EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD97/2015
CLAIM OF:
Reda Kunceviciene
-Claimant
against
Elder Nursing Homes (Charleville) Limited
-Respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms K. T. O'Mahony B.L.
Members: Mr. D. Hegarty
Mr. J. Flavin
heard this claim at Cork on 11th May 2016 and 30th May 2016
Representation:
Claimant : Denis A. Linehan & Co., solicitors, Rathgoggin South, Charleville, Co. Cork
Respondent : Sinead McGowan, Purdy Fitzgerald, solicitors, Block 1, GFSC, Moneenagisha Rd, Galway
The determination of the Tribunal is as follows:-
Summary of Evidence
The respondent is one of a network of nursing homes providing care for the elderly and the vulnerable. In common with similar institutions the home is heavily regulated. Training in the respondent’s dignity policy and procedures are covered during induction training and at least on a yearly basis thereafter. The respondent had a zero tolerance of any deviation from its dignity policy and any breach of it must be reported to the Health Information and Quality Authority (HIQA) within three days. A video and leaflet on elder abuse published by the HSE form part of the nurses’ and the health care assistants’ (HCAs’) training.
On 6 May 2014, a senior staff nurse (SSN) observed Resident J (RJ) sitting on his bed having been fully undressed by the claimant without either pulling the curtains around his bed or closing the door to the corridor. When SSN questioned the claimant about this neglect, the claimant told her she was taking the resident for a shower and that she had left the door open as she believed another HCA was following her. SSN reminded the claimant of her duty to respect the resident’s privacy and dignity. On the same day, SSN wrote a report on the incident and reported the matter by e-mail to the respondent. In both reports she referred to a similar incident on 29 April 2014, the previous week, where the claimant had left the door open while she was assisting another resident with personal care and on that occasion she reminded the claimant that the door should be closed and the curtain pulled around the bed. RJ shared the double room with one other resident. In SSN’s report she stated that the other elderly resident in the room was awake and watching while her evidence to the Tribunal was that she could not remember whether he was asleep or awake. The room was at the end of the corridor and the incident occurred shortly after 8.00am. The home has open visiting hours.
At an investigation meeting, on 12 June 2014, conducted by the Clinical Nurse Manager (CNM) from another nursing home, the claimant admitted the infractions and told the investigation that she had made a mistake. The claimant explained that it had been early in the morning, that the room was at the end of the corridor and that she thought another HCA was following her. Due to the claimant’s admissions to the infractions and that what she had done was a mistake, CNM did not interview anyone else. She had not interviewed RJ to establish what effect, if any, the incident had on him. At the commencement of the meeting CNM confirmed that the claimant had an employee handbook, that her training was up-to-date and that she had SSN’s e-mail and report detailing the incident of 6 May 2014. The claimant had not made a written report of the incident. An administrator from the respondent was also present at the meeting on behalf of the respondent and the claimant was accompanied by a friend.
The director (DR) of the respondent’s nursing home started in her position with the respondent in early to mid June 2014 and became involved in the ongoing process relating to the 6 May incident. The disciplinary hearing on 29 July 2014, was conducted by her and the Director of another nursing home. At the meeting DR read the investigation report to the claimant. There was a dispute as to whether a similar incident that allegedly occurred on 29 April, a week earlier, had been raised with the claimant at the investigation meeting. The panel concluded that the claimant’s behaviour on 6 May 2014 constituted gross misconduct warranting dismissal. By letter of 30 July 2014 the claimant was informed of the respondent’s decision and that her dismissal was effective from 12 August 2014 but she was relieved from duties as of 2.00pm on 29 July 2014.
DR’s evidence to the Tribunal was that neglect or omission such as this came within the definition of elder abuse and this had been highlighted as abuse in the elder abuse training programme. It is not necessary that a resident be aware, embarrassed, distressed or observed by a third party, the violation of the person’s dignity and privacy is sufficient to constitute abuse. It violates an elder person’s civil and human rights. If she did not report the incident to HIQA she would be in breach of the elder policy.
The claimant’s appeal on the severity of the sanction and its hardship on the claimant was heard on 19 September 2014 by the Operations Manager (OM) of Mowlam Healthcare and the Group Human Resource Manager (GHRM) was present in an advisory capacity. OM was not present at the Tribunal hearing. GHRM confirmed that the decision to dismiss was upheld and that no other sanction was considered due to the seriousness of the breach. The respondent had lost trust in the claimant. Minutes of the appeal meeting were not produced to the Tribunal.
The claimant commenced employment with the respondent as a health care assistant (HCA) in August 2007, having worked as a nurse in her native country before coming to Ireland and as a health care assistant in another nursing home in Ireland prior to taking up employment with the respondent. Her evidence to the Tribunal was that the nurse had assigned another HCA and herself to shower some residents on the morning of 6 May and she was assigned to shower RJ. As they were going to the room which was at the end of the corridor someone called the other HCA. The claimant proceeded to the room which was at the end of the corridor and believing the other HCA was following her, she did not close the door or draw the curtains around the resident’s bed as she undressed him for his shower and this was a mistake. SSN came in to the room and shouted at her in a loud voice. She then went on to shower the patient and he was happy and was so for the rest of the day. She knew RJ for two years and got on very well with both him and his family. Neither RJ nor his family had commented on the incident to her. The claimant continued full time in her position with the respondent until 29 July 2014, without restrictions or any additional supervision.
Determination
Elder Abuse is defined by the HSE and HIQA as:
“a single or repeated act, or lack of appropriate action, occurring within any relationship where there is an expectation of trust which causes harm or distress to an older person or violates their human and civil rights.”
The claimant was dismissed because the respondent considered that in fully disrobing the resident without pulling the curtain around the bed or closing the door of the room constituted a breach of the respondent’s dignity policy and gross misconduct. In DR’s evidence and the respondent’s submissions to the Tribunal it was maintained that the claimant’s acts of neglect on 6 May constituted a breach of its elder policy, in particular a breach of his “human and civil rights”.
Breaches of any policy vary along a scale of seriousness. It is not reasonable to prescribe the same and ultimate sanction of dismissal for each and every breach irrespective of the nature of the breach. Indeed the respondent’s action in allowing the claimant to continue in the employment without any sanction or restrictions of her duties for almost three months following the incident is inconsistent with its position that the breach was of such nature as to constitute gross misconduct and justify dismissal.
A zero tolerance policy does not mean that the most serious sanction is or must be imposed for all breaches, irrespective of the seriousness of the breach. The sanction must be commensurate with the seriousness of the act or neglect or omission committed by the employee. A policy which prescribes the ultimate sanction for both the most egregious breach and a more minor breach towards the other end of the scale is not a reasonable or fair policy. The Tribunal is satisfied that imposing a sanction of dismissal that will travel with the claimant during her working life is neither reasonable nor fair and falls well below the standard of a reasonable employer.
Furthermore, allowing the claimant to continue caring for the residents for almost three months following the reporting to it of the infractions, without restrictions or additional supervision is wholly inconsistent with its position that the infractions warranted dismissal.
Given the Tribunal’s findings, it does not have to consider any issue around the respondent’s allegation that a similar infraction occurred on 29 April 2014.
Having considered the nature of the breach in this case the Tribunal unanimously finds that the sanction of dismissal was disproportionate. Accordingly, the claim under the Unfair Dismissals Acts, 1977 to 2007 succeeds. Given that the claimant has pursued a full-time, year-long, college course in a different discipline in the interim, the Tribunal determines that compensation is the most appropriate remedy. The Tribunal by majority (one member dissenting on quantum) awards the claimant the sum of €22,000.00 in compensation under the Acts.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)