Complainant

Respondent

Anonymised Parties

A Health Care Assistant

A Home Care Provider

Representatives

Mary Bradley, Solicitor

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00020861-001

30/07/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00020861-002

30/07/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00020861-003

30/07/2018

The complainant had been employed as a home care assistant by the respondent from December 1st, 2016 until her dismissal on July 10th, 2018. She was paid €12.00 per hour.

There had been difficulties with the complainant’s performance and conduct in the past.

In April 2018 the complainant left the home of a vulnerable client without informing the respondent or the client’s family. This was a breach f the Trust in Care policy under which the respondent provides its services and it resulted in distress to the family.

This was deemed to be gross misconduct, but the sanction was a written warning. Of interest is that the complainant sought a reference at that stage, suggesting that she was considering quitting her role with the company.

A further outcome of this was that the complainant was thenceforward to be rostered on a weekend on/off basis. The respondent believes that the complainant applied pressure to the client to have him request her attendance more frequently, and where this happened the respondent did pay her even though she was not rostered for the work in question and was essentially self-rostering’.

On occasion the rostered carer would arrive to find the complainant already there.

The incident at the centre of the complaint occurred on July 3rd, 2018.

The complainant was rostered off but took exception to the fact and contacted the respondent demanding that the rostered be changed for herself and others to facilitate her demands.

The respondent met the complainant on July 10th. Minutes of the meeting show the complainant defying the respondent’s rostering arrangement and confirming that she had gone to the client’s house (a ninety-two year old man) and saying that she would again on the basis that she had had a relationship with the client which pre-dated her employment by the respondent.

She was told that she would not be required to attend the client again and that he was being moved to another location.

The respondent also terminated the complainant’s employment because she insisted on working with the client referred to only and would not accept assignment to another client.

She was given the right to appeal but the decision to terminate was upheld.

In relation to the complaint about working hours the respondent accepts that the complainant’s hours occasionally exceeded the permitted maximum limits but this is largely attributable to the complainant ‘self-rostering’.

She did so with blatant disregard for the respondent’s attempts to impose a roster that would have kept her within the permitted limits and she attended for work in defiance of the respondent’s specific instructions.

There was no penalisation of the complainant.

The complainant says that the only notice she received of the meeting at which her employment was terminated related to a proposed discussion about her contract of employment.

She was also told that it related to attendance at a client when she had not been rostered to do so.

However, she was not on notice that it was a disciplinary hearing or that her employment was in jeopardy or indeed that she would be facing any charges.

She received a letter on the same day confirming that her employment had been terminated and as her behaviour had been deemed to be gross misconduct. Detail of how it was regarded as gross misconduct was provided in that there had been ‘Rudeness towards clients, objectionable behaviour or use of bad language’.

She had not been accused of gross misconduct at the meeting and was dismissed at the meeting because she would not accept assignment to a different client.

She appealed, but the appeal was dismissed.

There are a number of factors to be taken into consideration in determining whether a dismissal is fair.

In the first place there must be reasonable grounds and facts to trigger the disciplinary process and these should have been established through some diligent process of establishing those facts.

Next, there must be a fair procedure, the general requirements of which are not especially onerous, and they are fairly well-known. They involve the application of fair procedure principles.

Finally, the sanction must be within a range of reasonable sanctions.

The evidence in this case as to what happened was reasonably clear and not in dispute.

The complainant appeared to believe that she could operate outside the control of her employer when it came to rostering her; challenging the respondent’s legitimate efforts to apply the regime of care it considered the correct one for the client in question.

This attitude can be discerned from the minutes the meeting of July 10th at which she was dismissed and up to the level of the appeal.

Indeed there were signs of it in the complainant’s submission to the hearing in which it was clear that she felt she had the right to decide on the care arrangements for the client on the basis of her personal knowledge of his needs; she claimed that she experienced an ‘indirect detriment’ because she felt the client’s detriments as her own.

It continued in submission made to the WRC after the hearing.

This (and other evidence) suggests an inability on the part of the complainant to achieve the balance between having the necessary caring attitude and the degree of professional detachment necessary in a carer.

This her into the difficulty in which she found herself and continued after the termination.

This was foreshadowed in the respondent’s correspondence to her on July 4th in which she was told that she could not dictate the client’s time schedule and she was invited to read the company Handbook and, following that, discuss her contract ‘and anything else you are unhappy about’.

The complainant has taken great exception to this as some sort of threat.

I do not see it as such. The respondent had every reason, indeed obligation to draw the attention of an employee who was operating out of its control to the terms of their contract of employment, although the reference might have been framed with greater precision.

However, what the respondent could not do was construe this very general proposal as an invitation to any sort of disciplinary hearing, much less one which resulted in the termination of the complainant’s employment on grounds of gross misconduct.

On appeal the decision maker opined that ‘the hearing was held in accordance with the [respondent] disciplinary procedure’. He stated that she had been offered the right of being accompanied at the original meeting on July 10th.

I have reviewed the respondent Disciplinary procedure. It is a very inadequate document insofar as it provides no detail on the actual conduct of disciplinary proceedings and is in need of review and overhaul.

However, whether it does so or not certain objective obligations are imposed on an employer by fair procedure requirements which were critically absent here.

These include clear and explicit notice of the proposed meeting as a disciplinary meeting, notice of the ‘charge’ and the possible range of sanctions and the right to be accompanied. If the latter was complied with, and I saw no evidence that it had been, the others were not.

The decision to terminate was made in the course of the meeting and there is no reference to gross misconduct in the report of the meeting.

Accordingly, the dismissal was unfair.

In making my award I take into account the very substantial contribution of the complainant to the situation. Her conduct was quite unacceptable. She had essentially become unmanageable and this would have fully justified disciplinary proceedings, but compliant with the accepted norms of fair procedure as outlined.

In particular, it is clear that the respondent was quite happy to retain the complainant in employment if she had been willing to accept assignment to another client. She declined, but that was the point at which the disciplinary process should have been set in motion by the respondent; not a termination ‘on the spot’.

In relation to the hours of work I find that they did exceed the permitted maximum for seven weeks between March and April (weeks 10 to 16 inclusive) and again in weeks 25 and 26. I note that this may have been a result of the complainant self-rostering but ultimately taking control of this situation is a matter for the respondent.

The respondent does not dispute the hours worked, and it has also accepted that a payment for annual leave is due (which was not part of this complaint.

In respect of the penalisation complaint, the complainant has not made out a prima facie case. The reasons for her termination were clearly the very serious breach of the company rules, however improperly the termination was managed. This complaint is dismissed.

I do not uphold complaint CA-00029861-001 and it is dismissed.

I uphold complaint CA-00029861-002 and, in taking account of the complainant’s conduct and very substantial contribution to the dismissal I consider it just and equitable to award her €1,500.00

I uphold complaint CA-00029861-003 and award her €150.00.

Unfair dismissal