ADJUDICATION OFFICER DECISION

  Adjudication Reference: ADJ-00006660

Parties:

Complainant                Anonymised Parties                Respondent

Care Worker                                                                     Social Services  

Representatives

Oliver McDonagh SIPTU                                     Loughlin Deegan ByrneWallace

Complaint

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-00009014-001 11/01/2017  

Date of Adjudication Hearing: 12/10/2017          Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015 andfollowing the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.  

Background:

The Complainant was employed from 12th April 2014 until the employment terminated with one week’s notice on 4th October 2016. The Complainant was paid €11.78 an hour and she worked 39 hours a week. The Complainant was provided with a written statement of her terms and conditions of employment, including the employee handbook which included the Grievance and Disciplinary procedures of the Company. The Complainant referred a complaint to the Workplace Relations Commission on 11th January 2017 alleging she had been unfairly dismissed.

Summary of Respondent’s Case:

The Complainant had been employed as a healthcare assistant since 2014 and on 7th September 2016 and for the previous few months she had been working the waking night shifts. This means the employee is required to be awake while on this shift in order to attend to the needs of the residents during the night. Any unavailability of the healthcare assistants, whether asleep or otherwise has serious health and safety implications for the residents. The named Unit the Complainant was assigned to work was one that required the highest level of supervision and care at night time. The residents have either intellectual disabilities, mental health problems and/or physical health problems. The Complainant was found sleeping by a named Person in Charge while on this shift on 7th September 2016. Another assistant was also found asleep. There are four assistants assigned to this Unit on the night shift. The sitting room in which the Complainant and another employee were found asleep was in darkness while they slept. They awoke and the Person in Charge turned on the lights. An Investigation was conducted by the HR person, named and the Regional Manager, named. Detailed statements were taken from witnesses and from the Complainant and all the notes from these interviews were provided to the Complainant. The Complainant attended the Investigation Meeting on 21st September 2016 and she was informed of her right to representation but did not do so. The Complainant admitted that she was asleep on 7th September 2016 and on other nights. She admitted she had done wrong and sought leniency. A Disciplinary Hearing took place on 3rd October 2016. Again, she was informed of her right to representation and again did not do so. The Complainant admitted she had slept while on this shift on several occasions. The outcome communicated to the Complainant on 4th October 2016 informed her she was to be dismissed with a right of appeal. The Appeal Hearing took place on 17th October 2016 and was heard by a named Director of Operations. The Complainant was represented by SIPTU. The outcome was to uphold the decision to dismiss and this was communicated to the Complainant on 6th December 2016. The Respondent submitted a Decision of the Supreme Court in support of their contention that all fair procedures and natural justice had been applied to the dismissal and this judgement also addressed the issue of cross examination which arose at the Hearing on 12th October 2017.  

Summary of Complainant’s Case:

The Complainant commenced employment as a Care Worker in April 2014 with responsibility for the delivery and provision of a range of healthcare services to residential service users in a named Unit. The Complainant commenced her shift on 7th September 2016 at 11pm on a 10-hour shift. On the morning of 8th September 2016 the Complainant and another colleague took a break and a short nap. While she was asleep her Line Manager, named, entered the Unit. She awoke but did not arise from the couch where she had been sleeping and her Line Manager did not ask her to do so. He left a short time later without speaking to the Complainant or her colleague. He did make a written statement to Management and an investigation took place, followed by a Disciplinary Hearing and an internal Appeal Hearing but the Complainant was dismissed. SIPTU on behalf of the Complainant raised several procedural issues in relation to the dismissal. These related to – the investigation which confirmed that the Line Manager and Shift Leaders were aware for some time that the Complainant took naps during her night shift but did not raise the issue until 8th September 2016 – A number of the Complainant’s colleagues were advised by the Line Manager to give witness statements on the basis of anonymity – The Line Manager did not approach the Complainant while she was asleep and witness statements confirmed that the Line Manager had been informed on 22nd August 2016, some two weeks before the incident of 7th September 2016 and another witness confirmed that the Line Manager had been informed on a number of occasions – The investigation panel interviewed the Line Manager on 13th September 2016 but two named witnesses had been interviewed prior to the Line Manager – The Investigation panel did not question the Line Manager in relation to the statements of two witnesses that he had been informed previously that the Complainant was sleeping while on her shift – The Complainant was interviewed on 21st September 2016 during which she admitted she had slept during the shift and on other occasions and she advised the investigation panel that sleeping on shift was common amongst all the night shift and yet none of the employees interviewed were asked to comment on this – if the Line Manager was aware she had been sleeping while on this shift and this constituted a breach of the rules then why did he not approach her until 8th September 2016 and why did he not wake her when he initially entered the Unit – Likewise why did the Line Manager not approach the Complainant, having been made aware she had been sleeping on shift and advise her of the rules and give her an opportunity to correct her behaviour – the Complainant was not afforded an opportunity to cross examine any of her colleagues who gave statements either at the investigation, disciplinary or appeal process. SIPTU referenced several High Court Decisions in relation to the right to cross examine witnesses. SIPTU also argued that the decision to dismiss was disproportionate to the offence. The Complainant commenced employment as an Agency Worker in mid-October working 20 hours a week on average earning €15.16 an hour. The preferred remedy of the Complainant was stated to be compensation if her complaint is successful.  

Findings and Conclusions:

On the basis of the evidence, written submissions from both Parties and questioning by the Adjudication Officer at the Hearing I find as follows – -There was no dispute between the Parties in relation to the admission by the Complainant that she took naps during her night shift. - Both Parties also confirmed that the Complainant had not been subject to any other Disciplinary sanction during the course of her employment with the Respondent. - The Line Manager confirmed that he had been made aware prior to the night of 7th September 2016 that the Complainant took naps while on her shift. Under questioning at the Hearing, he stated that he had been on annual leave up until 31st August 2016 and confirmed that although he was aware the Complainant was sleeping while at work he did not raise this with Management or with the Complainant. The Line Manager also confirmed at the Hearing that on the morning of 8th September 2016 he did enter the room where the Complainant and another colleague were sleeping but he did not wake them and there was reason given at the Hearing for this. I note that the Line Manager is the designated Person in Charge as required by HIQA - The Line Manager also confirmed at the Hearing that he had requested two named employees to give statements and he also confirmed that he had informed two named employees that their statements would be anonymous although I note from the Interview with both employees during the investigation that they were informed their statements would be provided to the Complainant. - I note that the Line Manager was not questioned during the investigation process as to why he did not act when he had been informed prior to incident of 7th September 2016 that the Complainant was sleeping while on her shift, this despite the statements of two named witnesses and that this issue was identified as a real health and safety issue in relation to the residents and the issue was so serious to warrant a finding of gross misconduct and dismissal. -I note the differing views of the Parties in relation to cross examination of witnesses with the Respondent relying on the decision of the Supreme Court in Rowland v An Post delivered 27th March 2017 and the Complainant relying on the Decision of the High Court in Lyons v Longford Westmeath Education and Training Board. - I note the response of the Respondent at the Hearing to the question if they had considered an alternative to dismissal and their statement there was a serious breach of trust. This in circumstances where the Person in Charge, the Line Manager knew at least one week in advance of 7th/8th September 2016 that the Complainant had been sleeping on her shift yet he did nothing until he filed his complaint on 8th September 2016. -I note that there are four employees on duty on each night shift and that on the specific night in question two of these employees, one being the Complainant, were asleep while on duty and I find that the Complainant did contribute to her dismissal and she should have been aware that sleeping while having responsibility for residents with varied needs is not acceptable.      

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.   On the basis of the evidence and my findings above and in accordance with Section 8(1 (c) of the Act, I declare the complaint of unfair dismissal is well founded. Disciplinary sanction, short of dismissal, would have been a more appropriate response given the role and lack of action of the Person in Charge who had prior knowledge of the Complainant sleeping yet waited at least over a week before he acted. However, I have found that the Complainant by her actions contributed to her dismissal and in all the circumstances I direct the Respondent to pay the Complainant compensation of €10,000 (ten thousand euro) within 42 days of the date of this Decision  

Dated:   08/01/18 Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Key Words: Dismissal – lesser sanction more appropriate – some liability on the party of the Complainant.