Complainant

Respondent

Parties

Caroline  Mcaree

Newbrook Nursing Home Ulc Drumbear Lodge Nursing Home

Representatives

Kevin Hickey Hickey, Henderson & Co

Regan O'Driscoll CC 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-00040675-001

29/10/2020

The complainant was employed as Director of Nursing with the respondent – she commenced employment on the 3.03.2009 and her employment was terminated on the 17th.September 2020 without explanation. She submitted she was summarily dismissed by her employer without reason or explanation. The respondent asserted that the termination of the complainant ’s employment complied with the provisions of her contract of employment and submitted that because of the crisis arising from the Covid pandemic, the respondent was obliged to act in the best interest of patients and to put the safety of patients first.

The respondent’s representative submitted as follows :

Background to dismissal

1.The Respondent operates 6 purpose built nursing homes in a number of locations including three nursing homes in Westmeath and one in Castlebar, Monaghan and Longford employing in or around 61 employees. The Complainant was employed originally as Nurse Manager on 28 August 2010 and was promoted to a position of Director of Nursing in January 2016 based in Drumbear Lodge in Co. Monaghan. Her contract is included.

2. Nursing homes have been particularly badly hit by the Covid 19 pandemic and the Respondent was under enormous pressure to ensure the safety of its residents. On 2 April 2020, Phil Darcy, CEO for the Respondent, spoke with the HIQA holding inspector for the facility who queried it’s lack of preparedness and contingency planning for Covid 19. Mr. Darcy was surprised as there had been extensive planning conducted by the Respondent in relation to the extremely serious threat of Covid 19 in conjunction with the Complainant. Mr Darcy wrote the Complainant an email order to ensure that she had complied with all of the relevant directions provided. This email is included.

  3. On 22 April 2020 Mr Darcy wrote an email to the Complainant outlining that she had failed to submit documentation to HIQA as required by the organisation and despite being asked to do so by Mr Darcy in an email of 21 April 2020.

4. On 24 April 2020 the Respondent received a phone call followed by an email from Ms.A from HIQA outlining that they had been notified of significant health and safety concerns in relation to the Respondent’s case of its residents in its Drumbear Lodge facility. This email is included.

 5. Mr Darcy had concerns regarding the manner in which the facility was being managed and after a serious outbreak of Covid 19 he decided to terminate the Complainant’s employment in accordance with clause 10 of her contract of employment. He did this as a no fault termination because he believed that he had to put the safety of his patients first. It would have been impossible to manage a performance improvement plan with the person in charge of running the facility at a time of such pressure.

 6. It is submitted that the Covid 19 pandemic placed extraordinary pressure on nursing homes and the safety of patients had to be a priority for the Respondent.

 Summary of Pertinent Evidence of Mr. Darcy who swore an oath.

The respondent stated that he was CEO of the company for 11 years, that  he had legal responsibility to ensure the provision of a quality service and submitted that the Director of Nursing also had a legal responsibility under the Health Act. He submitted that arrival of Covid in 2020 put pressure on the services to maintain a high level of care. The company had opened an extension and acquired staffing for 99 residents – the number in care peaked at 82 residents. In preparation for Covid 19 , the company had contingency plans in place as well as guidance from HIQA and Nphet. Risks were reviewed, there were visitor restrictions and training in place for staff on PPE and infection control. He submitted they were hoping they were going to be prepared for the challenges of Covid. He submitted that cracks and strains began to emerge as Covid took hold. He referenced his email to the complainant of the 2nd.April 2020 after a call from HIQA regarding lack of preparedness and contingency planning for Covid 19.

The respondent accepted he did not go through a performance improvement plan with the complainant . He said he emailed the complainant  to record in writing the preparations for Covid and asked her to confirm that she had read the contents and supporting documentation. He asserted the Director of Nursing needed to reassure him that she had read the documents and communicated the contents as appropriate to the staff. He advised that he did not get a response from the complainant .He said it weighed on his mind and that he would revisit it at a later date. He referenced his email of April 22nd. 2020 and said he did not want to keep emailing the Director – he asserted the Director did not reply. He stated that following the contact from HIQA he went on site and reviewed the rosters and procedures  and confirmed in an email on the 24th.April to HIQA that he was satisfied that the staffing and resourcing of the centre was sufficient. When asked about the termination of the complainant ’s contract on the 17th.September , the respondent said he was no longer happy for the Director to take the role of Director of Nursing – when asked what changed between April and September , the respondent said he did not want to take a rushed decision – it was in the middle of the first wave of Covid. He referred to clause 10 of the complainant ’s contract and offered to pay the complainant  a settlement. He stated that this was the best decision for the Nursing  Home – he did consider putting a PIP in place at the time but it was a critical time and it would have been difficult to put one in place.

Under cross examination the witness said the decision to dismiss the complainant  was made in September 2020 in conjunction with his fellow directors Mr. McG and Ms. McG.He said there was no Board meeting in the formal sense – probably a phone call – and that he would have executive authority to make the decision .When asked “ so the Board decided “ , the witness responded No – I decided to source a replacement for the complainant  - Ms.McG  who along with her father constituted the other 2 Directors. The witness was questioned on his concerns about the complainant ’s  ability to do her job – it was put to him that he dismissed the complainant  on the same day the complainant  was to commence a Masters Course in Trinity having been furnished with a reference by  It was put to the witness that 4 months earlier he had decided the complainant   was unable to carry on her duties .The witness responded we would not try to hold anybody back – they had to make a business decision .

 The witness reaffirmed that this was a business decision and the following factors  influenced it:- the events of April 2020 , the emails, a number of months between a series of events ; changing a senior manager in the middle of a pandemic ; the global pandemic ; the need to make sure the residents were looked after and organise a smooth transition. The witness said in his email of the 24th/April to HIQA that  he reported that he was satisfied that staffing was sufficient ; he said  we had a surplus of staff ; he  said he had to engage with HIQA at a high level on a regular basis.

The witness said he composed the email of the 24th.April to HIQA – when asked if the complainant  was involved in drafting the email , the witness replied   she did not compose it.

The witness confirmed he took legal advice prior to the dismissal – he could not recall if he had obtained advice on responding to the complaint to the WRC of unfair dismissal. It  was put to the witness that in failing to reply to the complaint he had admitted that the complainant  was unfairly dismissed. The witness replied that he decided to dismiss her on a no fault basis. It was put to the complainant  that following the first hearing , he submitted a document to the WRC making allegations against the complainant . The witness replied he did not have time to manage a performance improvement plan. The witness’s representative stated that it was accepted that there was an unfair dismissal.

The representative for the complainant  referenced discussions about a pay uplift of a 3 figure sum, the witness refuted this and asserted that the complainant  was in receipt of €85,000 plus a bonus which was contingent on occupancy targets. When the witness was referred to the complainant ’s assertions of a substantial increase when the level of occupancy increased , the witness replied I communicate anything of substance by way of email or notes. When it was put to the witness that the complainant  was heavily involved in the email to HIQA of the 24th.April , the witness responded that quite a few staff had an involvement including the clinical manager  and the infection control trainer. When it was put to the witness that nothing in his email of the 24th.April supports or suggests the contention that the conduct of the complainant  in April 2020 justified her dismissal on the 17th.September , he responded “I felt the complainant  had to be dismissed – that’s my evidence “.The witness went on to assert that he exercised the clause in the complainant ’s contract. He asserted he made a payment in lieu of notice and offered a resignation sum.  The witness stated that he did not alter practises in the nursing home following the unannounced  positive inspection by HIQA in June .The witness replied we had an abundance of nursing staff – when asked about the efforts/ contribution of the Director of Nursing to the outcome of the HIQA finding , the witness asserted it was a  cliché but it was a team effort.

The witness stated that when considering the complainant ’s dismissal he wanted to ensure an adequate replacement for the Director. He said it was a gradual decision process culminating in the letter of dismissal of the 17th.September where he invoked the clause in her contract.

The witness  asserted that the decision to terminate the complainant ’s employment took place on the 17th.September 2020.When it was put to the witness that this was grossly and outrageously unfair , the respondent’s representative advised that it was totally accepted that the dismissal as unfair. The witness asked if he was trying to suggest the complainant  was dismissed for incompetence .It was put to him that while the respondent was accepting the dismissal was unfair , they were at the same time undermining the complainant ’s competence .The witness replied it is not being contested. The witness rejected the allegation made by the complainant ’s representative that the complainant   had been humiliated by the respondent. The witness  replied  we did not seek to humiliate her ;we tried to reach a negotiated settlement and made an offer of €21,250 – he asserted that they had tried to reach an amicable agreement. They did not give a reason to staff and he asserted nothing was done to damage the complainant ’s reputation.

The witness clarified that if occupancy targets were reached the complainant  would have received a 10% bonus in addition to her annual salary of €85,000.It was contended by the complainant ’s representative that the witness did not deny the offer to the complainant   of a 3 figure sum until the morning of the WRC hearing.

The witness set out the adjustments to the complainant ’s salary as occupancy levels changed.

The witness did not dispute the complainant ’s assertion that the first confirmed case in the Home was recorded on the 9th.April 2020.

In outlining the challenges facing the staff , the witness referenced their efforts to secure PPE , their engagement with the HSE and stated that residents were kept safe until the 9th.April 2020.He stated that staff were faced with a nightmare and did their best. They were offered a 10% bonus .The complainant  was excluded from the bonus because of her level of earnings . He asserted that the company made an application for a bonus but it was deemed applicable only to other staff. Guidelines from the HSE in relation to the criteria for payment  was furnished to the WRC following the hearing.

The witness  asserted that the complainant  had adequate resources to respond to the pandemic – he did not dispute the claim that the complainant  had to make 60-70 calls to families every day or that she had to deal with families and dying relatives on a continuous basis. The witness responded that the complainant   had an Assistant Director of nursing to support her. The complainant s representative asserted that the complainant  had to carry dead patients out of the Nursing Home herself  and in response the witness  said he refuted that she was left unsupported. When asked if he was suggesting that the complainant  was dismissed for missing a deadline to email HIQA , the witness said that the complainant  had missed out on other emails also. He further referenced contingency plans and a lack of preparedness. When it was put to him that yet he was perfectly happy on the 24thApril – as had been  advised to HIQA- the witness replied he was happy with the support for clients , with the GP service , with sourced accommodation and with the GP. When asked if he found any fault with the complainant  , the witness replied I did but did not deal with it until September.

The witness reiterated that it was a gradual decision to dismiss the complainant  – he was in informal contact with the other 2 Directors and would have notified them of his intention. There was no recruitment process – he wanted to keep the matter confidential. The witness engaged with the other 2 directors , discussed his proposal for dismissal and offered Ms.McG   the Director of Nursing  job during the same conversation.

In a later exchange , during the course of the final hearing on the 11th.July , the witness advised that he asked     Ms.McG   if she was  prepared to accept the offer of Director of Nursing , she needed a few days to think about it and then accepted it. There was no formal meeting  and no Board meeting – his discussed the matter with Mr.McG . The witness repeated that he had executive authority to take the decision. He went on to say that the complainant  could not benefit from the bonus paid to staff because she was the highest paid staff member at the home and did not meet the HSE qualifying criteria. He said if we cannot access funding how could we pay a bonus?

It was put to the witness that his evidence was inconsistent with respect to when he took the decision to terminate the complainant ’s employment. He stated that he fully decided in Sept. 2020 prior to speaking with Ms. McG . The witness said he informed the complainant  on the 17th.Sept. and the new Director would commence on the 5th.October. The witness said he made his decision first and informed  the complainant  .The witness said he rang Ms. McG when he made his decision. He stated that it was gradual process and he had fully decided by Sept.2020.The witness said he met the Directors regularly. He went on to say that he made his decision in advance of the 17th.Sept. when he asked Ms.McG if she would take up the position. He said he also discussed it with Mr.J McG – he repeated that he had executive authority to make the decision. He said the Director and her father accepted his decision to dismiss the complainant  and his decision was not overturned. It was put to the witness that the dismissal of the complainant  was a fait accompli – the Director of the company was to replace her. The witness said he drafted  the letter of  termination on the 16th.Sept. 2020 and gave the letter to the complainant  on the 17th.He handed it to her  and stated that no response was required as the decision had been made. The decision was made and he expected a dispute on procedural fairness.

The respondents representative said that they did not dispute the dismissal was unfair but needed to put the matter into context. The complainant ’s representative submitted that  the respondent was attempting to blame the complainant   in a blatantly unfair dismissal. The respondent’s representative asserted that the references by the complainant ’s representative to six figure sums relating to occupancy  and bonus could not be considered in assessing compensation and that all that could be examined was the actual loss  incurred by the complainant .

Summary Dismissal

The following submissions were received from the complainant ’s  representative on  30.07.2021

1.           These are submissions are in addition and supplemental to the document entitled Statement/Submission of Caroline McAree already submitted.

2.           For the reasons set out below the complainant objects to the content of the Outline Submissions on Behalf of the Respondent had herein and submits that they should not be received or considered in the hearing of this matter.

3.         The solicitor for the Complainant wrote to the Respondent Solicitors by letter dated the 12th of October 2020 requesting a written statement explaining the reasons for the Complainant’s dismissal. This was followed by a letter of reminder dated the 21st of October 2020. The Respondent’s Solicitors replied by way of letter on the 22nd of October 2020 indicating that the Complainant’s Contract of Employment was terminated on the 17th of September 2020 in accordance with the terms (of Contract of Employment) The Solicitor for the Complainant again wrote to the Respondent’s Solicitors on the 22nd of October 2020 again requesting the Respondent’s written statement explaining the reasons for the Complainant’s dismissal. No further response to this enquiry was received. Copies of these correspondences are included.

4.           No explanation or attempted justification for the dismissal was communicated by the Respondent prior to the application made by counsel on behalf of the Respondent on the day of the Virtual Hearing for an adjournment or postponement of the hearing on the basis that sworn evidence would be required. The allegations that were to be the subject matter of that evidence were not revealed to the Adjudication Officer or the Complainant ’s advisers.  Indeed, it was also put forward that the postponement or adjournment was required to allow the Respondent to cross examine the Complainant on her losses.

5.           In response to paragraphs 2 of the Outline Submission on Behalf of the Respondent, the complainant in her role as Director of Nursing was fully aware and cognisant of all the correspondence from HIQA, and each other relevant authority involved in issuing the Health/Nursing Home sectors information regarding Covid-19.  She had kept abreast of all of the information coming from the HSE and any other relevant source and had been attending the online seminars from Tallaght Hospital.

6. 

7.           The document at Appendix 2 purports to be an email order to the Complainant to review the correspondence listed in the attached Chronology and confirm the seven numbered items. The Respondent had not been a party to the telephone conversation between Mr D’Arcy and the case holding inspector for Drumbear Lodge, nor was she a party to her queries regarding the apparent lack of preparedness and contingency planning for Covid-19 by the Newbrook Group. At the time the email was sent to her, the complainant was fully aware of the contents of each of the items in the Chronology and could readily confirm each of the seven numbered items.  The complainant’s reply to that email was oral over the telephone and the Respondent has not chosen not to exhibit any memo of same.

8.           The complainant had kept herself a fully informed and aware of all practice and procedures considered desirable and necessary to protect the residents and staff of Drumbear Lodge from infection by the virus as it spread in the Irish community. She had implemented, and overseen the implementation in the home of all of the measures discussed, recommended or ordered.  She had kept herself fully up to date and make sure that she informed all staff of what was required, and that she kept them fully updated.  She held daily meetings with the nursing home managers on duty to discuss the plan for that day.  She had numerous meetings with each member of staff on duty, on an almost daily basis making sure that they were appropriately informed.  She rigorously ensured that all of the members of staff were informed fully about the wearing of personal protective equipment (PPE), when it should be worn and all necessary precautions regarding same.  The two metre social distancing practice was always maintained in the Nursing Home at that time and staff wore masks from the time the complainant had been informed by Head Office that wearing same had been directed by the HSE and/or NPHET.    The complainant made herself available to answer any questions at any time.

9.           The complainant does not know at this time when there was first an outbreak of Covid-19 infection in a nursing home in Ireland, or in one of the nursing homes belonging to the Newbrook Group.  News of such was certainly current before and by the date of that email order.  At the date of the email  the work of the Complainant  and her ever vigilant staff had kept the residents of Drumbear Lodge safe from the virus.  Therefore, at that time the wearing of ‘Full PPE’ was not a relevant requirement.

10.         The complainant submits that the apparent or open attempt to blame her for the tragic outbreak of Covid-19 viral infection in Drumbear Lodge, which was confirmed on  the 9th April 2020, and its consequence, obliquely put in paragraph 5 and by innuendo in the selected documents appended to the Outline Submissions on Behalf of the Respondent is grossly unfair and should not be allowed in this or any form.

11.         Further, the complainant submits that to accuse her of absolutely gross misconduct, being responsible , even in part, for the illnesses and deaths that occurred in or were associated with Drumbear Lodge Nursing Home in the suggested, casual, oblique and un-particularised manner as the accusation is being made in the said submissions is grossly unfair and wrong.  More particularly it is grossly unfair and wrong in the circumstances where the complainant and Mr Darcy  chose to remain silent on the matter at all times up to and including the day of the hearing of the claim, and until these Outline Submissions on Behalf of the Respondent were received by her solicitors on 20teh July 2021.  And further, is it more particularly unfair and wrong given that the only stated reason for the dismissal is the statement made by the Respondent that Mr Darcy dismissed the Complainant  “as a no fault termination”.

12.         The complainant wishes to refer to the test of the Report of an Inspector of a Designated Centre for Older People, published by The Health Information and Quality Authority arising out of an unannounced inspection of Drumbear Lodge Nursing Home on the 30th June, 2020.  See Schedule 2.

13.         The complainant  cannot deal with the un-particularised accusation or accusations made or hinted at in the Outline Submissions and submits that it would be unfair to expect her to do so.

14.         The residency of 99 persons in the Nursing Home, as referred to in the HIQA Report (Schedule 2.), was part of a long term development plan then in progress whereby the Respondent had added to and adopted the Nursing Home where the Complainant  was Director of Nursing and it had been agreed between the Complainant , through Mr Darcy  and the Respondent that her salary would be substantially increased when that level of occupancy was reached – to a “three figure sum”.

15.         The complainant’s   long held desire to attain further academic qualifications led to her putting in an application for a place on a course leading to a Master’s Degree in Gerontology in Trinity College, Dublin.  This was done with the full knowledge of the management of the Respondent two of whom agreed to provide necessary references as part of that application.  The course was to commence on the day that the complainant was unfairly dismissed.

16.         As regards the 7 numbered items in the email of the 2nd April 2020 the complainant  submits:–

              1 & 2 – Are dealt with at 5 & 6 above;

              3 & 4 – Are dealt with at 7 above.

5 –         The staff of Drumbear Lodge worked the hours allocated to them, and the complainant  had made sure that they were fully aware that they could or would be redeployed and requested to work additional hours should an outbreak of the viral infection occur in the nursing home.  At the time of the writing of the email that dread event was still in the future.

6 –         The complainant  had made sure that all staff had been made fully aware of all necessary Infection Control Protocols.  The staff of Drumbear Lodge had been very vigilant at all times and very protective in light of the then known threat to the safety and welfare of the residents in the nursing home and to the staff themselves.  The Complainant  wishes to submit and clearly state that neither she, nor her staff, nor the residents of the nursing home wanted an outbreak of the infection in the nursing home and that under the direct supervision and tutelage of the Complainant  the staff did all in their power to prevent such from happening.

                             7.           The complainant  was ordering PPE from the HSE.  Details of names, numbers and emails were kept in a hardback journal for the information of all managers and to ensure that it was available if orders had to be placed in the absence of the complainant .  Details of the suppliers of Oxygen and all other supplies thought necessary at that time were also kept in that journal and the whereabouts and contents of the journal were communicated to in-house managers and administration.

17.         The complainant  submits that at all material times all efforts were made to source and acquire necessary PPE, Much was sourced through links in the community.  Staff members with personal links to furniture companies sourced protective masks to be used in the nursing home.  Women in the community who wished to contribute to the effort were making masks for frontline workers.  It was common practice for the staff of the nursing home to go out of their way to collect these items so that they could work in the nursing home and adhere as best as possible to the necessary safety standards.  Plastic face-masks were been manufactured on a community basis by an individual in Monaghan who had collected together a group of 3D printing machines.  Orders were placed for this ad hoc PPE and it was supplied by the community free of charge.  This viable PPE was in general use in the nursing home well before the respondent chose to supply Drumbear Lodge with medical masks.  Both Mr Darcy  and Ms G (operations manager) were fully aware of this fact and had no issue with it.  The son and daughter-in-law of a resident were making scrubs out of bed sheets and supplying them on to the nursing home.  These were worn by staff in the isolation unit and washed at high temperature after each shift in the facility’s laundry.  Mr Darcy was aware of this fact and again had no objections.  No scrubs were purchased for the staff by Newbrook Group and when the Complainant  sourced a supply of same Mr Darcy declined to purchase on the basis that they would cost money.

18.       The complainant  admits that she failed to send a Notification to HIQA on the 21st April, 2020 as detailed in paragraph 3of the Submissions. She puts this down to oversight, tiredness and human error.  On that day she worked to 18:49 in the evening and had sat in her office and made approximately 68 to 70 phone calls to family members of residents updating them on the Covid -19 situation in the nursing home and discussing in detail  how this was affecting their family member.  The following day she discussed this omission, among other things, with her HIQA inspector on the telephone during her daily call with her. She was told not to worry about it and to make sure she did submit the notifications going forward.

19.         On the 21st April 2020 as the only person in Drumbear Lodge that was able to submit Notifications to HIQA.  Mr Darcy  had failed to add any other managers to the persons capable of submitting these Notifications.  This ability was never activated for any other member of the managerial staff.

20.       At this time in April 2020 the complainant  was giving all of her time at work to dealing with the outbreak of the disease and it was foremost in her mind in every waking hour  both at work and at home.  As Director of Nursing during the pandemic the complainant  worked harder than she had ever worked before in her nursing career.  Despite the enormous pressure she and her staff were under, no additional administrative staff, resources or support were provided by the Respondent to the management of the nursing home.

21.         Mr Darcy on behalf of the Respondent performed a very brief walk through inspection of the nursing home on the afternoon of Friday 24th April 2020 and in conference with the Complainant  wrote the email to HIQA enclosed at Appendix 4 . Nothing in Mr. Darcy ‘s  email supports or even suggests the contention that is now been put forward on behalf of the Respondent, nor does it support or suggest that the conduct of the complainant  around about the end of April 2020 justified her dismissal on the 17th September of that year.

22.         As to the matters raised in the HIQA  phone call and email of the 24 April 2020 and her requirements regarding visitation of the Drumbear Lodge Nursing Home  and subsequent reporting to confirm that resident’s needs were being met, Mr Darcy’s  email referred to in the immediately preceding paragraph is that response and confirmatory report which on its face shows that there were no “significant health and safety concerns “arising out of the Complainant’s conduct.

23.         In his decision to dismiss the complainant  on the 17th September 2020 for her alleged, and largely or totally un-particularised failings in April of that year, it is clear from paragraph 5 of the Submissions that Mr D’Arcy entirely ignored and declined to implement the Grievance Procedure and the Disciplinary Procedure laid out in the documents in Appendix 1, and the provisions relating to Performance in those documents .

24.         Further it is submitted that the decision to dismiss which led to the unfair dismissal on the 17th September 2020 was taken without any regard to the Complainant ’s right to be treated fairly and to the rules of Natural Justice.

25.         Further to the immediately preceding paragraph, the Complainant :–

a.           Was not informed of the complaint, charge or accusation been made against her, prior to the decision being made to dismiss her; and perhaps more egregiously the complaints, charges or accusations against her have been  kept strictly secret even up to the time the matter came on for hearing before the Adjudicating Officer of Workplace Relations Commission and have been revealed only in a vague, veiled and shadowy form in the Outline Submissions and their Appendices received by her solicitors dated 13th July, 2021;

b.           At no time was the Complainant afforded any opportunity to speak in her defence or make any plea or submission on her own behalf regarding her dismissal from the job to which she had been so heavily dedicated and committed, nor could she have had she been so afforded, given the grim secrecy adopted and maintained by the Respondent about the reasons for her dismissal;

c.           It appears from the contents of the Outline Submissions that Mr Darcy  ignored all of the principles of natural justice and chose to decide on the dismissal of the Complainant  based on his own personal opinions and reasons, whether they are set out in the Outline Submissions or not.

26.         The complainant  agrees fully with the first part of the submission has paragraph 6 and the submits that the safety, health, welfare, comfort and dignity of the residents and patients at Drumbear Lodge Nursing Home was her priority and primary concern at all material times up to the moment of her dismissal on the 17th September 2021 above all other concerns, and for Mr D to allege, or hint and suggest, otherwise in an attempt to justify a management decision relating to restructuring within the Newbrook Group is deeply insulting and offensive to the Complainant  who is a Nurse of 25 years standing.  She is a Registered Sick Children’s Nurse and a Registered General Nurse and in 2004 she graduated with a BSE in Nursing. 

27.         The person who replaced the complainant  on her unfair dismissal is a member of the Board of the Respondent company (See Schedule 3).

28.       The Claimant’s financial loss is continuing as previously set out and she believes that it will continue for the indefinite future as posts as Director of Nursing are very fiercely competed for in the public sector and are few in number in the private sector.

The Complainant ’s financial loss is continuing as previously set out and she believes that it will continue for the indefinite future as posts as Director of Nursing are very fiercely competed for in the public sector and are few in number in the private sector. The complainant was due to commence study for a Masters Degree in Gerentology in Trinity College, Dublin on the day she was summarily dismissed. Her studies were to be funded by her with her employment as it was as part of her course work. She had to forgo this very valuable and possibly life changing opportunity on finding herself suddenly and unexpectedly unemployed. 21st September 2020 The Complainant registered with: Linkedin. Irishjobs.ie. And was checking daily on HSE jobs online. She also made enquiries among her friends, associates and former colleagues and let it be known that she was seeking employment. She continues to be registered for job alerts with the above agencies. 23rd September 2020 The Complainant applied for a post as Clinical Nurse Manager 1 (CNM1) with the HSE for an in house position in a General Hospital in the Northeast.

 She was interviewed for the position on the 9th October 2020 and offered it on the 12th October 2020. On the 1st. January 2021 , the Complainant ’s husband left a  General Hospital as CNM11 where he was covering days and night duty and commenced as CNM11  in the Northeast. This change was necessary in order to facilitate childcare arrangements as the complainant was no longer working a Monday to Friday 9-5pm routine. March 2021 The complainant applied for and sat interviews for a post as CNM11 and another as CNM111, neither of which were offered to her. In January 2020 a post as Director of Nursing was advertised at M Nursing Home. The complainant did not apply as she has so recently commenced her present employment. She does not know the amount of the salary that would have been offered for that post and assumes it would have been in line with the salary for the job she had just commenced. May 2021 The complainant applied for and was interviewed for a post of CNM111, again unsuccessfully. — During the initial crisis of the Covid 19 outbreak, the complainant accumulated an additional 40hrs and 32 minutes work which is documented by the on the Clock Card Reports. She also worked through all breaks (15 minutes in the morning and 30 minutes for lunch) during this period amounting to a further 31 hours. This is undocumented. The crisis was such that she had no inclination to eat or rest and was simply too busy to take breaks.

  The complainant ’s  representative set out a chronology of  the complainant ’s  income from her days in the employment  with the respondent and detailed the efforts by the complainant  to secure alternative employment . The representative  also submitted payslips from her current employer since she commenced with the HSE  on the 30th.Nov. 2020

Summary of Pertinent Evidence of Ms.Mcaree  after swearing an oath.

The complainant set out a chronology of her career to date from the time she qualified in 1996  until she took up employment with the respondent. She said she started looking for jobs on line after her dismissal in the public and private sector. She took up the position of CNM1 at a HSE hospital in the Northeast on the 30th.Novemer 2020 – she estimated that the annual loss arising for her was €30,000-€35,000.She remained with the same employer and was committed to her job there. Due to what happened her in the Nursing Home , she had lost confidence in securing employment at an equivalent level within the private sector.

Under cross examination , the complainant  said she was shocked to loose her job after 12 years and it took her 2-3 weeks before she gained confidence to apply for alternative employment. When asked if she did other interviews prior to interviewing for the CNM 1 – she responded that she had done a few .She  stated that in order to secure    higher graded CNM posts or Director of Nursing posts in the public sector  she would have to acquire additional  experience and work her way up through the various promotional grades in the public sector. This experience would be required to get short listed for any such position.  In the intervening period between employments she did not apply for Social Welfare  and had 4 weeks without pay.

In summing up , the complainant ’s representative submitted that while the respondent did not dispute that the dismissal was unfair , they nonetheless were making an accusation that his client was guilty of gross misconduct , in circumstances where there was no possible justification for the dismissal and the complainant  had taken gargantuan steps to safeguards the residents and staff from Covid.It  was submitted  that on the return of  the Director (Ms.McG) from maternity leave , the respondent gave her the complainant ’s  job and summarily dismissed the complainant . It was submitted that in assessing compensation , account should be taken of how unfairly the complainant  had been treated throughout.

I have reviewed the evidence presented at the hearings and noted the submissions of the parties – one hearing had to be adjourned owing to a technical interruption to broadband  service for one of the parties which could not be restored .

Throughout the proceedings the respondent contended that this was a case of “ no fault termination “ and that  the respondent was not contesting that the dismissal was unfair.

I note the respondent failed to comply with the provisions of Section 14(4) which requires an employer to furnish a written statement of particulars of the grounds of dismissal.  

In the course of the hearings the respondent and his representative   continuously relied upon the provisions of Clause 10 of the complainant ’s contract which Mr.Darcy  insisted provided for “ no fault  termination”.I note that no  such term is referenced in the complainant ’s  2016 contract which was submitted into evidence.

Mr.Darcy   continuously referenced his decision making about the termination of the complainant ’s contract to be  a gradual process but was unable to explain the basis for the delay between the events of April 2020 and the termination of the complainant ’s employment on the 17th.Septembe 2020r. While in his evidence he referenced exchanges with the other 2 Directors , he contended that he  had executive authority to effect the dismissal and contended  that it was not challenged as there was no appeal.

While asserting that an unfair dismissal was not being disputed, Mr.Darcy inferred in his evidence that the complainant  was guilty of performance deficits and in this regard he relied upon her failure to respond to an email  of  the 21st.April 2020. It was submitted on behalf of the complainant that she responded orally over the phone but the respondent had failed to exhibit a memo of same. It was submitted that the claimant had admitted to failing to send a HIQA notification on the 21st.April 2020 which she put down to tiredness , oversight and human error. On  the date in question , it was submitted that the claimant had dealt with 68-70 phone calls to family members of residents updating them on the COVID situation.It was submitted that the following day the complainant discussed said omission with her HIQA Inspector during her daily call with her and she was advised not to worry about it and to make sure the notifications  were submitted going forward. On the 24th.April 2020 the respondent sent an email to HIQA   which reassured them  of the Home’s preparedness for Covid in terms of staffing and resourcing. I note the following assertions in the respondent’s own submission :- “ Mr. Darcy was surprised as there had been extensive planning conducted by the Respondent in relation to the extremely serious threat of Covid 19 in conjunction with the Complainant”.

 When it was put to Mr.Darcy  under cross examination that  yet he was perfectly happy on the 24thApril – as had been  advised to HIQA- the witness replied he was happy with the support for clients , with the GP service , with sourced accommodation and with the GP. When asked if he found any fault with the complainant, the witness replied I did but did not deal with it until September. When asked by the claimant’s representative if the complainant was dismissed for failing to respond to an email, Mr.Darcy replied it was not just one email. Mr.Darcy acknowledged that the complainant as well as other staff had contributed to the drafting of the email to HIQA of the 24th.April 2022.I note that in the respondent’s submission it was accepted that

The respondent stated that he had no time to put a Performance Improvement Plan in place – as provided for in her contract of employment- but he was unable to advance a cogent explanation for failing to putting a PIP in place.

A copy of a detailed HIQA inspection report was submitted into evidence which recorded that  on inspection of the Nursing Home on the 30th.June 2020 ,  the home  complied with 11 of the 13  inspection criteria and  that the nursing home was  substantially compliant with the remaining 2 criteria. When questioned as to whether the Director of Nursing was responsible for this positive result , the respondent replied “ It was a team effort”.

On the 10th.August 2020 , the respondent submitted a positive reference to TCD in support of the complainant ’s application for a Masters Degree.

On the basis of the forgoing evidence and chronology of events, I have concluded that the respondent has failed to produce  or particularise evidence to support his inferences of misconduct or poor  performance on the part of the claimant and consequently I find that the dismissal is substantively unfair.

The respondent’s evidence with respect to the decision to terminate the complainant ’s employment and the offer of the Director of Nursing post to the company Director Ms.M.V.McG to replace the claimant and the timing of same   was confusing and inconsistent.

Additionally I find that the arguments advanced by the complainant’s representative to the effect that the entire process was devoid of natural justice and in contravention of the respondent’s own procedures   are compelling and persuasive.

In light of the foregoing I am satisfied that the dismissal was also   procedurally  unfair.

I found the evidence of the claimant with respect to mitigation of loss  to be credible and convincing.

In examining the matter of compensation I am taking into account the conduct of the respondent as provided for under Section 7 (2)(a) of the Act. Taking the claimant’s loss of 4 weeks pay post her dismissal and her ongoing loss arising from the difference in pay between the salary paid by the respondent and her current remuneration with the HSE, I require the respondent to pay the complainant €63,740.38 compensation.

No fault termination