Complainant

Respondent

Parties

Mihaela  Osman Bashir

Green Park Nursing Home Ltd

Representatives

Marianne Byrne Organic HRM

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-00040211-001

01/10/2020

The complainant submits that she was unfairly dismissed by the respondent.  The respondent submits that the complainant resigned.

The hearing was heard remotely, pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. 359/2020, which designated the Workplace Relations Commission as a body empowered to hold remote hearings.

The parties were advised that following the delivery of a judgement of the Supreme Court in Zalewski v Adjudication Officer on 06/04/2021, that hearings before the Workplace Relations Commission are now held in public and that this decision would not be anonymised. 

Parties were also advised that an Adjudication Officer may take evidence on oath or affirmation.  Evidence was taken under oath or affirmation, from the complainant, Mihaela  Osman Bashir, and for the Respondent: from Ian McNamara, (Mr A), Jane McNamara, (Ms C) and Brían McNamara (Mr D), and cross examination of witnesses was permitted.

The complainant commenced employment on 01 October 2019 and earned a weekly gross of €330 as a health care assistant. 

Preliminary Issue – Requisite Period

In response to the respondent’s preliminary issue that the complainant resigned and was not dismissed, and that the complainant did not have the requisite service, the complainant gave evidence that she had received a contract of employment which provides for one weeks’ notice.  It was her evidence that she did not resign but was told by the respondent on 28th September 2020 that her employment had ended.  This was followed up by a letter from the respondent which she received 30th September 2020.  It was submitted that the complainant’s contract and legislation provided her with one weeks’ notice and extends her service such that she is covered under the Unfair Dismissal Acts.

Substantive Issue

The complainant submits that she was verbally and emotionally abused by the respondent.  The first incident occurred in April 2020 when she was asked by Mr A, Director of Operations, to do deep cleaning in the nursing home.  The complainant advised that this deep cleaning was not her job and that if she did this cleaning, it would break infection control as she was also required to attend to the needs of the residents.  She gave evidence that she was told that if she did not like it she should leave and that there were nurses who were willing to clean but yet she as a care assistant would not.  The complainant submits that she did the cleaning as she did not want to lose her job during the pandemic but that it was difficult to do cleaning and also attend to the residents.

A second incident occurred on 17th September 2020 which the complainant advised left her traumatised.  The complainant was given work instructions by another employee Ms B and the complainant felt that this was slowing her down and felt under pressure to do all the tasks she was asked to do.  She advised Ms B that the nurse should organise the tasks and not the care assistant.  At 12:30pm Mr A asked the complainant to follow him and shouted at her in a stairwell that she was not following instructions.  The complainant submitted that she asked could she talk to Ms B to clarify any misunderstanding.  The complainant was upset and went to talk to Ms C, HR Director who is a sister of Mr A but felt that Ms C was taking the side of Mr A.  Before she left, the complainant asked Ms C if she could speak with Mr D, Director of Nursing, who is also another sibling of Mr A and Ms C.

On 21st September 2020 the complainant requested a meeting by email with the Director of Nursing Mr D regarding the work conflict that took place on 17th September and advised that it was impossible for her to come back to work before she had a meeting with him.  A detailed response was sent to her on the same day from Ms C, advising that the Director of Nursing was on annual leave and furthermore advised:

…If you find it so difficult to take direction from Management and participate as part of a Team, perhaps Greenpark Nursing Home is not a suitable environment for you to be employed in. 

I await your decision regarding these matters”.

The complainant gave a detailed response by email which included:

…It’s not about refusing to follow the policy in there but it’s about being respected as staff instead of being bullied and emotionally abused”.

A brief response on 23rd September 2020 from Ms C advised that Mr D

“…will be in touch when he has time”. 

The complainant also sent a WhatsApp message directly to Mr D who advised he would meet her when he returned from annual leave.  The complainant requested that the Head of Nursing, Mr E, should also be in attendance but he was not in attendance when the complainant arrived for the meeting.  The complainant submitted that she believed that Mr D and Ms C who also attended the meeting, at the request of Mr D, were not listening to her and that she did not resign but believed that she was dismissed.

A letter dated 28th September 2020 was sent to the complainant advising

“as agreed by both parties there is not (sic) a way to resolve the issues which have arisen in the past few weeks.  It is for this reason that your final date of employment will be today 28th September 2020.”

The complainant submitted that she understood from this letter that she had been dismissed and that the respondent failed to address her concerns and furthermore that because all those involved in the various meetings were siblings, the meetings were not conducted fairly.  After the incident of 17th September, she remained out on sick leave with high blood pressure and then secured employment elsewhere and has incurred no loss in earnings.

Under cross examination the complainant submitted that she wanted somebody outside the family to attend the meeting of the 28th September and that is why she asked for Mr E to attend but only found out at the meeting that he was not available.  The complainant gave evidence that she did not resign and that her departure was not by agreement.  The complainant confirmed that she said she was not prepared to continue in her employment if Mr A remained there and that prior to the event that led to the incident in April 2020 there had been no difficulties with Mr A.  The complainant denied that the area where she worked could be regarded as a lighter work area.  The complainant confirmed that when she heard the respondent denying everything that happened, she told Mr D to write up a letter.  She disagreed with the content of the letter of 28th September 2020 as her leaving the company was not what she wanted.

The respondent denied that they dismissed the complainant and submitted that the complainant resigned such that her claim should not proceed as she did not have the requisite service and there was no dismissal.

Preliminary Issue – Requisite Service

The respondent submitted that the dismissal was in dispute and that the complainant did not have the requisite service to take a claim for unfair dismissal as she commenced employment on 1st October 2019 and resigned her position on 28th September 2020.  It was submitted that this was confirmed by the letter of 28th September 2020 which sets out:

“following on from the 2 meetings instigated by yourself…as agreed by both parties, there is no way to resolve the issues which have arisen”.  It is for this reason that your final date of employment will be today 28th September 2020.

The respondent submitted that management agreed that the complainant’s decision to resign was the correct decision in the circumstances.  The complainant clearly stated that she did not want to work with Mr A anymore and as he is a director of the respondent he would not be leaving.

Substantive Issue:

The respondent denied the complainant’s allegations.  It was submitted that because of the pandemic, the respondent, like many other nursing homes, had to take unprecedented steps for the protection of their residents.  It was submitted that it was not unusual for employees such as the complainant to be asked to perform house-keeping duties, and in fact health care assistants who work nights perform housekeeping duties on an ongoing basis. That said, asking workers to perform such duties during the day was unusual but a response to an unprecedented situation.  The focus of the respondent was to prevent the spread of infection and limit contacts where at all possible.  As the number of nursing homes with outbreaks of Covid-19 was increasing every day, the respondent knew it was essential to act early and decisively which they did with the help of their staff.

The respondent submitted that the only staff member to question the new procedures in place during the Covid pandemic was the complainant, but the respondent believed she accepted it when she understood the rationale for it.  The respondent asked employees to work longer days to reduce contacts throughout the day, but the complainant advised that she could not do this because of health reasons.  The respondent facilitated her with this and also put her working in an area that is regarded as a lighter work zone. 

The respondent advised that the complainant was spoken to by Mr A on 17th September and told that she needed to take instruction from the nursing staff.  The complainant appeared to take exception to this and started to shout.  The complainant asked to meet with Ms C to make a complaint.  Ms C left the room to find out what had happened and when she returned the complainant said she had been spoken to in a disrespectful manner.  The complainant said that other staff were lying about her and asked why she was always working in the same area.  The respondent believed that this meeting was conducted in a respectful manner with the purpose of persuading the complainant to remain at work as she threatened to leave, and they did not want to lose her. 

Mr A asked the complainant about another incident that had occurred during her employment, but nothing was said that could have been inferred as insulting or intimidating and it was not a disciplinary meeting.

At the meeting of 28th September the complainant was asked how progress could be made to put the incidents behind them.  It was submitted that as Mr E was no longer an employee of the respondent, he could not give evidence at the hearing, and that he was not available for the meeting of 28th September 2020 and the complainant did not look to bring anyone else into the meeting.  The complainant submitted that she could not work with someone like Mr A again.  It was agreed by both parties at that meeting, that the only way forward was for the complainant to leave, and she agreed.  When the respondent received notification from the WRC, they were shocked and surprised as it was their understanding that the complainant resigned her position.  They believed that the complainant had made her decision to proceed with the WRC hearing and it was pointless to contact her after that.

Mr A gave evidence that his role is operations director and to manage quality at the nursing home and that in April 2020, he had a conversation with the complainant as another employee told him that she said it was not her job to clean.  Mr A gave evidence that on 17th September, he noticed one of the employees, Ms B, appeared upset after speaking with the complainant and he was asked by Ms B to talk to the complainant.  He met the complainant at the stairwell, and she became agitated, and the complainant followed him into the office where Ms C was.  There was a discussion and Mr A believed that they had made progress on the issue.  Under cross examination Mr A said that things went out of control and that the complainant was agitated.

Ms C gave evidence that following her conversation with the complainant on 17th September she thought that the complainant was ok with everything.  The complainant looked to meet with Mr D after that meeting but he was on leave, and she was asked by Mr D to attend the meeting of 28th September 2020.  At that meeting on 28th September 2020 she believed the complainant resigned her position as she did not want to stay.

The evidence of Mr D was that he had been on annual leave when the complainant requested a meeting, and he scheduled the meeting for when he returned.  The complainant told him that she would not be returning if Mr A was returning.  Mr D gave evidence that he told the complainant that Mr A was the director and would be returning and that the complainant refused to continue to work with Mr A.  Mr D gave evidence that the meeting ended with agreement that they would part by mutual agreement.  It was his understanding that the complainant resigned at that meeting.  He emailed the complainant to confirm their discussion, but it did not go through to her and he posted the letter.  Under cross examination Mr D denied that he did not take the complainant’s allegations seriously and agreed that it may have been more appropriate to have brought in a non-family member to address the complainant’s issues.

Preliminary Issue

The respondent submits that the complainant resigned her position and that as her employment commenced on 01 October 2019 and she resigned on the 28th September 2020, she does not have the pre-requisite service to be covered under the legislation.  The complainant submits that she did not resign on the 28th September 2020, that the respondent terminated her employment, and she was entitled to one weeks’ notice as per her contract. 

Section 2 provides

” …This Act shall not apply in relation to any of the following persons:

(a) an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him …

Section 1 of the Unfair Dismissals Acts makes provision that “date of dismissal” for the purposes of complaints under the legislation is as follows:

“date of dismissal” means—

(a) where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment Act, 1973, the date on which that notice expires.

(b) where either prior notice of such termination is not given or the notice given does not comply with the provisions of the contract of employment or the Minimum Notice and Terms of Employment Act, 1973, the date on which such a notice would have expired, if it had been given on the date of such termination and had been expressed to expire on the later of the following dates—

(i) the earliest date that would be in compliance with the provisions of the contract of employment,

(ii) the earliest date that would be in compliance with the provisions of the Minimum Notice and Terms of Employment Act, 1973,

An incident occurred at work on 17th September which mostly involved Mr A and the complainant.  Ms C, another member of management and a sibling of Mr A, attended a meeting shortly afterwards and it appears that the complainant was unhappy with the outcome of that meeting.  A meeting was held with the complainant and Mr D on 28th September 2020 following the incident of 17th September.  I note that the complainant requested this meeting and that the complainant had been out of work since the incident on sick leave. 

The complainant requested the attendance of Mr E in advance of that meeting, but he was not at work on that day and Mr D brought in Ms C to sit in on the meeting.  There was agreement between the parties that progress was not made at that meeting and it was also not disputed that the complainant advised she could not return to work if Mr A returned.   The complainant gave evidence that she told the respondent to do up a letter for her, however, at the hearing there was conflict of evidence between the parties as to what the letter implied or expressed.  I have reviewed the letter.  The letter sets out:

“As agreed by both parties there is no way to resolve the issues which have arisen in the past few weeks.  It is for this reason that your final date of employment will be today 28th September 2020.”

I find that the above letter does not read how one might expect confirmation of a resignation to read and having heard all the evidence and the submissions, I prefer the evidence of the complainant and find, therefore, that the complainant did not resign but was dismissed. 

Substantive Issue:

I will next address whether this dismissal was a fair dismissal.  It was not in dispute that the complainant requested the meeting of 28th September to address her concerns and the letter of the 28th September 2020 clearly refers to the “2 meetings instigated by yourself”.  I note that the meetings on 17th September 2020 and 28th September 2020 involved management of the nursing home who are all siblings.   The complainant gave evidence that she could not make progress with her concerns as she did not believe that Ms C and Mr D would overrule Mr A and Mr D confirmed in cross examination that he told the complainant that Mr A would not be leaving. 

It is unfortunate that the respondent did not give consideration to having someone outside the family management circle to deal with the complainant’s concerns.  This person might have been seen to be independent and impartial.  The complainant was left in a very difficult situation whereby her complaints were discarded and found her employment ended.  As I have found that the complainant did not resign and based on all of the submissions and the evidence submitted, there was nothing to suggest the complainant was dismissed as per the disciplinary policy.  Therefore, in the circumstances I find that the complainant was unfairly dismissed. 

In UDD1966 VF Foods Ltd v David O’Connor the Court determined that the said complainant

“was entitled to one week’s notice in accordance with his statutory entitlement under the Minimum Notice and Terms of Employment Act, 1973”

There is also a provision for one weeks’ notice in the complainant’s contract.  Accordingly, I find that the Complainant has the requisite service of one year service to maintain her complaint under the Act and that the dismissal was unfair.

The complainant was unavailable for work for a period of time thereafter and secured employment with no loss of earnings. 

Section 7 of the Act sets out that

7.— (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances.

I find that the complainant was unfairly dismissed and that the claim is well founded. I find it is just and equitable in all the circumstances of this case to order the respondent to pay the Complainant the sum of €950.

I find that the complainant was unfairly dismissed and that the claim is well founded. I find it is just and equitable in all the circumstances of this case to order the respondent to pay the Complainant the sum of €950.

Unfair dismissal, requisite service