Complainant

Respondent

Parties

Teresa  Bradley

Drumnahill Inn Ltd Aras Mhic Suibhne

Representatives

Canny Corbett Solicitors

 Gallagher & Brennan 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-00031931-001

31/10/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00031931-002

31/10/2019

The complainant was employed in a dementia unit of a Care Home.  Following complaints by a resident of mistreatment, the complainant was identified by the respondent as being the person against whom the complaint had been made.  The complainant was invited to attend a meeting some days later without advance notice as to what the meeting was about.  The respondent states that she offered her resignation voluntarily at this meeting.  The complainant acknowledges she gave her resignation but argues that this was under duress and that she was constructively dismissed.

Ms Bradley, (the complainant), is a qualified support worker and care assistant and was employed  by Aras Mhic Suibhne (the respondent) from the 8th October, 2012 until 22nd July, 2019. The respondent operates a 24-hour residential care facility for elderly people which includes a specialist dementia unit. During her employment with the respondent, the complainant worked day and night shifts, with night shifts commencing at 8.00p.m. and finishing at 8.00a.m. and each  comprising a 12 hour shift. The complainant worked night shifts almost exclusively for 2 or 3 years prior to April 2019.

 The complainant suffered an accident at work at the Nursing Home on 2nd of April 2019 following which she remained off work until July of 2019. Upon her return to work the complainant was given only one night's work per week always in the Dementia Unit.

On the 19th July 2019 and at approximately 1.00am the complainant had finished for the time being in the Unit and was in the process of  attending to laundry as part of her duties on the main floor when the nurse on duty on  that night shift,  Carmel Lynch, requested that the complainant accompany her  to the room of a resident of the home (Ms A) to assist her to the toilet in her room.  Later, the complainant checked in on Ms A noting that she was back in bed.  Nothing further of note happened.

On Monday the 22nd day of July 2021, at approximately 10.40/10.45am, the complainant received a telephone call from the Manager of the Nursing Home, Ms Mairead Gallagher. The complainant was informed that there had been a complaint in relation to Ms A whereby it had been alleged that a member of staff at the nursing home  had spoken to her in a manner which had caused her distress and that, furthermore, a  member of staff had failed to take Ms A to the toilet with both incidents being alleged to have occurred on the morning of Friday 19 July 2021. 

The complainant was summoned to a meeting at the Nursing Home with the Manager at 4.45pm that day, Monday 22 July 2019.  During the phone call, the complainant was also informed by the Manager that she was going to contact the family of Ms A to have them attend at the Nursing Home.

The complainant attended the Nursing Home that evening at the Manager’s office and was told to sit in the foyer prior to being summoned into the office where the Manager and Assistant Manager of the Nursing Home were present.  The complainant was informed at this point by the Manager that the daughter of Ms A together with the daughter's husband were present at the nursing  home and were in the Chapel.  The meeting then moved to the Chapel.  Also present at this point was the nurse who had been on duty on the morning of the 19th of July 2019, Nurse Carmel Lynch.

 A short time thereafter, the complainant and Carmel Lynch were told to go to another room of the Nursing Home and await further instruction.  Some time later the complainant was taken to the Manager’s office where the complainant  was presented with a sheet of paper and told to commence writing and the complainant was compelled by the respondent to complete and sign a document which the  respondent alleges constitutes a valid resignation.

It is submitted that, as a principle of law, where the purported resignation of an employee is caused by duress,  this does not amount to a resignation but to a dismissal and/or constructive  dismissal. Therefore a valid resignation of the complainant did not occur.

It is submitted that in all the circumstances as outlined that the respondent is guilty of a significant breach going to the root of its contract of employment with the complainant and that the employer was in breach of its  own disciplinary procedures. In addition to the foregoing, it is submitted that the procedures in respect of gross misconduct as set forth in the complainant's contract of employment do not in all the circumstances afford fair and proper procedures to employees including the complainant. 

It is submitted that, even where the complaint as against the complainant was made out, summary dismissal was not reasonable.

It is submitted that no proper investigation of the alleged complaint was carried out and that no separate processes of investigation and disciplinary meeting(s) were carried out and/or carried out by different individuals.

The complainant was not given her minimum notice entitlements.

On or about the 20th of July 2019, during which time the complainant was working nightshift, an elderly Client who was 92 years of age at the time, and fully compos mentis, was located in the Unit. At approximately 2am, the Client had been assisted to the toilet. Upon returning to bed, the Client felt that she needed to go to the toilet again and subsequently rang the bell for assistance. The Complainant came into the room and the Client explained that she needed to go to the toilet again. The Client alleged that the Complainant replied that the Client should "do it in the bed" and that the Complainant further remarked "do you think that you are the only one here, there are 48 residents and you are number 47."

As a result of the incident, the elderly Client was said to be very upset and frightened and her daughter was subsequently contacted.  The incident was reported by a family member to Ms Ann Kennedy, Staff Nurse, and the Client and the family member explained to the Staff Nurse that they were happy that the matter be reported to the Director of Nursing on Monday morning, rather than contacting the Manager over the weekend. This was on the basis that the Complainant was not scheduled to work in the intervening period.

Upon being notified by the Staff Nurse on the 22nd July 2019, Ms Mairead Gallagher, Director of Nursing, spoke with the Client and explained that she would investigate the incident. Ms Gallagher contacted the Complainant, via telephone, who initially denied the incident and the Complainant was invited to attend a meeting with the Director of Nursing and the Clinical Nurse Manager, and the staff nurse to whom the incident was first reported and with the Client's daughter and son-in-law, at 5 pm on the 22nd July 2019. The Complainant was agreeable to attending the meeting.

Prior to the meeting commencing, the Clinical Nurse Manager and the Director of Nursing met with the Complainant at approximately 4.45pm to discuss the incident. The Complainant denied the accusations again in full. The meeting With the Client's family members commenced at approximately 5pm, during which the Complainant initially denied the incident, before suddenly retracting all her previous denials and admitting that the said incident took place, as described by the Client. The Complainant was then accompanied from the room by the Clinical Nurse Manager and was upset.

The Complainant then accompanied the Clinical Nurse Manager to a meeting with the Director of Nursing and it was explained that the conduct which occurred amounted to abusive behaviour and that such gross misconduct was not tolerable. However, prior to any discussion regarding the disciplinary procedure could take place, the Complainant voluntarily and without hesitation, verbally resigned her position and wrote and signed a letter to this effect. This verbal and written resignations were accepted by the Director of Nursing.

It is submitted that neither of the meetings alluded to above formed part of any disciplinary process or otherwise on the part of the Respondent and the purpose of the said meetings was to simply establish the factual matrix which led to the complaint by the Client.

It is submitted that the investigative procedures adopted by the Respondent were at all times fair and reasonable and complied with the principles set out in decisions such as Dunne v Harrington UD 166/1979 and McArdle v Kingspan Ltd UD 1342/2003; in that the Complainant was given opportunities in private settings to explain her version of events prior to a formal meeting with the Client's family taking place.

It is further submitted that the Respondent respected and adhered to due process and natural justice throughout the investigation and meetings. At all material times hereto, the Complainant was afforded an opportunity to present her version of the incident in question and was given a fair hearing.

Without prejudice to the fact that the meetings in question were not part of the Respondent's disciplinary procedure the Complainant was expressly Informed by the Respondent of her right to have representation during such meetings and the Complainant did not avail of such a right. At no time did the Respondent deny the Complainant the right to representation.

As per its obligations as set out in Kelly v An Post UD 974/1986, the Respondent remained open-minded in respect of the allegation and no action was taken by the Respondent until after the admission was made by the Complainant, at which point the Complainant was asked by the Director of Nursing to leave the room and to present herself for a meeting in the Director's office.

It is a duty of the Complainant under her contract of employment that she and staff generally to;

Ensure that friendly, homely, and compassionate atmosphere prevails at all times and

Provide care for each resident in a manner which respects the dignity of the person and enriches the quality of his/her life.

It is submitted that the Complainant cannot be unfairly dismissed where no dismissal took place and where she voluntarily resigned her position.

It is submitted that the Minimum Notice and terms of Employment Act does not apply in situations where the Complainant resigned her position of her own volition.  In the alternative, and without prejudice to the above the Complainant was guilty of serious and gross misconduct such that the immediate termination of her employment would be justified and in such circumstances, the Act is not applicable.

CA-00031931-001  Unfair Dismissal complaint

Section 1 of the Unfair Dismissals Acts 1977 defines a dismissal as including:

‘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,’

Where constructive dismissal is claimed the initial burden is on the complainant to show that a dismissal actually took place. There are two tests, either or both of which may be invoked by an employee.  In the first test - the “contract” test - the employee may argue entitlement to terminate the contract. The second test – the “reasonableness” test - applies where the employees asserts that in the circumstances it was reasonable for him or her to terminate the contract without notice. What is reasonable is pre-eminently a question of fact and degree to be decided having regard to all the circumstances of the particular case.

The complainant contends that she was constructively dismissed based on the failure of the respondent to follow its own disciplinary procedures and secondly, based on the conduct of the respondent.   It is therefore necessary to consider whether the conduct of the respondent amounted to a breach of an essential term of the contract and/or secondly, whether the conduct of the respondent was so unreasonable that the complainant had no alternative but to tender her resignation.  Central to this is whether the alleged resignation was under duress.

The complainant alleges that no disciplinary hearing was convened and that, to this date, she is unaware of the allegation made against her.  Secondly, even if the complaint were true it should not have resulted in dismissal.

The respondent’s position is that the complainant’s  alleged admission took place in the investigation stage and that no disciplinary process became necessary, as she tendered her resignation.  The purported investigation moved from  fact gathering  to fact finding when the respondent informed the complainant that the conduct which occurred amounted to abusive behaviour and that such gross misconduct was not tolerable.  This clearly shows that a conclusion was reached by the investigators and that the process therefore, blurred the boundaries with a disciplinary hearing would be involved.  It is also clear from the evidence given that the respondent’s representative saw no distinction between the investigations and the disciplinary procedure. In such circumstances the complainant was entitled to the protections afforded in the Disciplinary Procedure, including being informed of the precise nature of the allegation in advance of the meeting and adequate time to prepare for the meeting. Lack of opportunity to prepare meant in effect the resignation was given without knowledge of the full recourses available to her under the disciplinary procedure. There is a conflict of evidence in relation to whether the resignation was sought or offered. Evidence was given that the resignation was offered after the complainant was told that the Guards and HIQA would be involved.  It is difficult to see what the purpose of telling the complainant this was, other than to push for a resignation.  I note that the complainant had no opportunity to take advice before confirming her resignation.  I note also that the complainant denies admitting to the allegations.

Based on the lack of appropriate procedures afforded to the complainant, I conclude that the resignation given was effectively under duress and that the complainant was constructively dismissed.  The complainant was out on a prolonged period of sick leave before the time of her dismissal and I have based the quantum of her compensation on her 2018 earnings, the year before  the dismissal, which were €13350.

 CA-00031931-002  Minimum Notice

The complainant is entitled to four weeks’ pay in lieu of notice in accordance with the Minimum Notice & Terms of Employment Act, 1973. Again I have based the complainant’s normal weekly pay on her 2018 earnings, and therefore calculate that four weeks’ pay is €1,027.

I find that the complainant was unfairly dismissed, and I order the respondent to pay the complainant the sum of €13,350 in compensation.

I find that the Minimum Notice and Terms of Employment Act 1973 was contravened, and I order the respondent to pay the complainant the sum of €1,027.

Constructive dismissal.  Resignation under duress. Lack of procedures.  Investigation v Disciplinary procedures.