FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : CHEEVERSTOWN HOUSE LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - MERCY OSHIN (REPRESENTED BY MC MAHON & CO) DIVISION : Chairman: Mr Geraghty Employer Member: Ms Connolly Worker Member: Ms Treacy |
1. An appeal of Adjudication Officer Decision no. ADJ-00005988.
BACKGROUND:
2. The Worker appealed the decision of the Adjudication Officer to the Labour Court in accordance with Section 9(1) of the Unfair Dismissals Act, 1977 to 2015 on the 26thof July 2017. A Labour Court hearing took place on the 2ndof April 2019. The following is the determination of the Court:
DETERMINATION:
This is an appeal by Mercy Oshin, ‘The Complainant’, of a decision by the Adjudication Officer, (AO), that she was not dismissed unfairly by Cheeverstown House Ltd., ‘The Respondent’. The appeal had been delayed due to the unavailability of a witness who was ill.
Background
The Complainant worked as a Care Assistant with the Respondent from 2007 to 2016, when she was dismissed. There is disagreement between the parties as to the date of dismissal.
The Complainant was dismissed for ‘Gross misconduct’ arising from an incident at one of the Respondent’s care homes. She was charged with having caused a fire alarm to go off, that she failed to follow evacuation procedures and that her account of events that night was inconsistent.
The Complainant accepted that she had caused the activation of the fire alarm. However, the Respondent disputed her version of events regarding its activation. The Complainant accepted, and gave an explanation for the fact, that she had carried a service user in order to bring him from the house. The Respondent did not accept her explanation and had found that she had failed to adhere to the correct procedures in not using a light-weight wheelchair provided for this purpose. The Respondent found also that the Complainant had not used the wheelchair to return the service user to the house after the incident, contrary to correct procedures. The Complainant stated that she had used the wheelchair to return the service user to the house.
Following what the Respondent described as a fact-finding exercise, a disciplinary process had been instigated, at the conclusion of which the Respondent decided to dismiss the Complainant. An internal appeal upheld that decision.
The matter was referred by the Complainant to the Workplace Relations Commission and an AO had deemed the dismissal not to be unfair.
The Complainant appealed this decision
Respondent’s arguments
The house concerned had been the subject of a HIQA review. It had been determined that one of the service users, ’S’, who was non ambulant, would require double doors to be installed at the front of the house to facilitate his exit from the house in the event of an emergency. Pending installation, it had been decided to allocate a care assistant to him on ‘active’ night duty for the sole purpose of assisting him in exiting the house in the event of an emergency. This was the sole reason that the Complainant was in the house on the night in question, 1 November 2015, as a temporary measure.
She had been responsible for the alarm going off in the early morning when other residents were asleep.
This required two service users, including ‘S’ and another staff member who was on sleep over duty to be evacuated from the house.
The Complainant accepted that she had caused the alarm to activate. She stated that she had put two eggs on the cooker to cook and had abandoned them for some time resulting in the water boiling dry and the smoke alarm sounding. This could have resulted in a fire putting the service users at risk, the very thing that the Complainant was there to prevent.
The Complainant lifted the service user, ‘S’, out of the house rather than use the wheelchair provided specifically for this purpose. This was contrary to her fire evacuation training and to the evacuation procedures applicable to ‘S’.
Furthermore, when the Fire Brigade had cleared the smoke and had given permission for the house to be re-entered, the Complainant had again carried ‘S’ back into the house and, thereby, had again breached the fire safety and the health and safety procedures.
A fact-finding meeting took place the following day, for which the Complainant was offered the right, which she declined, to be represented. As part of this process, two other members of staff were interviewed, Ms. Caroline Cannon, who was on sleep-over duty that night and Ms. Anne O’ Connor the Ward Sister who had visited the house after the incident and who had spoken to the two staff.
In view of the seriousness of the situation, the reckless behaviour of the Complainant and the breach of evacuation protocol, it was decided to put the Complainant on administrative leave and that the matter should progress to a disciplinary hearing.
The Complainant was invited to a disciplinary meeting by letter dated 13 January 2016 and was accompanied by her union representative. This initiated a comprehensive disciplinary process, the outcome of which was a finding that the complainant had recklessly endangered the health and safety of ‘S’ and herself. It was found that this constituted gross misconduct and broke the bond of trust necessary in an employee/employer relationship.
The Complainant was offered the chance to put forward mitigating circumstances and did so. This prompted the Respondent to secure a witness statement from a neighbour of the house regarding the events on the night in question. Subsequently, the Respondent confirmed the decision regarding gross misconduct.
The Respondent submitted that the dismissal arose from the conduct of the Complainant and cited case law in support of the argument that this action was reasonable and referred to the 1993 amendment to S.6 the Unfair Dismissals Act to require the Court to take account of the reasonableness of the Employer in taking a decision to dismiss.
Complainant’s arguments
The Complainant at all times accepted that she had caused the alarm to activate. She was boiling eggs and forgot them, causing the saucepan to boil dry.
The Respondent disputed aspects of this version of events but any conflicts in evidence were minor.
The Complainant accepted that she had not used a wheelchair to evacuate ‘S’. Both this fact and a finding by the Respondent that her evidence was not credible had led to the decision to dismiss. It was deemed that she had behaved recklessly and had endangered 'S' and herself.
The entire process from the incident to the conclusion of an appeal had taken an extreme length of time, almost one year.
It required a letter from the Complainant’s Solicitors in December 2015 to ensure that she was paid while she was on what was said to be ‘administrative leave’, despite the Company handbook providing only for paid leave in such circumstances.
The delay also contravened the Respondent’s disciplinary procedures which commit to speedy conclusion.
Inappropriate references were made to vaguely described past events that had never been put to the Complainant and appeared to influence the decision to dismiss.
The dismissal was unfair from a procedural viewpoint. The case was pre-judged. Suspension without pay is a punitive sanction, The Complainant was not given the chance to question relevant witnesses. Extraneous matters never put to the Complainant were taken into account.
The use by the AO of the ‘band of reasonableness’ test is of questionable appropriateness, more applicable to UK law, though its use in this jurisdiction is acknowledged.
There was insufficient evidence to support the finding that the Complainant had endangered recklessly the health and safety of 'S' and herself.
The penalty was disproportionate having regard to the circumstances and the Complainant’s impeccable disciplinary record.
Witness evidence
For the Respondent:
Ms. Caroline Cannon
Ms. Cannon gave evidence, as follows:
•She is a Social Care Leader who is regularly on sleep-over duty at various houses•On 1 November 2015, she was in the house in question and was asleep when the fire alarm went off at about 1.30am
•She was aware that the Complainant’s function in the house was to ensure that ‘S’ was evacuated safely in the event of an emergency
•Regular evacuation drills were held by the Respondent, including deep sleep fire alarms, on occasion
•There were evacuation procedures specific to each house and these were displayed prominently
•On the night in question, when she woke, she went downstairs to check where ‘J’, a service user sleeping upstairs, and herself could exit. There was extensive white smoke and a strange smell. She identified that the smoke was coming from the kitchen
•She shouted to the Complainant that she would evacuate ‘J’ and come back to help her with ‘S’
•She got ‘J’, who can only walk slowly, out of bed, walked him down the stairs and out of the house
•She noticed the Complainant ‘flapping about’ in the kitchen
•She put ‘J’ in her car. She acknowledged that her training suggested that he should have been left at the end of the drive-way but she was going back to help with ‘S’ and was worried that ‘J’ could follow her back into the house
•The Complainant was coming out of the house carrying ‘S’, whose legs were dangling. She was carrying him in front of her, his back to her front with her arms around his waist
•She ran back into the house, she acknowledged that this was contrary to training, to get a mobile telephone to call the Fire Brigade
•She locked the front door behind her when she left the house. The Complainant was seeking to re-enter the house.
•In her later statement, the Complainant stated that she had been ironing when she forgot about the cooker. However, the witness said that she noticed the ironing board was in the middle of the sitting room at the time of evacuation and that there were no clothes present. When she went back later, it had been moved over beside the plug socket
•Outside in the car, she pulled out of the drive-way and the Complainant telephoned the Fire Brigade. Two calls were also made to managers.
•When it was safe to return, she brought 'J' back in. A neighbour, Mr. A, offered to help. When she went back downstairs, the Complainant was carrying 'S' back into the house in the same manner as she had carried him out. The wheelchair remained in the same place throughout. She asked the Complainant, who at the time was carrying 'S', to put him in the chair but she did not do so
Under cross examination and questions from the Court, Ms. Cannon gave evidence, as follows:
•She was not the Complainant’s line manager•She was aware that double doors had been identified as required for the safe evacuation of ‘S’ and that the Complainant had been engaged to undertake ‘active’ night duty as a temporary measure for this purpose
•She was not aware that planning permission had been secured for this work by the time of the incident
•She acknowledged, as set out above, that she had improvised in the circumstances rather than follow every procedure and said further that she omitted to close all doors, as per procedure
•She was not aware of other risks identified in the HIQA report
•She outlined that generic fire training was provided to staff annually and that staff were made aware of particular requirements specific to each house. She confirmed that she was made aware of the requirements regarding ‘S’ and assumed that all staff were made aware also
•She could not confirm if the Complainant was part of any of these processes
•She outlined that fire drills were carried out regularly, including deep sleep drills
•She explained that ‘S’ has Scoliosis and is quite top heavy, hence the need to avoid the danger of risking a fall while carrying him. There was a lightweight wheelchair in the room specifically for the purpose of evacuating him.
Mr. Colm Ward
Mr. Ward outlined in evidence, as follows:
•He is currently the ‘acting’ HR Manager. At the time of the incident, he was the Employee/IR Manager•He is well versed in disciplinary processes
•He knows enough about evacuation processes to know that the priority is to remove the service users and that the principal responsibility is for a safe evacuation
•He repeated earlier statements and evidence regarding the HIQA report, the need for double doors and the interim need for a dedicated person to ensure the safety of ‘S’
•He confirmed that the Complainant had attended mandatory fire training, most recently in January 2015
•There could not be a ‘one size fits all’ approach to fire safety as houses varied, as did the needs and capabilities of service users
•On induction into a new house, the specific needs of service users in the house would be explained to staff members
•Each individual care plan for service users would specify the specific requirements and procedures would be displayed. It was the responsibility of staff to familiarise themselves with these
•The Respondent operates a ‘safe-guarding’ process. In this case, this began with fact-finding meetings with the Complainant, Ms. Cannon and Ms. O’Connor on the day after the incident. There were no allegations at that point and those attending could bring representatives
•The decision, following this process, to put the Complainant on administrative leave was taken to protect her and service users. It was not a suspension
•He acknowledged his error in not ensuring at the time that the Complainant continued to be paid. While on such leave, average monthly pay is paid to staff
•At the fact-finding meeting, the Complainant gave the explanation about the eggs and water boiling away. She said that this occurred in 15 minutes. He found this difficult to believe as it would take about an hour for this to get to that point
•It was established at the meeting that the saucepan had been thrown out the window and the cooker switched off by the Complainant. Ms. O’Connor had instructed Ms. Cannon, who had passed the instruction to the Complainant, that the saucepan was to be left where it was. However, the following day it was back in the kitchen scrubbed clean
•The Complainant accepted that she carried ‘S’ out of the house. At a subsequent disciplinary hearing, she said that she was not told the purpose of the light-weight wheelchair. He was incredulous at this statement
•The Complainant had stressed that S had been brought back into the house in the wheelchair. As there was a conflict of evidence, the neighbour, Mr. A, had been asked for a statement. He corroborated Ms. Cannon’s version of events
•The Respondent had formed the view that the Complainant lacked credibility in her account of events
•In addition, she had endangered ‘S’ and herself, when her sole purpose in being in the house was to ensure the safety of ‘S’
•She knew what had caused the alarm, she switched off the cooker and had then evacuated ‘S’ by using the wrong procedure, which carried risks
•There was a further lack of credibility regarding the explanation concerning the ironing board. There was no reason for her to re-position it
•He acknowledged that Ms. Cannon had not followed all procedures correctly. However, these were minor and explicable transgressions that did not endanger service users or herself.
Under cross-examination and questioning by the Court, Mr Ward gave evidence, as follows:
•He would have had no reason to be aware of the HIQA report before the incident in question or when exactly they made recommendations. He clarified that HIQA identified problems and it was for the service providers to find solutions. He stated that the CEO visited the house in July 2015 and that an ‘active’ night duty arrangement was put in place from 1stSeptember 2015•He gave evidence of two deep sleep evacuation exercises on 2ndand 5thSeptember in the house but he had no details of whether the Complainant was involved
•Upon being told that the Complainant would say that she did not receive training specific to the house, he stated that she’ would have received details’. He was unable to say from whom. Upon being questioned, he stated that he had not sought confirmation of these facts but that he believed the training would have been delivered by the manager of the centre
•He denied that the Complainant had been suspended after the initial fact-finding meeting and reiterated that she was put on administrative leave
•He acknowledged his mistake in not ensuring that she was paid and when questioned, stated that the Respondent’s Solicitors had replied to a letter from the Complainant’s Solicitors sent in December 2015 on the question of payment because it was standard policy to use the Solicitors in respect of correspondence of a legal nature
•He stated that he had advised the Complainant to contact ‘Social Welfare’ as she might have had entitlements
•He rejected suggestions that this pointed to a pre-judgement on his part
•He stated that the purpose of administrative leave was to protect against any possible abuse in the context of the safeguarding policy and in response to a follow up question as to why the complainant could not simply be told the procedure, he reiterated that she knew it already
•He stated that at the fact-finding stage he was not aware of the Complainant’s length of service
•He stated that another manager and himself had carried out the disciplinary process and he rejected a suggestion that this was no more than a veneer as he had pre-judged the outcome
•He rejected also that he was guilty of double standards because other major problems had been identified by HIQA and had not been acted upon immediately
•He clarified that the question of possible gross misconduct only began to be considered after January 2016 when the disciplinary process began
•He stated that the Complainant’s union representative had not raised issues about the procedures used
Complainant witness evidence
Ms. Mercy Oshin
Ms. Oshin gave evidence, as follows;
•She was not aware of the deep sleep evacuations conducted in the house•She received no induction training and the only fire training that she received was generic
•She was not aware of the evacuation procedures in the house
•She carried ‘S’ out because she could not leave him there and his safety was paramount. She had never been told not to lift him
•She denied that she had carried him back and could not explain the evidence of Ms. Cannon and the statement of the neighbour. She suggested that perhaps Ms. Cannon knew him as she did not. She never got to question him about his statement
•She was told at the first meeting that she was being suspended and that she would not be paid
•She was surprised and disturbed to be sacked as she had a long and good record.
Under cross examination and questioning by the Court, Ms. Oshin gave evidence, as follows:
•She knew how to use a hoist. They were told in fire training not to use it in the event of fire•She was never told that the sole purpose of her being in the house was to ensure the safe evacuation of ‘S’
•In the circumstances, lifting ‘S’ was the quickest means of getting him out as the bed could not be dragged and he was not very heavy
•Ms. Cannon had offered to come back to help but this was not necessary
•She confirmed that when the alarm went off she went to the kitchen as she knew the cause
•She did not know that the lightweight wheelchair was there for evacuation purposes
•She had never been told that there was a new care plan for ‘S’
•She had never done a night evacuation from that house
•She received no instruction not to touch the saucepan after the incident
•She did not interfere with the ironing board after the incident.
The Law
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.
(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:
(a) the capability, competence or qualifications of the employee for performing work of the kind which 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 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 any statute or instrument made under statute.
(5) (a) Without prejudice to the generality of subsection (1) of this section, the dismissal by the Minister for Defence of a civilian employed with the Defence Forces undersection 30(1) ( g) of theDefence Act, 1954,shall be deemed for the purposes of this Act not to be an unfair dismissal if it is shown that the dismissal was for the purpose of safeguarding national security.
(b) A certificate purporting to be signed by the Minister for Defence and stating that a dismissal by the Minister for Defence of a civilian named in the certificate from employment with the Defence Forces undersection 30(1) ( g) of theDefence Act, 1954,was for the purpose of safeguarding national security shall be evidence, for the purposes of this Act, of the facts stated in the certificate without further proof.
7. (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 or the Labour Court, as the case may be, 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 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 undersection 17of this Act) as is just and equitable having regard to all the circumstances, or
(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,
and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.
(1A) In relation to a case falling within section 6(2) (ba) the reference in subsection (1)(c)(i) to 104 weeks has effect as if it were a reference to 260 weeks.
(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—
(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,
(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,
(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,
F48 [ (d) 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 subsection (1) ofsection 14of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,
(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and
(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.
(2A) In calculating financial loss for the purposes of subsection (1), payments to the employee —
(a) under the Social Welfare Acts, 1981 to 1993, in respect of any period following the dismissal concerned, or
(b) under the Income Tax Acts arising by reason of the dismissal, shall be disregarded.
(2B) Where —
(a) the dismissal of an employee results wholly or mainly from the employee having made a protected disclosure, and
(b) the investigation of the relevant wrongdoing concerned was not the sole or main motivation for making the disclosure,
the amount of compensation that is just and equitable may be up to 25 per cent less than the amount that it would otherwise be.
(3) In this section—
“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation;
“remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.
Determination
The Complainant’s representative clarified at the Court hearing that the case being made would place no reliance on the argument in their submission that the concept of a ‘band of reasonableness’ was a concept of UK law rather than one to be applied in respect of the Unfair Dismissals Act in this jurisdiction. For the sake of completeness, the Court would draw attention to the fact that there is well established case law in this jurisdiction, includingLooney v. Looney, UD83/1984,in which the EAT referred to its role to ’..consider, against the facts, what a reasonable employer…would have done…’. This built on the earlier observation by the Tribunal inBunyan v United DominionsTrust,(1982) ILRM 404that ‘the fairness or unfairness of a dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business, would have behaved’.
Another related factor for the Court to consider is whether the decision to dismiss is proportionate to the gravity of the complaint and , indeed, as Flood J. observed inFrizelle v. New Ross Credit Union Ltd., (1997) IEHC 137the decision must also be proportionate to the ‘gravity and effect of dismissal on the employee’.
In applying these principles, the Court has to have regard to the procedures used by the Employer in reaching the decision to dismiss. InPacelli v, Irish Distillers Ltd,(2004) ELR25,the EAT stated that any investigation should have regard to all the facts, issues and circumstances.
In the instant case the Court has concerns that not all facts relied upon in the decision to dismiss had been verified in the course of the investigation. The Complainant states that she was never given training or instruction regarding the specific evacuation procedures in the particular house and that she was not made aware of the new care plan for 'S'. On the face of it, both statements appear improbable. However, the Respondent was unable to say with certainty that these assertions were manifestly false and was unable to say who exactly would have briefed the Complainant on the specific evacuation ne eds of S and of the evacuation procedures in the house. The Respondent also could not confirm if the Complainant had participated in the deep sleep evacuation exercises conducted in the house in question. In the view of the Court, it ought to be relatively easy for the Respondent to establish and to produce the evidence of what, in their view, are facts. The Complainant had an entitlement to have her ‘submissions listened to and evaluated’ as the EAT pointed out inGearon v. Dunnes Stores Ltd., UD367/1988. Given that the Respondent’s investigation had not managed to identify the person that the Respondent believes would have briefed or trained the Complainant on the procedures for safe evacuation of 'S', it is reasonable to conclude that her explanation was dismissed without serious evaluation.
Likewise, after what the Respondent described as a ‘mitigation’ meeting, a statement was secured from a neighbour who was an alleged witness to the re-entry of the house occupants after the incident. The Respondent appears to have placed some reliance on this statement in concluding that the Complainant was not being truthful in her statement that 'S' had been brought back into the house in the wheelchair. However, this statement was accepted at face value without the opportunity arising for the Complainant to cross examine this alleged witness.
Finally, Mr. Ward testified that he had conducted the fact-finding meeting, that he had decided that a disciplinary investigation was required then that he, with a colleague, had conducted the investigation and that his colleague and himself had taken the decision to dismiss. This is unsatisfactory and gives rise to concerns about the lack of demarcation in roles that, potentially, could compromise the Complainant’s rights.
In dealing with the issue of ‘Procedural v Substantive Justice’ Redmond’s ‘Dismissal Law in Ireland’ notes that;
‘Procedural defects will not make a dismissal automatically unfair………..An employer may be able to justify a procedural omission if it meets the onus of proving that, despite the omission, it acted reasonably in the circumstances in deciding to dismiss the employee’.
Therefore, the Respondent in the instant case might state that, even if there were procedural defects in the investigation, there is no dispute about crucial facts. The Complainant caused an alarm to activate and she accepts that she carried 'S' from the building. Furthermore, there is evidence, albeit disputed, that the Complainant tried to cover up her culpability by cleaning the saucepan and by moving the ironing board to make it appear as if she was ironing at the time of the incident.
There is no doubt that an incident of this sort in a house occupied by 4 people, two of whom are very vulnerable and in need of assistance, is a very serious matter and that the Respondent was required to investigate it and was entitled to consider if disciplinary action was warranted. Equally it is apparent to the Court that there was an element of incredulity on the part of the Respondent both at the irresponsibility of the Complainant in causing the incident and at some of her subsequent statements and that this incredulity played a part in what the Respondent described as a ‘breach of trust’ in the employer/employee relationship.
It seems clear to the Court that some disciplinary action was likely to result from even the most well conducted investigation, in the circumstances.
The question for the Court is primarily one of proportionality as set out in‘Frizelle’and, in that regard, whether the decision to dismiss was ‘reasonable’.
In gauging this the Court has had regard to the obvious seriousness of the incident and the very considerable part played by the Complainant in causing the instigation of disciplinary procedures. However, the investigation itself contained many flaws, as outlined, and this made it difficult for the Complainant to establish that she ought not to be dismissed. If the Respondent seeks to rely on what they believe to be facts then it is necessary that they are, indeed, proven and verified facts and not just assertions. The burden of proof in cases under the Unfair Dismissals Act rests with the employer. Therefore, the Respondent must prove that the dismissal was reasonable and proportionate and, as a result, fair.
The Court notes that the evacuation procedures to be used in an emergency were a matter of dispute between the parties but neither party actually provided the Court with a copy of these procedures. In the view of the Court, notwithstanding the undeniable contribution of the Complainant to the decision to dismiss, the Respondent has not proved their case that the dismissal met the tests of reasonableness and proportionality.
There are three remedies available to the Court in cases of unfair dismissal under s. 7 of the Act. In the instant case, the Court does not consider that the Complainant should be either re-instated or re-engaged. The Court, as a result, has to assess the question of compensation for financial loss. Section 7(2)(b) of the Act requires the Court to assess the extent to which any financial loss is attributable to the employee. As noted above, the Court accepts that the Complainant’s actions contributed to her dismissal.
Section 7(2)(c) of the Act requires the Court to consider ‘the measures, (if any) taken by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss..’
In evidence on the question of mitigation, the Complainant stated that she had been unemployed for 13 months after her dismissal. She produced for the Court a small number of acknowledgements of job applications from employers. These were for roles as a ‘Social Care Worker’ for which the Complainant is qualified and not for the role of Health Care Assistant, the role in which she had been employed. Curiously, all of the documents produced showed the same date of 1 April 2017.
No evidence was produced of active attempts to seek employment either prior to, or subsequent to, that date, which was roughly 6 months after the Complainant had ceased to be paid by the Respondent.
Taking all factors into account, the Court awards compensation of €3500.
The decision of the AO is over-turned.
Signed on behalf of the Labour Court
Tom Geraghty
CH______________________
29th April 2019Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Carol Hennessy, Court Secretary.