Complainant

Respondent

Anonymised Parties

A Care Worker

A Care Home

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-00008282-001

21/11/2016

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00008282-002

21/11/2016

On the 1^st November 2015 the Complainant was on duty at a house operated by the Respondent as a Care House. Inadvertently the Smoke Alarms were activated as a result of an item that had been left on the cooker/stove by the Complainant. Two patients had to be evacuated. On the 6^th November 2015 the Complainant was suspended. A Disciplinary Process commenced and the Complainant was dismissed in October 2016. The Dismissal decision was completely and totally disproportionate to the nature of the incidents.

The main incidents in this case arose on the night of 1^st to 2^nd November 2015. The Complainant was a temporary relief staff member specifically engaged to provide support to a non ambulant wheelchair using resident of the Care House. On the Fire Alarm sounding the Complainant evacuated the Resident in a non standard manner in breach of agreed Fire Evacuation procedures.

She later returned the Resident to his room again in a non standard manner.

The Respondent operates Care facilities for very dependent and high need Residents – an absolute standard of care is required and they are subject to the most rigorous HIQUA supervision and Audit.

The actions of the Complainant in putting items cooking on the stove and then letting them boil dry leading to a Fire Alarm activation was extremely careless but the non adherence to proper Evacuation procedures was incredible. The Complainant had been fully trained in all Fire procedures.

A full Investigation and Disciplinary process was instigated and all proper procedures were followed (including an Appeal Stage) in a lengthy and considered manner. All Documentation was exchanged and full Representation rights afforded and availed of.

3:1   The Burden of Proof and Legal Considerations.

This is an Unfair Dismissals claim. The Burden of Proof rests with the Respondent.

However Legal precedent and accepted law in this type of case points to a number of key factors that have to be considered most carefully.

1. The Primacy of Natural Justice and the function of the Adjudicator to oversee this.
2. The requirement for any Decision of the Employer to fall within the “band of reasonableness” i.e. what an other employer ,operating in a similar business environment or industry, might find acceptable or “reasonable”
3. The neutral role of the Adjudicator / EAT in hearing the case – it is not the function of the Adjudicator to re hear the case and come up with a new decision that they might feel is appropriate in their own lights.
4. The key role of S.I. 146 of 2000 – Code of Practice on Grievance and Disciplinary Procedures

Accordingly the evidence has to be considered in the above lights.

3:2   Natural Justice and S.I. 146 of 2000 – Code of Practice on Grievance and Disciplinary Procedures. The key authority here is Mr. Justice Flood in Frizell v New Ross Credit Union [1997]IEHC 137

Having reviewed all the procedures utilised in this case, the correspondence issued, the sharing of information, the interviewing of all relevant witnesses, the minutes taken of numerous meetings, the clear and afforded right to Representation and the opportunity to appeal the Dismissal decision I could not find any evidence of bad procedures or denial of Natural Justice from a procedural point of view. Extensive and comprehensive written procedures and training records were exhibited. The only issue of concern was the prolonged time frame of the process but the Respondent explanations were adequate.

3:3     “The Band of reasonableness”.

This concept is discussed at length in Redmond Dismissal Law in Ireland– Sections 13.23 to 13.27 -2007 Edition – Tottel Publishing. A lengthy quote is given from Kelly v CIE UD 214/1984 where it was stated inter alia by the Circuit Court

“If in all the circumstances there are substantial grounds to justify the dismissal then the decision of the management to that effect is not to be subject to interference from the Tribunal nor from this Court on appeal. The policy of the Unfair Dismissals Act is, as I read it, that if the dismissal is not excessive or otherwise unjustifiable remedy on the part of the employer in all the circumstances it must stand”.

In the case in hand very detailed evidence was presented of the Care environment operated by the Respondent. The Residents /Patients were of a very high dependency nature and the need for absolute adherence to all procedures was paramount. The role of the regulatory Authority HIQUA was referenced. Indeed the Complainant had been assigned to the duty in question in November 2015 as a result of a HIQUA request.

The view of the Respondent was that a vital bond of trust had to exist with a Care Assistant and this involved adhering scrupulously to all procedures involved with the care of very dependent patients/Residents. Freelance actions, no matter how well intentioned in the heat of the moment, (literally in this case) could not be allowed especially when clear procedures existed.

The witness evidence from the Complainant regarding her actions fell, in my view, into the” freelance area” reading strict adherence to procedures. She was well intentioned on the night but accepted that she had not followed the correct procedures.

From careful consideration of the evidence presented I came to the view that the actions of the Complainant had clearly breached the agreed procedures, for which she had been trained (evidence given). Accordingly, in the very high dependency environment in which she operated, the breach of trust was irreparable with the Respondent.   Accordingly Dismissal was the only option that the Respondent felt was appropriate. This point was discussed at length during the hearing as were possible alternative sanctions.

All witnesses were open to cross examination by the Legal Counsel for the opposing parties.

It was felt strongly by the Respondent witnesses especially the HR Manager who also appeared to have had an additional Operational role , that any other Health Sector employer in a similar situation would have taken the same course – the Dismissal was within the “Band of Reasonableness” even if on the face of it, it may have appeared somewhat severe.

On the basis of the evidence presented, written and oral, I came to a similar conclusion. The Dismissal was not Unfair as it fell within the “Band of Reasonableness”..

3:4     Role of the Adjudicator and SI 146 of 2000

These issues have been touched upon above.

Act

Complaint/Dispute Reference No.

Decision

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00008282-001

Claim is Dismissed – Dismissal falls within the “Band Of Reasonableness” and Rules of Natural Justice /SI 146 of 2000 were observed.

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00008282-002

Claim is dismissed as Dismissal not deemed to be Unfair. Entitlement to notice not warranted.