Complainant

Respondent

Anonymised Parties

Care Assistant

Nursing Home

Representatives

Andrea Cleere, SIPTU

No Attendance

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00031176-001

27/09/2019

The Complainant was subjected to a disciplinary sanction which she contends was unwarranted and the process was carried out without due process.

The Complainant has worked with the Respondent as a health care assistant for 5 years. She was issued with a first and final written warning and requirement to be supervised with effect from 30th July 2019, following an allegation of abuse. Her union sent a registered letter of appeal on 14th August 2019. The Respondent refused to hear the appeal stating that the appeal was lodged outside the required timeframe of 5 working days. As all internal procedures were not exhausted and the Respondent refused to hear the Complainant’s appeal, the matter was referred to the WRC.                       The background to the issue is:

On 5th June 2019, the Complainant was summoned to a meeting with the Centre Manager and informed that an allegation of abuse had been made against her. The Complainant was suspended with pay with immediate effect, without being told of any of the detail of the allegations made.           The Complainant was invited to an investigation meeting to be held on 25th June 2019. Following some correspondence between the Respondent and the Complainant’s trade union representative, in which the Respondent advised the union of their “position on an informal investigation being exempt from any rights to be accompanied”, the investigation meeting was held on 27th June 2019.   The Complainant’s trade union representative, however was refused entry to the meeting and the Complainant had to attend unrepresented. Following a disciplinary hearing held in July 2019, the Complainant received a letter dated 30th July 2019 with the following sanctions:

“A first and final written warning to remain on your file for 12 months and also you must be accompanied alongside another staff care assistant on a daily basis for a period of 3 months. You have the right to appeal my decision .. within 5 working days from 12th August 2019”.

On 14th August the union sent an appeal letter addressed to the relevant Appeal person and sent it to the Nursing Home address. However, the registered letter was returned to the union office.     Following a telephone call between the union and the Respondent, it was agreed that the letter of appeal could be sent back to them. On 30th August 2019 the union emailed the appeal letter and proof of delivery. On 4th September 2019 the Complainant received a letter from the Respondent refusing to hear her appeal.   It is argued that the Complainant should have been afforded the right to appeal the sanction, that she was entitled to representation at the investigation meeting, as per S.I. 146 of 2000 and that the Respondent did not act as a reasonable employer in the circumstances where reasonable efforts were exercised by the Complainant and her representative to exercise her right of appeal.

The Respondent did not attend the hearing or provide representation to put forward their response to the complaint.

In the absence of any attendance and direct evidence from the Respondent, I am unable to definitively make findings on the disproportionality claim in this case.   However, I find that the Respondent’s refusal to hear the appeal, despite being given evidence that it was lodged within time, to be an unreasonable stance from an employer.       I recommend that the Respondent hears the appeal from the Complainant and her trade union representative within 6 weeks of the date of this recommendation.

Disciplinary sanction.   Appeal hearing refused.