Worker

Employer

Anonymised Parties

An Activities Co-Ordinator

Nursing Home

Act

Dispute Reference No.

Date of Receipt

Unfair Dismissal Act

 CA-00049534

6 April 2022

This referral relates to the dismissal of an activities coordinator on 28 February 2022. As the worker did not have 12-month service, the referral was dealt with under the Industrial Relations Acts.

The hearing was in person. There was no legal representation on either side.

At the hearing I advised the worker that I was dealing with the case before made under the Industrial Relation Acts (being the complaint he filed) and that he should take legal advice if he wished to bring the complaint under different legislation. I gave sufficient time after the hearing for the worker to revert in this regard.

As I have not received anything since the hearing from the worker, I have proceeded to consider the matter is presented before me at the hearing.

The worker was employed as an activity’s coordinator on the 22 November 2021.

On the 25 February 2022 he was called into a meeting with the head nurse and nursing home manager. This was described as an "informal chat about his duties".

He was told not to leave the sitting room and not to assist any nurses or healthcare workers in lifting patients under any circumstances.

In response, he raised the fact that he often had to get water for the residents as this was not being provided.  He said that on occasion he was asked to help lift residents by nurses or healthcare assistants. He had training in patient handling.

There was a dispute at the meeting as to whether the nursing home is short-staffed or not.

The worker raised an incident that had happened on the previous Friday. He had noticed a resident in extreme pain and distress. He notified a nurse of this. 20 minutes later he noted the patient again in extreme distress. The worker intervened again with the nurse to seek medication for this resident.

The worker was not happy that the manager advised him not to assist the other staff. He felt he was being quizzed inappropriately. He was not given an opportunity to answer the questions raised to support his case.

As the meeting continued, he felt his heart speeding and found it hard to breathe. He felt dizzy and breathless. He pulled at his mask to get a breath. This action resulted in an abrupt response from the manager who told him to put his mask back on.

The worker felt very upset that the manager had no consideration for his physical or mental health. He became worked up and wrote in his submission to the WRC that he said “these masks are going to be gone next week. It's like it was all a scam".

The manager said to the worker that he had an attitude to wearing masks he should go home to rethink if he wanted to continue working there.

The worker had very high blood pressure which was checked by the nurse at the meeting. He was left alone for a considerable period unchecked which he had an issue with.

The meeting re-started again with the manager raising prior occasions where the worker was observed in the sitting room calling out bingo numbers with his mask not correctly in place. The worker pointed out to an earlier occasion where he was asked to sing and entertain the residents at the Christmas party without wearing a mask.

The meeting ended and the worker went home as he was not feeling well.

On Monday 28 February 2022 the worker attended work. He went to see the manager at the start of his shift. He was under the belief that wearing masks in a healthcare setting was no longer mandatory, but a recommendation.

The worker this with the manager. She became very angry with him. She said it was the law for staff working in health care settings to wear masks. The worker queried the source of her information in this regard.

In his written submission, the worker explained how he asked the manager how “would it be treated if he had an exemption”. He was told there are no exceptions. He was told "you either work here with a mask or not at all".  He responded saying that masks were no longer required under the law.

The worker was told to leave. He queried as to what this meant.

After some time, the manager and the nurse came back into the meeting room. The manager said she had discussions, and it was decided to "terminate your contract as you are on probationary period". She said she didn't have to explain any reasons or otherwise.

There was a discussion as to whether the worker was entitled to notice or not.

The manager said, "leave now…you are no longer an employee".

The worker explained that he left the Nursing home without being allowed to say goodbye to the residents or his work colleagues.

The worker disputed that the manager had pulled him up on any issues during his employment. He said the issue of his mask wearing was never raised before his dismissal in February 2022.

The nursing home manager gave evidence at the hearing. No written submission was provided however several documents were provided by her to me that were sent to the worker at the hearing before I reviewed them. This included letters from the HSE 17 January 2022 and 23 May 202 and a handwritten note of the meeting events on the 25 February 2022 and 28 February 2022.

She said that the meeting on the 25 February 2022 was to go to the activities being carried out by the worker.  She explained that throughout the meeting, the worker had his face mask pulled down from his nose.  The manager explained to him that he needed to wear a mask properly. He responded telling her about the new regulations on mask wearing.  He said that HIQUA and NEPHT should be disbanded.

The manager contacted Nursing Home Ireland for advice on the regulations and the correct use of masks. She explained this to the worker.

While the worker had his mask down from his face, she agreed that he did start to shake. He requested oxygen. The nurse checked his blood pressure and both staff members left the room to give the worker an opportunity to calm down.

She explained that the worker said he did not feel well and asked to go home.

The manager explained that on the following Monday 28 February 2022 the worker approached her and asked for a meeting. A discussion ensued as to whether facemasks were mandatory or not in the nursing home setting. The worker submitted that he had taken advice and he didn't need to wear a face mask. He asked to see written proof of the requirement for mask wearing. He said that the guidelines were guidelines and not mandatory. 

During the meeting the worker asked the manager if she was firing him.

After a break, the manager advised the worker that his probation had been unsuccessful as he had not been compliant with the mask wearing requirements. She described him as being quiet but agitated. She explained that he had three corrective active reports (one in relation to mask wearing).  At the end of the meeting, he was aggressive towards her.

The manager said she herself had to correct the worker regarding how to wear a face mask during his employment. She said this was not personal to him, that all staff were corrected.

The manager explained that the employer did have policies and procedures (to include disciplinary procedures) in place. Hard copies had been given to the worker and there were copies available at the nurses’ station in the workplace.

The manager confirmed that there were updates on the wearing of face masks on a noticeboard in the staffroom.

I was also provided with a photograph of a staff memo which was affixed to a wall which set out

"It has been brought to our attention that staff are unsure/misinformed over the use of respiratory masks. I have attached information and can confirm that it is a requirement to wear respiratory or masks in nursing home when providing care. We are all doing our best to protect our residents and ourselves as best we can. Please see attached HSE guidelines and please feel free to talk to [management] if you have any queries."

I was also provided with a pre-printed form/chart 66 dated 5 January 2022 regarding the worker. It was completed in the manager's handwriting. It set out that the problem was the worker "was telling staff that they did not have to do was the manager says re: mask wearing".  The worker also told staff that they should "go and work for the HSE/elsewhere as they were on a low wage and could earn more elsewhere".

The report said that a meeting was held with the worker on this matter. The worker said he was entitled to his opinion. The manager said everyone is entitled to their opinion, but he was not to speak about his opinions in the day room in front of residents.

The manager further confirmed that the worker had been paid his notice pay and he had been sent a payslip explaining this.  I was provided with a copy of the letter 28 February 2022 to the worker and a copy of his payslip 10 March 2022.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

I requested the employer to furnish copies of the employee handbook and disciplinary procedure to me. These were not available at the hearing.

I was provided with the worker's employment contract. This referred to his probation of six months, extendable to 9 months in total.

The staff handbook set out

“as an employee you join us on an initial period of six months. This does not prejudice our right to dismiss you in accordance with the notice provisions contained in your individual Statement of Main Terms of Employment., or without notice for reasons of gross misconduct, should this be necessary.

During this period your work performance and general suitability will be assessed, and a number of formal reviews may take place and if it is satisfactory, your employment will continue.  However, if your work performance is not up to the required standard or you are considered to be generally unsuitable we may either take remedial action or terminate your employment with one weeks’ notice of such termination in line with the principles of natural justice as set out in the disciplinary procedure.

At the end of your probationary period you will again be assessed and, if satisfactory, it will be confirmed that you become a member of our team.

If you have not reached the required standard we may either extend the probationary period by three months in order that remedial action can be taken or;

This case pre-dated the European Union (Transparent and Predictable Working Conditions) Regulations 2022 (Regulations) which came into force on 16 December 2022.

In relation to an injunction application which is not applicable in this case, the Court of Appeal in Donal O’Donovan v Over-C Technology Limited and Over-C Limited [2021] IECA 37 the Court stated:

“During a period of probation, both parties are - and must be - free to terminate the contract of employment for no reason, or simply because one party forms the view that the intended employment is, for whatever reason, not something with which they wish to continue. Neither party can hold the other to the continuation of the employment against the wishes of the other. I do not accept that a court can imply a right to fair procedures – still less uphold a cause of action for the breach of such an alleged right – in relation to the assessment of an employee’s performance by an employer (other than for misconduct, which does not arise here,) during the probationary period, as this would negate the whole purpose of a probationary period”. 

Also in the High Court case of Anna Buttimer v Oak Fuel Supermarket t/a Costcutter Rathcormac [2023] IEHC 126 Mr Justice Dignam outlined the position in relation to termination during the probationary period as follows:

“The authorities are clear that an employee may be let go during her probationary period for any reason (including poor performance) or no reason without any obligation to afford fair procedures. However, it is equally clear as a matter of general principle that while at common law an employer is free to dismiss an employee for any reason or no reason, where the dismissal or termination is for misconduct, the employer is obliged to comply with fair procedures.”

Mr Justice Dignam found in that case, whilst the defendant “had concerns about the plaintiff’s performance and had spoken to her about them, they did not consider those concerns sufficient to fail her probation and only reached that view within a very short few days of having received another set of allegations. This coincidence of events cannot be ignored and in fact is not even explained by the defendant. It may, of course be fully explained at trial but for present purposes it supports the plaintiff’s account.”

He went on to state that he had “no hesitation in concluding that the type of behaviour which is alleged against the plaintiff amounts to misconduct and would be understood as such by reasonable persons. The mere fact that it might also be considered as a performance issue does not preclude it from being misconduct. The defendant appears to take the position that if it is “performance” then it cannot be “misconduct”. I do not accept that.”

In this case before me there was an allegations of misconduct (failure to wear a face mask).  The employer was required to ensure adequate fair procedures were followed in the process that ended the employment relationship. 

I have reviewed the disciplinary procedure dated August 2021 which was produced to me after the hearing. It listed number of Covid related activities which it described as "may be considered as gross misconduct". These included non-compliance with the wearing of PPE which includes facemasks as per public health guidelines.

There is no submission that the worker was notified in advance the meeting of the 25 February 2022 that his employment was at risk. Neither was there a submission which contended that the procedure as set out in the disciplinary procedure was followed before arriving at a decision to terminate the employment or that apart from the impromptu meeting of the 25 February 2022 that an opportunity was provided to the worker to know of any issues prior to the termination of his employment on the 28 February 2022.

Whenever a worker, including a worker who is on probation, is at risk of the loss of his or her job, it is incumbent on the employer to make the worker aware of the situation and of the reasons. In addition, where the issue arises from the conduct or performance of the worker, he or she should be afforded an opportunity to address the decision maker in his or her defence.

While there were two meetings with the worker before his employment was terminated, these were ad hoc meetings and not carried out in accordance with the disciplinary procedure.  Several basic elements of fair procedure were not applied in the case of this worker. 

I also accept the daily pressures on Nursing Homes to keep residents and staff safe during the Covid Pandemic and the issues that resulted in the worker failing his probation were highlighted to him during his short period of employment.

Unfair dismissal during probation.  Face mask