bullying.
It was agreed with the director of nursing that MH would meet with the claimant to hear what she had to say on 15th October 2013. The letter of complaint was read to her and she admitted calling AN "dishonest" and a "cow", but felt she was being singled out and had already lodged her own complaint against the theatre manager. Notes of the meeting were sent to the claimant and a lengthy reply was received with amendments, raising additional points and stating that she would not offer any apology to AN.
Following discussions between MH and AN, AN stated that she did not want her complaint dealt with informally because she was terrified of the claimant and her behaviour. MH interviewed other people in the vicinity of the incident. Their statements substantiated AN’s version of events and a full investigation ensued.
JJB said that he invited the claimant to a disciplinary meeting on 28th November, together with himself and the matron, GM. The claimant was advised to bring a colleague for support/representation. The meeting was re-scheduled for 18th December and the claimant advised JJB that she would be bringing her solicitor. He advised her that she was not allowed to bring an external legal representative, but could take a work colleague.
Following the meeting the claimant was issued with a written warning and told that any further breach would result in further action, up to and including dismissal. The claimant appealed that decision but the decision was upheld by the CEO.
JJB said that just prior to the disciplinary meeting (on 16th December) another incident occurred where MF was approached by the claimant looking for copies of all theatre rosters from 2010. MF telephoned JJB and he told her the request should be put in writing. The claimant became loud, aggressive and angry and MF lodged a formal complaint. JJB felt he had to request an investigation and appointed MS.
The claimant was interviewed on 17th January 2014 to establish the facts surrounding the incident. Four people, who were in the vicinity, were interviewed and provided their accounts of what had occurred. MS believed that there was merit in the allegation that the claimant was aggressive towards MF.
JJB again requested a disciplinary meeting with the claimant. After some unsuccessful attempts it was eventually scheduled for 17th February 2014. Other members of staff complained about the claimant and her behaviour towards them in theatre. JJB suspended the claimant who thereafter went on sick leave. The claimant engaged her solicitor thereafter.
When the claimant returned from sick leave the matter was referred to an outside/external investigator. Meetings were scheduled and the claimant again went on sick leave. She was asked to attend occupational health. The external investigator withdrew from the process
A meeting was requested by the claimant in May. She asked to have all witnesses available for her to question and to record the meeting. Both requests were denied. Following that meeting the claimant’s contract was terminated.
MS (HR generalist) told the Tribunal that she was tasked with investigating the complaints made against the claimant. She met with the claimant on numerous occasions and interviewed other people who made statements against the claimant. Those people were not prepared to put themselves before the claimant at any meeting and MS said they probably felt intimidated by the claimant (one was on sick leave because of the situation). The matter was passed to an external body who couldn’t deal with her either.
Claimant’s case:
It was the claimant’s position that the respondent failed to follow fair procedures in deciding to dismiss her and that the sanction of dismissal was a disproportionate sanction for what she had done.
There were two incidents whereby the claimant became the subject of disciplinary procedures.
The first was an incident in the female changing room on 1st October 2013 whereby she was alleged to have shouted at and verbally abused AN
The claimant agreed that she had called AN "dishonest" and a "cow", but she did not agree that she had shouted at her. This was supported by the evidence of a witness brought by the claimant, who is still employed by the respondent. This witness told the Tribunal that the claimant and her colleague were addressing each other in raised voices but were not shouting.
The outcome of this matter was a written warning by way of letter dated 19th December 2013. The claimant appealed this warning, but the decision to issue this warning was upheld by the person who heard the appeal by way of letter dated 7th February 2014.
The second incident occurred on 16th December 2013 (3 days prior to the issue of 1st written warning) whereby the claimant was alleged to have spoken to her manager MF in a loud, aggressive and angry manner. The claimant denied this saying that she had approached MF in the office on that date in relation to rosters but she was not aggressive or abusive.
Initially an independent consultant was engaged to investigate this incident but they subsequently withdrew from the process. A manager within the respondent, MS conducted the investigation. At this point (18th March 2014) the claimant was suspended with pay and after a disciplinary hearing she was dismissed by way of letter dated 20th May 2014.
The claimant told the Tribunal that she was not given the opportunity to cross examine AN, MF or any of the witnesses to these incidents and alleged that the two people who claimed to have witnessed the incident involving MF were not present in the office where it occurred.
The claimant also said that she was not given copies of witness statements regarding the incident on 1st October 2013 and was only given the witness statements regarding the incident on 16th December 2013 one day before the disciplinary hearing regarding that incident.
It was also alleged by the claimant that after 10 minutes of the disciplinary meeting that led to her dismissal, GM halted the meeting saying that she "did not have time for this". The claimant was shocked at this and after GM returned to the meeting everything had concluded and GM said that they were not going to go through witness statements.
The claimant gave evidence in respect of her losses and efforts to mitigate those losses.
Determination
The Tribunal carefully considered all the evidence adduced and the submissions in this case.
The Tribunal finds that the grievance procedure adopted by the respondent was flawed in its failure to live up to the rules of natural justice. Prior to the disciplinary hearing of the 20th May 2014, leading to the claimant’s dismissal, the claimant, despite her requests, was not provided with copies of witness statements in relation to the incident of the 1st October 2013. Witness statements in relation to the incident of the 16th December 2013 were not furnished to the claimant until the day before the disciplinary hearing. Furthermore, at the said disciplinary hearing, the claimant was not allowed to cross examine the witnesses. By reason of the foregoing, the Tribunal finds the matter in which the dismissal was effected was unfair.
Having regard to all the circumstances, the Tribunal finds that the claimant contributed substantially to her dismissal, and accordingly, awards her €12,000 under the Unfair Dismissal Act 1977-2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)