ADJ-00024009

Complainant

Respondent

Anonymised Parties

A Nurse

A Hospital

Representatives

Irish Nurses and Midwives Organisation

Byrne Wallace, Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00030552-001

29/08/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00030552-002

29/08/2019

The complainant began her employment with the respondent in 2007 as a nurse. From June 2016 she mainly worked in a specialist, long term unit. Her employment was terminated as a result of an incident involving a patient.

The complainant began her employment with the respondent in 2007 as a nurse. From June 2016 she mainly worked in a specialist, long term unit. On the night of May 20th, 2017, the complainant was one of four staff on duty and among the residents in their care was an elderly man (ninety-one years old) with serious health problems and significant care needs and was classified as ‘a vulnerable adult’. In the course of the night the resident became very difficult. He was screaming, kicking and biting and in response the staff arranged for him to spend the night sitting in a day room; a place not intended to be a sleeping area and not in his own bed. He was not supervised for most of the night, despite being at risk of injuring himself or others. He was also placed in a special, but unsuitable chair which acted as a type of restraint and had not been approved for use in his case; (a ‘Buxton’ chair’). They also failed to place an alarm on the chair which would have sounded if he had stood up in the chair. So, for a combination of reasons, and given that he was not supervised the staff had no means of knowing whether he was attempting to leave or had left the chair. The respondent also believes that the resident was physically restrained by means of a sheet but notes that the complainant disputes this. Therefore, the four issues can be summarised as follows; The resident being left unsupervised in an unsuitable chair and restrained there. That this was a breach of the respondent’s policies on both restraint and use of chairs. The failure to apply an alarm to the chair. The risk of harm to the resident, already identified as a ‘fall risk’. It is accepted that the complainant was not mentioned in the original complaint from a family member and that the date of the incident was unclear. However, this was the purpose of the initial preliminary investigation and no allegations had been preferred at that stage. The complainant expressed satisfaction with that process. It was that ‘screening’ process that recommended a formal investigation. Any deficits alleged by the complainant in this stage of the process are rendered irrelevant by the comprehensive independent investigation that followed. The incident was fully investigated by an experienced independent team to a high standard of fairness and in compliance with the respondent’s procedures. The report of the investigation team was sent to the complainant in both draft and final form. Specifically, in relation to the complainant the investigation concluded that the complainant’s actions constituted ‘neglect’ and that she had restrained the resident. Findings of neglect and restraint amount to ‘abuse’ within the meaning of the respondent’s policies. A disciplinary hearing took place subject to all requirements of fair procedure and the complainant was dismissed for serious misconduct. She appealed unsuccessfully. The respondent submits that it meets the test set out in various authorities regarding the criteria that apply in assessing what constitutes a sanction by a reasonable employer and therefore meets the test in Section 6(1) of the Unfair Dismissals Act, 1977 and that the dismissal of the complainant was fair. Termination of a nurse’s employment is rare, but in this case a resident was put in danger, and in breach of the respondent ‘s policies. It is this risk of harm that brings the decision within the band of reasonable responses.

The facts relating to the incident as set out above are largely accepted with the significant difference that the complainant insists that no restraint was used as alleged by the respondent. The initial complaint was made by a visitor to a co -worker of the complainant’s and this was followed by a preliminary screening meeting with her and others. Following this a formal investigation was set in motion. The original complaint from the visitor did not identify the complainant. The complainant’s union raised a series of objections to the process used by the preliminary investigation screening. At the subsequent investigation she gave her recollection of the event. She had been told by the resident’s daughter that her father was restless, and she left at 9pm. The staff on duty decided that the chair he was in was not safe and he was transferred to the ‘Buxton’ chair, which was obtained from another ward. When this was done, he was moved to the Day Room so as not to disturb other residents as he was shouting, and they were becoming upset. The resident was moved to reduce the disruption and for his own safety. The complainant made a professional decision on the basis of the resident’s best interests. A carer was asked to stay with the resident and to do checks every thirty minutes. He was checked regularly. The sheet placed around him was to protect his dignity and not to act as a restraint. He was returned to his room around 5 or 6am. The complainant objects to the preliminary screening process and says she was denied all fair procedure at that stage. She was not given the allegations against her, nor advised of her rights to representation nor was she given any record of the meeting. All of this is in breach of the respondent’s own policy and the Code of Practice; 146/2000. The date identified for the incident differ from those on which the investigation team made its findings; a fact acknowledged by the investigators which noted the confusion in respect of dates, rosters and evidence submitted, specifically those made by the person making the original disclosure. The complainant also submits that proper account was not taken of systemic failings which had been identified in an audit carried out by the regulatory body; HIQA. This included lack of management oversight, reporting structures and accountability arrangements. It specifically identified the necessity to have an additional Clinical Nurse Manager on night duty to ensure supervision and support for staff. On the night in question there was no nurse manager on night duty or no Director of Nursing at all for the facility. The complainant included a report of the resident’s behaviour in her nursing notes and no issue was taken with her handling of the matter. The investigation team noted these deficits in particular that processes necessary for a multi-disciplinary response for the specific resident ‘were not sufficiently clear or robust’ and went on to criticise the failure to assign individual nurses to specific residents to ‘encourage ownership of issues, promote holistic care and optimise handover and continuity of care. There was no protocol to deal with aggressive residents and no up to date care plan for the resident in question. The complainant denies that she knowingly participated in the restraint of the patient and the Buxton chair was not commissioned for that purpose. Specifically, the sheet was not tied to the resident and at one stage actually fell off him. Later he removed it himself. She fully accepts that the necessary alarm was not placed on the chair, but other staff members share responsibility for this. The decision to terminate her employment falls well outside the range of reasonable and proportionate responses to what happened. There is no evidence that any consideration was given to a lesser sanction. The respondent decided to ‘make an example’ of the complainant (and others) in order to appease HIQA and to cover up its own shortcomings. The complainant has an unblemished record of twenty-three years’ service as a nurse and was honest, forthright and cooperative about her role in the events of the evening. She is seeking a decision that her dismissal was unfair and that she should be reinstated.

For the most part, the facts are not in dispute in this case, save for one, and it is a significant one for several reasons. That concerns whether the resident at the centre of the event was restrained by means of a sheet, an allegation the complainant denies. This arose from an allegation by an agency Health Care Assistant that he had witnessed the complainant ‘tying’ the resident to a chair. There are other important considerations in the case which are reviewed below. But in relation to the ‘sheet’ incident the Investigation Team notes in its report that in her written statement of September 1st, 2017 the complainant said; ‘That a sheet was loosely wrapped around Resident1’s waist’, and ‘That a sheet was put on to resident 1’ (Investigation Report para 9.14.3). At 9.14.4 it notes that at the preliminary screening meeting of October 3rd the complainant stated that; ‘The sheet was tucked and not tied’. This reflects the complainant’s statement at the investigation interview on February 20th, 2018 when asked; ‘if a sheet was placed around [the resident] and she answered that she saw a white bed sheet loosely placed on [his] abdomen for dignity because he was removing his pyjama bottoms, and one could see his legs’. Later in that interview it emerges that the sheet was taken off the resident because it was ‘causing him to be restless’. In the following paragraph of the report (9.14.5) her response in the course of her interview with the Investigation Team contains a number of relevant comments such as; ‘Putting clothes on resident 1 was not an option due to his aggressive behaviour’ and ‘That a sheet was used because it was large and to keep him warm’, ‘That Nurse 4 [the complainant] saw a white sheet loosely placed on Resident 1’s abdomen for dignity’, That Resident 1 was moving his legs and the sheet was falling off,’  that sheets are used on [the unit] for dignity’, and finally ‘Nurse 4 [the complainant] said she had seen no restraint used. There was some criticism of the complainant’s failure to record the use of the sheet in her notes, but she says that it was not normal to do so. (Indeed, in respect of the sheet incident, the only undisputed allegation against the complainant relates to her failure to record its use.) The investigation team then continues to consider the use of the Buxton chair, which is not in dispute and concludes that its use was in itself a form of restraint and represented neglect in breach of the respondent‘s policies. However, despite the various submissions from the complainant set out above on the use of the sheet the Investigation team reaches no clear conclusion on it, although it states that it was satisfied that she ‘participated in the restraint and neglect of Resident 1’ (by means of the Buxton chair). In the overall scheme of things this issue related to the use of the sheet may only be a detail, but the first reason this is of concern is that despite the fact that the investigation team reached no finding on the matter in relation to the complainant, the respondent persisted at the hearing with the suggestion that ‘the bed sheet was used as a restraint’. This was despite the absence of any evidence to support that assertion and the complainant’s consistent denial that it happened. It is far from clear why a matter on which the Investigation team reached no conclusion (although there is a degree of equivocation on the point at 9.10.1) should still allow the respondent in its submission to the hearing to state that it accepted ‘on the balance of probabilities’ that the complainant and her team used a bedsheet ‘as a restraint’. This is a misuse of the term ‘balance of probabilities’ which is used to resolve conflicts in evidence. ‘Plumping’ for one’s preferred version of events is not the same as a finding on the ‘balance of probabilities’. While the Investigation Team reached no finding on the use of the sheet as a restraint one of the few other references to it is at para 9.2.3 is the following; The disclosures/complaints that were initially communicated to the family [of the resident] were those that they learned ‘third hand’ from a relative of another resident approached by [the nurse making the report] which they understood as ‘something about being tied up in sheets in a wheelchair and being rocked backwards and forwards’  One would not need to have great expertise in the law of evidence to see the dangers in reaching any conclusions of the basis of this, highly unreliable statement and there is no basis for any conclusion on the balance of probability. The Investigation Team professed itself to have ‘serious concerns regarding the reliability of evidence it heard’ although it did, admittedly note some consistency in the accounts of two of the witnesses regarding the placing of the resident in the Day room ‘and the use of a sheet on resident 1’. As noted above this did not permit the Investigation Team to reach a clear finding on the matter referring only to ‘the acknowledged use of a sheet whether it was tied or tucked or wrapped on at least two occasions’. The second reason it is of concern is discussed below as part of consideration of the respondent’s general failure to consider the evidence; both the Investigation Team report and the submissions of the complainant and her representative. The respondent properly pointed out one of the key restraints on the jurisdiction of an adjudicator in line with well-established and settled jurisprudence of the Labour Court, the Employment Appeals Tribunal and the Adjudication Service to the effect that; ‘the fairness or unfairness of a dismissal is to be judged by the objective standard of the way in which a reasonable employer would have behaved. The tribunal does not decide the question, whether or not, on the evidence before it, the employee should be dismissed. The decision to dismiss has been taken and out function is to test such decision against what we consider the reasonable employer would have done and/or concluded.

Bunyan v United Dominions Trust [1982] ILRM 404

That is one important aspect of the matter, the other being to establish that the procedural fairness requirements were fully observed as a matter of the complainant’s constitutional rights. Deference to an employer in this context does not extend to an exemption in relation to the fairness of the process. While a termination of employment is a very serious matter for any worker, and therefore the same standards of constitutional protection apply to all citizens, it is possible to see an additional dimension in the current case. The respondent accepted at the hearing that the termination of a nurse’s employment was ‘rare’ but that in the face of a finding of ‘neglect and abuse’, and possible danger to a patient it was left with no alternative in this case. The complainant gave evidence that, in her attempts to secure temporary work, a number of agencies which place nurses in employment had declined to even include her on their list of nurses available for work arising from the circumstances of the termination of her employment by the respondent. Further, nurses are among a number of health care (and other) professionals who are subject to statutory regulation and who may face further scrutiny by their professional body in respect of their professional conduct and a possible finding in relation to their right to continue to practise. It is easy to see therefore that the termination of the complainant’s employment can be somewhat distinguished from other workers for whom the prospect of re-employment might be far less daunting. So, without wishing to suggest that there are two standards of fair procedure; depending on the consequences, it may still be said that a particular onus will fall on an employer in these circumstances in respect of the procedure to be followed in bringing the employment to an end, and that a very strict standard will be expected and will apply in adjudicating on that procedure. Turning to the background to the complaint, the incident giving rise to the complainant’s termination took place on May 20th, 2017. The process eventually concluded following her unsuccessful appeal on July 24th, 2019, some twenty-two months later. The preliminary ‘screening’ investigation began only on August 30th, 2017 at the request of the management team and finished on October 5th, 2017. The complainant was interviewed as part of the preliminary screening on September 1st. At that stage she was unsure whether the sheet was ‘tucked behind him or tied’, but in any event it was removed as it was not helping, and she said that the resident was able to remove the sheet himself. The author of the screening investigation report concluded that; ‘Due to conflicting statements we cannot be assured an incident in relation to the inappropriate use of restraint did not occur’. This followed an allegation by an agency nurse that the ‘bed sheet was inappropriately used to restrain [the resident]’. The formal investigation began in November 2017 and was conducted by a team comprising an experienced, independent workplace investigator and a senior nurse manager from an external hospital. The complainant was suspended on November 17th. She was interviewed first on February 20th, 2018 and the final interview took place on July 5th. The Investigation concluded on the basis of the statements made by the complainant, that she had participated ‘in the restraint and neglect’ of the resident contrary to a number of the respondent’s polices. This then moved to the disciplinary process of which the complainant was notified on March 15th, 2019 and the disciplinary hearing took place on April 23rd. The delay between October and March was not explained, but it is unacceptably long. This brings us to the Disciplinary Hearing in April 2019 at which the complainant was represented by her union. She began the hearing by apologising to the respondent and the resident’s family and made sixteen points in her defence, both on the facts and in mitigation. Her representative made seventeen points, some of them duplicating those made by the complainant. Both of them covered the openness with which the complainant had dealt with the issues, the lack of training and management structure, the fact that decisions were made collectively by staff on duty on the night of the incident, the complainant’s unblemished record etc. I do not accept the criticisms made of the original screening investigation as a breach of fair procedure, except to the extent, like much of what happened here, that there were unacceptable delays in concluding it. On May 21st the respondent issued its response to the representations made at the hearing in the outcome letter as follows; We have since our meeting on 23 April reviewed the report of [the investigation team], considered your response to that report and what you yourself and your representative said at the disciplinary hearing. Following consideration of the above the findings of the Investigation Report are accepted, and accordingly we conclude that your behaviours and actions amount to serious misconduct as outlined in the investigation report. Strictly speaking the investigation report reached no conclusions on serious misconduct, although this may simply be sloppy drafting of the outcome letter. The Investigation quite properly refrained from doing so on the basis that this was a matter for the disciplinary process. Of much greater concern, and especially given the high standard of procedural fairness that must apply in this case there is not the slightest evidence of the ‘consideration’ referred to having been undertaken. It is equally a requirement of fair procedure that a decision maker be fair and transparent in the conduct of the process and this is most easily demonstrated by stating reasons for the conclusions reached. This requirement is necessary to show that the decision maker did in fact ‘hear’ the parties, in the specific sense required by that core principle of fair procedure; audi alteram partem. In other words, ‘hearing’ is not simply a synonym for ‘listening’ to what they have to say; the obligation falling on a decision maker goes further and requires a fair and objective evaluation of the case before him or her. The report of an investigator is no more than evidence before the hearing and the decision maker or adjudicator must decide on the basis of all the evidence and argument adduced on the day of the hearing, including arguments on mitigation etc. In keeping with the ‘reasonable employer’ and ‘objective standard’ principles set out above an adjudicator will generally, and in so far as it is reasonable defer to the judgment of an employer, especially in an employment context such as this. However, this is only possible where it is very clear from the record that that judgement has in fact been exercised. A simple statement that matters have been considered and a conclusion reached comes nowhere near to meeting the required standard. In particular in this case, in relation to the lack of training, resources and governance deficits alleged by the complainant (and these are not in dispute) the respondent is actually a party in that matter (as the obligation falls on it to provide these) but it did not see fit to address the relevance of the complainant’s submission on these points, even in mitigation. The complainant raised arguments about the reliability of the roster, the absence of a senior nursing manager on the night, deficits in training, the fact that use of sheets was not normally recorded etc. She referred at the disciplinary hearing to that section of the investigation report (para 8.6.3) which was highly critical of the respondent, and in particular, noted that the respondent has made what appear to be (and are described by the Investigation Team in its recommendations as being) very significant changes in the available resources, including the appointment of a Director of Nursing. What part this, or any of it played in the respondent’s decision making is not revealed. There must be a strong suspicion that contrary to what is asserted, the complainant’s case, including in relation to mitigation was not properly considered on its merits, or probably not at all. That suspicion must extend to cast doubt on the ‘review’ of the Investigation report claimed to have been carried out as, to the credit of its authors the issue is fully addressed there. In addition, a further, discrete issue arises in respect of the relevance of the failure of the respondent to consider those possible mitigating factors for which it, the respondent had responsibility to correct (and did so after the event) and that is the presence of bias or lack of impartiality. On this aspect of the complainant’s case it was acting as a judge in its own cause and in doing so the failure to explain its reasons reaches into another of the cardinal principles of fair procedure. It could have sought to address this by demonstrating that it properly evaluated these as factors in the matter and, having done so and explained why, reached a reasoned conclusion. Either it did not consider these mitigating factors at all or it did and did not consider them significant (although the Investigation Team considered them ‘very significant’). There is nothing on the face of the record to show that any aspect of the complainant’s case in respect of these matters was given any hearing whatsoever, or if so, what factors decided the matter against her. What actually appears to have happened is that the respondent ignored any aspect of the Investigation report that did not suit its purpose, either because of a pre-determined decision to terminate the complainant’s employment, or to spare itself the embarrassment of its own culpability for the events. When a decision maker says they have ‘reviewed’ something they needs to show some evidence that this has actually been done and that this is not just an empty formula. Turning to the appeal there is another, very important consideration in that context. A person considering an appeal is entitled to know clearly the basis on which they have lost at first instance; the better to prepare that appeal. Otherwise, they are flying blind and that is illustrated here by the largely repetitious nature of the complainant’s appeal. In fairness, she had no choice, not having been given any indication from the disciplinary hearing as to which of, or whether any of her grounds of defence had succeeded and, if they had not, the reasons why. The complainant did appeal on June 4th and her appeal was heard on July 10th. The letter of appeal, in addition to a repeated complaint about the ‘screening’ investigation, which I discount for reasons outlined already, raised twelve general points on the merits of the case and a further five on the severity of the sanction. These were further stated at the hearing on July 10th at which she was represented and are in the report of the meeting. On July 24th she received the outcome letter. It stated, with some worrying resonances of the tone and style of the disciplinary outcome letter, but with even greater brevity; ‘Since our meeting, I have reviewed and given very careful consideration to the report of the investigation, and to the grounds for your appeal put forward by you and [her representative]. I now write to advise that the grounds for your appeal do not warrant a change to the decision made. Accordingly, I have decided that the disciplinary sanction of dismissal stands. If the grounds for her appeal did not warrant a change to the decision, yet again it appears they did not warrant an explanation as to why either, or the basis on which this conclusion had been reached by the decision maker. Given the implications for the complainant’s career and working life this represents deplorable indifference to the consequences of his actions and the obligations that fell on him (and previously the disciplinary decision maker) in such an important matter; and that he did not feel it necessary to take the trouble to explain to an employee (whose career was probably ending) the reasons for his conclusions. If the decision makers were not familiar with, or unable to discharge those obligations they should have recused themselves and declined to accept the appointment. The fact is that virtually no substantive aspect of the formal disciplinary process comes close to showing that the decision makers met the serious and onerous obligations of a fair process in such a matter; specifically, that a party is entitled to some reassurance and visible evidence that its case has been properly and fairly listened to with an open mind and evaluated objectively. There are no grounds to believe that either of the decision makers in this case did so; or that they objectively considered the complainant’s case and her response to the issues raised, and some strong reason to suspect that they did not, for the reasons set out above, and for one further reason which I address below. In particular, given that the general conclusions of the investigation team (in relation to the Buxton chair and the lack of an alarm) were not in dispute the failure to demonstrate that they had considered the very substantial case in mitigation both on the incident itself and in respect of sanction is fatal. At the hearing the complainant’s representative alleged that the respondent overreacted in order to appease the external regulator; HIQA, which had made adverse findings against it. The implication in that suggestion is that the complainant was made a form of scapegoat, or ‘sacrificial lamb’. There is strong support in the foregoing for that explanation. The Investigation Team acknowledged that, by the time its report had been published, what it described as ‘significant steps’ were taken by management ‘in light of the allegations made about the care of the resident at the centre of the matter’, and goes on to list some six items including the appointment of a Director of Nursing, and the rolling out of additional training. It makes a further fourteen recommendations of its own. Yet, despite both decision makers at the disciplinary and appeal level claiming they had given ‘consideration’ and ‘careful consideration’ respectively to the Investigation report since the hearings in each case their failure to demonstrate that they had considered the mitigation argument in the light of these acknowledged deficits and the complainant’s clean record etc points to the conclusion that they did not. Had they done so, they may well have decided that it was insufficient to save her, but at the very least they were obliged to consider it, to demonstrate that they had done so and to explain their reasons for reaching whatever conclusion they did. Again, it should be borne in mind that the issues given rise to mitigation were no small matter. They are referred to in the report of the Investigation Team, (quoting HIQA) as ‘major non-compliances regarding the governance leadership and management of [the respondent] and the safeguarding and safety of residents’, which it will be recalled was at the heart of the issue. (Investigator’s report para 9.2.1.). The issue of delay has come up in a few occasions, and while it is not central to my findings nothing excuses the delays in this case. It was some six months between the incident and the complainant being placed on suspension on November 17th. As noted, the Investigation Team addressed this. It was a further three months before she was interviewed as part of the investigation on February 20th, 2018. The investigation concluded In October 2nd, 2018. (I do not attribute any fault to the Investigation team here, but the current model generally used in the conduct of workplace investigations is ponderous and slow, and inevitably contributes to delay, and in some cases injustice). The disciplinary hearing took place on April 23rd, 2019 and it took over a month to issue the decision, which while dated May 21st was not issued until May 27th. The appeal process was conducted in a more timely fashion but, by the time it concluded on July 24th, 2019 the matter had been running for two years and two months. In general, the delays in this case give rise to very serious concern. They are disproportionate to the actual issue which gave rise to it (no actual harm befell the resident in question; the respondent relied on the possible risk to him) and represent a serious breach of the complainant’s right to a timely and efficient process. It is notable that the respondent appears to have moved to correct the deficits identified by the external regulator and the investigation team with a good deal more dispatch. Finally, and for the sake of completeness, in addition to the above criticisms of the lack of procedural fairness, I have considered the question of the sanction; cognisant of the authorities referred to above and taking them fully into account. The respondent conceded that the termination of a nurse’s employment was ‘rare’ but relied on the Bunyan v UDT dicta above. It is important to note that the principles enunciated in that case require an objective test; what the ‘reasonable employer’ would have done. It would obviously be a complete contradiction that any given employer should decide unilaterally what other, reasonable employers would do where this is not apparent on the facts or is otherwise in dispute (as it is here). There is no authority in Bunyan for any such approach and it would fly in the face of the requirements of justice. Sometimes, the parameters of how a reasonable employer might act will be obvious from the facts of a case, but the requirements of the burden of proof extend to the need to provide some evidence that any particular sanction is, as a matter of fact or legal argument, within the range of reasonable responses. Simply asserting that a sanction lies within ‘the range of reasonable responses’ does not relieve the adjudicator of the obligation to consider whether that assertion is well founded, especially in circumstances where a respondent has accepted that it is a ‘rare’ occurrence. Thus, it is telling (but not inconsistent with the respondent’s overall approach) that it offered no evidence whatsoever to support this bald assertion by reference to the numbers and circumstances in which other nurses have had their employment terminated, either in its own or other hospitals. The disciplinary decision maker did refer to the decision being grounded in the irrevocable ’breach of trust’. The concept of ‘mutual trust and confidence’ is well recognised in employment law. It also has a tendency to be somewhat abused. A unilateral declaration by an employer that trust has been breached, irrevocably or otherwise will not, of itself suffice to render a decision to dismiss fair. (The complainant also submitted that this duty is a mutual one, which has a bearing on the case, given the HIQA findings and the report of the Investigation team). In particular, why a nurse with a twenty-three year clean record should, on the basis of one incident breach the principle of trust is something that required further elaboration. In the context of everything else here, it looks lazy and all too convenient. Part of the answer may lie in the respondent’s reliance at the hearing on a finding by the investigation of ‘neglect and abuse’ in justifying the termination. This submission is persuasive as the idea of neglect and abuse on the part of a nurse would give rise to justifiable concern. (In fact, I could find no reference in the Investigator’s report to a conclusion of abuse, and there is no reference to it in the letter convening the disciplinary hearing or in any of the outcome letters). However, it is true that the investigation team reached a finding of neglect, and I have no difficulty with the respondent submission that the facts as found by the Investigation Team fall within its ‘Definition of Abuse’. However, as this was used by the respondent specifically to justify the ‘rare’ step of a termination it is necessary to look at the definitions it contains. The definition of ‘Abuse’ in the respondent’s policy contains a wide range of behaviours that runs from ‘persistent criticism, sarcasm, hostility or blaming’, to ‘burning, biting’, ‘deliberate poisoning’ and ‘suffocation’. Clearly, not all the offences on this spectrum of misconduct would justify termination simply by relying on the words ‘abuse and neglect’, and the degrees of gravity represented by the range of misconduct in its own definition must be relevant factors for consideration. A person could not reasonably have their employment terminated for isolated incidents of sarcasm even though this constitutes ‘abuse’ in the respondent’s policy. Yet again, however, nether decision maker showed that they took any steps to evaluate the gravity of the complainant’s conduct in considering the appropriate sanction or by explaining their conclusions. In summary, both decision makers fell so far short of the requirements of fair procedure as to render the entire process, and the dismissal unfair. To conclude, and on the basis of a very detailed review of the facts specific to this case, and in the absence of any argument to the contrary by the respondent on whom the burden of proof lies, I consider it extremely unlikely, and therefore do not agree that a sanction of termination would have been applied by the putative ‘reasonable employer’ or that such a sanction lay within ‘the range of reasonable sanctions’ on the basis of the facts in this case. There was very substantial mitigation as referred to above, both in relation to the incident itself, the respondent‘s contribution to the event and the complainant’s forthright and honest reaction and general good record. In addition to points made above about the failure of the respondent to show that it had even considered these submissions, I do not accept that any independent assessment and evaluation of the complainant’s case by a fair-minded, reasonable employer would have resulted in a sanction of termination. It is, frankly impossible to see how something described as significant non-compliance on the part of the respondent would have no bearing whatsoever on the severity of the sanction, but as there is no evidence that the respondent even considered it is academic and it is therefore impugned on both counts. I therefore find that the sanction of dismissal lay outside the range of reasonable responses and is also unfair on that basis, as well as on the basis of the substantial procedural deficits outlined above. The appropriate redress in the circumstances is the reinstatement of the complainant. In that context the claim for payment of notice does not arise.

For the reasons set out above I find in respect of complaint CA-00030552-001 that the complainant was unfairly dismissed and I order that she be re-instated to the position she held immediately before her dismissal on the terms and conditions on which she had been employed immediately before her dismissal together, and with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal. Also, for the reason set out above complaint CA-00030552-002 is not well founded

Unfair Dismissal, fair procedure.