Complainant

Respondent

Anonymised Parties

A Care Assistant

A Nursing home

Representatives

Glenn Cooper Solicitor     

Dundon Callanan, Solicitors

Maria Dillon Solicitor      

Horan & Son Solicitors

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-00026649-001

28/02/2019

The Complainant worked as a care assistant at the Respondent’s nursing home. She started working in the facility in 2001 but had a break in her service for a number of years. She re-joined the nursing home in 2007.

The Respondent took a transfer of the nursing home business in December 2017 under the TUPE regulations.

The resident was known to her and she described him as a “family friend”.

The Complainant’s employment ended on the 18th December 2018.

An incident with a resident occurred on the 7th January 2018.

The Complainant was suspended with pay on the 9th of January 2018.   The Complainant was interviewed on the 17th of January 2018 in relation to the complaints made against her by the staff CNM and the resident. This was in line with the HSE trust and care policy.

The outcome of the investigation was disciplinary action against the Complainant and her two co-workers.

The Complainant remained on suspension with pay until her dismissal on the 18th of December 2018. She was dismissed following findings that on the balance of probabilities, maltreatment of a resident took place at the nursing home on the 7th of January 2018. The decision maker concluded that she had direct responsibility in creating a situation where the resident was maltreated.

The Respondent’s Clinical Nurse Manager and a resident made a complaint about the carer’s treatment to him on the 7th January 2018. There was a dispute as to what occurred.

An investigation and disciplinary hearing were conducted.

The decision maker accepted the Clinical nurse manager’s version of events. He held that on the balance of probability maltreatment of the resident took place on the 7th January 2018.

The decision maker considered the range of disciplinary sanctions which could apply, and his decision was that the complainant be dismissed.

I have considered the evidence presented to me by both sides.

Section 6(1) of the Act provides that: -

·         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.

Section 6(4) of the Act in relevant part provides:

·         (4) 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 or more of the following:

(b) the conduct of the employee,

Section 6(7) of the Act in relevant part provides that: -

·         (7) 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 —

o    (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal,

It is not for me to put itself in the place of the employer in the within case. Rather my role is to determine whether the actions of the employer fall within the range of actions which a reasonable employer would take in the circumstances.

In all the circumstances outlined and having regard to the submissions of the parties and the evidence tendered, I find that the decision of the Respondent to dismiss the Complainant was not proportionate and outside the band of responses of a reasonable employer to the alleged conduct of the Complainant.

This case was held in conjunction with ADJ-00015039. In that complaint, I found that the Complainant’s dismissal was penalisation under the Safety Health and Welfare at Work Act 2005.

Pursuant to Section 27(5) I am prohibited from granting relief to an employee who has received an award under Section 27.

I find that this case is well founded but I make no award as I am prohibited pursuant to Section 27(5) of the Safety Health and Welfare at Work Act 2005.

Band of reasonable responses. 27(5) of the Safety Health and Welfare at Work Act 2005.