ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00005645

	Complainant	Respondent
Anonymised Parties	(A Care Worker)	( A Nursing Home)

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00007831-001	26/10/2016

Date of Adjudication Hearing: 27/04/2017

Workplace Relations Commission Adjudication Officer: Emer O'Shea

Procedure:

In accordance with Section 41 of the Workplace Relations Act,and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Summary of Respondent’s Case:

The claimant was employed as a Health Care Assistant with the respondent from the 1^st.Augst 2007 to the 4^th.October 2016 when she was dismissed for gross misconduct.It was submitted that the respondent received a verbal complaint from the claimant’s colleague about the claimant’s handling of the toileting of a resident and her inappropriate comments to the resident who is cognitively impaired.A meeting took place between the claimant and the DON on the 20^th.Sept. “ to decide what , if any disciplinary action should be taken”.It was submitted that a decision was taken to proceed to a disciplinary hearing and place the claimant on paid leave pending the outcome of that process.The claimant denied the allegation at the disciplinary meeting which took place on the 3^rd.Oct. 2016 and it was decided that “ on the balance of probabilities “ that the claimant verbally and physically abused the resident.It was submitted that the claimant’s colleague had an impeccable employment record and that it was believed that the claimant was a credible witness.

Summary of Complainant’s Case:

The union set out a chronology of the claimant’s employment history since commencing in 2007.

It was submitted that the claimant had an unblemished work record with the respondent and was a diligent member of the team.The claimant was called to a meeting on the 20^th.Sept.2016 without being told what was the purpose of the meeting or without being offered representation .She was told a complaint had been made against her but was given no detail of same and was not informed of who had made the complaint.She was asked for a written statement of her activities that morning.She was told to go home and approached her manager again – at this point she was advised that an allegation of abuse had been made against her.She was placed on paid leave and was told not to discuss the matter with anyone.In a subsequent letter from the respondent the claimant was invited to a disciplinary meeting – in the letter she was informed that she “ will be asked at this meeting to provide reasons why she abused” the resident.

The meeting took place on the 3^rd.Oct. with the CEO , the claimant’s manager, the claimant and her union representative.The claimant categorically denied all allegations of abuse.The claimant was dismissed in a letter from the CEO dated the 4.10.16.The claimant appealed the dismissal but the appeal was not upheld.

It was submitted that the respondent had failed to observe the principles of natural justice and that the CEO had determined that the claimant was guilty from the outset.No investigatory meeting took place and in the invitation to attend the disciplinary meeting the claimant was asked to provide reasons why she abused this resident.It was submitted that the respondent’s own procedures provide that an investigation will be undertaken prior to any decision on disciplinary action.It was submitted that no investigation took place and the word of a recently recruited staff member was preferred over that of a long term employee with a good work record.

The claimant was denied an opportunity to be heard during the appeal process and the decision with respect to same was issued 3 days before the date identified for the appeal hearing.

Details of the claimant’s loss were presented – the claimant had found alternative employment some months later but she was incurring an ongoing loss of €50-€117 per week and had to travel a round trip of 27 miles on a daily basis to her new work location.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

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.

At the first hearing the claimant’s manager confirmed that the claimant was not made aware of the nature of the complaints against her at the initial meeting(20.09.16) when she was asked to prepare a statement.It was asserted that the claimant was told at some point that an allegation of abuse had been made against her.The respondent did not take a minute of this meeting.It was submitted by the respondent that they had to “ give weight” to the complaint because the resident did not have cognitive functions and consequently could not be interviewed.In his direct evidence , the CEO stated that he had to decide at the initial stage who to believe and that he made the decision on the basis of the complaint made by the claimant’s colleague.

In direct evidence at the first hearing the CEO appeared to be unaware of Trust in Care procedures and submitted that such procedures were not applicable in the private sector.The respondent’s policy on Elder Abuse was furnished following the hearing – this document specifically provides in par 19.1 “Fact finding investigations and any subsequent action should be conducted in accordance with the HSE Trust in Care Policy (Section 5).The priority in such matters must be the protection of the resident / other residents from exposure to risk of abuse”.

The claimant’s manager stated that at the initial meeting(20.09.16) the claimant offered to resign – the manager asserted that on receipt of the complaint she contacted the CEO and he said “ she will have to be suspended”.She acknowledged that she did not have a formal meeting with the claimant prior to the claimant being put off work – it was submitted that the claimant had been given adequate training and that she understood the policy on elder abuse.

The claimant asserted that when she was advised of the allegation , she was very upset and crying , that she said to her manager , I have done nothing wrong but I may as well resign .It was submitted that the respondent had failed to adhere to their own policies and had handled the complaint in a manner that was most unfair to the claimant.

I have reviewed the submissions and direct evidence presented at both hearings.It is clear from the direct evidence of the respondents representatives i.e. the claimant’s manager and the CEO that the claimant was denied her rights under natural justice from the outset and was not afforded a fair process.The claimant was put off duty without been afforded an opportunity to defend herself, she was not afforded representation at the first meeting and the letter inviting her to the disciplinary hearing on the 3^rd.Oct. supports the union’s contention that a guilty verdict had been arrived at in advance of the hearing.The respondent appears to have been unaware of the detail of their own policy on elder abuse and in the course of the second hearing it became obvious that the respondent had abjectly failed to observe most of the provisions contained in the policy.Additionally , I find that the respondent’s protestations that alternative sanctions to dismissal were considered , were not credible.For all of the foregoing reasons I am upholding the complaint of unfair dismissal.I require the respondent to pay the claimant €8,000 compensation within a time frame of 42 days for this breach of the Act.

Dated: 11^th July 2017

Workplace Relations Commission Adjudication Officer: Emer O'Shea