Complainant

Respondent

Anonymised Parties

A Care Assistant

A Nursing Home

Representatives

Patrick O’Shea B.L. instructed by Kevin O'Gorman Solicitors

Rory Treanor B.L. Peninsula Group Limited

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-00012351-001

07/07/2017

The complainant was employed by the respondent as a Care Assistant from 15th January 2008 until 2nd June 2017. The complaint relates to alleged Unfair Dismissal.

The respondent submits that the dismissal of the complainant was not unfair. The respondent stated that on 9th May 2017 the complainant was asleep while on night duty. The respondent stated that a daughter of one of the service users of the Nursing Home was frantically looking for a Nurse in an emergency situation and discovered the complainant asleep in the kitchen. The respondent stated that a complaint was made in relation to the incident. The respondent also stated that a further issue was raised by a colleague that the complainant had neglected her duties on the night in question by failing to answer bells that rang seeking assistance from the carers on duty.

The respondent contends that an investigation and disciplinary process was conducted in line with its procedures and the complaints were upheld. The complainant was dismissed with effect from 2nd June 2017 pursuant to Section 6(4)(b) of the Unfair Dismissals Act, 1977 and did not appeal the decision to dismiss her.

The respondent stated that the complainant alleges that there were procedural flaws in the process but had not previously specified the nature of the flaws. The respondent cited Labour Court Determination No: DWT1319 (Able Security Ltd v Hardijs Langsteins) in support of its position that there is an evidential burden on the complainant to outline the specifics of her complaint to allow the respondent to adequately deal with the matters raised.

The complainant contends that she was unfairly dismissed as a result of a flawed disciplinary process. The complainant stated that when the complaints were made she was not permitted to confront her accusers. In addition, the complainant stated that the same person was involved in the investigation and the disciplinary process and the respondent dismissed her for an incident that was alleged to have taken place on 9th May 2017 whereas the complaints relate to incidents that took place on 10th May 2017. The complainant also stated that the respondent failed to provide the CCTV footage and witness statements relevant to the complaint and that she did not know the purpose of the meetings which she was required to attend.

Notwithstanding the complainant’s view on the procedural shortcomings of the disciplinary process, the complainant stated that she was not asleep on the night in question and did not fail to carry out her duties as claimed.

The complainant stated that as the entire process was unfair, she was of the view that appealing the decision to dismiss her was pointless.

The complainant’s representative cited the cases of Maguire V Ardagh [2002] 2IR 272, P127, Kiely v Minister for Social Welfare [1977]IR 267 p129, Frizelle v New Ross Credit Union Limited [1997] IEHC 137Lyons v Longford Westmeath Education and Training Board and A Worker (Mr O) v An Employer (no 2) [2005] ELR 132 in support of its position.

In relation to this complaint I find as follows:

The complainant was subject to an investigation and disciplinary process in line with the respondent’s procedures. The complainant stated that the same person was involved in the investigation process and the disciplinary process which was one of the issues which the complainant contends rendered the process procedurally unfair. From reviewing the notes on each of the meetings that took place, the person who conducted the investigation appears to have notified the complainant of the date and time of the disciplinary meeting but according to the note of the meeting she did not attend the disciplinary process. Accordingly, I do not find that the notification of the disciplinary meeting compromised the fairness of the process.

The complainant also takes issue with the date that the alleged incident took place. From reviewing the documents submitted it is clear that the incident took place on the night of 9th May 2017. I find that this issue is of no significance to the case at hand.

It was also confirmed that the disciplinary meeting of 25th May 2017 was adjourned to provide the complainant with an opportunity to review the CCTV footage. The meeting reconvened on 1st June 2017 and the CCTV footage was shown to the complainant on that date.

It appears that the statement relayed from the complainant’s colleague was not given to the complainant during the process although it was read out to her at the reconvened disciplinary meeting. I find that this was a minor procedural flaw in the process but in my view, it is not sufficient to render the entire process unfair.

Substantive complaints

I have reviewed the CCTV footage and it shows the complainant removing two chairs from the kitchen table and taking them out of view of the CCTV cameras. I accept the timeline as evidenced by the respondent that the complainant was out of view of the cameras for approximately two hours. While the complainant contends she was reading and was on her break, I find if that was the case there was no need to remove the chairs out of the view of the CCTV cameras. In addition, the complainant was entitled to one hours break yet she was approximately two hours out of view and had she left that area, she would have been seen on camera.

The complainant’s colleague said that the complainant had failed to answer bells as they rang on numerous occasions which meant that other staff were put under pressure while the complainant was either asleep or reading in the kitchen area which was being used by the families of service users. It was confirmed that there were 2 Carers and 1 Nurse looking after 23 patients. The complainant’s colleague also stated that staff were aware, having been told, that they were not permitted to remove chairs from the kitchen table. He said they were permitted to sit in that area once their work was completed and bells were answered.

The daughter of a service user raised an issue of concern with the respondent that when she was looking for a Nurse for her Mother, she had discovered a staff member asleep in the kitchen with two chairs joined together and that it was difficult to awaken the lady in question. The lady who made the complaint found another staff member who promptly got the Nurse without delay.

The Applicable Law:

Sections 6(1) and Section 6(4) of the Unfair Dismissals Act, 1977 state as follows:

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.

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:

(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.

Gross Misconduct

The Labour Court in DHL Express (Ireland) Ltd. v M. Coughlan UDD1738 stated that established jurisprudence in relation to dismissal law in this jurisdiction takes a very restricted view of what constitutes gross misconduct justifying summary dismissal. This is evidenced, for example, by the determination of the Employment Appeals Tribunal in Lennon v Bredin M160/1978 (reproduced at page 315 of Madden and Kerr Unfair Dismissal Cases and Commentary (IBEC,1996)) wherein the Tribunal states:

‘Section 8 of the Minimum Notice and Terms of Employment Act 1973 saves an employer from liability for minimum notice where the dismissal is for misconduct. We have always held that this exemption applies only to cases of very bad behaviour of such a kind thatno reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe the legislature had in mind such things as violent assault or larceny or behaviour in the same sort of serious category. If the legislature had intended to exempt an employer from giving notice in such cases where the behaviour fell short of being able to fairly be called by the dirty word ‘misconduct’ we have always felt that they would have said so by adding such words (after the word misconduct) as negligence, slovenly workmanship, bad timekeeping, etc. They did not do so.’

I am satisfied that in a role such as a Care Assistant in a Nursing Home, failing to respond to calls for assistance and the complainant failing to carry out her duties and responsibilities in the manner described is appropriately classed as Gross Misconduct.

Band of reasonable responses.

As to whether there were substantial grounds for the Complainant’s summary dismissal on the ground of gross misconduct, the applicable legal test is the “band of reasonable responses” test, as set out by Mr. Justice Noonan in the High Court case of The Governor and the Company 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.”

Conclusions

In all of the circumstances of this complaint, I find that on the balance of probabilities, the complainant was asleep while at work on the night in question. She also took chairs out of view of the CCTV cameras, which was not permitted, and she remained out of view for approximately two hours. I find that the complainant failed to carry out her duties and responsibilities which resulted in additional pressure being put on the other staff on duty and could have caused severe reputational damage to the respondent organisation. The actions of the complainant were also at variance with the provisions of the staff handbook and I note that the complainant did not appeal the dismissal in line with the respondent’s procedures.

In conclusion, I find that the actions of the respondent were reasonable throughout the process and that the complainant was not unfairly dismissed.

Having considered the submissions of both parties and all of the evidence adduced at the hearing of this complaint, I find that the complainant was not unfairly dismissed. Accordingly, I declare that the complaint is not well founded.

Unfair Dismissal