FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES: ALLENFIELD CARE HOMES LIMITED (REPRESENTED BY MR. ARTHUR CUSH B.L. INSTRUCTED BY O'CONNOR O'DONOGHUE & CO LLP) - AND - CAROLINE CLIFFORD (REPRESENTED BY TERENCE F CASEY & COMPANY) DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No(s) ADJ-00015820 CA-00020564-001. Background to the Appeal This is an appeal by Ms Caroline Clifford (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00015820, dated 7 August 2019) under the Unfair Dismissals Act 1977 (‘the Act’). The Complainant’s Notice of Appeal was received in the Court on 30 August 2019. The Court heard the appeal in a virtual courtroom on 2 February 2023 during which the Complainant gave evidence on affirmation as did the following witnesses on behalf of Allenfield Care Homes Limited (‘the Respondent’): Ms Miriam Harty, Ms Sheilah Climaco and Ms Dolores Sugrue. The Factual Matrix The Complainant was employed by the Respondent at Ashborough Lodge Residential Nursing Home in Milltown Co. Kerry as a part-time healthcare assistant from 22 November 2017 until she resigned her employment on 4 June 2018. She worked twenty hours per week over five evenings. The Complainant’s contract of employment provided for a six-month probationary period which the Complainant successfully completed, thereby becoming a permanent employee with effect from 22 May 2018. Management conducted a routine review meeting with the Complainant on 28 May 2018 following which she commenced a period of certified sick leave from which she did not return to work with the Respondent. The Complainant was required, pursuant to the Health Act 2007, to obtain Garda vetting clearance. The Complainant was very familiar with this requirement as she has over twenty years of experience working in the healthcare sector. Nevertheless, the Complainant did not obtain the necessary vetting clearance until May 2018 despite having been reminded of the need to do so by management on a number of occasions. The Complainant was suspended for a short period – between 8 May 2018 and 14 May 2018 – pending receipt of her Garda clearance certificate. On 13 April 2018, the Complainant reported an incident which she had witnessed on 10 April 2018 and which she considered to amount to elder abuse by a colleague of two residents of the care home who suffered from dementia. The incident was notified by the Respondent to the appropriate authorities (including HIQA, An Garda Síochána and Safeguarding Ireland) and investigated. The investigation concluded that the incident in question did not constitute a breach of Trust in Care. Submissions The Complainant submits her reporting of the incident of 10 April 2018 is a protected disclosure within the meaning of the Protected Disclosures Act 2014. She further submits that she was penalised for having made that protected disclosure in so far as the requirement to obtain Garda vetting documentation was escalated very shortly after she made her report to the point where she was suspended from her employment. It is her submission that her contract of employment makes no provision for suspension in such circumstances and, in any event, the Respondent – she says – had been in breach of its statutory obligations by permitting her to work for over six months without Garda clearance. The Complainant also points to other events which she contends indicate that the Respondent had become negatively disposed to her as a consequence of her having made a protected disclosure. Firstly, she submits that she was treated in a hostile manner when interviewed by the Respondent in the course of its investigation into her Trust in Care complaint. Secondly, she was likewise treated in a very shoddy manner during her probationary review meeting on 28 May 2018. She described that meeting as a process of ‘character assassination’ of her, from start to finish. It is submitted on behalf of the Respondent that the case being advanced by the Complainant is that her decision to resign her employment was triggered by the probationary review meeting that took place on 28 May 2018 and not any of the other matters raised by her in the within proceedings, including her suspension earlier in May for not having completed the Garda vetting process. Counsel submitted that the fact that the Complainant returned to work for a number of weeks between the period of suspension and the date of her resignation confirms that the suspension was not the cause of her resignation. It is further submitted that clause 13 of the Complainant’s written contract employment outlined a grievance procedure which she did not avail herself of before choosing to resign her employment. That being the case, in Counsel’s submission, she cannot be regarded as having acting reasonably as she did not bring whatever concerns she may have had to the Respondent’s attention before unilaterally terminating her own employment. Finally, the Respondent submits that Trust in Care complaint/protected disclosure raised by the Complainant on 13 April 2018 had no bearing on its decision to suspend her some weeks later in May. That decision, according to the Respondent, arose entirely from the Complainant’s ongoing omission to complete the Garda vetting process that had acquired some urgency since March 2018 i.e. prior to the date of her complaint. The Complainant’s Evidence The Complainant outlined her employment history with the Respondent and told the Court that she felt she had got on well with her colleagues while working at Ashborough Lodge Residential Nursing Home. Her evidence then turned to the incident she witnessed on 10 April 2018 but didn’t report until 13 April 2018. She said she was not aware of the Respondent’s safeguarding policy at the time and was unsure how to proceed. She, therefore, contacted the HSE, HIQA and Túsla to seek advice before reporting the incident to Ms Miriam Harty. Ms Harty then provided her with an incident reporting form which the Complainant filled in and returned on the following Monday, 16 April 2018. The Complainant told the Court that it was her understanding that she would be kept fully informed as the investigation progressed but that this did not turn out to be the case. The Complainant said she did not agree with the meeting notes sent to her after her own interview and, therefore, on the advice of her solicitor, she refused to sign them. She said she heard no more about the investigation until it came to her attention that the accused colleague had been re-instated. The Complainant’s direct evidence only briefly touched on the issue of her Garda vetting clearance. She said the delay had been caused by the fact that the online link sent to her by email had gone into her spam folder and had expired by the time she discovered it. She denied that she had ignored management’s requests to progress this matter and said that she had make reasonable attempts at all times to progress the process and had replied to each of Miriam Harty’s emails about the issue. The Complainant went on to describe her recollections of the probationary review meeting that took place on 28 May 2018 with Ms Climaco and Ms Sugrue. She told the Court that, in her view, the meeting was little more than “an assassination of her character” from which it appeared that she had done nothing right during her employment to date. This, she said, affected her mental health to such an extent that she had no option but to resign. When asked about her efforts to mitigate her loss following her resignation, the Complainant told the Court that she did not make any effort to obtain alternative employment until 2019 when she commenced in her current job. Under cross-examination, the Complainant accepted that she had completed the Garda vetting application form on 30 April 2018. When asked by Counsel for the Respondent why she hadn’t invoked the Respondent’s grievance procedure before resigning, she replied she didn’t believe there was any point in doing so. Evidence of Miriam Harty The witness told the Court that she has responsibility for Garda vetting and human resource issues generally at Ashborough Lodge. The witness confirmed that she received the Complainant’s Trust in Care complaint on 13 April 2018 and she outlined the steps she took thereafter to progress the matter. She said she attended the investigation meeting at which the Complainant was interviewed as part of the subsequent investigation. She said the Complainant had been offered the right to be accompanied at that meeting but declined this. According to the witness, the Complainant conducted herself in a hostile manner at the meeting. The witness’s evidence then turned to the Garda vetting issue. She said it is her practice to audit her files approximately every three months and to follow up with any employee whose Garda vetting remained outstanding at that time. She said she contacted the Complainant about Garda vetting in January 2018 and again in March 2018. The witness told the Court that the Respondent had suspended a care assistant in March 2018 because his Garda clearance had not been obtained. Evidence of Ms Sheilah Climaco The witness is the Director of Nursing at Ashborough Lodge. She outlined the process involved in the investigation of the complaint raised by the Complainant on 13 April 2018, including notifying the affected residents’ families, HIQA, Safeguarding Ireland and An Garda Síochána. She said the investigation took a number of weeks and had concluded that no breach of Trust in Care had occurred. The accused colleague was, therefore, re-instated. The witness gave evidence in relation to her engagement with the Complainant regarding her outstanding Garda vetting. She told the Court that her decision to suspend the Complainant was based entirely on this matter and was completely unrelated to the complaint raised by the Complainant in April. She told the Court that the Complainant was invited to return to work immediately after her Garda clearance had been received and she did so. The witness then gave her account of the Complainant’s probationary review meeting of 28 May 2018. She said that the Complainant came across as very hostile at the meeting. When the Complainant entered the meeting room, according to the witness, the Complainant said, “Just get on with it”. The witness denied that any character assassination of the Complainant occurred at this meeting. The witness said that the Complainant submitted a medical certificate later that day stating she was suffering with a chest infection. Evidence of Ms Dolores Sugrue The witness is the Assistant Director of Nursing. She told the Court that she had been requested by the Director of Nursing to lead the investigation into the complaint raised by the Complainant in April 2018. As part of that process, the Complainant was invited to attend an interview at the Killarney Heights Hotel. She said the Complainant made her aware at the start of the meeting that she had just come from the hospital where she had been with her sick father. The witness said that the Complainant was offered the option of rescheduling the meeting but she declined to do so and then turned to her and asked the witness, “What are you doing sitting there smirking?” The witness said that the interview proceeded and she asked questions of the Complainant from a template which she also used for other witnesses, including the accused. The witness’s evidence then turned to the probationary review meeting at which she was present as a note-taker. The witness confirmed that the Director of Nursing had asked questions of the Complainant at that meeting based on a standard template of questions. Her recollection was that the Complainant had been very confrontational in her attitude, had been chewing gum and had said, “Let’s get on with it”. She also said the Complainant had raised her voice at times during the meeting and had declined to answer a number of questions. Finally, the witness denied that there had been any character assassination of the Complainant during the meeting. Discussion and Decision The Complainant initiated the within proceedings under the Unfair Dismissals Act 1977. Her claim is one of constructive unfair dismissal within the meaning of the Act. It follows that the burden of proof is on her to demonstrate that, in all the circumstances, it was reasonable for her to terminate her employment having regard to what she submits was very unreasonable treatment of her by the Respondent. Ordinarily, in order to having standing to pursue a complaint under the Act, a complaint must have accrued one year’s continuous service with the named respondent. In this case, the Complainant had not accrued the required service. However, she submits that this requirement is waived in her case because the complaint she raised against her colleague in April 2018, she contends, constitutes a protected disclosure within the meaning of the Protected Disclosures Act 2014. Her direct evidence to the Court was that she suffered a detriment as a consequence of having made her protected disclosure and that detriment manifested itself in the Respondent’s escalation of the Garda clearance issue – albeit some weeks after the investigation into her complaint had concluded – and culminated in the Respondent’s decision to suspend her pending the completion of the Garda vetting process. The Complainant did not given any evidence from which the Court can infer that the Complainant has established a causal link between her resignation on 4 June 2018 and the complaint she made in April 2018 or the Respondent’s investigation of that complaint. The Court is of the view that the Complainant’s decision to return to work for a number of weeks following her brief period of suspension, before ultimately resigning on 4 June, supports its conclusion in this regard. Furthermore, it appears to the Court on a consideration of the Complainant’s own evidence that the principal factor at play in her decision to resign was the negative impact she perceived the probationary review meeting had on her mental well-being. It is clear from the summary of the witness evidence outlined earlier in this determination that the Complainant’s recollection of what happened at the meeting of 28 May 2018 conflicts with that of Ms Climaco and Ms Sugrue. The evidence proffered by the latter two witnesses in relation to the Complainant’s attitude and demeanour at the probationary review meeting is consistent with that of Ms Harty in relation to how the Complainant allegedly conducted herself at the investigation meeting in April 2018. The Court has a number of concerns about the credibility of the Complainant’s evidence generally. It found the Complainant, for example, to be evasive in her answers to questions about why she did not progress her Garda vetting application in a timely fashion when, by her own admission, she was fully aware of the importance of that requirement in healthcare settings based on her own extensive experience in the healthcare sector. For that reason, the Court is reluctant to accept the Complainant’s version of what happened at the meeting of 28 May over that of the Respondent’s witnesses. That being said, there appears to the Court to be a further major infirmity in the Complainant’s case arising from her actions in resigning from her employment without first availing herself of the grievance procedure provided for in clause 13 of her written contract of employment. As the Complainant did not bring her concerns to the Respondent’s attention, formally or informally, before resigning she deprived the Respondent of the opportunity to address those concerns. It cannot, therefore, be said that the Complainant reacted in a reasonable way to what she – rightly or wrongly – perceived to be unreasonable treatment of her by the Respondent. In all the circumstances, therefore, and for the reasons set out above, the Court determines that the Complainant’s claim of constructive unfair dismissal has not been made out. The appeal fails and the decision of the Adjudication Officer is upheld. The Court so determines.
NOTE Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary. |