ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00007691

Complaints:

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-00010055-001	06/03/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00010055-002	06/03/2017

Date of Adjudication Hearing: 28/09/2017

Workplace Relations Commission Adjudication Officer: Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and Section 13 of the Industrial Relations Acts 1969 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The complainant contends that she was unfairly dismissed. The reason for her dismissal was given as ‘gross insubordination’. She was denied the right of representation. The second complaint refers to the respondent’s treatment of her due to her trade union activity particularly as safety representative.

Summary of Complainant’s Case:

The complainant has worked as a Care Assistant since December 2007. It is submitted that she was unfairly dismissed in December 2016. On 11^th November 2016 an issue arose regarding a resident whereby a family member made a complaint. The complainant was identified as not having provided appropriate care. It is submitted that this issue should have been handled under the Elder Abuse Policy which provides that the staff member would be notified and given the right to representation. The Director of Nursing advised the complainant by letter dated 18^th November 2016 that she (the complainant) was required to attend a meeting on 24^th November 2016 with two members of senior management – the Director of Nursing and the Assistant Director of Nursing. The complainant advised that she would only attend the meeting with her SIPTU representative present. The Director of Nursing did not accept this and advised that it was an in-house matter and SIPTU were not required to attend. This position was re-iterated by the Human Resources Manager by letter dated 24^th November 2016. This resulted in the complainant being suspended from work for alleged gross misconduct. A disciplinary meeting took place on 12^th December 2016, and on the same date the HR Manager held a meeting with the Director of Nursing. On 20^th December 2016 the complainant was dismissed for “gross insubordination and neglect of your duties towards the residents within your care”. The dismissal was appealed but the dismissal was upheld. It is submitted that the Union had raised the issue of appointment of Safety Representative on many occasions between 27^th September and 23^rd November 2016. The complainant had expressed her willingness to become the representative but management did not hold a ballot until December 2016, and then numbered the ballot sheets. It should also be noted that the HR Manager was the investigator, and imposed the disciplinary sanction in contravention of the rule of natural justice that you cannot be judge and jury.

Summary of Respondent’s Case:

The complainant was asked to attend a counselling meeting with the Director of Nursing regarding concerns raised that she had assisted a resident without putting in his hearing aid and this meant he could not hear her during care. This gave rise to a serious concern to potential elder abuse. She had also changed the daily allocation sheet in direct contravention of a previous management instruction. It is submitted that it is normal practice to have counselling meetings with staff, and the complainant’s refusal to attend gave rise to the need to point out to her the potential consequences of not attending. The complainant would not agree to attend without her SIPTU representative. She was suspended from duties and following a disciplinary process was dismissed on 20^th December 2016. Her appeal was heard by a Director of the Company and an external consultant. The dismissal was upheld. It was the opinion of the appeal panel that the dismissal was both substantively and procedurally fair. Their view was that given her experience, length of service and previous discussions with management, the complainant must have known the importance of (a) attending to a resident’s needs, (b) ensuring that residents’ allocations were in order, and (c) attending a meeting with management to address these issues. There is clear evidence that the complainant was requested at least six times to attend a meeting with management. On each of these occasions she was made aware of the purpose of the meeting and the need for it. On each occasion she refused to attend without her trade union representative. During the appeal meeting, neither the complainant or her trade union representative raised any new issues or suggest that, given another chance, she would make amends and restore management’s faith in her. It was decided that given her insubordination to return her to work would have the affect of undermining the authority of the Director of Nursing and this could jeopardise the DoN’s ability to manage the Home and deliver the highest level of care. In summary, the complainant was dismissed for gross insubordination and neglect of her duties, and the dismissal was procedurally correct and the sanction was appropriate.

In relation to the second complaint under the Industrial Relations Act, the company vehemently refutes the charge that her union membership or activity had any bearing on her treatment by the company or her entitlement to representation.

Findings and Conclusions:

CA-00010055-01

Under normal circumstances, an employer has the right to meet with an employee to discuss performance issues. In this case, as confirmed in the respondent’s submission, the particular failing in the complainant’s performance potentially gave rise to an allegation of elder abuse. I find that this raised the matter to a more serious one than normal performance counselling and I find that the tone of the letter dated 18^th November 2016 requiring the complainant to attend a meeting is more akin to a disciplinary / investigation matter. I find that not offering the complainant the right to representation by a colleague of her choice or trade union representative and refusing the complainant the right to trade union representation breached the complainant’s rights as contained in S.I. 146 of 2000, and underpinned by the Labour Court in AD1269 “Kellysdan Ltd and A Worker”. I find that the respondent in this case did not act reasonably in the matter of allowing the complainant representation, and the matter then escalated to one in which her employment was terminated unreasonably. I uphold her complaint of unfair dismissal. In relation to remedy, I find that re-instatement or re-engagement are not suitable in this case, as the employment relationship is broken and unlikely to be repaired. I find compensation to be appropriate in the sum of €7,750.

CA-0001005-002

Under Section 25 of the Safety, Health and Welfare at Work Act 2005, employees are entitled to elect or appoint a safety representative to represent them in the workplace. I note the document dated 27^th September 2016 from the employees indicating that they had selected the complainant to be safety representative as provided for in the Act. The respondent put in place a process for formal election in December 2016. By this time, the complainant was suspended and subsequently dismissed. The matter of dismissal is subject to CA-00010055-001 above. I accept the complainant’s uncontested evidence that she was treated in a dismissive manner when she raised issues. However, I do not find that her selection of safety representative was connected to any disciplinary action against her. I recommend that the respondent take clear cognisance of the rights of employees, and abide by the spirit and letter of the law in relation to the Safety, Health and Welfare at Work Act 2005 going forward for the benefit of staff and management in the workplace.

Decision:

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.

I uphold the complaint of unfair dismissal and require the respondent to pay to the complainant the sum of €7,750.

Recommendation

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

I recommend that the respondent take clear cognisance of the rights of employees, and abide by the spirit and letter of the law in relation to the Safety, Health and Welfare at Work Act 2005 going forward for the benefit of staff and management in the workplace.

Dated: 22/11/2017

Workplace Relations Commission Adjudication Officer: Gaye Cunningham