UD1155/2014,MN573/2014

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                    CASE NO.

Aoife O'Connor                                                                                              UD1155/2014

                                                                                                                       MN573/2014

-          Claimant

against

Bolden Nursing Home Limited t\a Oaklands Nursing Home

-          Respondent

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005

I certify that the Tribunal

(Division of Tribunal)

Chairman:    Ms. K. T. O'Mahony B.L.

Members:    Mr D. Hegarty

                    Ms H. Kelleher

heard this claim at Killarney on 15^th September 2015 and 29^th November 2016

Representation:

Claimant :       Robert Cussen & Son, Solicitors, North Quay, Newcastle West, Co Limerick

Respondent :   Kelliher Coghlan & Company Solicitors, Kealgorm House, Limerick Road, Castleisland, Co. Kerry

The determination of the Tribunal was as follows:

Dismissal was in dispute in this case.

Summary of Evidence

The claimant commenced employment as a health care assistant in the respondent’s nursing home on 26/27 November 2011. The nursing home is registered with HIQA. Its resident included the long-term elderly, people with intellectual disability and those receiving palliative, convalescent or respite care. All members of staff including the claimant receive induction training in the respondent’s policies and procedures which are contained in the Employee Handbook. Members of staff receive training in elder abuse on an annual basis. On 30 November 2010 the claimant signed off on having read the Employee Handbook, copies of which are on display in the office. The claimant signed her contract of employment on 31 March 2011. There is a dispute as to whether she was provided with a copy of it. Many residents have no voice for themselves and the respondent has an advocacy system in place to enable open communication. DC is the Director of Care and she reports to the proprietor of the nursing home (PH).

On 7 May 2014 at around 7.30pm, a health care assistant (MH) witnessed the claimant hold a resident’s nightdress up over her face and head as she and another health care assistant (AHCA) were in the process of cleaning, washing and changing the resident. The resident pulled the night dress down but the claimant pulled it back up covering her face and head again and told her to shut her mouth. AHCA was present throughout the incident. The resident was an 86 year old woman who could not mobilise herself, had a cardiac history, an OCD diagnosis, other problems and was very anxious but she was cognitively good and well able to voice her concerns and needs. Later that evening when MH mentioned the incident to AHCA her response was, “You know how the claimant behaves.”  

On her return to work on 10 May 2014 MH reported the incident to staff nurse FM and on her instruction MH wrote a report on it. DC received that report on her return to work on 12 May 2014 and set about investigating the incident. The resident was reluctant to talk about the incident stating that she did not want to get anybody in trouble. AHCA denied there had been any incident. When DC told the claimant that there had been a complaint about her treatment of the resident the claimant admitted to an incident and took full responsibility for it. She explained to DC that she put the sheet over the resident’s head to prevent her seeing the state she was in and to block the odour. The claimant confirmed to DC that AHCA had been present throughout the incident. As regards telling the resident to “shut up” the claimant referred to the manner in which the resident calls out and never stops. DC asked the claimant for a written report on the incident and complimented the claimant on her honesty. DC explained the seriousness of the incident and its impact on the resident to the claimant and suspended her pending a full investigation. They agreed to meet again on 14 May. Subsequent to this, AHCA again denied any knowledge of the incident and disputed the claimant’s position that she had been present throughout the incident.

The meeting planned for 13 May did not take place until 21 May as the claimant was absent on certified stress leave. The assertion by the claimant’s father that DC allegedly commented to him around this time that the claimant “is putting off the inevitable” was denied by DC. It was agreed that the claimant’s father could attend the meeting.

In the interim AHCA made a written statement about the incident for DC and the patient advocate also reported on her meeting with AHCA. In both of these statements AHCA is critical of the claimant stating that she is difficult to work with. In one of these statements AHCA confirmed that MH mentioned the incident of 7 May later on that evening. AHCA’s evidence to the Tribunal was that on 13/14 May 2014 DC invited her to the office and providing her with a pen and paper told her to “write the f---ing truth”. In her interview with the patient advocate the resident became very distressed and began to cry. She told her that there was nothing to talk about and that the claimant was good to her.    

DC’s evidence was that the purpose of the meeting of 21 May was to elicit the claimant’s version of the incident, to present her investigation findings to the claimant, to give the claimant an opportunity to discuss them and to determine whether disciplinary action was warranted.      

DC and PH met with the claimant and her brother on 21 May 2014. The respondent’s version of this meeting was that early on in the meeting when, PH mentioned the gravity of the incident and the possible involvement of the Gardaí, the claimant became upset and offered her resignation. DC and PH denied dismissing her. Their position was that the claimant resigned because she did not want the involvement of Gardaí. According to the claimant, she was again questioned at the meeting about the 7 May incident. When she asked what would happen next DC told her that they could not trust her with the residents and they had no choice but to let her go. The claimant’s evidence was that when she asked what would she do, DC suggested she could say that she was let go because working hours were being reduced. DC told her they did not want to blight a young person’s career. The claimant requested her file, her training records and a reference. DC promised to give a reference but told the claimant it would not be a glowing one.

The respondent accepted the claimant’s resignation and as a consequence did not continue with the investigation into the incident or take any disciplinary action. The company also opted not to report this alleged mistreatment to HIQA or the Gardaí.

DC denied that involving the input of the Garda was a threat and her position was that it was procedure. DC also conceded that the claimant had not been furnished with the statements pertaining to the allegation against her as she felt this was not necessary when the claimant resigned. No minutes were taken of this meeting. The resident had not made a complaint although she was cognitively good and had two opportunities to do so.

The claimant’s evidence to the Tribunal was that she covered the resident’s eyes with the corner of a flat sheet and that it had been a well-meaning act to prevent her seeing what had occurred and to prevent further distress to the resident. The resident had not complained when she had done this and had even called her a “good girl” when the task had been completed. The claimant admitted that her behaviour was wrong. DC’s evidence was that nothing would justify blindfolding a resident. The claimant denied that she was uncomfortable with Garda involvement. The claimant further denied that MH had entered the room when she was attending to the resident on 7 May 2014.  

When confronted with a letter dated 3 July 2014 to Social Welfare and other Social Welfare documentation, respectively stating the claimant’s employment with the respondent was terminated due to ongoing disciplinary issues and that she was unsuitable for the job, PH response was that the claimant “fired herself”.

AHCA’s evidence was that she had neither observed the claimant putting anything over the resident’s eyes nor had she shouted at the resident.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                

In March 2014 the claimant and AHCA made a confidential complaint to HIQA that the home was understaffed and the residents were receiving insufficient care during its inspection of the nursing home. DC later confronted the claimant with this and was very annoyed. The claimant felt that this was the reason for her dismissal.

Determination:

The Tribunal accepts MH’s version as to the details of the incident that took place on 7 May 2014. The Tribunal cannot accept the claimant’s evidence that MH had not entered the resident’s room on 7 May 2014. AHCA in her written statement prepared for DC confirmed that later on in the evening of 7 May she and MH had a short discussion about the incident involving the resident earlier that day.  

The Tribunal is satisfied that the meeting of 21 May 2014 was a follow-on meeting of DC’s brief investigation meeting held with the claimant on 12 May 2014 and a continuation of the investigation process. It was common case that DC had mentioned at the meeting on 21 May that the respondents did not wish to blight the career of a young worker. There are inconsistencies between the statements of AHCA and her evidence to the Tribunal.

The Tribunal prefers the evidence of the respondent and accepts that the claimant resigned from her employment during the meeting of 21 May 2014. Accordingly, as there was no dismissal the Tribunal has no jurisdiction under the Unfair Dismissals Acts, 1977 to 2007 to hear the claim. As there was no dismissal there is no entitlement to notice under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)