Complainant

Respondent

Parties

Claire  Butterly

Carechoice Ltd

Complainant

Respondent

Representatives

 Mr. Eoin O’Connor, B.L., Bowman  McCabe Solicitors

 Alastair Purdy & Co. 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-00039913-001

18/09/2020

The complainant submits that she was unfairly dismissed contrary to the provisions of the Unfair Dismissals Acts 1977-2015. The complainant was employed as Head Housekeeper in one of the respondent’s nursing homes from February 2008 until her dismissal on 19 March 2020.

Her salary was €652 per week.

She submitted her complaint to the WRC on 18 September 2020.

The complainant contends that her dismissal for failing to implement the respondent’s instruction to cease providing a limited laundry service to a resident in the adjoining Village was an unfair dismissal, contrary to the provisions of the Unfair Dismissals Acts 1977-2015, (The Acts), on both substantive and procedural grounds. Up until 2018, the nursing home’s residents who lived in the adjoining Village were able to avail of this service for a fee.

The complainant’s barrister drew attention to paragraph 4 of his submission which recounted an offer by the respondent in October 2019 to the complainant to step down from her position as Head of Housekeeping in return for a sum of €5000. The complainant declined the offer.

Witness 1. The complainant gave evidence under affirmation.

She took up the position of Head of Housekeeping in February 2008 with the then owner of the nursing home. She covered housekeeping, cleaning, laundry; she was a general all-rounder.

A new management company took over the nursing home under a TUPE arrangement in September 2018. She was told to cease providing laundry or cleaning services for residents in the adjoining Village who had been able to avail of these services, provided by the nursing home, up until 2018. When the respondent did offer these services, it was her job to roster staff to do cleaning. One resident in the village, Mr. X, had always brought his laundry to the nursing home. There was no service relationship between the Village where Mr. X lived and the nursing home. When she told the residents in the Village that she could no longer provide cleaning, they asked for advice and she told them she would do it for a short while, after work, and would then get her sister to do it.  She did not charge the residents. Her sister took on the cleaning service in March 2019.They were elderly vulnerable people who had no other options.

The last time she did the laundry was in November 2019.

Contrary to what the respondent is alleging, she never defrauded the company, nor did she ever think that her doing laundry would bring the company into disrepute. She never used company facilities to do the laundry. She never allowed her staff to use facilities in the nursing home for non –nursing home purposes, so why would she?

At the first investigation meeting with the Director of Human Resources, on 14 February 2020, she told him that she had been doing laundry and volunteered the fact that she had done some cleaning. She did not think she was doing anything wrong. They were privately owned homes, occupied by residents of the respondent company and unconnected to the nursing home.

She states that the allegation that she had breached the respondent’s trust was very unfair. There had never been any cause to mistrust or doubt her before.

She did not understand while going through the investigation and disciplinary process that it could lead to her dismissal. She thought she would be sanctioned but dismissal never entered her mind.

She had worked from the time that she was thirteen years of age and had always had a good record. If she believed that she had done wrong, she would not have made a complaint to the WRC. She believed that she was very harshly treated by the respondent.

Cross examination of witness.

She confirmed that she informed residents of the discontinuation of laundry services.

She did not realise that it was necessary for her to inform the Director of Nursing that she was providing laundry services to Mr. X, for a fee, or cleaning services to two elderly village residents for whom alternative options were practically non - existent. She did not need the money. She did it to help the elderly residents. She had often gone shopping for items for residents and given receipts.

The previous Director of Nursing engaged her in a private capacity to clean her house.

The complainant stated that at most, she did the laundry for Mr. X six times a year. She was informed at some stage that it might lead to dismissal. She did not understand that it was a serious wrongdoing.

She told Mr. X that the company would no longer provide a laundry service. He asked her what he would do. She replied that if it was only a small bit of laundry, she would do it for him. He asked her how much. She told him €15, more if it contained bed linen. She confirmed that Mr. X left an envelope with cash for her at reception. When the respondent did it for the residents in the village, it had cost €20-€30.

Mitigation.

The complainant secured alternative employment in a school from September 2020 working 22 hours a week. Her salary is €300 a week, €352 less than what she earned with the respondent. From March to August 2020, she applied for a few positions. She was hoping her appeal would lead to her being returned to the respondent. She was nearly suicidal at the thought of being sacked at her age. She was one of the older members of staff within one to two years of retirement. Her family were very upset. For her to get a job in an alternative nursing home, she would have needed to secure three references, one of which would have had to have been from the respondent. She did not ask for a reference.

Conclusion

The complainants’ barrister disputes the relevance of Dunnes stores v Karen Walsh, UDD 2021, cited by the respondent as applicable to this complaint,as that decision concerns theft which is not the case in the instant complaint. The complainant relies on DHL Express (Ireland) Ltd v M Coughlan UDD173 which stated that

“The established jurisprudence in relation to dismissal law in this jurisdiction takes a very restricted views of what constitutes gross misconduct justifying summary dismissal”

 Applied to the circumstances of the within complaint, the complainant did not solicit business from the residents, did not do the laundry on company property or on company time. Items were dropped in all the time to reception so there was hardly a lack of transparency as alleged, and her actions were not in keeping with the respondent’s own definition of gross misconduct.

The complainant also relies on Fahavane Ltd. V Flood UD1719/2013 and Kearns V Owen O’Driscoll t/a Subway UD 507/2015 where the respondents’ failure to make it absolutely clear to those complainants that their employment could be terminated led to a finding of an unfair dismissal.

He asks the adjudicator to find in favour of the complainant.

The respondent maintains that the dismissal was not unfair. The dismissal was because of misconduct and is covered by section 6(4)(b) of the Acts.

The respondent provides nursing care in a number of homes.

The respondent’s solicitor read the submission into the record.

Grounds for the dismissal.

The respondent’s solicitor stated that the charge of gross misconduct was justified as the complainant’s behaviour fell within sections j, (“abusing company time, materials or equipment”) i,(“engaging in private work during company time”) h, ( “deliberately falsifying company records or other forms of dishonesty”), and section x  ( “dishonesty, fraud or intention to defraud the company”) of the respondent’s disciplinary procedure.

Dismissal Process.

The dismissal followed on a fair investigative process. The process entailed a preliminary investigation into prohibited conduct, followed by a meeting at which she was suspended, followed by an investigation meeting. A disciplinary hearing was then conducted on the 13 March 2020. She was dismissed on the 19 March. An appeal against the dismissal was held on the 5 August. The respondent wrote to the complainant on the 1 August, upholding the decision to dismiss.

Witness 2: the Director of HR with Carechoice gave evidence under affirmation.

The witness conducted the initial inquiries with the complainant on the 14 February 2020. He conducted the meeting at which she was suspended on 21 February 2020.

The witness stated that the respondent had ceased to carry out a laundry or cleaning service for residents in the Village from late 2018.

While he was in the Trim nursing home in early February 2020, he saw a resident hand in a bag of laundry to reception. The resident, Mr. X, told the witness that he had no family who could do his laundry. He told the witness that it would be done for him in the home. One week later the witness asked reception if any laundry had been done for Mr. X. He was told no. The witness asked to speak with the complainant who was the Head of Housekeeping. She told the witness that she was doing laundry for residents in the Village. She advised the witness that she had done some cleaning for residents also. He issued the complainant with a letter of suspension. Because she immediately admitted to doing the laundry, he accepted that she believed that she was doing a good turn for the residents. He told her that it was not permitted, and he suspended her. He believes that the suspension was justified as she had done the laundry on several occasions. A lot of people in the Village transition into the home. Cash payments which are not recorded, and which are not accompanied by receipts damage the respondent’s reputation.

It was dishonest behaviour, and it broke the respondent’s trust in the complainant.

The witness was not involved in the subsequent procedure.

Cross examination of witness.

The nursing home caters to 132 residents excluding the residents in the stand-alone units – the Village. These stand-alone units are no longer part of the nursing home. The respondent has no responsibility for residents living in stand-alone units. He is not aware if they have laundry facilities. He does not know what changes were brought about in relation to laundry services for residents in stand -alone units pre- and post- TUPE. The respondent did not introduce any new arrangements.

He was unaware of any previous difficulties with the complainant. To the point that the witness stated that he thought that the complainant had believed that she was doing a good turn and that he changed his mind afterwards, he stated that she was taking a massive risk.

While he accepted that she immediately admitted to what she was doing, she did not advise the Director of Nursing. There was no transparency about her service to residents.

The witness accepted the accuracy of the prices charged by the complainant.

Witness 3:  Group Recruitment Manager for the respondent gave evidence under affirmation.

He conducted the investigation meeting on 28 February 2020.

He stated that the complainant did not deny that she had done laundry for residents and provided a cleaning service for some residents in the stand-alone units. She informed the witness that she received cash in an envelope; €20 for a small bag and €30 for a larger bag. She initially stated to the witness that she had done laundry and cleaning on two occasions whereas her Counsel stated that she did it monthly.

He had no input into the next stage of the disciplinary process.

Cross examination of witness.

 The complainant’s barrister put it to the witness that as Mr. X was not a customer of the respondent, and if he wished to ring Y to do his laundry, that was his business. The witness replied that someone working for the company was in a different position. The laundry was handed over on company premises, in the nursing home, in company time. Working time was impacted by that transaction.

Witness 3, Director of Nursing in another of the respondent’s nursing homes gave evidence under affirmation.

He was assigned to conduct the disciplinary hearing on 13 March 2020.

He was clear on the allegations made against the complainant. She acknowledged that she received money for laundry services provided to a resident, Mr. X.  She was in a supervisory role, responsible for the residents and accountable to the Director of Nursing who was not informed of her laundry service. Trust and communication are crucial in their service. In relation to looking at other sanctions, the witness stated that he looked at all aspects of the complainant’s behaviour.

Cross examination of witness.

Concerning the doing of the laundry in company time, behaviour characterised as an instance of gross misconduct, the witness stated that while it could have happened in company time, he accepted that there was no evidence of engaging in private work during company time which was another charge which he had upheld and which had been overturned at the appeal stage.

Regarding the alleged falsification of company records, described as an example of gross misconduct, the witness stated there was no transparency and that honesty is a very essential character trait for Health Care employees particularly those operating at a supervisory level. The complainant’s conduct was a form of dishonesty.

He accepted that that charge was overturned at the appeal stage.

The barrister put it to the witness that it was not fraud as alleged to which the witness replied that it was dishonest. It was accepted that she did not have any intention to defraud the company.

The witness accepted that dishonesty implies an intention to deceive and that as the dropping of the laundry was done in clear sight of those working in reception, it was not a very effective method of deception. She did not advise the Director of Nursing. She had a senior role.

The witness stated that he could not quantify the number of times which she did the laundry for Mr X.

The reasonableness of the decision.

The respondent submits that the function of the adjudicator is to consider whether the decision to dismiss falls within the band of reasonableness. Would a reasonable employer, faced with the same set of facts have done likewise? The respondent relies on Hennessy Read and Write Shop Ltd, UD 192/1978 where the EAT held

“In deciding whether or not the dismissal of the complainant was unfair we apply a test of reasonableness to the nature and extent of the enquiry carried out by the respondent prior to the decision to dismiss, and the conclusion arrived at by the respondent that, on the basis of the information resulting from such an enquiry, the complainant should be dismissed”.

The respondent referenced Bank of Ireland V James Reilly (2015), IEHC 241 concerning the reasonableness test. The respondent cited Dunnes Stores v Karen Walsh, UDD2021, a case involving theft, in which the Labour Court upheld that dismissal, finding that the actions of the employer fell within the range of actions which a reasonable employer would take in the circumstances.

The respondent maintains that a full and fair investigative process revealed that the complainant   provided laundry services in return for cash in the knowledge that the respondent had discontinued this service.

The complainant provided a laundry service in contravention of a direct instruction to decommission this service. It implied that the respondent was still offering the service. It was a breach of trust.

Mitigation.

No documentation has been provided on the complainant’s efforts to mitigate her loss. Furthermore, her own actions clearly contributed to her dismissal. The respondent relies on the obligation of the complainant to mitigate her loss and refers to the test enunciated in Sheehan V Continental Administration Co Ltd., UD 1227/2014, which requires the active pursuit of alternative employment, which is clearly absent in the instant case.

The respondent asks that the complaint be dismissed.

The respondent argues that the complainant was dismissed for gross misconduct and relies on section 6 (4)(b) of the Acts.

Relevant Law.

Section 6(1) of the Acts states 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 indicates what type of substantial grounds justify a dismissal and states

“…………. the dismissal of an employee shall be deemed for the purposes of the Act, not to be an unfair dismissal if it results wholly or mainly from one of the following

a)      n/a

b)     the conduct of the employee”

In deciding if the dismissal was unfair, I must examine the grounds used by the respondent to justify the dismissal and the procedures used to effect the dismissal.

 Grounds for dismissal.

It is accepted that the respondent had decommissioned the laundry services previously on offer to residents in the Village at the time the complainant was discovered to be providing these services, in return for an unrecorded cash payment, to residents in the complex adjoining the nursing home in which she was employed.

The respondent states that the complainant’s conduct corresponds with the examples of gross misconduct found in their disciplinary procedure. In support of this argument, they point to section (h) which states that

” Deliberately falsifying company records or other forms of dishonesty”

 and section (x) which states

“Dishonesty, fraud or intention to defraud the company “

In the view of the respondent, these examples of gross misconduct accurately capture the complainant’s conduct.

The evidence is that the complainant told Mr X that the laundry service was to be discontinued. Upon being informed of this, Mr X asked what was to be done. The complainant offered to do the laundry. She never held herself out as doing it on behalf of the company nor was there any evidence to support that insinuation. It is accepted that she charged no more than that charged when the respondent offered the service. The complainant’s evidence was convincing; she was not doing this for money but rather from a desire to help a resident. She never concealed this activity. Mr. X dropped the laundry in reception. The resident Mr. X left the envelope in reception with the cash in it. She collected it from reception. If she intended to deceive the respondent, she surely would have hidden her activities from the public eye. She was helping an individual resident not touting for or running a business. Yes, she took liberties, disregarded the respondent’s revised arrangements, failed to report her provision of laundry services to the Director of Nursing, and, more significantly, acted improperly in failing to record these transactions which could have led to an exposure for the respondent, but to characterise her actions as fraudulent is a huge stretch and a ridiculous exaggeration. Her behaviour, albeit ill-judged, does not correspond with the instances of gross misconduct found in the respondent’s disciplinary procedure. She was not depriving or cheating the company or Mr. X of anything. Rather than telling her to cease these activities, the respondent moved to dismiss her. I am mindful of the uncontested evidence of the respondent’s offer to her of the previous year to step down from her role.

I do not find that the complainant’s conduct amounted to gross misconduct. I do not find that there were substantial grounds justifying her dismissal as required by section 6(4) (b) of the Acts

Proportionality of sanction of dismissal

In concluding that the grounds cited for her dismissal did not amount to substantial grounds, I will also consider if the sanction of dismissal was proportionate to the alleged misconduct. The Employment Appeals Tribunal held in the case of Bigaignon v Powerteam Electrical Services Ltd [2012] 23 E.L.R.195 that:

“The Tribunal had to consider if the respondent acted fairly and if dismissal was proportionate to the alleged misconduct. Does the punishment fit the crime? In considering this question the fact that the Tribunal itself would have taken a different view in a particular case is not relevant. The task of the Tribunal is not to consider what sanctions the Tribunal might impose but rather whether the reaction of the Respondent and the sanction imposed lay within the range of reasonable responses. The proportionality of the response is key and that even where proper procedures are followed in effecting a dismissal, if the sanction is disproportionate, the dismissal will be rendered unfair …… The precise terms of the test to be applied as to whether the sanction was reasonable was set out in Noritake (Ireland) Limited v Kenna UD88/1983 where the Tribunal considered the matter in the light of three questions: 1. Did the company believe that the employee mis-conducted himself as alleged? If so, 2. Did the company have reasonable grounds to sustain that belief? If so, 3. Was the penalty of dismissal proportionate to the alleged misconduct?”.

I do not find that the respondent had reasonable grounds to support their belief that her actions amounted to gross misconduct not least because of the leap involved in matching her actions to the examples of same found in their own disciplinary procedure.  In the circumstances obtaining, I do not find the penalty of dismissal to be a proportionate sanction.

Procedure.

Section 6(7) of the 1977 Act as amended states

“(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 —

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

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) of section 7(2) of this Act”. The Court expects to see evidence that employees who are dismissed spend a significant portion of each normal working day while they are out of work, engaged actively in the pursuit of alternative employment. In the instant case no such evidence was produced, and the Court has no alternative but to conclude that insufficient effort was made to mitigate the losses incurred as a result of the unfair dismissal. In accordance with the requirements of Section 7 (2) of the Act this must be reflected in the compensation to be awarded”.

The respondent’s letter of 21 February 2020 informing her of her suspension did not refer to the possibility of disciplinary action. Neither did the invite to an investigation meeting.  The letter of 11 March inviting her to a disciplinary hearing made no reference to the possibility of a dismissal.

Though the investigator in his report of the investigation conducted on 28 February 2020 did not find that company equipment was used to provide the service to the resident, this charge was not scrapped but survived as a charge to be answered at the disciplinary hearing on the basis that” a question mark hangs over the veracity of this allegation”

This was speculation as there was no evidence to support this charge.

Based on the evidence, I   find that there was no consideration given at the disciplinary hearing on the 13 March to alternative sanctions nor to the complainant’s previous unblemished service. It was carried out in a perfunctory manner.

The 10-day period within which to make an appeal, as set out in the respondent’s disciplinary procedure was disregarded by the respondent. She was given two days.  She lodged her appeal on the 25 March 2020. It was not heard until the 5 August with efforts in the intervening period to tell her, incorrectly, that her appeal was out of time.

The appeal process was marked by carelessness towards the complainant and with a  disregard to her rights concerning the time within which an appeal should be lodged. While the appeal found that she had not solicited for business or used company equipment or premises, her dismissal was upheld on the grounds of gross misconduct, specifically on “a breach of trust and bringing the company into disrepute.” No reference was made in the minutes of the appeal hearing or in the response to her appeal to consideration of any other sanction given her previous unblemished record and notwithstanding the fact that she had accepted that a lesser sanction was merited. At the appeal hearing on the 5 August 2020, she cited the disproportionate nature of the sanction given her previous contribution towards the respondent and was told that “those things don’t come into it”

I find that the procedures employed conflicted with their own procedures and fell far short of the requirements set out in S.I.146/2000.

I find the complaint to be well founded. I find that her dismissal was substantively and procedurally unfair.  

 Remedy.

The complainant’s preferred remedy is compensation.

Mitigation.

Section 7(2) (c)of the Act of 1977, as amended, requires that in considering the amount of compensation to be awarded, I must factor in the efforts made by the complainant to mitigate his loss.

After her appeal was rejected in August 2020, the complainant took up alternative employment in September 2020, earning a weekly salary of €300 for a 22 hour a week position. She did not apply to other care homes.

The Labour Court in Philip Smyth and Mark Leddy, UDD1974 set out that employee’s obligation to mitigate loss:

“The Court expects to see evidence that employees who are dismissed spend a significant portion of each normal working day while they are out of work, engaged actively in the pursuit of alternative employment. In the instant case no such evidence was produced, and the Court has no alternative but to conclude that insufficient effort was made to mitigate the losses incurred as a result of the unfair dismissal. In accordance with the requirements of Section 7 (2) of the Act this must be reflected in the compensation to be awarded”.

While I accept that the complainant held out some hope of a successful appeal and a return to the nursing home, this does not relieve her of the obligation to seek employment. I also accept her evidence that her shock and acute distress at the ignominious ending of an otherwise unblemished career hindered her in her efforts to find alternative employment. Again, while I have taken this into account, it does not supplant her obligation to find employment. Hence, I have reduced the amount of compensation to be paid to the complainant and have factored in her choice of a position with fewer hours (22) than that on offer in her previous employment (40). The complainant’s loss from 19 March to September 2020 was €15,368 and for the period September 2020 to 7 February 2022 amounted to €26,048, a total loss of €41,416.

I decide that the respondent should pay the complainant t the sum of €˙12, 000, being an amount an amount which I consider to be just and equitable having regard to all the circumstances.

I find the complaint to be well founded. I decide that the respondent is to pay the sum of €12,000 in compensation to the complainant. 

Disproportionate sanction. Unfair procedures.