Complainant

Respondent

Anonymised Parties

A Health Care Assistant

A Healthcare Provider

Representatives

Liz Murray SIPTU

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-00018800-001

30/04/2018

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

CA-00018800-002

30/04/2018

This dispute involves a claim by the complainant against the respondent that she was subjected to an Unfair Dismissal following which the respondent failed to pay her minimum notice entitlements. The complainant referred her complaints against the above respondent on the 30th of April 2018. The complainant has submitted that she was unfairly dismissed by the respondent on the 9th of March 2018.     The Claimant also alleges she did not receive her minimum notice entitlement on the termination of her employment or payment in lieu thereof.

The complainant submits that

She was notified in November 2017 that the respondent had received complaints of bullying and harassment against her from two work colleagues of hers both of whom were also healthcare assistants,

These complaints were ‘tit for tat’ following the complainant herself having complained about one of these complainants whom she states refused to engage with or speak to her at work,

The respondent investigated these complaints and proceeded to discipline the complainant on foot of the investigation findings,

The complainant was notified on 9th of March 2018 following the disciplinary hearing that a decision was made to dismiss her,

The complainant appealed this decision on 20th of March 2018 but heard nothing back form the respondent in respect of her appeal hearing until October 2018, at which stage she had already submitted a complaint to the WRC in respect of her dismissal,

She had previously received a final written warning on the 22nd June 2017 following a separate disciplinary hearing that took place on the 9th June 2017,

This final written warning was to remain on her file for a period of twelve months,

The investigation which led to her dismissal was flawed and violated her right to a fair and impartial process.

The respondent submits that

the claimant was issued with a final written warning on the 22nd June 2017 following a disciplinary hearing that took place on the 9th June 2017, she appealed this decision, but the sanction was upheld following the appeal,

This final written warning was to remain on her file for a period of twelve months,

In November 2017 the respondent received complaints of bullying and harassment from two work colleagues of the claimant both of whom were also healthcare assistants,

The respondent investigated these complaints and proceeded to discipline the complainant on foot of its findings,

Following a fair and impartial investigation and disciplinary process at which the complainant was represented, a decision was made to dismiss the complainant,

The complainant was notified of the decision to dismiss and her right to appeal on 9th of March 2018,

The complainant appealed this decision but due to an oversight and mistake on the respondent s part her appeal was not heard until October 2018,

The decision to dismiss was upheld on appeal.

The Unfair Dismissal Act, 1997 stipulates that: Section 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.”

Section 6(4) “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, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following: ...

(b) the conduct of the employee,…”

In relation to a complaint of unfair dismissal arising from an employee’s conduct, the relevant legal provisions and the factors to be considered are contained in Section 6 of the Unfair Dismissals Act 1977 including: “(6) In determining for the purposes of this Act whether the dismissal of an 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.

(7) 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 or the Labour Court, as the case may be, considers it appropriate to do so- (a) to the reasonableness or otherwise of the conduct (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 section 14 (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.” I must therefore consider both the substantive issues leading to the dismissal and the fairness of the procedures adopted.

The Applicable test to establish whether there were substantial grounds for the Complainant’s dismissal on the ground of gross misconduct is the “band of reasonable responses” test, as set out by Mr. Justice Noonan in the High Court case of The Governor and the Respondent of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated: “It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal.

Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM.”

An adequate investigation has to be assessed by the standard that could be objectively expected of a reasonable employer as per J Sainsbury Plc v Hitt (2003) ICR 111. In relation to procedural fairness, I am guided by the requirement in S.I. No. 146/2000 - Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures).

It is not a matter for me to decide on the issue of guilt or innocence of the Complainant. The question for me as Adjudication Officer is whether, following a fair and transparent investigation and disciplinary process, the Respondent’s decision to dismiss was one that a reasonable employer might have made. (C. Hayes v P. Kinsella T/A Kinsellas of Rocklands UD690/2012).  

The respondent advised the hearing that the background to the claimant’s dismissal goes back to the 22nd June 2017 when following a disciplinary hearing that took place on the 9th June, the claimant was issued with a final written warning. This was to remain on her file for a period of twelve months. The warning goes on to state that “any further misconduct whatsoever on your part during that time will result in further disciplinary action up to and including dismissal”. As part of that final written warning, the claimant at that juncture was also demoted from her position as senior health care assistant to a HCA.  The complainant at that time appealed the decision but the sanction was upheld.

In November 2017, the respondent received complaints from two work colleagues of the claimant both of whom were also healthcare assistants. As part of investigating these complaints the respondent wrote to the claimant on the 29th November 2017 and invited her to an investigation, the purpose of which was to investigate the complaints of the two staff members who had both reported that they were unhappy with the claimant’s conduct in work towards them. More particularly the respondent indicated to the claimant that the complaints of the two employees fell under the bullying and harassment section in the Employee Handbook which included: -

a.            Persistent unjustified criticism

b.            Private humiliation

c.             Unnecessary work interference (see Appendix 3 for a copy of the staff handbook).

As part of their investigation the respondent (Ms. M healthcare manager) took statements from the two complainants (Ms. K and Ms. G.) Also, on the same day (the 4th December 2017) the respondent met with the claimant who was represented by Ms. N.    The investigation report was finalised on the 8th December 2017. In reaching a decision Ms. M determined that having assessed all the information available to her and in particular the claimant’s conduct in her presence towards a director of nursing Ms. H at a meeting held on the 4th December 2017 she determined that she was satisfied on the balance of probability that the claimant had used intimidating and bullying behaviour towards the complainants albeit at times in a subtle manner. Accordingly, Ms. M recommended that the claimant’s behaviour warranted disciplinary action and that should be dealt with in line with the respondent’s disciplinary procedure.

Following same, the claimant was invited to attend a disciplinary hearing on the 19th February 2018. It was suggested at that time in the invitation letter that the hearing would be held by Ms. C (healthcare manager). However eventually the meeting was held on the 20th February and was conducted by a Mr. D (a director of nursing) Ms. K took the notes which are submitted in evidence. Mr. D having considered the matter determined that the claimant should face “disciplinary action for using intimidating and bullying behaviour towards two of her work colleagues”. Mr. D goes on to say in the outcome of his disciplinary meeting that the respondent had “lost their trust and confidence with the claimant as an employee”. Based on this in accordance with the disciplinary procedure it was the company’s decision that the appropriate sanction should be dismissal. Mr. D goes on to state that he was mindful that the claimant had already had an active final written warning on file since June 2017 and that this stated that any further misconduct on her part during that time would result in further disciplinary action up to and including dismissal. Mr. D confirmed that her termination would take place on the 9th March but that she would be paid her six weeks minimum notice in lieu. The matter was appealed on the 20th March by the claimant’s Union, but no appeal hearing took place until 23 October 2018. The respondent told the hearing that the failure to revert to the complainant in respect of her appeal request had slipped through the cracks, and the claimant had pursued a claim to the WRC on the 31st May 2018.

The respondent went on to state that throughout the process the claimant was allowed her full rights to natural justice and fair procedures.  The respondent told the hearing that the claimant was represented at the investigation hearing. At same time she was also provided with the statements from the employees who had made the complaints and she was allowed to comment on same. Again, she was represented at the disciplinary hearing and she was also afforded a right of appeal. Accordingly, the respondent states that it has afforded the claimant through this process her full rights to natural justice and fair procedures and has also complied with the provisions of its own policies and indeed the provisions of Statutory Instrument 146 of 2000.

The respondent advised the hearing that the decision to dismiss the claimant was made in circumstances where her actions were of the most serious nature. The respondent did not dismiss the claimant lightly. The respondent gave the complainant a full opportunity to respond to the allegations made. She was only dismissed having fully heard her side of the story, the respondent having fully considered all the matters at hand and the respondent having regard to the fact that the claimant at her date of dismissal was already in possession of a final written warning for one of the most egregious acts that could possibly occur in a nursing home.

The respondent submits that the dismissal arose wholly as a result of the employee’s conduct and that they are entitled to terminate on that basis and in accordance with their disciplinary procedure.

It is further submitted that the objective of the Adjudicator must not be to assume the mantle of the employer regarding the facts of any case, the function is to decide whether within the so-called band of reasonableness whether the decision to dismiss was fair. The so-called band of reasonableness was first endorsed by the Court of Appeal in British Leyland UK Ltd v. Swift (1981) IRLR 91. The Leyland case has been endorsed by both EAT and the High Court in this jurisdiction and it provides that a dismissal is unfair if no reasonable employer would have dismissed but it is not unfair if a reasonable employer might reasonably have dismissed. It is submitted therefore on behalf of the respondent that given the complaints against the claimant and given her previous record that a reasonable employer might reasonably have dismissed. It is accepted that there are various possible responses to be made by an employer in a given set of circumstances and there are certainly circumstances where one reasonable employer would dismiss and one would not. However, in these circumstances it is respectfully submitted that any reasonable employer faced with the same set of circumstances as the respondent in this case would have dismissed. Accordingly, the respondent advised the hearing that this is a fair dismissal and should be upheld accordingly.

The complainant at the hearing did not dispute that complaints were made against her by staff members Ms. G and Ms. K, but she submitted that she herself had made a complaint against Ms. G on the same day as Ms. G s complaint against her. The complainant advised the hearing that Ms. G s complainant was probably ‘tit for tat’ after she complained about Ms. G either that day or the day before.   The respondent advised the hearing that it had no record of any complaint being made by the complainant against Ms. G on the dates in question.   The complainant when questioned at the hearing about the alleged complaint made by her about Ms. G stated that it was not a written complaint but a verbal complaint. The complainant did not state who this complaint was made to about Ms. G.

The complainant advised the hearing that no evidence was presented to support the claims of bullying against the complainant. It is also submitted that the respondent during the investigation of the two bullying complaints brought up issues from many years earlier which were unrelated to the present complaints made by Ms. G and Ms. K.   The respondent advised the hearing that previous staff issues were not taken into account but that the investigator Ms. M at the investigation meeting did outline records on file in the context of determining a pattern of behaviour to support the allegations of bullying made by Ms. G and Ms. K against the complainant. The respondent sated that there had been 8 significant issues previously involving the complainant.   The respondent went on to state that the complainant was on a final written warning since June 2017 and that this final written warning had been received for the most egregious act which could occur in a nursing home. The fact of the complainant having received a final written warning in June 2017 was not disputed by the complainant at the hearing.   The complainant had appealed this at the time and her appeal had been unsuccessful.   The respondent advised the hearing that this final written warning was in place for 12 months and so was still in place at the time the two complaints of bullying were received in November 2017 and stated that the complainant had been advised in her letter of final written warning that any misconduct whatsoever in the 12 month period could lead to her dismissal.   The respondent stated that following this final written warning it was within its power to dismiss the complainant for any further misconduct.

The respondent in its disciplinary outcome letter of   December 2017 made reference to the fact that Ms. M the investigator had witnessed the complainant behaving in an aggressive manner towards the Director of Nursing, Ms. H during the investigation meeting. The respondent stated that the complainant had gestured aggressively and had lunged across the table and pointed her finger in Ms. H s face during the investigation meeting. Witness for the respondent, Ms. L stated that she was shocked that the complainant would have behaved so aggressively in front of someone who had been brought in to investigate her behaviour and specifically allegations of bullying which had been made against her.

The complainant at the hearing stated that she is a person who talks with her hands and gestures a lot.   The complainant’s witness Ms. A agreed that the complainant talks with her hands and points a lot while talking but that it is not aggressive. Witness for the respondent Ms. M told the hearing that the complainant had become very animated in the investigation meeting and had “launched across the desk with her arm outstretched and pointed into Ms. H’s face”. Ms. M at the hearing expressed that she was shocked that the complainant’s behaviour would escalate to such an extent in front of someone who was there specifically to investigate her behaviour. Director of Nursing Ms. H added that she is well aware of how the complainant communicates but that she felt this behaviour was aggressive and uncalled for and she was glad Ms. M had been there to witness it.

The complainant submits that he respondent ignored allegations made by her against Ms. G during the investigation process where the complainant alleged that Ms. G refused to interact with or speak to her on an ongoing basis at work. The complainant went on to state that the complaints lodged by Ms. G and Ms. K were very similar in nature and suggest a possibility that Ms. G and Ms. K were ganging up on the complainant.  

The complainant advised the hearing that the respondent ignored her right to appeal for seven months and that she had submitted her letter of appeal to the respondent on 20th of March 2018. The complainant advised the hearing that she received no response to her letter of appeal until October 2018 just before the WRC hearing.   The complainant stated that she was contacted by the respondent in October 2018 advising her of the scheduling of her appeal hearing and apologising for the delay in responding to her request for such an appeal.

The respondent advised the hearing that the complainants request for an appeal had somehow ‘fallen through the cracks’ over the summer period and had not been addressed or replied to.   The respondent stated that the complainants letter of appeal went to its HR Department in March 2018. The respondent stated that it was decided that the respondent would have to find an external independent party to chair the appeal but that somehow this matter had ‘fallen through the cracks’ over the summer period.     The respondent stated that the complainant had not chased them up on the matter of her appeal however the respondent acknowledged that it was up to them to ensure that the appeal hearing took place but stated that the complainant could have reminded them that her appeal was still outstanding. The respondent acknowledged that the delay in scheduling the appeal had been a mistake on their part and submit that as soon as they realised that the complainant’s request for an appeal was still outstanding they went about sourcing an external independent person to chair the appeal and scheduled the appeal hearing for October 2018.   Mr. D,was appointed to chair the appeal hearing.   The complainant was unsuccessful in her appeal and the decision to dismiss her was upheld by Mr. D.

The complainant advised the hearing that the respondent failed to take account of new evidence which she submitted at the appeal hearing. This new evidence was a statement which the complainant states was written by another colleague Ms. R and which referred to an allegation by Ms. R that Ms G had told Ms R not to ‘go for a fag’ with the complainant as the director wanted to get her out. This handwritten and undated note was alleged to have been written by Ms. R who was not at the hearing to substantiate this note. The complainant stated that the respondent did not take any account of this note when she submitted it in her appeal and they stated that it was just hearsay. In examining the appeal outcome letter issued by the respondent on 31st of October 2018 the respondent does make reference to the handwritten note produced by the complainant for the first time at the appeal hearing.   The respondent states that the note was undated and contained no details of specific facts or incidences. The respondent also refers to the fact that it asked the complainant when she had received this note and why she had not presented it at an earlier stage in the investigation or disciplinary process. The complainant’s response was that she had it at the disciplinary hearing but forgot about it on the day. The respondent goes on to say that the claim made in this note is unsubstantiated and so does not mitigate against the decision taken to dismiss the complainant.   The undated note was again presented to the hearing and I note the complainant’s submission that it was written by a third party Ms. R and that it refers to a statement allegedly made by another party to Ms. R at an unspecified date or time.   In addition, I note that Ms. R was not present at the hearing to substantiate this letter.

Having considered the evidence before me I find that having received complaints of bullying from two staff members about the complainant, sufficient grounds existed for the Respondent, to initiate an investigation. I am also satisfied that following the outcome of the investigation process and given the findings made I am satisfied that the respondent was entitled to initiate the disciplinary process.  I note that Ms. M in her Investigation Report stated that “the conduct issues recorded in (the complainant’s) notes are indicative of an employee who has been disruptive in the workplace and who does not respond to attempts to manage her conduct”. Ms. M also makes reference to the fact that she observed the complainant “gesturing very aggressively” and speaking to the Ms. H director of Nursing in “an aggressive demanding manner”. In relation to the conducting of the investigation and disciplinary process, I have reviewed the evidence presented before and at the hearing and I am satisfied that the Complainant was afforded a comprehensive and thorough investigation and disciplinary process and that each stage was carried out by separate individuals.   It is also undisputed that the complainant was at every stage advised of her right to representation and availed of that right.  

Taking all the above into consideration, I am satisfied that the disciplinary process was conducted in accordance with the requirements of fair procedure, due process and natural justice.

I must also consider the proportionality of the sanction and whether or not it falls within the range of reasonable responses that might be expected in the circumstances.

The respondent in the present case when presented with two complaints of bullying against the complainant investigated the complaints and gave the complainant a right to respond to such complaints and a right to be represented in the investigation process. The respondent having reached conclusions at the investigation stage then proceeded to the disciplinary stage. The complainant was already on a final written warning since June 2017 and the respondent at the disciplinary stage made a decision to dismiss the complainant. The complainant was notified of the decision to dismiss and of her right to appeal that decision on 9th of March 2018.   The complainant replied on 20th of March requesting an appeal. The respondent did not reply to this request for an appeal until October 2018.   The respondent at the hearing acknowledged that the delay in scheduling the appeal hearing was a mistake on its part and stated that the matter of finding an independent person to chair the appeal hearing fell through the cracks over the summer period.     The respondent stated that such delay was a mistake and was not in any way intentional. The respondent scheduled the appeal hearing in October 2018.       The complainant had appealed her previous sanction of a final written warning back in June 2017 and this appeal was heard by the respondent within weeks of the complainant requesting such appeal. I am satisfied that the failure by the respondent to schedule the appeal on this occasion was an oversight and was not a deliberate act by the respondent.   I am also satisfied that the delay in scheduling the appeal hearing is not enough to render the entire process unfair.

I am also satisfied that the decision to dismiss the complainant was a decision which was open to the respondent and I note that the complainant was already on a final written warning.

Accordingly, I am satisfied from the totality of the evidence adduced that the respondent has shown substantial grounds justifying the Complainant’s dismissal, and I am satisfied that the complainant’s dismissal was “within a band of reasonable responses” given the circumstances of this case.

I find that the decision of the respondent to dismiss the complainant in this case was reasonable and proportionate in the circumstances and I also find that the process was fair.   On this basis, I have decided that the complaint under the Unfair Dismissals Act is not well founded and does not succeed.

I find that the decision of the respondent to dismiss the complainant in this case was reasonable and proportionate in the circumstances and I also find that the process was fair.   On this basis, I have decided that the complaint under the Unfair Dismissals Act is not well founded and does not succeed.

The complainant submits that

she was dismissed without payment in lieu of notice,

she was advised by the respondent at the time of her dismissal that she was entitled to 6 weeks’ pay notice for which she was not required to work but would be paid,

the complainant was not paid her notice entitlement by the respondent.

The Respondent concedes the claim in respect of notice

The complainant advised the hearing that following her dismissal she was entitled to receive 6 weeks’ notice given her length of employment with the respondent. The complainant went on to state that the respondent in its letter informing her of her dismissal advised her that she was entitled to 6 weeks’ notice for which she was not required to work but for which she would be paid.   The complainant stated that she had never received her notice pay from the respondent.

The respondent at the hearing conceded that the complainant was entitled to the 6 weeks’ pay in lieu of notice and that this had not been paid to her. The respondent agreed to pay the outstanding amount.  

Accordingly, I find the complaint in respect of an entitlement to six week’s pay in lieu of notice to be well founded and I order the respondent to pay the complainant the outstanding amount equivalent to 6 weeks’ pay due to the complainant.

Accordingly, I find the complaint in respect of an entitlement to six week’s pay in lieu of notice to be well founded and I order the respondent to pay the complainant the outstanding amount equivalent to 6 weeks’ pay in lieu of notice.