ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00007420
Parties:
| Complainant | Respondent |
Anonymised Parties | Social Care Leader | Health Care Provider |
Representatives | Niall Cavanagh BL, Eoin Powderly of David Powderly Solicitors, Matt Harris | Lauren Tennyson BL, Ciara McMahon of Hayes Solicitors , Eveline Sheerin, Mary O’Keefe, Una Murray, Mary Lloyd |
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-00009997-001 | 02/03/2017 |
Date of Adjudication Hearing: 03/11/2017
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following 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 as a Social Care Leader from May 2010 to 20th October 2016. She was paid €960.00 per fortnight. She has claimed that she was unfairly dismissed and has sought compensation. |
Summary of Respondent’s Case:
On 23rd August 2016, the Respondent received an anonymous letter making allegations against the Complainant. This letter accused the Complainant of leaving the residents who were on an outside trip on their own for a considerable time while she went shopping and leaving them in the care of just one carer. The Respondent notified HIQA of this complaint in line with its statutory obligations. The Complainant was suspended with pay on 24th August. It was decided to investigate the matter using an external HR person. Terms of reference was prepared by the Respondent and the Complainant was invited to an investigation meeting and given the terms of reference and a copy of the disciplinary procedure. The investigator also interviewed witnesses and management. The investigator met with the Complainant on 25th September to discuss a draft report and informed her that she was recommending that the complainant be put forward for a disciplinary investigation for an allegation of serious misconduct whilst on duty and whilst responsible for the care of residents. She was given a copy of the investigation report. A disciplinary hearing took place on 11th October 2016. A former employee of the Respondent conducted the hearing assisted by an external HR person. At a disciplinary outcome meeting on 20th October 2016 the Complainant was advised of the decision to dismiss her from the employment. She was given the right to appeal and a meeting was held on 2nd November 2016 conducted by the Home Manager. The decision to dismiss was upheld. It is their position that it was reasonable to dismiss the complainant given all the circumstances. They relied upon Sec 6 of the Unfair Dismissals Act regarding the conduct of the Complainant. They also relied upon the Employment Appeals Tribunal case Maranan v Beechfield Nursing Home Ltd. The Complainant accepted that she left the residents in her care alone on social outings but did not accept that it was unacceptable behaviour. The Respondent was entitled to take the view that it was totally unacceptable and that the appropriate sanction was dismissal. The Complainant has failed to mitigate her loss. |
Summary of Complainant’s Case:
The Complainant has had an unblemished record in this employment. She has been engaged in supervising resident outings since 2015. The Respondent has attempted to change her shift from Monday to Friday to 5 days over 7, they have also moved her office into a storeroom. In May 2016, she requested a copy of the policy for resident outings but it was not given to her. An anonymous letter was received on 23rd August accusing her of leaving residents unsupervised. In breach of the Health Act 2004 and the Regulations made thereunder the Respondent proceeded to invoke investigation and then disciplinary procedures on foot of this anonymous letter. On 24th August, she was suspended with pay pending an investigation. She was not given an opportunity to respond to the complaint prior to the initiation of the investigation which is breach of sections 11.1 and 11.2 of the Respondent’s Elder Abuse Policy. She has been dismissed for an alleged breach of a policy that did not exist. The Respondent breached fair procedures by not furnishing her with the complaint and supporting documents on the policies which were allegedly breached. The Respondent subsequently confirmed that there was no process in place for the outings. There was no reference to a standard operating procedure for taking residents on outings, or carer to resident ratios on such outings. At the second investigation meeting it was put to the investigator that the allegation under investigation was that she had breached a policy “by leaving residents without sufficient level of supervision but the facts had been established that there was no such policy and according to management sufficient level of supervision was to be decided by the Complainant herself and she had stated that supervision was sufficient at all material times and therefore she had no case to answer. The investigator issued their report that management could take disciplinary action. This was based on witness statements from people who did not want to be identified for fear of reprisal by the Complainant. Yet these statements form part of the investigation. A disciplinary investigation ensued. The allegation was that she left a group of residents on an outing with an improper ratio of carers and it amounted to a breach of the Elder Abuse Policy, but the Respondent failed to point out which part of the policy this breached. She accepts that on an occasion in August 2016 she left the residents in the company of a carer while she did some shopping for a resident, or get cash from the ATM for the Respondent. She asserts that she breached no such written or oral policy. The residents were happy and content to remain with the other carer and suffered neither abuse nor neglect. The outcome of the disciplinary investigation was that she was to be dismissed. She appealed the outcome and an appeal meeting took place on 2nd November 2016. The decision to dismiss was upheld. It is her position that the grounds that the Respondent relied upon was elder abuse. However, the circumstances show that no such abuse took place. The report to HIQA was for misconduct. There was neither elder abuse or misconduct. Complaints about service providers are governed by S.46 of the Health Act 2004 (Complaints) Regulations 2006 and should not be made anonymously. It is a basic fair procedure to be able to cross examine the accuser. The findings of the investigation considered evidence given in witness statements which were withheld from the Complainant. The investigation breached the rules of natural justice. The Respondent did not follow the procedures 11.1 to 11.4. Sec 12.19 states that where abuse occurs residents and their family/representatives shall be facilitated to access assistance and counselling to ensure recovery. The alleged actions did not warrant counselling, then it is submitted that no such elder abuse occurred. The appeal did not address the issues raised in the grounds of appeal. The underlying rationale for the dismissal is that the complainant posed a risk to patients by allowing a ratio of 1 carer to 3 residents. If such a ratio was deemed unsuitable then the staff should have been informed of this. It is unreasonable to hold that there had been any breach and it is further submitted that if there was a breach then a lesser sanction than dismissal should have been considered. The decision to dismiss was unfair and she has sought compensation. She has tried to mitigate her loss and has applied for 16 positions in 11 months. |
Findings and Conclusions:
I note that the Respondent acted upon an anonymous complaint.
I note that the Respondent carried out an investigation and interviewed a number of witnesses.
I note that witnesses made statements but some of these statements were withheld from the Complainant.
I note that the external investigator found that the Complainant had a case to answer and so the matter was escalated to a disciplinary hearing with the allegation of serious misconduct while on duty.
I note that the outcome was a decision to dismiss for gross misconduct.
Substantive matter
I note that the Complainant had an unblemished record.
I note that the Complainant had been conducting external visits with residents since 2015.
I note the conflict of evidence regarding leaving the residents in the care of one other carer. On the balance of probability, I find that the Complainant had been taking unauthorised shopping breaks and had left the three residents in the sole care of one carer.
I do not accept the Complainant’s evidence that she had to use the ATM for the Centre’s business.
I note the conflict of evidence regarding the policy on such visits with residents.
I find that her actions placed the residents at a risk, which is unacceptable.
I am conscious of the obligation and duty of care placed on the Respondent.
I find that her actions were irresponsible and warranted a disciplinary sanction.
I am not satisfied that the punishment of dismissal fits the crime.
I find that she should have been given an opportunity, perhaps a final opportunity to correct her behaviour in this regard, and so I find that the sanction of dismissal was disproportionate.
I find that the dismissal was substantively unfair.
Procedural Matter
I note that the Respondent acted upon an anonymous letter of complaint.
I note that the Respondent relied upon witness statements that were withheld from the Complainant.
I find that in doing so the Respondent failed to provide fair procedure. It is a fundament right for an individual to confront their accuser. There are mechanisms available to protect such witnesses.
I note that the Respondent carried out an investigation, escalated this to a disciplinary hearing and they offered the right of representation and appeal.
However, I find that the Respondent’s reliance upon an anonymous complaint and withheld witness statements has rendered this dismissal procedurally unfair.
I note that the Complainant has sought the redress of compensation.
I find that compensation is the appropriate redress.
I note that the Complainant made 16 applications for employment in 11 months.
I note in the Employment Appeals Tribunal case Sheehan v Continental Administration Co Ltd (UD858/1999) stated, “a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work. The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss”.
I find that the Complainant did not make a reasonable effort to mitigate her loss. This must be taken into consideration when establishing the quantum of the award.
I have also found that on the balance of probability, the Complainant had been taking unauthorised shopping breaks and had left the three residents in the sole care of one carer.
Therefore, I find that she has contributed substantially to her dismissal.
I have found that this was irresponsible and unacceptable. This must also be considered when establishing the quantum of the award.
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 have found that the dismissal was unfair for the above stated reasons.
I have decided that the Complainants actions has contributed substantially to her dismissal.
I have decided that the Complainant has failed to effectively mitigate her loss.
I order the Respondent to pay the Complainant compensation of €5,000 within six weeks of the date below.
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Dated: 19 January 2018
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Key Words:
Unfair Dismissal |