Complainant

Respondent

Parties

Leah  Buckley

Maracrest Ltd The Windmill Nursing Group At Ferbane Nursing Home

Representatives

Aisling Maloney A.M Maloney & Co Solicitors

Fiona Egan Peninsula Group Limited

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-00033249-001

18/12/2019

The complainant was employed as a healthcare assistant with the respondent.  Her employment commenced on 17/10/2017.  A visiting GP reported an incident involving the interaction between the complainant and a resident 15/07/2019.  The complainant was placed on paid suspension pending the outcome of the investigation process. The respondent commenced an investigation process which resulted in a disciplinary hearing.  This resulted in the dismissal of the complainant on 18/08/2019.  She was paid €624 gross per fortnight.  Her complaint was submitted to the WRC on 18/12/2019.  She is seeking compensation.

The complainant commenced employment with the respondent on 17/10/2017.  She has obtained the FETAC Level 5 qualification along with other supplementary courses to enable her work in the role of healthcare assistant.  She was given no formal induction training when she commenced employment and she was asked to shadow another healthcare assistant.  There was no specific training in relation to the care plan or other needs of each resident.

In relation to the incident on 15/07/2019 the complainant recalls that the resident was due to see a doctor.  She would be difficult and uncooperative on these occasions.  When this occurred, the complainant left the resident for a period of about 15 minutes. On her return the resident became verbally abusive towards her.  As the resident was hard of hearing she informed the resident that she did not like her behaviour and specifically that “I’m not a dog.”  The resident apologised and there were no other incidents or matters associated with this. 

The following day she was asked to write a statement in relation to the incident with the resident.  She was asked to attend an investigation meeting and did so.  She asked her mother to accompany her.  Following this she was invited to a disciplinary meeting as a result of she was dismissed on 14/08/2019.  She did not appeal this sanction as the timeline had expired while she was hospitalised in an ICU setting for about two weeks.

The complainant denies that she ever spoke to the resident in a rude or inappropriate manner.  It was submitted on behalf of the complainant that the respondent’s disciplinary does not include inappropriate interaction under the heading of gross misconduct.  There were further submissions on behalf on the complainant in relation to how the investigation and disciplinary processes were conducted.

Investigation: 

a)       The minutes of the meeting with the complainant on 25/07/2019 are not proper minutes.  The notetaker stopped taking notes and as a result there are eight bullet points which take up half a page.  This meeting lasted at least one hour

b)      The complainant was not given copies of the statements submitted by the GP and the nurse in charge

c)       The statement by the nurse is inadmissible as she was not a witness to the incident

d)      The complainant was not told she was under investigation when she was asked to compile a statement

e)      There are concerns about the manner in which a statement was taken from the resident and written up by someone who spoke with the resident later that day.  The resident as asked to sign this document

f)        As the allegation was serious all evidence should have been gathered as part of the process. In not doing so an opportunity was lost and the process flawed

g)       No written notes from meetings

h)      The complainant’s mother is not legally qualified and does not have HR experience.

Disciplinary Hearing:

a)       The complainant feels that a decision was made in advance

b)      The complainant was given inadequate notice of a meeting.  She was sent a letter dated (Tuesday) 30th July 2019 for a meeting to take place on (Thursday) 1st August 2019.  At the complainant’s request this was rescheduled to 6th August 2019

c)       She was not provided with any evidence from any witness

d)      Complainant was denied an opportunity to cross-examine any witnesses

In her direct evidence the complainant outlined her history as a healthcare assistant and that she enjoyed this role for the past 10 years.  She denied that she would intimidate any resident and she has always tried to understand resident needs.  While working with the respondent there were staffing issues.  There were also issues with access to care plans for residents. On the day of the incident she was preparing the resident for the day ahead.  She did not have a problem with this particular resident and after the issue they had a hug and she worked that day until 8.00pm.  There was no one else present in the room when the incident occurred.  She did not think that there was any issue until the next day when she was asked to leave.  The complainant disputed aspects of the statement which was prepared following a conversation with the resident.  She did not think that the resident would have the level of recall noted in the statement.  In particular she said that she would never use the word “pet” when speaking with a resident.

In relation to the investigation meeting on 25/07/2019 the complainant said that the notes were taken by an employee who she recognised as a cleaner as she wore a green uniform.  The half of an A4 page notes of the meeting does not reflect the fact that the meeting lasted at least one hour. 

The complainant noted that she was previously assaulted by a resident but did not report this out of fairness for the resident.  The complainant confirmed that she never had an opportunity to ask questions of the GP who reported the incident but was not present in the room at the time.  She rejected suggestions from the respondent that her “personality” was not suited to a care role and wanted it noted that “if I didn’t want to do the job I wouldn’t be in it.”  The complainant also confirmed that she had no opportunity to ask questions from any witness at the disciplinary hearing.  She was asked, at the investigation, if she would do anything differently the next time an incident occurred, and she felt that this was “a trick question” that would be used against her. She received no training in relating the management of challenging behaviour.  She confirmed that she did receive training in relation to the safeguarding of residents.

Under cross examination the complainant confirmed that the safeguarding training mainly dealt with care of the resident environment and how to look after residents.  She was asked if she considered the manner in which she spoke to the resident on 15/07/2019 was respectful.  She confirmed that it was loud but not disrespectful.  She accepts that many of the residents are vulnerable and elderly.  She outlined that she spends a lot of time with residents and would look for someone to be present if a resident was in a bad mood.   The complainant was asked why she did not seek help on the day in question and she noted that on that day another healthcare assistant had rang in sick and they were left waiting for the handover. She was aware of how short staffed they were, and she did not want to take anyone away from another resident.  She gave the resident time to settle on the day and this worked.  She confirmed that the normal practice is to use a call bell.

The complaint was asked about an incident which took place in January 2019 and for which she received a final written warning.  She outlined that she took the blame for this incident but denied ever receiving a letter confirming a warning.

The complainant was asked to confirm if she had seen the care plan for the resident involved in this incident.  She said that she had asked colleagues but there was no time to read it.

In relation to the decision to dismiss it was put to the complainant that she did not appeal either the earlier warning or the decision to dismiss.  The complainant felt that a particular manager wanted to get rid of her and this was their way of doing so.

It was submitted on behalf of the complainant that she was the only person in the room with the resident when the incident happened and only she can verify what happened.  She did not report the matter because there was no issue to report.

The respondent is a nursing home who is committed to providing quality care to all its residents.  The complainant commenced work with the respondent on 17/10/2021 as a healthcare assistant.  She was provided with a contract of employment and a copy of the employee handbook.  This handbook sets out in detail the respondents’ policies and procedures.  On 28/01/2019 the complainant was issued with a final written warning following an investigation and disciplinary hearing.  This warning was issued for breaches of health and safety rules while on duty which endangered the life of a resident; failure to comply with the reporting policy in relation to the incident; unsatisfactory work standard and rude an inappropriate behaviour towards a colleague.

On 15/07/2019 a GP who looks after the resident’s medical needs reported to a staff nurse that she heard shouting coming from a particular resident’s room just before she was due to enter the room.  This shouting was not coming from the resident.  The staff nurse entered the room to query the situation and having spoken to the resident the staff nurse then reported the matter to the Director of Nursing.  The Director of Nursing is obliged to carry out an investigation in such incidents and a full investigation took place into the allegations made against the complainant.  Witness statements were taken, and these were provided to the complainant.  The outcome of the investigation was that a disciplinary hearing was arranged, and this was independent.  The complainant was advised of the possible outcomes as a result of a finding of gross misconduct.

The outcome of the disciplinary hearing was communicated by letter to the complainant on 14/08/2019.  She was advised of the appeal process but did not exercise this right.

It was submitted on behalf of the respondent that section 6(4) of the Unfair Dismissals Act, 1977 states:  “[…] 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 dismissal of the employee […]”

The respondent believes that the conduct of the complainant on 15/07/2019 amounted to maltreatment of a resident and this constitutes gross misconduct.  The dismissal was procedurally fair, and the disciplinary sanction was within the margin of proportional responses for such conduct and particularly as the complainant was already on a final written warning from 28/01/2019.

It was submitted on behalf of the respondent that any of their processes, including the investigation, disciplinary and appeals processes, were procedurally unfair.  In the event of any procedural unfairness being identified this must be considered in line with section 6(1) of the Act with states that “having regard to all the circumstances”.  In that context it is denied that the dismissal was unfair.  A procedural flaw alone cannot render a dismissal unfair.  The respondent submits that the case of Elstone v CIE (High Court, 13 March 1987, unrep.) it was held:

“that the mere fact of some failing in due or agreed procedures is not a final and decisive matter for the court on appeal is clear from the provision of s.6(1), that regard must be had ‘to all the circumstances’ and not to one circumstance to the exclusion of the other.”

The respondent also provided the case of Shortt v Royal Liver Assurance Ltd [2008] IEHC 332, Laffoy, J as relevant in that a central consideration to fair procedures is whether or not any purported breach of natural justice was ‘likely to imperil a fair hearing or fair result’”.

The respondent also provided a number of similar cased in relation to the process involved.  In relation to the question of proportionality the respondent cites the case of Kelly v CIE (Circuit Court, 11/02/1985):

“If, in all the circumstances, there are substantial grounds to justify the dismissal then the decision of management to that effect is not to be subjected to interference from the Tribunal or this Court on appeal.  The policy of the [1977] Act is, as I read it, that if the dismissal is not an excessive or otherwise unjustifiable remedy on the part of the employer in all the circumstances, then it must stand.”

The respondent also submits that the complainant’s failure to appeal is significant.  In Melinda Pungor v MBCC Foods (Ireland) Ltd, UD/548/2015 it was held that the claimant’s failure to appeal her dismissal was fatal for unfair dismissal.  The Employment Appeals Tribunal stated:

“The appellant has an obligation to exhaust the internal disciplinary process prior to seeking to enforce her rights externally.  She has not satisfied her obligation and did not adduce any evidence that might justify her decision not to exhaust the internal process.”

It is the respondent’s position that a full and fair investigation was undertaken, and the disciplinary and appeal process were also carried out independently.  The complainant did not take up the appeal process.

WITNESS EVIDENCE:

Ms A:  Ms A worked for the respondent at the time of the incident.  She was in a senior nursing role and was appointed to carry out the investigation.  M A explained the Trust in Care policy has a preliminary screening process and then confirmed that the held a meeting with the complainant on 25/07/2019.  The complainant was accompanied by her mother.  A minute taker was also present.  At that meeting the complainant was asked if she would verify the information she provided in her written statement.  She confirmed that the resident screamed at her to shut up but that the resident apologised.  The complainant gave the resident a hug and told her that everything was fine.

Ms A was asked if the resident had hearing difficulties and she confirmed that she had not.  She would usually speak in a low voice but is able to communicate.

Ms A confirmed that she spoke to relevant parties as part of the investigation and there was no denying that the complainant spoke to the resident in a loud voice.  She upheld the allegation against the complainant.

Ms A was asked about the fact that the complainant said that no training was provided.  She outlined that there was safeguarding training provided.  This was mandatory for their care setting and was delivered in a workshop format.

Ms A also explained that there was a mandatory HIQA reporting requirement in relation such incidents.  A form known as “NF06” is used to notify HIQA within three days in cases of any allegation, suspected or confirmed case of abuse towards a resident.  This was done on this occasion and HIQA were happy with the way the matter was dealt with.

Under cross examination Ms A confirmed that she was not present when the incident occurred.  She was responsible for the investigation.  She worked under the guidance from HR.  Ms A was asked about her reliance on the e mail from the GP.  She confirmed that she spoke with the GP in relation to the content of the e mail.   Ms A confirmed that it was not normal practice to have the GP present at the investigation meeting.  The purpose of the meeting was to obtain the complainant’s response to the allegation.  Ms A confirmed that such an allegation was serious for the complainant from a personal and professional perspective.

It was put to Ms A that the right to confront one’s accusers was a fundamental right and the fact that it did not happen means that the investigation is fundamentally flawed.  Ms A replied that she conducted the investigation with advice from HR.  Ms A was asked if the nurse who received the complaint from the GP and who wrote a statement was in the room and Ms A confirmed that the nurse did not witness the interaction. 

Ms A was asked if the matter was reported to the Gardaí.  She confirmed that it was not reported as it did not meet the criteria for it to be reported to the Gardaí. The resident’s family were informed but they were not given the name of the healthcare assistant involved.

Ms A was asked about the statement that was submitted on behalf of the resident.  Ms A said that this was compiled by the staff nurse.  It was put to Ms A that the complainant would dispute some of the wording.  For example, the complainant would say that she never uses the word “pet” and yet it is recorded in the statement.  Ms A replied that she also knows the resident and worked with her on days and nights. 

Ms A was asked if she was aware that the resident had a reputation and “came with a health warning” in relation to her behaviour.  Ms A outlined that the resident had an intellectual disability and there was a care plan in place.  This would outline how you would address the resident, but this resident did not have “overly complex needs”.  She would have a “medium to high-dependency level.” In relation to the resident’s behaviour Ms A said that she could present as difficult but, on such occasions, she needed reassurance. 

Ms A was asked if the manner in which the resident spoke to the complainant was out of character and she replied that when incidents such as this happen it is important to give time to the resident.

Ms A was asked to explain the who the minute taker was as the meeting on 25/07/2019.  She replied that the person asked to take the minutes was a multitask attendant.  Ms A did not know what training she had in that regard.  Ms A was asked if the half an A4 page of typed notes was an adequate reflection of what had occurred.  Ms A said that they were a summary.

In relation to training for healthcare assistants Ms A was asked to clarity what the correct thing to in such circumstances would be. She replied that one should call and wait for assistance and back up.

Ms A was asked if she compiled a report of her investigation or submitted a letter.  She replied that she gave a verbal report of her findings.

Ms B:

Ms B holds a senior operations role with the respondent and is responsible for the oversight of six centres.   She was appointed chair of the disciplinary committee.  Ms B was asked to outline what a care plan would typically involve. She described that they provide professional services to residents and that the centre is their home.  In that context all staff are “guests” in the resident’s home.  Residents have to be free to behave as if it was their home.  These principles are enshrined in policies for all staff.  All residents are classed as vulnerable.

In relation to risks from incidents such as this case Ms B said that there is a reputational risk and their policies are designed to protect residents.  Staff are given advice in relation to managing behaviour.  In the safeguarding training staff are told not to “label” a resident.

Ms B was chair of the disciplinary process.  The disciplinary meeting took place on 06/08/2019.  She outlined the rationale behind her decision making.  The core aspect of the business is to safeguard vulnerable people.  Residents are unable to safeguard themselves.  She considered the report from the GP.  This was the third such incident in relation to the complainant.  The complainant had been provided with additional training and support and there was a concern that there might be others.  The risk of a repeat of such behaviour was high.  She felt that the complainant had no self-awareness and may not be suited to the kind of work.  It was important that care staff were patient with residents.  Ms B also noted that the complainant said that she gave the resident a hug.  A hug in these circumstances can be a form of intimidation and can be seen as coercive particularly after a shouting incident. 

Ms B was asked what consideration was given to other sanctions and she noted that there was no other sanction available. 

Under cross examination Ms B outlined the role of care plans and that they are accessible to all staff by using a touch screen.  They are available in digital format only.  Ms B rejected the notion that there was not time to read care plans.  There is a handover situations in place and that is the opportunity for care staff to raise concerns or obtain information in relation to residents.

Ms B was asked to outline what safeguards were in place for staff.  She outlined that there is a Trust in Care Policy, HR Policies, fair and due process in relation to staff issues and all staff learn how to care and manage residents and deliver safe quality care.  Ms B was asked if staff are entitled to work in a safe environment and she noted that training is tailored to manage in that environment.  The training that is deemed mandatory by HIQA is the safeguarding which covers physical abuse, sexual abuse, psychological abuse financial and other forms of abuse.  Ms B outlined that the organisation ensures that safeguarding is for everyone and there is a robust health and safety approach in the care centre for all aspects and for all staff.  Ms B was asked if it was in order for the complainant to have to put up with being told to “shut up” she responded that staff are trained to deal with such situations and staff need the temperament to be able to deal with these matters.  In any event staff should always look for help if they cannot deal with any situation.

Ms B was asked about staff levels and she was confident that they were sufficient to meet the needs of the centre. There were no complaints from the complainant in relation to staffing levels.

Ms B was asked if she spoke with the GP who made the complaint as part of the disciplinary process and she confirmed that she did not.  She had the minutes of the meetings available to her.

Ms B was asked to outline the options available to her and she said that they had run out of options for the complainant.  She was in receipt of a final written warning and she confirmed with HR and the Director of Nursing that there were no other options.

It was put to Ms B that she had no right to take into account things which were not before her as part of the disciplinary hearing.  It was Ms B’s view that she was not reassured that the similar incidents would not happen again.

This was a difficult case for all concerned.  The allegations against the complainant were most serious and the respondent had a most serious matter to investigate in relation to the care of a vulnerable resident.  The fact of dismissal is not in dispute.  The dates of the complainant’s employment are also not in dispute.

When faced with allegations of this nature an employer such as the respondent has a duty and an obligation to all concerned to ensure that the matter is thoroughly investigated to establish the facts and to ensure that the employee and the resident are protected throughout the process.

The respondent confirmed that they utilise the Trust in Care policy to investigate such allegations and did so in relation to this case. The Trust in Care policy is a nationally agreed policy for managing such allegations.  There is a two-stage process.  The first is a preliminary screening the purpose of which is to ascertain if it is possible that an abusive interaction could have occurred.  The policy makes it explicitly clear that this is not an investigation.  The staff member must be informed that a preliminary screening is taking place and where appropriate a physical or psychological assessment should be carried out.  If it is decided that an abusive interaction could have occurred, then a formal investigation is warranted.  In such cases the policy outlines that a staff member should be advised of the support and counselling services that are available.

The policy deals with protective measures such as putting an employee off duty and notes that the views of the staff member “should be taken into consideration” when making such a determination.

The policy is prescriptive in relation to the investigation process.  There is agreement required in relation to the investigation team and terms of reference.  The scope of the investigation is also required, and the staff member is entitled to copies of all relevant documentation complied prior and during the investigation process.  The staff member is entitled to be provided with the preliminary conclusions and to provide additional information or challenge any aspect of the evidence.  Once a final report is issued the relevant manager makes a decision in relation to disciplinary matters if the allegation is upheld.

Section 6(1) of the Unfair Dismissals Act, 1977 provides that “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 Unfair Dismissals Act, 1977 provides as follows:

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:

(a)    the capability, competence or qualification of the employee for performing work of the kind which he was employed by the employer to do,

(b)    the conduct of the employee,

(c)     the redundancy of the employee, and

(d)    the employee being unable to work or continue to work in the position he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

Section 6(6) of the Unfair Dismissals Act states as follows:

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly of mainly from one or more grounds specified in subsection (4) of this section or that there were other substantial grounds for justifying the dismissal.

The Acts deem a dismissal to be unfair until the respondent can demonstrate that it was neither substantively nor procedurally unfair.  The combined effect of the above sections of the Act require me to consider whether or not the respondent’s decision to dismiss the complainant, on the grounds stated, was reasonable in the circumstances.  It is well established case law that it is the role of the Adjudicator in such cases, to consider the reasonableness of the respondent’s decision in the circumstances.  It is not the function of the Adjudicator to establish either the guilt or innocence of the employee.

The function of the Adjudicator is to assess what a reasonable employer, in the respondent’s position and circumstances, might have done.  This is the standard by which the respondent’s actions must be judged against.  The Act places the burden of proof on the employer to demonstrate that the dismissal was fair.  As part of exercising this burden of proof the Respondent needs to show that fair process and procedures were applied when conducting the disciplinary process.

In cases where a dismissal involves gross misconduct the EAT set out the appropriate test to be applied in such circumstances.  In O’Riordan v. Great SouthernHotels [UD1469-2003] the EAT stated as follows:

“In cases of gross misconduct, the function of the Tribunal is not to determine the innocence or guild of the accused of wrong doing.  The test for the Tribunal in such cases is whether the respondent had a genuine base to believe, on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged wrongdoing.”

The respondent had an issue to address and was duty bound to investigation such an allegation.  In doing so it is clear that a number of processes were conflated. The preliminary screening process, the subsequent investigation, the disciplinary hearing and the reporting requirements to HIQA are separate and although some elements may overlap or duplicate it is critical that each is carried out for its intended purpose.

The issue of fair procedures requires examination.  The investigation and disciplinary processes were conducted by persons with the relevant expertise.  However, it clear from the evidence presented that there are a number of significant procedural shortcomings in relation to the preliminary screening, investigation and disciplinary processes.  The helpful procedures outlined in the Trust n Care policy were not adhered to.  The documentation provided is inadequate.  There is no documentary evidence provided in relation to the preliminary screening stage.  The investigation does not appear to have clear and agreed terms of reference. The notes of the meetings are clearly insufficient for an investigation of this nature.  This has compromised the respondent in terms of ensuring a fair and transparent and adherence to the principles of natural justice. 

There was a considerable weight given by the complainant to the fact that he was not facilitated with cross examination.  A right to fair procedures and natural justice in implied into contracts of employment.  These rights are particularly important in disciplinary matters where a dismissal may have a negative repercussions on the employee’s reputation and their prospects for any future employment.  The subject of any disciplinary process should be provided with a full and fair opportunity to state his or her case as part of the investigation process.  It is widely accepted that as part of fair procedures and natural justice that an employee has a right to challenge his or her accusers before any findings are made.  While this right may be less relevant at a preliminary investigatory stage they are paramount to any disciplinary hearing which is the point at which a decision is made in such matters.  Indeed, where the potential sanction could warrant dismissal such a right cannot be ignored by the employer.  In Borges v. The Fitness to Practice Committee [2004]1 IR 103 provides that where investigative processes can lead to dismissal, cross examination is a vital safeguard to ensure fair procedures.  In that case, Keane CJ stated:

“It is beyond argument that, where a tribunal such as the first respondent is inquiring into an allegation of conduct which reflects on a person’s good name or reputation, basic fairness of procedure requires that he or she should be allowed to cross-examine, by counsel, his accuser or accusers. [1971] IR 217.”

It follows then that in addition to the right to cross examine his or her accuser there is a further entitlement to be told of this right.  If an employee fails to ask for cross examination, they cannot be faulted for failing to ask. 

In the recent Supreme Court case, Zalewski v. Adjudication Officer and WRC [2021] IESC 24 the Court was critical of the fact that there was not express provision for cross examination in the Workplace Relations Act, 2015 although it occurred in practice.  It held that this was a fundamental aspect of constitutional fair procedures.  The Court emphasised the benefits of cross-examination as a core part of fair procedures:

“As long ago as Re Haughey, these features of court proceedings, and in particular, the ability to cross-examine the opposing party, were regarded as fundamental to fair procedures, and the right of cross-examination … was one of the rights without which no party ‘could hope to make any adequate defence of his good name.’”

There was also evidence that the disciplinary hearing was not conducted in accordance with the principles of natural justice. The application of a disciplinary sanction is not a mere penalty points type of structure.  It should not automatically mean that an employee who is on a final written warning is automatically dismissed on foot of another warning.   A disciplinary hearing is convened to decide what, if any, sanction should be imposed following careful consideration of the evidence presented to and taking into account the employee’s response to this evidence, including that adduced at cross examination and any mitigating circumstances provided by or on behalf of the employee.  There are always a number of sanctions available in additional to a final written warning such as an action short of dismissal.

In this case it seems that there was no opportunity to cross examine any witness and no consideration was given to any alternatives or mitigating circumstances.  From the evidence adduced it is clear that there was only one option considered and that was the dismissal of the complainant.  At the hearing there was evidence that the decision maker consulted with HR and a member of the management team and it was confirmed that dismissal was the only option that she could consider.  Such a directive would also have implications for any internal appeal.

The fact that the complainant did not appeal the decision to dismiss her also needs to be examined.  I accept the uncontested evidence of the complainant that she was hospitalised in an ICU setting for a period of time when the appeal was due. This does justify her reason why she did not exercise that right.  It would be preferable if she had notified the respondent post hospitalisation of her situation but given the circumstances her reticence is also justified.

The WRC and the Labour Court have consistently emphasised that an employer is required to follow fair procedures before it makes a decision to dismiss an employee.  The Code of Practice on Grievance and Disciplinary Procedures (S.I. 146 of 2000) which promotes best practice in the conduct of grievance and disciplinary procedures, emphasises the importance of procedures to ensure fairness and natural justice.

I do find that the complainant contributed to the situation she found herself in.  She had a final written warning on file and should have been more aware of the need to report or document even the slightest concern in relation to any negative interaction with a resident.

In conclusion and having regard to all the circumstances of this complaint, I find that the dismissal of the complainant was procedurally and substantially unfair.   It is my considered conclusion that the respondent showed no regard to the principles of fair procedures and natural justice.

On the basis of the above findings it is clear that the remedies of re-engagement and re-instatement are not viable in this case as the relationship between the complainant and the respondent are beyond repair. 

I am of the view that compensation is the more appropriate form of redress in all the circumstances.

The complainant did not produce any evidence of mitigation of loss at the hearing.  The complainant outlined that as a result of her dismissal she had to change her career and undertake training in order to do so.  The had recently been offered employment and was awaiting a contract of employment in order to confirm what her hours of work and earnings would be.  No wage slips, or other verifiable documentation was provided since the hearing.  The complainant provided copies of all her pay slips from the respondent.  I am satisfied that the complainant has sought to mitigate her loss.  In calculating her loss, I am required, under section 7(2)(b) of the Act, to consider: the extent to which any financial loss is attributable to any act, omission or conduct by either the complainant or the respondent; the measures adopted by the complainant to mitigate the financial loss; the extent to which the respondent has compiled with disciplinary procedures in relation to the dismissal and the extent to which the complainant’s conduct contributed to her dismissal.  I believe that any contribution by the complainant to her dismissal was more than neutralised by the respondent’s disregard for proper procedures. Having taken all matters into account I find that the dismissal of the complainant procedurally and substantively unfair and I award her compensation of €6,700

Having carefully considered all of the evidence adduced and based on the considerations and findings outlined in this decision I find that this was an unfair dismissal and, therefore, in breach of the Unfair Dismissals Act, 1977.

Based on the above decision I award the complainant €6,700 in compensation.

Cross examination.  Trust in Care. Dismissal. Investigation process.  Appeal process.