Complainant

Respondent

Anonymised Parties

A Care Worker

A Care Provider

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-00013211-001

21/08/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00013211-002

21/08/2017

The Complainant was employed with the Care Home for over 15 years as a Care Support Worker. A HIQA inspection took place and a number of concerns were raised with the running and governance of the Care Home. Previous recommendations had not been implemented. A number of Service users made complaints to HIQA about employees of the Care Home, and that complaints were not being addressed by the Care Home. The Service users were taking action about the failure to engage with them. Many of the Service users are vulnerable and highly dependent. An Action Plan was outlined by the Care Home to HIQA in order to address the deficiencies outlined.

The Complainant had long service with the Care Home as a Care Support Worker. No performance issues had ever been raised by management.

A number of complaints were made by Service users and Staff to HIQA about the Complainant. The Care Home suspended the Complainant immediately in order to investigate the complaints.  Staff became aware of the Complainant’s suspension and the CEO held a meeting with staff that day saying abuse had been found in the Care Home and seeking reports from staff.

An Independent investigator was appointed to investigate the complaints to HIQA under the Adult Protection Policy. The HIQA Inspectors declined to co-operate with the Independent Investigation due to their statutory role. The Independent Investigator then proceeded to interview Service users and staff regarding the complaints.

In relation to Service User A, he complained she spoke to him inappropriately, was lazy and he complained about her previously. Service User B said she delays in responding to his calls, speaks to him inappropriately, says his own government would not do what was being done by her, leaves him on his own to smoke and another staff member will take the cigarette out of his mouth and mocked his meal.

The Investigator interviewed a number of staff who made complaints against the Complainant of  delaying or withholding assistance, that a Service user was not given adequate time to eat and his dinner was put in the bin, lateness, missing, using the sleepover room while on shift, declined to support the other staff member on duty, drunk alcohol on duty, left a Service user alone with a cigarette, and was intimidating.

The Complainant objects to the procedures used and says that the investigation was used to elicit complaints rather than investigate complaints. All allegations were denied by the Complainant and she pointed to restrictions on the service she could provide due to staffing resources, and calls by Service users while she was with another Service user. The Complainant had a medical complaint that restricted her.

The Complainant made 2 complaints of sexual harassment against Service user B previously. There had been a history of difficulties in interactions. Some years previously there had been some complaints by Service user A against the Complainant which were resolved by discussion.

The Complainant contends that the Respondent’s Action Plan responding to the inspection report accepted as a fact allegations that “Residents were not always treated with respect by a small number of staff”. The Action Plan reported that the Chief Executive met with all staff following the inspection, discussed the inspection and the importance of ensuring all Service users feel safe, are protected from abuse and staff responsibilities around reporting any concerns they may have. This was reported by witnesses to the Independent Investigator as a finding of fact which was highly prejudicial.

The Complainant’s representatives then repeatedly sought the nature of the complaints, identity of the Complainants, dates of alleged abuse. The Complainant remained on suspension and an interview date could not be arranged until this was provided.  The Terms of Reference for the Investigation were never agreed with the Complainant. The first detail of the complaints were not notified to the Complainant until she had been suspended for 5 months. The complaints were all derived from interviews conducted by the Independent Investigator subsequent to his appointment

The preliminary report issued in March 2016 and upheld 2 of the 26 allegations made against the Complainant. The final report of the Independent Investigator dated 28 April 2018 was furnished to the Complainant on 19th August 2016 some 13 months after her suspension and none of the 26 allegations of breach of the Adult Protection Policy were upheld.

Subsequently, the Respondent informed the Complainant that notwithstanding the lack of findings, it had concern in relation to her competencies and capabilities to carry out her role and a disciplinary investigation would be conducted under the Respondents Disciplinary Policy. Two internal Investigators were appointed. The Complainant remained on paid suspension, objected to the “re-investigation” and her continued lengthy suspension.

The grounds of complaint in respect of the Disciplinary Investigation were based on complaints contained in the Independent Investigation under the Adult Protection Policy namely failure to do her share of the workload, failure to provide adequate support to vulnerable service users, alleged dishonesty with management regarding lateness/ trustworthiness when not supervised, and allegations that she consumed alcohol while on duty. These were supported by witness quotes from the Independent Investigators report under the Adult Protection Policy. The Complainant’s representative objected to the lack of detail of the complaints, failure to identify the complainants, dates and times of the alleged incidents which is unfair.

On 6th March 2017 the Disciplinary Investigation Report concluded that there are organisational concerns with regard to the competence and capability of the Complainant based on 4 findings in relation to allegations made of institutional abuse of service users, failure to communicate appropriately, neglect, failure to support colleagues, and acting incompetently in relation to personal safety on the basis of statements of certain staff.  There was no reference to the remainder of the allegations made against the Complainant pursuant to the Terms of Reference. The findings were based on preferring the evidence of the greater number of witnesses.

A Disciplinary Hearing was convened and the Respondent’s trust in the competence and capability of the Complainant was breached and she was dismissed for gross misconduct.

On Appeal, the Complainant’s representatives objected to numerous flaws in the procedures applied. In particular that the Disciplinary Investigation Report did not address the 4 organisational concerns in the Terms of Reference but addressed 4 quotations instead, the selection of witnesses for the Disciplinary Investigation was arbitrary and unreasonable, as of the 16 witnesses interviewed under the Adult Protection Procedure 8 of these were favourable to the Complainant and 8 were not. No finding was made of dishonesty or untrustworthiness or that alcohol was consumed on 2 of the 4 organisational concerns.

In the Disciplinary Investigation, the Complainant’s representatives contended that the Respondent selected a majority of unfavourable witnesses for interview and the evidence was weighted against the Complainant. The complaints were based on opinions of staff not evidence, and there were no dates for many of the alleged incidents. One witness said she and others lied to the Independent Investigator in the Disciplinary Investigation but this was never investigated, and her evidence was accepted. The Complainant’s representatives objected to leading questions, that there was a finding in the Disciplinary Investigation that the Complainant had failed to act in a competent manner when she had acted in compliance with the Care Plan which was incorrect, that the terms of the 2 investigations were so close it was double jeopardy, the procedures were flawed from the beginning as the complaints were elicited, the allegations made were historical, were never reported at the time and put to the Complainant. In addition, the Disciplinary Investigators had misapplied the balance of probability test and made a decision based on preferring the evidence of numbers of witnesses, not the evidence and the seriousness of the allegations. The Care Home was found to be lacking in resources to supervise staff and monitor the quality of care by HIQA, and the long length of the Complainant’s suspension of almost 2 years.

The Appeal was unsuccessful even though the Complainant had acted in accordance with the Care Plan when the Service user was smoking as the Complainant was not present, and the dismissal of the Complainant confirmed. The Complainant suffered huge loss of earnings, and damage to reputation. Despite trying to mitigate her losses this proved impossible and she has ongoing extensive financial loss.

The Respondent provides support services to service users with physical and neurological conditions in their centres, who often have very complex and high support needs.

The Complainant worked as a Care Support Worker in one of their centres. At a HIQA inspection in 2015 the Inspector became concerned at a number of issues reported and briefed management of the centre. It was decided the matter must be investigated independently and the Complainant was suspended.

The results of the investigation were inconclusive and the organisational concerns remained. The witness statements raised concerns that were so serious they could not be ignored and required further investigation. The Respondent felt that the fact that the Complainant was exonerated in the Independent Investigation could not be a barrier to the investigation of other issues of concern, and  manner of her suspension and discussion amongst colleagues. A Disciplinary Investigation was commissioned and the report issued on 28th February 2017 which said the Complainant had a case to answer. A disciplinary hearing was held on 8th May 2017 and found that the Complainant did not engage and communicate appropriately with service users and rushed care. Her approach was task orientated and not people centered affording dignity and respect in breach of the Safeguarding of Vulnerable Persons Policy. In addition, that she engaged in institutional abuse while carrying out personal care duties, that she was negligent in her duties through use of the sleepover room, neglected her duties through her failure to support and share the workload, and that the Complainant neglected a service user leaving a vulnerable person alone when smoking a cigarette.

On the balance of probabilities, the Respondent preferred the evidence of the greater number of employees interviewed over the Complainant and concluded the Complainant did not have the competence and capability required. The Complainant had an impeccable employment history.

The Disciplinary Panel made a decision on the contradictory evidence and could not assume a conspiracy or other devious motives for the 3-5 witnesses and on the balance of probabilities found that the Complainant had been guilty of misconduct, had reasonable grounds to do so and the sanction of dismissal was proportionate to the misconduct. The Respondent’s trust in the Complainant’s competence and capability as a Care Support Worker had been breached. The Complainant was dismissed without payment in lieu of notice.

The Appeal was unsuccessful and there was no reversal of the decision that the action amounted to gross misconduct. The Respondent says that the witness selection was not unreasonable and leading questions were not asked. Although the Care Plan did require the Complainant to wait outside while the Service user smoked, it was found she did not do so and was neglectful and disregarded the safety of the Service user. The fact that dates were not available for the incidents complained of  could not preclude the organisation from investigating the concerns. The Respondent said the fact that the centre failed to manage the Complainant’s poor performance cannot prevent the Respondent from acting responsibly following findings of institutional abuse and neglect.

The Respondent relies on Noritake (Ireland ) Ltd v Kenna (UK88/1983) and British Home Store Ltd v Burchell [1978] IRLR 379.

The Complainant claims that she has been unfairly dismissed and there are no substantial grounds justifying the dismissal on grounds of capability and competence. Under the Unfair Dismissals Acts the burden of proof lies on the employer to prove the conduct demonstrates a lack of capability and competence on the part of the Complainant such that warrants dismissal.

The Respondent’s Care Home provides care for a number of Service users that are extremely vulnerable, some Service users have physical complaints and others are no longer capable of making complaints in relation to their treatment by staff. Inspectors from the Health Information and Quality Authority carried out a registration inspection on the Care Home in 2015 when issues of concern were raised by Service users and staff to them. The inspection report also found there were failures in the Care Home relation to governance, lack of supervision of staff and monitoring the quality and safety of care. The inspection report said that staff found they could not bring concerns to management easily. Residents were frustrated that their grievances were not being addressed.

Section 6 (1) of the Unfair Dismissals Acts 1977 as amended provides that a dismissal of an employee shall be deemed to be an unfair dismissal, unless having regard to all the circumstances there were substantial grounds justifying the dismissal. Section 6 (4) (1) of the Acts provide that without prejudice to the generality of Section 6 (1), the dismissal of an employee shall be deemed for the purposes of the Act not to be an unfair dismissal if it results wholly or mainly from one of the following:

(a)    the capability, competence and qualifications of the employee for performing work of the kind that he was employed by the employer to do:

(b)    the conduct of the employee,

(c)     the redundancy of the employee, and

(d)    the employee being unable to work or to continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under statute or imposed or under any statute or instrument made under statute.

Section 6 (1) (6) of the Act provides in determining whether the dismissal of the employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

Section 6 (1) (7) of the Act provides without prejudice to the generality of subsection 1 of this section, in determining if a dismissal is an unfair dismissal regard may be had, if the Adjudication Officer as the case may be, considers it appropriate to do so-

(a)    to the reasonableness of the conduct, or otherwise (whether by act or omission) of the employer in relation to the dismissal and,

(b)    to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee with the procedure referred to in S14 (1) of this Act, or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals Amendment Act 1993) of section 7 (2) of this Act.

S7-(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the Adjudication Officer considers appropriate having regard to all the circumstances:

(a)re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was re-employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b)re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) (i) If the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under S17 of the Act) as is just and equitable having regard to all the circumstances…

Following the reports of concerns from Service users and staff, the Respondent appointed an Independent Investigator to investigate reports of the Complainant’s attitude and interactions with Service users, of withholding or delaying in assisting Service users and poor work performance under the Adult Protection Policy.

The Complainant complained of a lack of detail in the complaints made against her which do not specify times, and dates of the incidents alleged in order to allow her to properly prepare a defence to the complaints. Transcripts of all witness evidence were furnished to the Complainant.

The Independent Investigator set out his concerns regarding the investigation process under the Adult Protection Policy in his Final Report. He was concerned that the Independent Investigation was compromised by the way that this had taken place. The Complainant had been suspended immediately following the HIQA inspection and staff became aware of this. The HIQA Inspector declined to co-operate with the Independent Investigator, which meant it was necessary for him to interview the staff of the Care Home to clarify issues of concern. This required him to ask extensive questions of staff in relation to the complaints made which was much broader than usually would be the case.

He said due to the detail of the complaints being obtained from the witnesses during this process meant there was a potential for witnesses and their accounts of events to be compromised, and there was evidence of discussion amongst staff. He said many of the complaints alleged were historical and none were formally reported when they were alleged to have occurred. Two of the Service users were entirely happy with the Complainant. One Service user had unrelated complaints against the Respondent and was seeking to be moved out for some time. Concerns were raised by many staff about staffing levels, supports and rosters which could have affected staff’s ability to provide proper services. Staff may be providing personal care to one service user and may be required to respond to a call, leaving one Service user for another call which could be urgent and then return to the original Service user which was not satisfactory for the Service users.

It was clear from the transcripts that staff had spoken to other staff on the issues which influenced their views. The CEO had spoken to staff following the inspection and some staff reported that the CEO confirmed abuse in the Care Home. Of 26 complaints made against the Complainant, none were upheld in the Final Report of the Independent Investigator.

Notwithstanding the outcome of the Independent Investigation under the Adult Protection Policy which made no findings against the Complainant, the Respondent had significant concerns  regarding the Complainant’s competence and capability due to the serious content of the witness statements. The Respondent was of the view that the fact that the Complainant had been exonerated in the Independent Investigator’s report was not a barrier to the investigation of other concerns. The Complainant remained on suspension while both investigations were ongoing for almost 2 years.

The Respondent’s Disciplinary Policy provides the purpose of the policy “is to ensure that all employees adhere to the required standards by making them aware of any shortcomings and identify how the necessary improvements can be made. The key objective is to assist the employee to maintain the required standards, rather than impose sanctions.”

“In most instances the employee’s direct Line Manager or approved designate will deal with deficiencies on an informal basis through discussion, counselling and appropriate assistance rather than through the formal Disciplinary Procedure.

Examples of conduct which may lead to disciplinary sanction under the Disciplinary Procedure may include but are not limited to the following:

Persistent poor timekeeping

Unsatisfactory attendance record

Failure to comply with correct attendance policies and procedures

Poor work standards and conduct ….

Abuse of a Service User (following a complaint being upheld under the Adult Protection Framework)…

Negligence with regard to the discharge of their duties

In addition, the Policy provides “The employee will be advised in writing and in advance of the Disciplinary Hearing of the precise nature of the complaint against him or her and will be given copies of any relevant documentation. The employee will be afforded the opportunity to state his or her case and challenge any evidence that may be relied upon in reaching a decision”.

The pre-procedure Counselling stage was bypassed due to the seriousness of the concerns by the Respondent. The Complainant was suspended on pay while the processes were ongoing for a long period of almost 2 years.

The Terms of Reference of the Disciplinary Investigation provided:

“The investigation team will endeavour to conclude a thorough and impartial investigation as quickly as is possible, cognisant of the parties’ rights under natural justice, while recognising the anxieties and pressures, on all parties, associated with an issue of this nature…

Any information relied upon to make a finding or to support a fact will be appended to the report and all relevant parties will, as part of their right of reply, have sight of all such information in advance of the report being completed and afforded the right to comment upon it..

All parties will be afforded their rights under natural justice in this process and all participants will be treated with dignity and respect at all times throughout the process..”

The Respondent appointed two investigators to investigate their concerns in a further investigation under the Disciplinary Policy. The Terms of Reference for the Disciplinary Investigation alleged the Complainant failed to do her share of the workload, allegedly failed to provide adequate support to vulnerable service users, alleged dishonesty with management regarding lateness/ trustworthiness when not supervised, and allegations that she consumed alcohol while on duty. These were supported by witness quotes from the Independent Investigators report under the Adult Protection Policy and were identical to some of the allegations previously considered by the Independent Investigator under the Adult Protection Policy.

The Complainant’s representatives objected to the process and raised concerns about “double jeopardy” as they say she had to respond to the same complaints twice. However, “double jeopardy” is a concept that applies in a criminal process only. In Registrar of Companies v Anderson & Anor [2005] 1 IR 21 Murray CJ held “However one approaches it, the fundamental point is that the rule of double jeopardy and associated protections against being prosecuted twice for the same offence is a rule which arises in relation to the prosecution of offences”. It does not prevent a person being convicted in Court and punished under a separate disciplinary regime in respect of the same conduct.

No finding had been made by the Respondent against the Complainant in the first investigation  under the Adult Protection Policy nor was any disciplinary sanction imposed. The Respondent identified a smaller number of concerns regarding the Complainant for investigation subsequently under the Disciplinary process relating to capability and competence and which they may do.

The Complainant’s representatives objected to the way in which the investigation under the Adult Protection Policy had commenced which they say meant that Independent Investigator elicited complaints to be investigated, and the statement by the CEO to staff following the inspection. They objected to the lack of detail, failure to identify the complainants, and dates and times of the alleged incidents. They say the Complainant was scapegoated as she had been suspended which was  damaging to her reputation, and there is evidence of discussion between witnesses in the statements. The Complainant had a clean disciplinary record prior to the HIQA inspection.

From a review of the transcripts of both investigations, it is evident that staff were aware of the suspension of the Complainant however, the concerns that were raised by Service users and staff to HIQA about the Complainant were made prior to the Complainant’s suspension. HIQA also found there had been a failure to supervise and monitor staff in their inspection report.

The Disciplinary Investigation set out the allegations in the Terms of Reference and all witness statements were furnished to the Complainant. The first finding of the Disciplinary Investigation was  the Complainant did not engage and communicate appropriately with service users when supporting them, and rushed care on an ongoing basis. There was a further finding that the Complainant engaged in institutional abuse of Service users when carrying out personal care duties. The findings were on the balance of probabilities based on the preferred evidence of the greater number of employees (3).

The second finding of failure to do her share of the workload was on the balance of probabilities that the Complainant used the sleepover room on more than one occasion while on shift during the day as witnessed by 3 of her colleagues. This was neglect of Service users. The finding was based again on the preferred evidence of the greater number of employees (3). The usual daily service to Service users was provided by two care support workers. Where one care support worker was missing this had an adverse impact on the Service users.

The third finding was that the Complainant did not share the workload equally or at all in relation to tasks involving 1 staff member which neglected Service users. The Disciplinary panel based their finding on the preferred evidence of 5 staff, and lastly that the Complainant did leave a Service user alone smoking a cigarette contrary to the care plan, again based on the preferred evidence of the greater number of employees (3).

Of the 4 complaints made against the Complainant, there were findings made against her of failure to do her share of the workload, and failing to provide adequate support to vulnerable service users. In relation to the remaining complaints of alleged dishonesty with management regarding lateness/ trustworthiness when not supervised, and allegations that she consumed alcohol while on duty the report did not say that no findings were made or the outcome of the complaints.

The Complainant’s representatives say that the selection of witnesses for the investigation was arbitrary and unfair against the Complainant, as there were many witnesses that did not substantiate the allegations made. Nonetheless, there is a duty on an employer to investigate what were undoubtedly very substantial and serious complaints made against the Complainant by numerous staff thoroughly. Also the employer should interview all the witnesses who made complaints. The Complainant’s representatives contend that the Disciplinary panel misapplied the correct test in the investigation which should not be based on the preferred evidence of the greater number but the correct test is to draw conclusions based on the evidence presented.

The Disciplinary Panel found the Complainant had a case to answer, and also preferred the evidence of the greater number of witnesses against that of the Complainant due to the weight of that evidence. They found the organisation’s trust in her competence and capability as a Care Support Worker had been irreparably breached, she was then dismissed for gross misconduct.

The correct test in considering if the dismissal is reasonable was approved by Mr. Justice Noonan in O’Reilly v Bank of Ireland [2015] IEHC 241 following the decision of the UK Court of Appeal in British Leyland UK Lt v Swift [1981] IRLR 91 which is that it is not for a Court or Tribunal to substitute its own judgement as to whether the dismissal was reasonable for that of the employer but the question is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned.

The Complainant was dismissed for gross misconduct. I find her dismissal was fair due to the very serious nature of the findings by the employer of neglect, failure to share an equal workload, and failing to provide an adequate service to very vulnerable adults many of whom cannot advocate for themselves. In all the circumstances, there are substantial grounds for dismissal of the Complainant by the employer on the grounds of competence and capability.

My decision is the dismissal of the Complainant for gross misconduct is fair as substantial grounds have been shown to dismiss for capability and competence. The dismissal for gross misconduct is within the band of reasonable responses of the employer and particularly in view of the duty of care of the Respondent to vulnerable Service users.

The Complainant was employed with the Care Home for over 15 years as a Care Support Worker. A HIQA inspection took place and a number of concerns were raised with the running and governance of the Care Home. A Disciplinary investigation was carried out and the Complainant was dismissed for gross misconduct

The Complainant objects to the non- payment of notice due to the finding of gross misconduct by the Respondent and dismissal.

The Respondent provides support services to service users with physical and neurological conditions in their centres, who often have very complex and high support needs.

The dismissal for gross misconduct was fair due to the serious complaints involved following a disciplinary investigation and notice should not be paid.

The Complainant was dismissed for gross misconduct. I find her dismissal for gross misconduct was fair and was within the range of reasonable responses of the employer given the serious nature of the complaints. No notice is payable to the Complainant.