FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : NEWBROOK NURSING HOME UC (REPRESENTED BY SHARON OAKES SOLICITORS) - AND - MARITES ROCHE (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms O'Donnell Employer Member: Mr Marie Worker Member: Ms Tanham |
1. Appeal Of Adjudication Officer Decision No(S) ADJ - 00005645
BACKGROUND:
2. The employer appealed the Decision of the Adjudication Officer to the Labour Court on the 23 August 2017. A Labour Court hearing took place on the 22 May 2018. The following is the Determination of the Court:
DETERMINATION:
This is an appeal by Newbrook Nursing Home against an Adjudication Officer’s Decision ADJ-00005645 given under the Unfair Dismissals Act 1977 to 2015 (the Act) in a claim by Marites Roche that she was unfairly dismissed. The Adjudication Officer found that the dismissal was unfair and awarded compensation of €8,000.
In line with the normal practice of the Court, the parties are referred to in this Determination as they were at first instance. Hence, Marites Roche is referred to as the Complainant and Newbrook Nursing home are referred to as the Respondent.
Background
The Complainant was employed as a Health Care Assistant with the Respondent from the 1st August 2007 to the 4thOctober 2016 when she was dismissed for gross misconduct. The Complainant was alleged to have verbally and physically abused a patient. The Respondent following a disciplinary procedure decided to dismiss the Complainant.
Complainant’s case
The Complainant was called to a meeting on the 20thSeptember 2016 with Ms Eveleen Horan Director of Nursing where she was informed that a complaint had been made against her. She was not advised of who had made the complaint or of the specifics of the complaint. The Complainant was requested to set out in writing her activities on the morning of the 18thSeptember 2016 and advised to go home. Following the meeting the Complainant approached Ms Horan again seeking clarification in relation to the complaint. At that point she was advised that an allegation of Elder abuse relating to a resident of the home had been made against her and that she was being placed on paid leave she was also instructed not to discuss the matter with anyone. The Complainant was still not told who had made the Complainant or the specifics of the complaint nor was she given a copy of the complaint. The Complainant received a letter from Mr Phil Darcy CEO dated 23rdSeptember 2016 inviting her to attend a disciplinary meeting in the body of the letter it was stated “abusing a resident whilst at work is fundamentally at odds with your contract of employment and is in breach of our disciplinary code” it went on to say that she “will be asked at this meeting to provide reasons why you abused Sr. Emmanuelle.”Siptu on behalf of the Complainant contends that this demonstrates that the CEO had made his mind up in relation to the incident in advance of the disciplinary hearing and in advance of hearing the Complainant’s version of events. Following a request from the Complainant’s Union (SIPTU) Mr D’arcy by letter identified the person who had made the complaint. This was the first time the Complainant was informed who had made the complaint. However, she was still not furnished with a copy of the actual complaint made.
The disciplinary meeting took place on the 3rdOctober 2016 Mr Darcy CEO and MS Horan Director of Nursing were in attendance. The Complainant denied all allegations of abuse and outlined her activities on the date in question. The Complainant was dismissed by letter of 4thOctober 2016 in which Mr Darcy stated that having taken in to account the statement of DR (the person who made the complaint) he found that she was guilty of gross misconduct and thereby dismissed.
The letter went on to say that the decision could be appealed to Mr John Noel Mc Givney. An appeal was lodged and the Complainant was advised that the appeal would be heard on 24thOctober 2016 at 10.00am however the Complainant was also informed that the appeal would be by written submission only. SIPTU on behalf of the Complainant made a written submission. By letter dated 21stOctober 2016 three days before the appeal was due to be heard the Complainant was advised that her appeal had been refused and that the decision to terminate her employment was upheld.
It is the Complainant’s case that she was not afforded fair procedure. No investigation of the complaint took place the Respondent went straight to a disciplinary hearing. The Complainant was placed on paid leave and then summoned to a disciplinary hearing in advance of being told the precise charge against her. The Complainant was not given a copy of the complaint nor given the opportunity to cross examine Mr Ryder who had made the complaint. It is the Union’s case that the Respondent did not follow fair procedure and had not considered other options before coming to the decision to dismiss therefore, the dismissal was unfair.
Respondent’s case
An Incident occurred on Sunday 18thSeptember which a co-worker of the Complainant brought to the attention of management. He then formally reported it to Ms Horan Director of Nursing on Tuesday 20thSeptember 2016. Ms Horan then invited the Complainant to attend a meeting with herself and Ms Dolan the Hr Manager who took minutes of the meeting. The Complainant was not told in advance what the meeting was about nor was she advised she could bring a representative. At the meeting Ms Horan informed the Complainant that an allegation had been made and that Ms Horan was looking at the matter through the Disciplinary policy of the Employer. It is not disputed that the Complainant was not given the specifics of the complaint other than the name of the resident involved nor was she told who had made the complaint nor was she given a copy of the complaint at that meeting. The Complainant was asked to give a written statement and told to go home and that she would be contacted at a later stage. Following the meeting the Complainant went back to Ms Horan to seek further information where she was advised that a complaint of elder abuse had been made against her and she was being suspended with pay pending an investigation. The Complainant and Mr Ryder provided statements to Ms Horan who then forwarded them to Mr Darcy the CEO.
By letter of the 23rdSeptember 2016 the Complainant wad advised that the Respondent was treating the complaint as a serious matter and that the issue was now being addressed under the disciplinary code. The Complainant was invited to attend a meeting on the 3rd October 2016, the purpose of which was to decide whether or not to uphold the allegation. The Complainant was advised that she could bring a representative.
By letter of 4thOctober the Complainant was advised that she had been found guilty of gross misconduct and was to be dismissed. She was also advised that an appeal could be made. An appeal was lodged and considered following which confirmation of the sanction of dismissal was sent by registered letter to the Complainant on the 2Ist October 2016.
In his evidence to the Court Mr Darcy confirmed that he was the decision maker in relation to the decision to suspend and the decision to dismiss. He confirmed to the Court that he had not interviewed Mr Ryder as he felt the complaint was very straight forward nor was Mr Ryder available as a witness at the meeting of the 3rd of October 2016. It was his contention that Ms Horan had carried out the investigation and that based on the report from Ms Horan he decided to invoke the disciplinary hearing. He confirmed that he did not hear the Complainant’s version of events prior to making that decision he just looked at both the Complainant’s file and Mr Ryders file and training records before he decided to proceed with a disciplinary hearing. Following the hearing on the 3rdof October 2016 he spoke to Ms Horan that evening before concluding that dismissal was the only option. He felt he was obliged to err on the side of caution and that they were not in a position to offer the Complainant an alternative role. In relation to the letter dated 23rdSeptember 2016 he felt that the statement “ ..will be asked at this meeting to provide reasons why you abused….” was been taken out of context and was not an indication that he had made his mind up at that stage. Mr Darcy accepted in his evidence to the Court that the procedure he followed did not comply fully with their inhouse procedure a copy of which they had supplied to the Court as part of their submission.
Ms Horan in her evidence to the Court stated that she had carried out a preliminary screening of the complaint in accordance with the procedure. On being questioned she confirmed that she did not carry out an investigation into the complaint. She confirmed that the Complainant was not given the name of the person who made the complaint nor the specifics of the complaint when she was asked to write up a report. She felt that when she spoke to the Complainant at the meeting on the 20th September 2016 the Complainant led her to believe that she knew what she was talking about.
Ms Horan confirmed to the Court that she spoke to Mr Darcy after the meeting on the 3rdof October 2016 and expressed the view that she would not be comfortable with the Complainant returning to work and that there was no other suitable alternative work. She also confirmed that she was familiar with the Respondents disciplinary’s procedures and that there may have been some gaps in the procedure followed.
The law
Section 1 of the Act defines dismissal in the following manner
“dismissal”, in relation to an employee, means—
(a)the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,
(b)(b)……
Section 6(1) states
“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.”
Issue for the Court
Dismissal as a fact is not in dispute therefore it is for the respondent to establish that in the circumstances of this case the dismissal was fair.
Discussion
The Complainant’s case is that her dismissal was unfair as the process that led to the decision to dismiss her do not meet the standard for fair procedure set out in case law.
In the case ofSamuel J Frizelle v New Ross Credit Union[1997] IEHC 137 the High Court set out the following legal principles to be observed:
“Where a question of unfair dismissal is in issue, there are certain premises which must be established to support the decision to terminate employment for misconduct.
- 1.The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.
2.Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.
3.The employee should be interviewed and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.
4.The decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in the light of the explanation offered.
5.The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.
Put very simply, principles of natural justice must be unequivocally applied
Both witnesses for the Respondent professed themselves familiar with the Respondents disciplinary process. Both attributed to the other responsibility for having carried out the investigation stage of the process yet on evidence both denied having carried out an investigation of the allegation. Without an investigation into the allegation made, it is difficult to see how any decision to invoke the disciplinary procedure could be considered to be fair and reasonable. In light of the above the Court finds that the dismissal was unfair.
The Court having considered the remedies available has decided that reinstatement or re-engagement of the Complainant is not a practical option in this case. The Court instead takes the view that compensation is the appropriate redress in this case.
Having assessed all the information before it, including, the conduct of the Complainant the Court considers that the Complainant has suffered financial loss as a result of thedismissal. The Court considers it just and equitable in all the circumstances of this case to award the Complainant compensation in the sum of €10,000.
Determination
The Court determines that the Complaint is well founded. The Court orders the Respondent to pay the Complainant compensation in the sum of €10,000. The decision of the Adjudication Officer is varied accordingly. The Court so determines.
Signed on behalf of the Labour Court
Louise O'Donnell
CC______________________
18 June 2018Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.