ADJUDICATION OFFICER DECISION
Adjudication Reference:
Parties:
| Complainant | Respondent |
Anonymised Parties | Project Worker | Social Service Provider |
Representatives |
|
Complaints:
Act | Complaint Reference No. | Date of Receipt |
CA-00023246-001 | ||
CA-00023246-002 | ||
CA-00023246-003 | ||
CA-00023246-004 | ||
CA-00023246-005 | ||
CA-00023246-006 | ||
CA-00023246-007 | ||
CA-00023246-008 | ||
CA-00023246-010 | ||
CA-00023246-011 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The Complainant was employed as a Project Worker by the Respondent to provide care for high risk vulnerable teenagers and adults from 3 May 2017 until her employment was terminated on 9 July 2018. The herein complaints were submitted to the Workplace Relations Commission on 15 November 2018. In accordance with Section 41 (6) of the Workplace Relations Act 2018, the cognisable period for the herein complaints is six months from the date of the referral of the complaints which gives a cognisable period from 16 May 2018 to 15 November 2018. However, the Complainant’s employment with the Respondent was terminated on 9 July 2018 and, therefore, the cognisable period cannot extend beyond that date. Accordingly, the cognisable period for the herein complaints is the period from 16 May 2018 to 9 July 2018. The following complaints were withdrawn at the hearing: CA-00023246-002 and CA-00023246-008. |
CA-00023246-001 Unfair Dismissal
CA-00023246-005 Unfair Dismissal – Protected Disclosure
CA-00023246-010 Unfair Dismissal – Safety, Health and Welfare at Work
Summary of Complainant’s Case:
The Complainant submits as follows: The Complainant was employed by the Respondent as a Project Worker. She commenced her employment with the Respondent on 3 May 2017. The Respondent furnished the Complainant with a written statement of the terms of her employment dated 3 May 2017 (‘the Statement’). The Respondent failed to furnish the Complainant with any policies or procedures; however, since the date of her dismissal, the Complainant has been able to obtain copies of these policies and procedures from a former colleague who also worked for the Respondent. The Complainant’s work as a project worker primarily involved her providing social care work for high risk service users. The Complainant provided care for 2 particular vulnerable adults: VA1 and VA2. The Respondent’s Employee Policies Booklet provides for a Disciplinary Procedure. This procedure provides for: a right to a fair investigation; an informal process and sanction; and a formal process and set of escalating sanctions. This formal process provides for: natural rights to be upheld at all times; the right of an employee to know the case against her; the right of an employee to reply; the right of an employee to have the opportunity to give the matter due consideration; the right of an employee to representation; the right of an employee to appeal; and the right of an employee to have their general rights of natural justice and fair procedures upheld at all times. Despite the nature of her work, the Respondent failed to provide the Complainant with any formal induction or training. Further, despite the Respondent being required to furnish the Complainant with supervision notes on a monthly basis as per its policy, the Respondent only did so once in the Complainant’s entire employment with the Respondent. The Complainant performed well during the currency of her employment with the Respondent and was never the subject of any disciplinary complaint, investigation, finding or sanction prior to the events that culminated in her dismissal; and successfully passed her 9-month probation. In April 2018, the Complainant met with the Director of the Respondent organisation in a hotel. Therein, the Complainant made a complaint regarding the unsanitary conditions of a residence in which she was required to stay with a service user under her care. The Complainant informed the Director that the property was uninhabitable. Upon physical inspection of the apartment the Complainant noticed that the apartment had no fire certificate, no smoke alarms, no electricity and was extremely unsanitary. The fridge was broken and the floors were burnt from a previous client. The Complainant discussed with the Director the duty of care the organisation had to the service user and the fact that the apartment in question was not habitable. As the Respondent was providing services on a contract basis to Tusla, the Complainant also informed the relevant principal social worker in Tusla of her concerns about the unsafe condition of the apartment. The Tusla principal social worker for the service user then contacted the Director to discuss the condition of the apartment. Ultimately, the Complainant and the service user stayed in a hotel while the apartment was undergoing refurbishment. The Complainant maintains that this complaint amounted to a protected disclosure pursuant to the Protected Disclosures Act, 2014, and a complaint relating to safety, health and welfare at work, pursuant to the Safety, Health and Welfare at Work Act, 2005. The Complainant asserts that prior to making the complaint, she was normally allocated 12 to 14 shifts per month. However, in May 2018 she was only allocated 7 shifts for the month and she used some of her annual leave to compensate for the reduction in her salary. On Friday 6 July 2018, the Complainant was providing care for VA1, a service user, over the age of 18 who had been authorised to attend a wedding that evening and to stay overnight outside of the unit. The Complainant assisted the service user in packing their overnight bag and, upon the service user leaving the unit to attend the wedding, left the unit herself for the night. The Complainant maintains that allowing a service user to stay out for the night without their carer staying in the unit was accepted good practice within the Respondent organisation and had previously been endorsed by a Manager and the Compliance Officer. On Monday 9 July 2018, the Complainant received a telephone call from her Manager at 9.30am asking the Complainant to attend his office. The Complainant enquired as to the purpose of the meeting. Her Manager stated that the Complainant just needed to come to his office. The Complainant stated that she was currently working a shift and was on her way to attend a handover for a service user. The Complainant explained that the service user required 2 to 1 care and would dictate her availability, but that she hoped to get back to the office for midday. The Complainant was of the impression that she was required by her Manager in his office to drop in petty cash receipts and to collect petty cash for the week ahead, as this happened every Monday and also discuss reports furnished the day before on behalf of staff querying the policy of room searches and clients in possession of weapons. Later on 9 July 2018, the Complainant attended her Manager’s building. The Complainant was required to wait 40 minutes before her Manager attended. On arriving her Manager was unexpectedly accompanied by the Director. The pair asked the Complainant to come into the office. Therein, the Director stated: “Tell me about Friday”. The Complainant stated that she had already sent in an incident report about Friday - that the service user she was working with had gone to a wedding and that she had prepared an overnight bag for him as he was staying off unit. The Director then queried whether the Complainant had stayed in the unit on Friday night. The Complainant stated that she had not; explaining that it was accepted good practice that she need not do so given the service user’s age and non-attendance at the unit. The Director then stated that same was gross misconduct and that the Complainant was dismissed. The Complainant was shocked, distressed and upset by her completely unanticipated dismissal. The Complainant began to attempt to defend herself, stating that she had never rang in sick; but the Respondent refused to permit the Complainant to speak. The Complainant became suspicious that the Respondent was dismissing her due to her having made a complaint about the conditions of a residence in her meeting with the Director in April 2018 and demanded that the Respondent furnish her with an email explaining the reasons for her dismissal. The Respondent refused to do so and the Complainant left the room, becoming highly distressed and embarrassed by what had occurred. On leaving the room, the Complainant met a member of HR who asked the Complainant what was wrong. The Complainant stated that she had just been fired. The member of HR then looked at the Complainant with shock and disbelief before stating: “no, that’s not right”. The Complainant then spoke with another colleague who was also unaware that the Complainant had been dismissed. The Complainant maintains that the Respondent’s dismissal of her was both substantively and procedurally unfair. The Complainant maintains that the allegations that she had perpetrated gross misconduct are completely without foundation; that she was following accepted good practice having never been trained or inducted properly; and that same was, as such, entirely unreasonable. The Complainant maintains that the Respondent: failed to provide the Complainant with notice of disciplinary meetings and allegations and sanctions that she would be subjected to therein; failed to conduct a proper investigation; failed to afford the Complainant the right to be accompanied during the disciplinary process; failed to afford the Complainant the right to make representations during the disciplinary process; failed to furnish the Complainant with reasons for the decision; and failed to afford the Complainant the right to appeal the decision to dismiss her.
The Unfair Dismissals Acts / The Protected Disclosures Act The Complainant made a disclosure to her employer about the unsafe, unsanitary and uninhabitable conditions of a service user’s residence where the service user was required to reside and where the Complainant was required to work. The Complainant maintains that the above disclosure comes within the definition of section 5(3)(b) and (d) of the 2014 Act, that being that the disclosure related to: a failure to comply with a legal obligation regarding safety, health and the welfare of a resident and staff; and that the safety, health and health of individuals, namely resident and staff, was being or was likely to be endangered. The Complainant maintains that she made the disclosure to her employer and that she had a reasonable belief that the disclosure tended to show wrongdoing and that the issue came to her attention in connection with her employment. The Complainant maintains that she has satisfied the requirements of the 2014 Act and that the disclosure amounted to a protected disclosure for the purposes of the 2014 Act and that, as such, she is protected from penalisation in the form of dismissal resulting wholly or mainly from such a disclosure under the Unfair Dismissal Acts.
The Safety, Health and Welfare at Work Act – Penalisation The Complainant maintains that she made a complaint to her employer about the unsafe, unsanitary and uninhabitable condition of a service user’s residence; that same related to safety, health and welfare at work of both residents and staff; and that same amounted to a complaint under the 2005 Act. The Complainant maintains that, in response, the Respondent penalised her by summarily dismissing her. The Complainant maintains that same amounts to penalisation for the purposes of the 2005 Act.
The Complainant relied on the following precedents in support of her case: Mooney v. An Post 4 IR 288; Cassidy v. Shannon Castle Banquets and Heritage Limited [2000] ELR 248; Redmond v. Ryanair Ltd UD 123 / 05; O’Ceallaigh v. An Bord Altranais [2000] 4 IR 54; Burns v. The Governor of Castlerea Prison [2009] IESC 33; Shortt v. Royal Liver Insurance [2008] IEHC 332; O’Leary v. Eagle Star Life Assurance Co of Ireland [2003] ELR 223; Bolger v. Dublin Sport Hotel Limited UD 45 / 85; Fitzpatrick v. Superquinn Limited UD 452 / 1984; Dougan & Clark v Lifeline Ambulances Ltd (Unreported, Circuit Court, Comerford J); Bank of Ireland v Reilly [2015] IEHC 241; Frizelle v New Ross Credit Union Ltd [1097] IEHC; Higgins v Irish Rail [2008] ELR 225; Ward v Stobart (Ireland) Ltd [2012] ELR 201; Brennan v Institute of Technology Carlow [2012] ELR 49. |
Summary of Respondent’s Case:
The Respondent did not attend the adjudication hearing. I am satisfied that the Respondent was properly on notice of the time, date and location of the adjudication hearing. |
Findings and Conclusions:
The Complainant has submitted three complaints seeking adjudication under Section 8 of the Unfair Dismissals Act, 1977. In respect of one of her complaints, the Complainant submits that she was unfairly dismissed for having exercised her rights under the Protected Disclosures Act, 2014 whilst in respect of another complaint, the Complainant submits that she was unfairly dismissed for having exercised her rights under the Safety, Health and Welfare at Work Act, 2005. It is well-established, and underpinned by jurisprudence, that a Complainant cannot recover more than one amount of compensation in relation to matters arising from the same set of facts. As the Complainant did not refine her complaint at the hearing, the first matter for me to decide is which of the above complaints is more properly before me. I will address the third complaint which the Complainant submitted under Section 8 of the Unfair Dismissals Act, 1977 at a later stage. I note that whilst there is no public interest test required under the Protected Disclosures Act, nonetheless, the long title of the Act refers to “the making of certain disclosures in the public interest” which suggests a broad remit whereas the Safety, Health and Welfare at Work Ac, 2005 is more specific in its application and relates to health and safety in the workplace. In light of the evidence adduced at the hearing, I find that the Complainant’s referral more properly falls to be heard under the Safety, Health and Welfare at Work Act, 2005 (the Act). The Legal Context What is in issue in this case, therefore, is whether the Complainant was penalised within the meaning of Section 27 of the Act. This section, in relevant part, provides: -
“27.—(1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment. (2) Without prejudice to the generality of subsection (1), penalisation includes— ( a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal, ( b) demotion or loss of opportunity for promotion, ( c) transfer of duties, change of location of place of work, reduction in wages or change in working hours, ( d) imposition of any discipline, reprimand or other penalty (including a financial penalty), and ( e) coercion or intimidation. (3) An employer shall not penalise or threaten penalisation against an employee for— ( a) acting in compliance with the relevant statutory provisions, ( b) performing any duty or exercising any right under the relevant statutory provisions, ( c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work, ( d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions, ( e) being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or ( f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger. (4) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to in subsection (2)(a).” As the Labour Court pointed out in O’Neill v Toni and Guy Blackrock Limited E.L.R. 21: “it is clear from the language of this section that in order to make out a complaint of penalisation it is necessary for a claimant to establish that the detriment of which he or she complains was imposed “for” having committed one of the acts protected by Subsection 3. Thus, the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the Claimant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment.” The Complainant must, therefore, establish that she committed a protected act, within the meaning of Section 27(3) of the Act, before the other elements in this test come into play. The protected act upon which the Complainant relies in this case is the making of a complaint to the Respondent and to Tusla of a type envisaged by Section 27(3)(c) of the Act. That is to say a complaint relating to health, safety and welfare at work. The Respondent did not attend the hearing and, therefore, the only evidence that was offered at the hearing was that of the Complainant. I find that, by making a complaint to the Respondent and Tusla regarding the substandard condition of the apartment in which she was expected to reside with one of the service users under her care, the Complainant did commit an act which is protected under Section 27(3)(c) of the Act. I must now decide if the Complainant was penalised during the cognisable period for having committed an act that was protected by Subsection 3 of Section 27 of the Act. Based on the uncontested evidence of the Complainant I find that the Respondent called the Complainant to a meeting on Monday 9 July 2018 without informing her that she is, in fact, being called to a disciplinary meeting at which she was to be dismissed from her employment on the grounds of gross misconduct arising from her absence from the care unit on the previous Friday night. The Labour Court held in the case of McStone Systems Limited t/a Stone Systems -v- Wieslaw Tyka UDD1762 that: “The Court is of the view that a failure to properly and fully investigate allegations of misconduct or to afford an employee who is accused of misconduct a fair and sufficient opportunity to advance a defence will generally take the decision to dismiss outside the range of reasonable responses which will probably render any resulting dismissal unfair.” Based on the uncontested evidence of the Complainant, I find that the Complainant was summarily dismissed without any investigation or enquiry into the alleged gross misconduct having been carried out as provided for in the Respondent’s employee handbook. The Respondent came to the conclusion that the Complainant was guilty of a serious offence without giving her an opportunity to defend herself and/or respond to the allegations. The Complainant was not afforded the right to any representation and was given no right to appeal. Having regard to the foregoing, I find that the actions of the Respondent in terms of the sanction of summary dismissal were not within the range of reasonable responses open to it in the circumstances. Given that this was the first time that the Complainant was sanctioned for her conduct, and she believed that her conduct fell within the accepted norms, I find that a lesser sanction, if any, would have been more appropriate. Based on the uncontested evidence of the Complainant, I find that the manner in which the Complainant’s dismissal was effected was totally lacking in procedural fairness and contrary to the principles of natural justice. I find that the Complainant was unfairly dismissed by the Respondent. The question which I now must address is if there was a causal link between the protected act made by the Complainant in April 2018 and the unfair dismissal of the Complainant on 6 July 2018. I note the Complainant’s uncontested contention that the Respondent never raised any issues with regard to her performance prior to her dismissal. I further note that she successfully passed her nine month probation. I note the Complainant’s uncontested evidence that her shifts were reduced from her normal allocation of 12 – 14 per month to only 7 shifts in May – the month immediately after she committed the protected act. I find that this behaviour suggests that the Complainant was being penalised for committing a protected act. I note that in an email to the Complainant dated 9July 2019 explaining the reason for her dismissal, the Respondent wrote the following: “On Friday 6/7/18 you left your place of work around mid day. That evening the service manager visited the house and noted you were not on duty.” In the absence of evidence to the contrary, I accept the Complainant’s assertion that it was accepted practice within the Respondent organisation for care staff not to stay in the care unit when the service user for whom they were providing care was absent overnight on an authorised absence. I also accept her assertion that it was not the norm for the Service Manager to visit care locations during the evening. I am of the view that the Service Manager would have known that the service user was on an authorised absence from the unit and that, as was the practice, the Complainant would not have remained at the location and that he timed his visit accordingly. For the Respondent to classify the Complainants’ absence as gross misconduct warranting dismissal, suggests that the dismissal of the Complainant was opportunistic. I can only surmise that the Respondent was biding their time and waiting for an opportunity to find some reason, no matter how spurious, to dismiss the Complainant. The very close temporal proximity between the protected act and the dismissal of the Complainant leads me to believe that the dismissal was contrived as a way of getting rid of the Complainant because she had committed a protected act. As well as informing her employer of her concerns, she had alerted Tusla to the failings of the Respondent in the level of service that it was providing to a vulnerable person who was ultimately in the care of Tusla. Bearing all the above in mind, I find that “but for” the Complainant having committed the protected act she would not have been dismissed by the Respondent. Accordingly, I find that this complaint is well founded. Mitigation of loss Following the termination of her employment, the Complainant was out of work from 9 July 2018 to 9 September 2018 with a consequent loss in salary of €6,604. Furthermore, whilst she managed to secure alternative employment, she is suffering an ongoing monthly loss of €1,200.
Complaint under the Unfair Dismissals Act concerning the absence of fair procedures In light of my finding that the complaint under Unfair Dismissals Act relating to penalisation under the Safety, Health and Welfare at Work Act is well founded, I find that the complaint under the Unfair Dismissals Act concerning the absence of fair procedures and natural justice has been disposed of. |
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
CA-00023246-010 Unfair Dismissal – Safety, Health and Welfare at WorkI find that this complaint is well founded and I order the Respondent to pay the Complainant redress of €30,000. CA-00023246-001 Unfair DismissalI find that this complaint has been disposed of following my findings and redress awarded above in CA-00023246-010.
CA-00023246-005 Unfair Dismissal – Protected DisclosureI find that this complaint has been disposed of following my findings and redress awarded above in CA-00023246-010. |
CA-00023246-003, -004, - 011 Organisation of Working Time Act
Summary of Complainant’s Case:
CA-00023246-003 Daily rest period The Complainant submits that the Respondent failed to afford her proper rest breaks during shifts.
CA-00023246-004 Requirement to work more than the permitted number of hours CA-00023246-003 Requirement to work excessive night hours The Complainant submits that she was required to work an average of 72 hours per week, working 24-hour shifts. This shift would consist of 16 hours working and 8 hours sleeping. There would often be a ‘live night’ where an incident occurs during sleeping hours resulting in work being required during that assigned time. The Complainant submits that from Sunday 1 July to Friday 6 July 2018, she was required to work 130 hours. |
Summary of Respondent’s Case:
The Respondent did not attend the adjudication hearing. I am satisfied that the Respondent was properly on notice of the time, date and location of the adjudication hearing. |
Findings and Conclusions:
In the absence of any evidence from the Respondent to the contrary, I find that the complaints under the Organisation of Working Time Act are well founded. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00023246-003 Daily rest period I find that this complaint is well founded and I order the Respondent to pay the Complainant redress of €100.
CA-00023246-004 Requirement to work more than the permitted number of hours I find that this complaint is well founded and I order the Respondent to pay the Complainant redress of €300.
CA-00023246-003 Requirement to work excessive night hours I find that this complaint is well founded and I order the Respondent to pay the Complainant redress of €300. |
CA-00023246-006; -007 – Minimum Notice
Summary of Complainant’s Case:
The Complainant submits that the Respondent’s dismissal of the Complainant was effective with immediate effect and the Respondent failed to provide the Complainant with her proper notice period or payment in lieu thereof. |
Summary of Respondent’s Case:
The Respondent did not attend the adjudication hearing. I am satisfied that the Respondent was properly on notice of the time, date and location of the adjudication hearing. |
Findings and Conclusions:
In the absence of any evidence from the Respondent and, in light of my findings that the Complainant was unfairly dismissed, I find that the complaint is well founded. The Complainant’s contract provides that statutory notice will be paid. The Complaint was employed by the Respondent for fourteen months and is, therefore, is entitled to notice equivalent to one week’s salary. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
I find that this complaint is well founded and I order the Respondent to pay the Complainant redress of €949.25. |
Dated: 7th May 2019
Workplace Relations Commission Adjudication Officer:
Key Words:
Safety, Health and Welfare at Work Act, penalisation, Organisation of Working Time Act, Minimum Notice |