Complainant

Respondent

Anonymised Parties

A healthcare assistant

A hospital

Representatives

SIPTU

IBEC

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-00031927-001

31/10/2019

The complainant worked as a healthcare assistant at a community nursing unit under the auspices of the respondent between 2011 and 2019. The complainant resigned in 2019 and states that this was a constructive dismissal. She was paid €33,767 per annum, with additional shift payments. The respondent denies the claim.

The complainant gave evidence regarding the events of 20th May 2017 and the subsequent disciplinary investigation. The respondent decided to dismiss her, and this was overturned on appeal. The respondent imposed a final written warning, to last for a year. The complainant submitted a grievance which was not addressed. She attended a return to work meeting as she had been suspended for 22 months. The complainant did not believe that the new role in the enhanced care team was a fresh start and believed that she would be walking on eggshells. The complainant was cross-examined on the events of the 20th May 2017 as well as the return to work meeting of the 15th August 2020. It was put to the complainant that she could have escalated the grievance to stage 2.

The director of human resources gave evidence of his role in the disciplinary process. He had decided that the complainant should be dismissed, and that the complainant had been inconsistent regarding the use of a sheet. In cross-examination, he said that he accepted the appeal decision to overturn his decision to dismiss.

The deputy director of human resources gave evidence. The outcome of the appeal was that the complainant would return to work, and this was ‘an opportunity to rebuild trust’. He attended the return to work meeting and discussed the new role with the complainant. The nurse manager also attended. The enhanced care role was a position of trust in a new team. In cross-examination, the deputy director accepted that the appeal meeting had been difficult for the complainant but did not accept that the questioning was aggressive. He said that any future issue would have been subject to due process and that a line had been drawn under the past.

The nurse manager outlined the new enhanced care model she was rolling out and how she explained this to the complainant on the 15th August, who was very interested. The rest of the team were new to the hospital and the complainant would have been the only one to transfer in. The whole team would have had to rebuild trust. She accepted that staff would attempt to pull members of the enhanced care team from their designated patient. She accepted that this was a challenging role and could see how the complainant might be walking on eggshells. She stated that she was not required to do a follow-up report on the complainant.

Constructive dismissal – burden of proof

The definition of ‘dismissal’ in section 1 of the Unfair Dismissals Act sets out that dismissal includes ‘the termination by the employee of his contract of employment with his employer, whether prior notice of the termination 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 of the termination to the employer.’

This definition sets out two circumstances in which an employee might consider themselves to have been dismissed by the ‘conduct’ of the employer, i.e., where they were ‘entitled’ to terminate their contract or where it was ‘reasonable’ for them to do so.

An employee is ‘entitled’ to consider themselves to have been dismissed when the employer has repudiated the contract of employment. It is ‘reasonable’ for the employee to consider that they have been dismissed when they can no longer be expected to put up with the ‘conduct’ in question.

Berber v Dunnes Stores

In a claim of (constructive) wrongful dismissal, the Supreme Court in Berber v Dunnes Stores (12th February 2009) held: ‘There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee. In assessing whether there has been a breach by the employer what is significant is the impact of the employer’s behaviour on the employee rather than what the employer intended. Having regard to the mutuality of the obligation the impact of an employee’s behaviour is also relevant. The test is an objective one: if conduct objectively considered is likely to cause serious damage to the relationship between employer and employee a breach of the implied obligation may arise.’

Finnegan J. further described the test in the following terms regarding whether an employer’s actions breached the term of trust and confidence:

‘1. The test is objective.

2. The test requires that the conduct of both employer and employee be considered.

3. The conduct of the parties as a whole and the accumulative effect must be looked at.

4. The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.’

In Berber, the Supreme Court held that the employer had committed a repudiatory breach that went to the root of the contract of employment through ‘oppressive conduct’ in the light of the employee’s precarious physical and psychological health.

The complainant’s employment commenced in 2011 and she was an experienced healthcare assistant. The events in this case stem from the 20th May 2017 regarding the care of a patient of a community health facility under the auspices of the respondent hospital. The complainant was suspended for some 22 months and then dismissed following a disciplinary process. This was overturned on appeal and the complainant was to return to a role in the hospital. The appeal outcome letter cites ‘Taking all factors into consideration, I have decided to revise the sanction to one that falls short of dismissal. As such, I confirm that I have revised the decision to dismiss you, to that of a Final Written Warning, effective 24 May 2019. This will remain on your personnel file for a 12 month period. I trust that you will take this opportunity to start afresh, and to rebuild the trust in the employment relationship, which has been very significantly eroded from the issues that have arisen. I must highlight to you that should any issues or concerns of this nature arise within 12 months, further disciplinary action may be taken in line with disciplinary procedure up-to and including dismissal.’

The disciplinary policy provides ‘The [final written] warning will give details of the complaint, the improvements required and the timescale for improvement. The employee will be advised that failure to improve may lead to dismissal or some other sanction short of dismissal under stage 4 of the disciplinary procedure.’

It is important to acknowledge that the events of the 20th May 2017 were distressing for the patient concerned and his family. It led to a complex and protracted investigation and disciplinary action against many members of staff. The patient was agitated on the night in question and the complainant’s role was to place him in a Buxton chair and tuck in a sheet. She brought the patient to the bathroom and made him a cup of tea. She acknowledged that it was remiss of her not to fit a posy alarm. This was the end of the complainant’s involvement and there was a later incident where the patient was said to have been tied with a sheet. As Ms Galvin submitted on behalf of the complainant, there were two incidents on that night and the complainant was only involved in the first. I also note that HIQA made an unannounced inspection and made significant recommendations regarding the management of the centre.

The only negatives that could be attributed to the complainant related to the use of the Buxton chair (a training issue) and the posy alarm (an omission). There was no basis for her subsequent dismissal. It is also not at all clear what the complainant had done to ‘very significantly erode trust’. There was no basis for dismissal, final written warning or any other significant sanction.

The complainant was to return on a final written warning. It is contradictory to refer to ‘very significantly eroded’ levels of trust when she was to return to a position of high trust on the enhanced care team. The disciplinary policy provides for an improvement management process during the period of the final written warning, but no such process was provided for here. These factors suggest that the final written warning was imposed as a way for the respondent to end the matter and move on.

By letter of the 2nd August 2019, the complainant raised concerns about the final written warning. She refers to her lost trust in the employer and that it was never explained to her what serious misconduct had been attributed to her in the disciplinary process. The grievance process occurred in the period between her resignation on the 16th August 2019 and the end of her employment on the 8th October 2019. Although the respondent discussed arrangements to facilitate the complainant’s role in the enhanced care team, the respondent would not consider the final written warning as part of the grievance procedure.

The nurse manager gave impressive evidence regarding the new enhanced care team and its work across the hospital wards. This was going to be a challenging role because of the caring needs of patients but also interacting with colleagues and managers across the hospital. The fact of it being challenging is evidenced by no other existing staff members transferring to it. It would have been reasonable for the respondent to ask that the complainant return to work and join this team without any disciplinary sanction hanging over her. The key fact of this case is that the complainant should have been cleared of wrongdoing, or at least given a verbal or written warning. Instead, she was on a final written warning on the basis of ‘very seriously eroded’ trust. She would be walking on eggshells in a challenging role in a new environment, working across many teams.

An outcome of final written warning may have been convenient for the respondent, but it was onerous on the complainant to return to a challenging, daunting role with the final written warning hanging over her. I accept that any further issue would be dealt with according to due process, but any finding against her would have likely ended her employment, as stated in the appeal outcome letter.

I agree that the complainant was entitled to have considered herself dismissed through the repudiation of the contract of employment by the employer. The respondent was required to apply the disciplinary procedure fairly and this ought to have led the complainant being cleared of wrongdoing in respect of the 20th May 2017, or at least a minor sanction imposed. Instead, she was initially dismissed and then given a final written warning, without any clear finding of wrongdoing against her. This amounts to a breach of the term of mutual trust and confidence and the complainant was entitled to consider that the contract of employment had ended. I, therefore, find that the complainant was unfairly dismissed.

In respect of redress, I note the complainant’s evidence of her circumstances after the ending of her employment. Having considered the evidence and the components of ‘financial loss’ in section 7 [actual loss, prospective loss and ‘the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts]’, I award compensation that is just and equitable of €10,000.

The respondent submitted that the hearing should be held otherwise than in public, an application the complainant agreed with. The hearing was held otherwise than in public. The respondent submitted that the decision should be anonymised, a position the complainant did not agree with. The respondent outlined that the hearing and decision should not identify the parties because the case touches on the care of a patient and trust in care generally. I have decided to anonymise this decision on the basis that the matter relates to a distressing event of a patient of the respondent, albeit that I have vindicated the complainant’s position that her actions on the night in question did not warrant any disciplinary sanction or any significant one.

CA-00031927-001

For the above reasons, I decide that the complainant was unfairly dismissed, and that the respondent shall pay to the complainant compensation of €10,000.

Unfair Dismissals Act / trust and confidence / section 7 ‘financial loss’ / ‘the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts’