ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00008090
Complaint(s):
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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-00010734-001 | 10/04/2017 |
Date of Adjudication Hearing: 12/09/2017
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Procedure:
In accordance with 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).
Background:
The Complainant alleged she was unfairly dismissed. |
Summary of Complainant’s Case:
The Complainant made a verbal submission. There were not substantial grounds justifying the dismissal. The Complainant queried was the complaint a fair reason for the Complainants dismissal. The Complainant stated that a reasonable employer in a similar situation would not have dismissed. The Complainant got no warning of the August 21st incident. She received no formal written warning in relation to same. The September 2015 warning was void and the final written warning related to the July 10th 2015 incident. In relation to the incident that lead to the Complainant being sanctioned for the “tobacco incident” it was the patient’s daughter that made the complaint. On the 19/8/2016 warning was given without a work colleague being present. The patient had asked the Complainant for cigarettes and had been given them and also it worked the other way round. The Resident never made a complaint as did not want to get the Complainant into trouble. No opportunity to improve her situation. The complaint was nothing like serious misconduct and did the employer act reasonably in the circumstances? The issue was minor and at most deserved a verbal warning. On the “rough” incident the Complainant was never made aware of the email from the patient’s son who stated the patient was adamant that no one was rough with her. The investigation by the Respondent of the 25/1/2016 made no reference to this email and her rights to a fair hearing were impacted by this action by the Respondent . The Respondent was satisfied to rely on a statement form someone else in relation to the abusive language incident. The patient didn’t even know who the Complainant was on review.
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Summary of Respondent ’s Case:
The Complainant was employed as a care assistant for the Respondent company on the 6th of March 2008. For the first six years of her employment with the Respondent the Complainant’s employment was unremarkable. However, on the 26th of August 2014 the company had occasion to conduct a disciplinary investigation regarding an incident wherein the Complainant was found to be using a ‘standing hoist’ alone with maximum dependency resident. Following this on the 2nd of September 2015 the Complainant received a final written warning for; a) a deliberate violation of a safety rule and b) Deliberate neglect of a care standard.
This warning was placed on the Complainant’s file for a period of 12 months effective from the 30th of July and expired in 2016. Shortly after the expiration of that final written warning the company received a complaint from the daughter of one of the residents. Following an investigation into this incident the Complainant was issued with a further final written warning on the 22nd of September 2016 and which would remain on her file for a period of 12 months. That warning sets out clearly that:- “Any further misconduct whatsoever on your part during that time will result in further disciplinary action and dismissal as appropriate”. The Complainant was also advised that she could appeal that sanction but did not do so. On the 13th of January 2017 the company received a complaint from a resident (hereinafter referred to as “IC”). This was recorded on the company’s system and refers to the fact that the resident and his wife both complained regarding the matter. In the resident’s typed complaint of the 13th of January 2017 he states that; “X was very rude to me this morning. She told me that she isn’t here to be showering me. She told me that I should be able to stand up. She told me that I should be able to shower myself. She wasn’t nice to me” etc. In the written complaint from the residents’ wife, she also confirmed that the resident told her that her husband was; “quiet (sic) upset”. Copies of all of these letters are attached hereto including a direct account by the resident himself carried out by the Director of Nursing. Following this, a preliminary investigation was carried out on the 16th of January 2017 by the Director of Nursing. An account of that is set out. It was decided at that juncture given the seriousness of the matter to suspend the Complainant with pay pending an investigation, and to obtain a statement from the Complainant. Subsequent to this a further incident came to light and was reported by another staff member and he alleged that whilst he was working with the Complainant on the 11th of January 2017 that he found her to be verbally inappropriate. Mr.X in a statement given to the Respondent on the 17th of January 2017 states, inter alia that when he was working with her on that day he heard; “her shouting at IC in room 53”. He also reports that he told her to take a break and relax. Further in his statement he states that in working with the Complainant with another Complainant, Ms. KM, that she; “decided to shout and pull KM up on the bed by her shoulders and continued shouting”. Arising out of that the Complainant was written to on the 19th of January 2017 by the Director of Nursing informing her that the two incidents outlined above would be investigated and she was invited to attend an investigation meeting on the 25th of January. She was also advised that she could be accompanied to that meeting by a representative. The invite to that meeting along with the minutes were provided along with the report from same which recommended (on the 30th of January 2017) that a disciplinary hearing should occur. The investigation and disciplinary meetings had been carried out independently by separate staff and addressed both issues and found against the Complainant in respect of the first issue i.e. the issue regarding the resident [IC] however took no action against the Complainant in respect of the second issue. That said, the Respondent deemed that the first issue was of such a serious nature that they had no alternative but to dismiss the Complainant. In their recommendation to dismiss the following is stated; “It is noted that you are currently on a final written warning which was issued to you on the 22nd of September 2016 an it is effective for 12 months after that date. This warning put you on notice thatany further misconduct whatsoever on your part during that time will result in further disciplinary action and dismissal as appropriate”. The investigation also noted that manual handling issues with residents were brought to Management attention during the disciplinary process in 2014 and 2015 and whilst they were no longer a factor in the decision or in effect they note that the Complainant was aware of the homes concerns regarding safety of residents and of herself. The Complainant denies any wrongdoing and has set this out in writing. Section 6 (4) (b) of the Unfair Dismissals Act provides that dismissals for conduct are deemed not to be unfair. However, this must be within a particular context, that is:- that it is done fairly. Fairness rests on a number of factors: 1) Whether the employees’ behaviour falls within one of the fair reasons for dismissal as outlined in the Act. 2) Whether the employers behaviour was reasonable, and 3) Whether the employer followed fair procedures.
In respect of the above the Respondent submits:- 1) The employees’ behaviour in respect of the incident on the 13th of January 2017 was carefully examined by the Respondent company. Two specific issues were in question in respect of that incident:
a) Whether the resident [IC] was safely an appropriately transferred and b) Whether he was spoken to inappropriately.
The Respondent company very carefully investigated the above matter. In issuing their determination on the 30th of March 2017. Management noted that the Complainant acknowledged that she was aware of the; “moving and handling practices prescribed for resident IC” and further notes that the Complainant agreed that her action in moving resident IC by herself was unsafe and may have compromised the safety, health and wellbeing of the resident as well as her own safety. This in itself clearly represents an issue of misconduct on behalf of the Complainant. In respect of the second matter at issue in respect of resident [IC], i.e. the inappropriate communication, Management concluded that on the balance of probability based on the Complainants own opinion of the residents ability to mobilise and the concern voiced by the resident himself and his wife, that she believed that the alleged inappropriate communication could have occurred. This again raises an issue of misconduct against the Complainant. It is clear therefore that the Complainant’s behaviour does fall within one of the fair reasons for dismissal as outlined in the Act (i.e. conduct). The Respondent respectfully submits therefore that they are entitled to rely on Section 6 (4) (b) of the Act and that the dismissal for the reason as outlined is fair. 2) In respect of the question of whether the Respondent s behaviour was reasonable this is a somewhat subjective matter, however the Respondent submits that:-
a) The Complainant was well aware of the standards demanded of her. b) The Complainant as a long-serving employee should have known better. c) The Complainant was no stranger to the disciplinary process and had in fact been through a disciplinary process in 2014, was issued a final written warning in 2015 and a further final written warning in 2016. Whilst the first of these final written warnings had expired, the second remained in force and on her file at the date of the second incident. The terms of this warning were very specific and as previously set out made it absolutely clear that any further misconduct would result in further disciplinary action and dismissal as appropriate. In the circumstances the Respondent believes that their behaviour in dismissing the employee was reasonable and moreover that the Complainant by her behaviour left them with no alternative option.
3) In respect of the matter of fair procedures and natural justice the company submit that the employee was afforded her rights to natural and constitutional justice in that:-
For all of the above reasons the company believe that here was no breach of natural procedures and natural justice. In conclusion therefore the company believe that the employees’ behaviour and misconduct was such that they had no option but to process same through the disciplinary procedure. Having done so, they believe that the behaviour was of such a nature that they had no alternative but to dismiss, particularly in light of the fact that the Complainant was already on a final written warning. For all of the above reasons we trust you will uphold the company’s position in this matter.
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Decision:
The Complainant was dismissed effective April 29th 2016 from her role as a Care Assistant.
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. The Relevant Section of the Act to the claim is Section 6 which states
“6.1. Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal. (2) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following: |
(a) the employee's membership, or proposal that he or another person become a member, of, or his engaging in activities on behalf of, a trade union or excepted body under the Trade Union Acts, 1941 and 1971, where the times at which he engages in such activities are outside his hours of work or are times during his hours of work in which he is permitted pursuant to the contract of employment between him and his employer so to engage, |
(b) the religious or political opinions of the employee, |
(c) civil proceedings whether actual, threatened or proposed against the employer to which the employee is or will be a party or in which the employee was or is likely to be a witness, |
(d) criminal proceedings against the employer, whether actual, threatened or proposed, in relation to which the employee has made, proposed or threatened to make a complaint or statement to the prosecuting authority or to any other authority connected with or involved in the prosecution of the proceedings or in which the employee was or is likely to be a witness, |
(e) the race or colour of the employee, |
(f) the pregnancy of the employee or matters connected therewith, unless— |
(i) the employee was unable, by reason of the pregnancy or matters connected therewith— |
(I) to do adequately the work for which she was employed, or |
(II) to continue to do such work without contravention by her or her employer of a provision of a statute or instrument made under statute, and |
(ii) (I) there was not, at the time of the dismissal, any other employment with her employer that was suitable for her and in relation to which there was a vacancy, or |
(II) the employee refused an offer by her employer of alternative employment on terms and conditions corresponding to those of the employment to which the dismissal related, being an offer made so as to enable her to be retained in the employment of her employer notwithstanding pregnancy.” |
None of the Grounds set out in Section 6.2 above were advanced at the Hearing and therefore the decision on whether the dismissal was fair or unfair is determined by Section 6.1 which states that a dismissal is not unfair if there are substantial grounds for the dismissal. It is not for an Adjudicator to establish if the Complainant committed and act of guilty of gross misconduct or not. The employer has already determined that the Complainant did commit such an act of gross misconduct.
It is an Adjudicators role to consider all the facts, see if there are substantial grounds to justify the dismissal and see what a reasonable employer in the same position would do in the same circumstances. It is also our role to see have fair procedures been applied to the dismissal and disciplinary/representation process.
In Foley V Post Office (2000) CR1283 as stated by Mummery L.J. at p1295 “This case illustrates the dangers of encouraging an approach to unfair dismissal cases which leads an employment tribunal to substitute itself for the employer or to act as if it were conducting a rehearing of, or an oral appeal against, the merits of the employers decision to dismiss. The employer, not the Tribunal, is the proper person to conduct the investigation in the alleged misconduct. The function of the Tribunal is to decide whether that investigation is reasonable in the circumstances and whether the decision to dismiss, in light of the results of that investigation, is a reasonable response”.
He also relied upon the decision of the Court of Appeal in Anglian Home Improvements Limited v Kelly (2005) ICR 242 where again Mummery L.J. held “The first criticism is that the employment tribunal did not correctly direct itself in law to the appropriate range of reasonable responses test. The test has been well established since the early days of unfair dismissal claims. It is still impossible to improve on the passage from the Judgement of Lord Denning MR in British Leyland UK Ltd V Swift (1981) IRLR91 para 11 cited by Mr Laddie. The correct test is; was it reasonable for the employer to dismiss him? If no reasonable employer would have dismissed him, then the dismissal is unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view; another quite reasonably take a different view. One would quite reasonably dismiss the man. The other would quite reasonably keep him on. Both views may be quite reasonable. If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair; even though some other employers may not have dismissed him”.
The Complainant had a good history but was the subject of three warnings in her last three years of employment, being on a final written warning which would have expired on September 21st 2017, if she had remained in employment.
A Resident of the Care Home made a complaint in January 2017. The complaint was also supported by the Residents wife after talking to her Husband. The Complainant was suspended on pay pending an investigation. A further complaint then came to light internally that the Complainant was using inappropriate lifting procedures on a Resident and shouting at the Resident. This was also the subject of an investigation and the Complainant was given the right of representation.
The investigation found the first complaint was solid but did not proceed with any action on the second complaint. The Complainant denied the allegation but was the subject of two previous earnings for inappropriate manual handing issues.
The Respondent maintained it acted reasonably and proportionality to the complaint by dismissing the Complainant, given she was also on a final written warning and that her conduct was a fair reason for dismissal under the Act.
The Complainant was a well trained Care Assistant and she was given fair procedure in the examination of her issue. She was afforded the right of representation. The Complainants case that the patient maybe had dementia and got the name of the Care Assistant wrong did not seem credible. Also the Complainant made the case that the son of the person who made the complaint withdrew the complaint but no evidence was provided to support this claim. None of the procedural grounds put forward by the Complainant as being inappropriate stood up to scrutiny at the Hearing. The Adjudicators role is to determine, as per the “Foley” decision above, if the action of the Respondent was within the spectrum of a reasonable response for an employer in the circumstances presented to it. Given that the Complainant was dealing with a vulnerable patient, had on a series of prior warnings, was on a final written warning at the time of the dismissal incident and the investigation concluded that the complaint was solid then the action of the Respondent in dismissing the claimant falls into the reasonable category, especially when dealing with a vulnerable person requiring extra care and attention and they had substantial grounds for dismissing her under Section 6.1, and her claim for unfair dismissal fails on these grounds.
Dated: 16/11/2017
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Key Words:
Unfair Dismissal |