Complainant

Respondent

Anonymised Parties

House Care Assistant

Nursing Home

Representatives

Kate O’Toole, B.L., instructed by Kenny Sullivan Solicitors

Barry O’Mahoney, B.L., instructed by DAS Group

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-00020771-001

25/07/2018

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

CA-00020771-002

25/07/2018

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

CA-00020771-003

25/07/2018

The complainant commenced employment as a House Care Assistant in the nursing home operated by the respondent in January 2017. In March 2018 the respondent received a report alleging that the complainant had seriously mistreated a vulnerable patient in her care. The complainant was suspended with pay and following a couple of meetings was informed by management that she was being dismissed for gross misconduct. As an alternative the complainant signed a hand-written resignation letter.

The procedures adopted by the respondent were flawed and in breach of the complainant’s rights.

The process had the objective from the outset of exiting the complainant from the respondent’s employment.

The complainant denies that she was guilty of gross misconduct.

The complainant was unlawfully induced to resign by management as an alternative to her immediate dismissal.

The respondent received a report from a witness regarding the serious mistreatment of a patient by the complainant.

Given the serious nature of the complaint the complainant was suspended from duties with pay and subsequently invited to a meeting at which she declined representation. The complainant was informed of the allegations made against her.

The first meeting was adjourned to allow consideration of the evidence. At the second meeting the complainant was informed that it had been decided that she was guilty of gross misconduct and that the appropriate sanction was dismissal.

Following further representations from the complainant she was permitted to resign and therefore there was no dismissal.

Preliminary Issues:

(1)    The respondent argued that the complainant had lodged separate complaints regarding the same set of facts alleging both constructive dismissal and unfair dismissal and that she must elect to pursue one or other claim prior to the commencement of the hearing as failure to do so would be a breach of process.

The Courts have ruled, as per Henderson v Henderson (1843), that a litigant may not make a case in litigation which might have been, but was not, made in previous litigation. This does not arise in the present complaint.   The complaints before me are alternative complaints and are dependent on the findings arising from the evidence.   There is no question of awards being made under both headings.

(2)    At the commencement of a hearing it is my practice to go through the WRC complaint form to ascertain from the parties if the details contained therein are correct. Neither party, both fully legally represented, raised any issue with regard to the title of the respondent which appeared on the form.   Both parties fully engaged in the hearing that followed. Near the conclusion of the hearing I noted that a letter submitted by the respondent contained the title of the respondent as contained in the complaint form on the actual letterhead but at the bottom of the letter there was listed the name of a limited company. I enquired of the respondent if the limited company was in fact the correct legal title of the respondent and the reply was in the affirmative. At this point the representative of the respondent submitted that an error had been made by the complainant with regard to the correct legal title of the respondent and that their side would not consent to that title being amended. Further written submissions were subsequently received from both parties in this regard. The complainant’s position is that the procedures adopted by statutory tribunals should certainly not be more stringent that those that apply in the ordinary courts bearing in mind that the forms in question are non-statutory forms. It would also be contrary to natural justice if such an error could not be corrected when it is identified in an early stage of the proceedings and before a decision has issued, particularly having regard to the respondent having had the opportunity to fully participate in the hearing of the complaints.

The position of the respondent is that the misnaming of the respondent’s title cannot be said to be due to inadvertence as the correct legal title appears on the complainant’s Terms and Conditions of Employment. In particular, reference was made to a Labour Court Decision, Travelodge Management Limited v Sylwia Wach, EDA1511, in which the Labour Court in that case determined that an examination of case law led it to find that a party could not be added or substituted in proceedings if the proceedings against them were statute barred. The respondent points out that the statute has long since expired in relation to the complaints in this particular case and that it follows that the adjudication officer must find accordingly.

I have carefully considered the submissions of both parties in this regard and the various precedents attached therein. I am satisfied that the provisions of Section 39 of the Organisation of Working Time Act, 1997, do not apply in the present case. I have also examined the correspondence on file between the parties and the WRC prior to hearing. The complaint was lodged with the WRC on 25 July 2018. I note for instance that the respondent’s representative wrote to the WRC on 21 September 2018 stating that they represented the interests of the named limited company in this matter but that the attached submission bore the trading name of the respondent. At no time, however, was issue taken by them with the title of the respondent. As noted the hearing also proceeded without the respondent raising the issue until I, as adjudication officer, queried the matter near the end of the hearing.

In the case of Capital Food Emporium (Holdings) Limited v Walsh & anor (2016), IEHC725, this issue was addressed by Mr. Justice Barratt as follows:

“Quod approbo non reprobo. (That which I approve, I cannot disapprove). In acting as mentioned at point 4 above, i.e. in (a) acknowledging and accepting that Capital Food Emporium Limited was properly the party concerned with the employment dispute which formed the subject of the Rights Commissioner’s investigation and recommendation, and then (b) later seeking to disavow that Capital Food Emporium Limited was properly the party joined to the proceedings, Capital Food committed almost the same error that was identified by Henchy J., and reported almost forty years ago in Corrigan v The Irish Land Commission (1977) I.R. 317. That was a case in which the applicants appeared before a tribunal whose jurisdiction they later challenged when it gave a decision adverse to them, a sequence of actions that led Henchy J. to observe, at 326, that “that is something the law will not and should not allow. The complainant cannot blow hot and cold; he cannot approbate and then reprobate; he cannot have it both ways.”

In the present case I am absolutely satisfied that the complainant’s employer was fully on notice of these complaints, that he acknowledged at the commencement of the hearing that he was the employer and did not raise the matter as a preliminary issue but rather participated fully in the proceedings. Consequently, the respondent is not disadvantaged in any manner in amending the title of the respondent to that of the limited company in order to reflect the correct legal title.

Substantive Issue:

The complainant as noted had been employed as a House Care Assistant since January 2017 in the nursing home run by the respondent. On 10 March 2018 the respondent’s Director of Nursing received a phone call from a work placement student who made a complaint about the complainant’s treatment of a patient. A meeting was arranged with the student later that day when the student outlined the reasons for making the complaint. The allegations concerned the treatment of an elderly male resident who had advanced dementia and were to the effect that the resident’s care plan was not followed, that the resident became agitated and that at one stage the complainant struck the resident.

The complainant was informed in writing the next day that she was being suspended from duty and invited to attend a meeting on 16 March 2018. A copy of the complaint and a copy of the respondent’s Disciplinary Procedure were both enclosed and the complainant was advised of her right of representation.

At the meeting on 16 March the respondent was represented by the two Directors. The complainant was unaccompanied. The complainant strongly denied the allegations contained in the student’s account of her interaction with the resident. The complainant stated that she may have raised her voice but rejected the allegation that she had struck the resident.   The Directors advised that an allegation of abuse of a resident was a matter of great concern to them. The meeting was adjourned until 22 March.

The meeting resumed on 22 March. The respondent was again represented by the two Directors and the complainant did not bring a representative. The Managing Director stated that both he and his fellow Director had considered the evidence and had decided that the student’s account was credible and that the complainant’s conduct amounted to gross misconduct for which the sanction was dismissal. There was a discussion in relation to the complainant’s aspiration to pursue a pre-nursing course in Scotland and as to how a dismissal might impact on that.   The outcome of that discussion was that the complainant then wrote out a letter resigning her position with immediate effect.

The respondent subsequently submitted a complaint to the Gardai.

The Unfair dismissals Act, 1977, defines dismissal as follows:

(a)    the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b)    the termination by the employee of his contract of employment with his employer, whether prior notice was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice to the employer, or

(c)     n/a

Section 6(1) of the Act states:

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.

The respondent’s position is that the complainant resigned and therefore was not dismissed.   Alternatively, and without prejudice to this position, the respondent argues that if there was a dismissal it was fair, reasonable and proportionate to the circumstances of the case and reference Section 6(4) of the Act:

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 of the following:

(b) the conduct of the employee…

The complainant’s position is that she was dismissed or alternatively, if it held that she resigned, that the complainant was constructively dismissed in that she had no alternative but to resign due to the unreasonable conduct of the employer.

I have carefully studied both the written submissions and verbal evidence before me. There is some difference in emphasis as to the sequence of events that occurred at the second meeting held on 22 March 2018.   According to the evidence of the complainant she was presented with the option of either resigning or being dismissed. The Director of Nursing in her evidence said that she and the Managing Director had made the decision to dismiss the complainant before the meeting of 22 March 2018 and that the purpose of the meeting was to inform the complainant accordingly. The issue of allowing the complainant to resign arose during the meeting and the complainant was then given time to consider this option as an alternative to dismissal. According to the notes of the meeting (unsigned) the complainant was informed by the Managing Director that it had been decided that her actions amounted to gross misconduct and that she was being dismissed. It was only after that decision was conveyed to the complainant that a discussion about resignation arose. The Managing Director in his direct evidence confirmed this sequence of events. I have therefore decided that the balance of probabilities leads me to conclude that a decision to dismiss was taken prior to the holding of the meeting on 22 March, that the complainant was informed accordingly, that there then was a discussion on the impact that a dismissal would have on the complainant’s hopes of a nursing position in Scotland and that the respondent allowed the complainant to consider resigning from her position on the clear understanding that if she did not resign that the dismissal would then become effective. In these circumstances I am satisfied that the complainant was dismissed.

Having decided that the complainant was dismissed I must decide whether there were substantial grounds justifying the dismissal having regard to the conduct of the complainant.   In addition, Section 6(7) of the Act states:

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…

The complainant at all times denied having struck the resident and did so again in evidence at the hearing.   The complainant accepted that there was a care plan in place for that particular resident. The resident was elderly, suffered from dementia and had behavioural issues. The care plan included playing music and speaking softly to him. The complainant stated that on the day in question she was accompanied by the trainee who was on work experience.   The complainant did not follow the care plan as she did not believe that it worked with this resident. The complainant said that other members of staff also did not follow the plan. The resident actively resisted attempts to prepare him for bed and tried to punch her. She spoke loudly to the resident and restrained him. Two male carers also assisted her.

Some days later the complainant was called to a meeting without notice, informed of the allegation and suspended from duty. The complainant was then issued with the statement from the trainee which included the assault allegation together with a copy of the respondent’s Disciplinary Procedure. The accompanying letter stated that a meeting would be held on 16 March but did not detail the nature of the meeting. The complainant was advised of her entitlement to representation.

According to the respondent’s short notes of the meeting held on 16 March clarification was provided to all at the start that the meeting was a disciplinary meeting.   The complainant was unrepresented.   The complainant also stated in evidence that she had made no specific preparation for the meeting and was unaware of what was entailed by representation. The written account of the incidents by the trainee were put to the complainant and she was asked to respond to same. The trainee was not present at the meeting and consequently there was no opportunity for the complainant to question the trainee on her account of the incidents. The meeting was then adjourned until 22 March to allow the Directors to reflect on the report and on the complainant’s response.

The final meeting then took place with the outcome as noted above. No separate written notice was furnished to the complainant beforehand. The Director of Nursing stated that the only people that she had spoken to in relation to these matters were the trainee on 12 March and the subsequent meetings with the complainant. The respondent’s Disciplinary Procedure states under the heading of Investigations that: “No disciplinary action will be taken before a proper investigation has been undertaken by the Employer into the matter complained of. If appropriate, the Employer may, by written notice, suspend you on full pay for a specified period while the investigation takes place.” Under the heading of Disciplinary Hearings it states: “You will receive prior notice of the date of the proposed disciplinary hearing.”

It appears to me that if there was an investigation it consisted solely of the interview with the trainee by the Director of Nursing on 12 March. I accept that the respondent was faced with a very serious issue whereby the duty of care in respect of a vulnerable resident under their care was alleged to have been gravely compromised. The matter therefore required careful investigation. The complainant, however, was not interviewed as part of the investigation nor were the other members of staff who had interaction with the resident and complainant on that day. The purpose of any such investigation is to decide whether there are grounds to process an issue through the disciplinary process.   As the respondent’s own procedures make clear this is an essential first step before the invocation of the disciplinary process. Furthermore, the letter sent to the complainant on 13 March stated as follows:

“Given the nature of the complaint I am suspending you from duty until the alleged allegations have been fully investigated.

I suggest that we meet on Friday 16th March at 2pm (venue). You are entitled to bring a representative of your choice to observe fair procedure.”

However, as noted above, the complainant was only informed at the outset of the meeting that it was a disciplinary meeting. It is clear therefore that the respondent was in breach of the employer’s own procedures.

There is also the requirement for the principles of natural justice to be observed in the disciplinary process. In the case before me the Director of Nursing was involved in all stages of the process from the initial interview with the person making the allegation, the suspension of the complainant, the disciplinary hearings and, according to her own evidence, the decision to dismiss the complainant. It is a long-established principle of natural justice that no one should be a judge in their own cause and that there should be a clear division between the person who investigates and the person conducting the disciplinary process. In addition, at no stage was the complainant advised that the outcome of the meeting could result in her dismissal.   Taken together with the procedural defects identified above I find that the disciplinary process was flawed such as to render the decision to dismiss to be an unfair dismissal. I therefore find that the complainant was unfairly dismissed.   Resulting from this decision I find that the claim under the Minimum Notice and Terms of Employment Act, 1973, must succeed.

I also have to take into consideration the conduct of the complainant in this matter. A care plan had been put in place for this particular resident having regard to his specific disabilities. This was done in consultation with the family of the resident. By her own admission the complainant did not follow that plan on the day in question.   The complainant also stated that she had raised her voice when dealing with the resident. I believe that her actions contributed to the situation which led to her dismissal.

I further note that the complainant has not been successful as yet in securing alternative employment. A factor in this situation is that the complainant is awaiting Garda vetting which has been delayed because a court case was pending following the referral of a complaint about the incident by the respondent to the Gardai.

Complaint No. CA-00020771-001:

This is a complaint under the Unfair Dismissals Acts, 1977-2015, to the effect that the complainant was unfairly dismissed by her employer. For the reasons outlined above I find that the complainant was unfairly dismissed but that by her actions she contributed to the decision to dismiss. Having regard to all the circumstances I order the respondent to pay to the complainant the sum of €15,000.00 as compensation in this regard.

Complaint No. CA-00020771-002:

This is a complaint under the Unfair Dismissal Acts, 1977 – 2015, to the effect that the complainant had to resign due to the conduct of her employer. As I have already found that the complainant was dismissed by the respondent this complaint consequently fails.

Complaint No. CA-00020771-03:

This is a complaint under the Minimum Notice and Terms of Employment Act, 1973. It is clear from the evidence that the complainant was not given notice nor did she receive a payment in lieu thereof. The period of notice applicable to the complainant is specified in Section 4(2)(a) of the Act. I therefore order the respondent to pay to the complainant the sum of €370.00, being one week’s pay.

(1)     

(2)    An