Complainant

Respondent

Parties

Catherine  Njoku

The Rehab Group

Representatives

Thomas Wallace O Donnell BL instructed by  McMahon O'Brien Tynan Solicitors

Mairead Crosby IBEC

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-00028080-001

30/04/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00028080-002

30/04/2019

The Complainant alleged unfair dismissal and claimed unpaid wages. The Complainant was a Care Worker and worked in a Care Home with vulnerable people. The identity of the location where the incidents involved occurred are not necessary to publicly disclose and are referred to as Location W in the Decision.  In order to further protect the identity of the location the names of the people that took part in the investigation and disciplinary process are referred to by their initials and Job titles. The Complainant was dismissed n January 4th 2019 and made a complaint that she was due 2800 euros unpaid wages. The complaint was received by the WRC in April 2019 and the WRC set numerous dates for a Hearing but these were postponed on application by one of the parties.  Significant post Hearing correspondence took place over a number of months between the parties.

The Complainant commenced employment with the Respondent in April, 2008 as a Care Worker. After facing some difficulties with management, the Complainant received a permanent contract in 2015. Throughout her employment with the Respondent, the Complainant experienced difficulties with  "LS" who was part of management with the Respondent. She was excluded, bullied and harassed by him and he was abusive and aggressive towards her. The Complainant became aware that she was viewed by some as a difficult staff member. She was treated unfairly. For example, when it came to supervision, the Complainant dealt with a manager rather than a supervisor. Furthermore, the Complainant's signature was forged on supervision notes on one occasion.

In March and April, 2016 a series of events took place involving the Complainant and a co-worker (hereinafter "MB"). Following informal meetings on and 1 I th May, 2016 with her manager (hereinafter "RRW") and HR business partner (hereinafter "YOC") both the Complainant and MB raised grievances against each other. The investigation that followed was very one-sided and the Complainant's version of events were not even considered. The Investigation Report concluded and is dated the 23 rd October, 2018. MB coached staff members in terms of what evidence to give. The interview transcripts of ME and JG were provided.

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In interview, BK, who was a supervisor (hereinafter "BK") blatantly showed her bias against the Complainant and demonstrated the Respondent's attitude to her. A transcript of the said interview was provided.

On the 27th June 2016 BK sent an email to LS signed by other members of staff at W. This email set out that the said members of staff did not want to work with the Complainant and went on to discuss their position regarding the March and April, 2016 incidents. The Complainant asked RRW for a copy of the said email. RRW said he wanted to discuss same with her but did not provide her with a copy. This demonstrates the ill will which was present towards the Complainant at her place of work.

The Complainant received a telephone call from RRW on the 12th July, 2016 asking her to attend a meeting with him and LS about the content of the said email. The Complainant attended a meeting with RRW and LS at the Shannon Resource Centre on the 13 th July, 2016. The email was not addressed. It appeared to the Complainant that redeployment was about to be discussed but it was not. Therefore, no conclusive direction arose from the meeting. At this meeting LS was very hostile and abusive to the Complainant. She feared for her life. The Complainant contacted YOC who advised her to report to W as per her rota. She did not receive any instruction in writing to redeploy. Even if the Complainant had been told on the 13 th July, 2016 to redeploy, this would not have constituted as much notice as was reasonably practical, to which she is entitled pursuant to Clause 3 of her Permanent Contract of Employment.

On the 14th July, 2016 the Complainant arrived for her sleep over shift at W. She met two staff members on her arrival, one of whom left immediately to make her bed and the other said that the Complainant should not be at work and that she was not expecting her. The Complainant looked at the rota and discovered that her name had been removed and replaced by MB. Her shifts had been shared out among work colleagues. Her name had been removed from the work telephones and contacts. Her office locker had been given to another. LS arrived and was aggressive, racist and threatening to her. He stated that he was getting another manager to dismiss her and terminate her employment. He reiterated that he would deal with her before leaving the company.

The Complainant felt suicidal and contacted the CEO of the Respondent by email. MOC  a member of management, arrived in with LS. He aggressively ordered the Complainant to go home, that she was dismissed and her employment terminated. The Complainant asked for this in writing.

The Complainant contacted YOC who was very supportive. She asked the Complainant to go home, take a number of days off and contact the Employee Assistance Programme. She picked up her bag to go and was forcibly detained by LS. She was pushed around by him while he was trying to take her keys, which included her private keys, He pursued her around the house and blocked her from making calls in private. She managed to contact YOC and told her that her life was in danger. Thereafter, YOC contacted MOC and LS telling them to let the Complainant go, after which MOC released the Complainant. She was in a deeply distressed and fragile state and stayed in contact with YOC, who apologised to her and said that everyone involved would be investigated. The Complainant attended the company doctor and her own General Practitioner. She was certified as unfit for work. YOC scheduled a meeting with the Complainant via text message which took place on the 27th July, 2016  regarding her return to work. YOC stated that when the Complainant was fit to return to work she could participate in the dignity at work investigation.

On the 9th February, 2017 the Complainant, as per company policy, raised a grievance against LS. As YOC had left the Respondent, YC (hereinafter "YC"), HR, emailed the Complainant on the 24th February, 2017 stating that, as LS was no longer an employee of the Respondent, it was not in a position to proceed with her formal grievance. Prior to her departure from the Respondent YOC wrote to the Complainant on the 3 rd November, 2016 which set out the procedure for when the Complainant should be ready to return to work.

The Respondent persistently applied pressure on the Complainant to participate in an investigation. She informed her that, as per her meeting with YOC, she needed to be fit to return to work first. When certified fit for work, YC refused to comply with same and insisted that the Complainant was only certified to participate in the investigation. A Return to Work meeting took place on the 7th April, 2017 where matters like holiday pay and a potential phased return were discussed. Neither at this meeting nor in the correspondence arising therefrom was suspension mentioned. Further correspondence confirmed that the purpose of the meeting was to discuss her return to work.

However, the Complainant received an email from YC on the 23 rd June, 2017 regarding a meeting on the 27th June, 2017. The purpose of the meeting had shifted from her return to work to discussing the events of the 14th July, 2016. When this meeting took place, it was the first time suspension was mentioned to the Complainant, approximately one year after the incident. Staff who were not witnesses were interviewed. Furthermore, RRW reported the Complainant to the Gardai alongside MB without hearing formally from the Complainant. It seemed that the Complainant's grievance against MB was going nowhere, whereas that of MB against the Complainant was advancing.

The Respondent refused to allow the Complainant to amend her statement to reflect a true and accurate account of the events of and surrounding the 14th July, 2016. Full disclosure was not provided. It failed to obtain comprehensive statements from YOC regarding the 13th and 14th July, 2016. The Respondent delayed in providing witness statements to the Complainant. The investigation team interviewed YC and JMcE (hereinafter "JMcE"), who were not directly involved on the day. She never had any engagement with YC on the said date. RRW was not interviewed. Another employee (hereinafter "PO") was pressurised into signing an incomplete statement. JMcE was interviewed notwithstanding that she did not witnesses the event. There was confusion in the statements and investigation as to where the Complainant was allegedly to be redeployed. This demonstrates that there was no concrete plan in place on the 14th July, 2016. Witness statements contained inconsistencies such that the Complainant asserts some must be false or misleading.

Together with the email of the 27th June, 2016 to which the Complainant has been denied access, she has also not been given a copy of an unredacted version of an email from RRW to YOC and copied to LS which concerned her.

The Respondent's refusal to accept any of the Complainant's evidence demonstrated a clear bias against her and constituted procedural unfairness and a denial of her right to fair procedures.

On the evidence the Respondent erred in coming to the conclusions it did, including the Investigation Report, the Disciplinary Hearing and the Appeal Hearing.

The Respondent acted in breach of its own timelines and in breach of natural justice and fair procedures in delaying the proceedings against the Complainant. The Complainant was treated unfairly in that the Respondent had clearly predetermined MB's grievance against her by purporting to redeploy the Complainant. The treatment of the Complainant by the Respondent must be looked at in the round. The Respondent's decision to suspend the Complainant constituted a disciplinary sanction imposed without natural justice or fair procedures being afforded. It was not necessary in all the circumstances, The Complainant will rely on the judgment of Noonan J in Reilly v The Governor and Company of Bank of Ireland [2015] IEHC 241, the decision of the Employment Appeals Tribunal in Smith v RS4 Insurance Ireland Limited (UDI 763/2013) and the English Employment Appeals decision in Upton-Hansen Architects v Gyftaki UKEAT/0278/18/RN.

Furthermore, the decision to dismiss the Complainant was disproportionate. Whereas the Respondent's Disciplinary Policy does include "serious and/or persistent insubordination" as gross misconduct and "failure to carry out reasonable instructions" as misconduct, the Complainant's conduct, taken at its worst, in all the circumstances, did not reasonably warrant dismissal. The Complainant will rely on the judgment of Noonan J in Reilly in that regard. The Complainant has been deprived of her personal belongings, such as jewellery and documents, which were in her personal staff locker or office of W.

The Complainant is seeking reinstatement or re-engagement. Further or in the alternative, the Complainant seeks compensation. Since her dismissal, the Complainant has been in receipt of illness benefit and/or disability pension. It was her case that her inability to work has been caused and/or contributed to by the Respondent. In that regard, the Complainant relied on the decision of the Employment Appeals Tribunal in Allen v Independent Newspapers (Ireland) Ltd [2002] ELR 84 and that of the English Employment Appeals Tribunal in Devine v Designer Flowers Wholesale Sundries Ltd [1993] IRLR 517. A copy of a report of Mr Brian V O'Keeffe, Consultant Psychologist, was provided.

The Complainant sought compensation of two years pay amounting to 110,450 Euros and she was in receipt of disability during that period.  The Complainant earned 700 Euros per week for a 40 hour week.

The Complainant was dismissed from her employment with the Respondent for gross

misconduct, following a thorough process, undertaken by the Respondent to ensure

maximum fairness and transparency was afforded to the Complainant, in accordance with

fair procedures and natural justice.

On the 11th December 2015, the Complainant lodged a claim under the Industrial Relations

Act, 1969. However, there is insufficient and inaccurate detail contained in this claim. The

Complainant did not pursue a grievance internally and she had not participated in any

disciplinary proceedings. The complaint form also references the legislation governing fixed

term contracts. The Complainant is not a fixed term worker. Finally, the Complainant has referenced ‘matters raised in respect of my terms and conditions of employment’. No such matters have been raised to the employer nor through the internal grievance procedure.  

The Complainant was employed by the Respondent from the 1st April 2008 and was

provided with a Specific Purpose Contract of Employment in the capacity of Midwest

Regional Relief Staff Member. This was updated in October 2011 when the Complainant

received a Specific Purpose Contract for the position of Social Care Worker.

On the 13th July 2016, a meeting had taken place with the Complainant and LS Regional Manager and RRW, Manager to advise that she was being redeployed from the W to Shannon Resource Centre as the Respondent was investigating a grievance complaint in which the Complainant was involved in. Notice has been given of this meeting to the Complainant on the 12th July to which she had consented to.

However, on the 14th July 2016 the Complainant did not attend the Shannon Resource

Centre as instructed but instead came to work in W. An incident took place

when the Complainant did not follow management instruction to leave W

when requested to do so on a number of occasions and whereby it was alleged that the

Complainant had failed to follow an acceptable standard of conduct during the incident.

The 15th July 2016, YC , Interim Head of HR Business Partnering wrote to

the Complainant following the conversation she had with her colleague in HR the

previous day and the subsequent email to the CEO that same day. As a result of this the

Respondent made a medical appointment on the 15th July for her to attend the Company

doctor. Following this, the Complainant went on long term sick leave and did not return

to the service until the 07th April 2017, however she was on the payroll from the 14th March

2017 as she was fit to return to work.

A meeting around a return to work on a phased basis and a discussion around annual

leave took place on the 07th April 2017 following the Complainants absence, when she

attended a meeting with YC and GF Regional Operating Officer. In addition to the incident on the 14th July 2016, there was also the matter of a Dignity in the Workplace Investigation and this

matter also needed to be resolved.

A follow up meeting was conducted on the 27th June 2017 and the Complainant attended

with her SIPTU Representative at the meeting. The meeting was conducted by JG, Integrated Services Manager, Tipperary and YC. The purpose of the meeting was to see how the Complainant was since her sick leave commenced on the 14th July 2016 and the last meeting had involved how her annual leave would be taken. At this meeting the Complainant was suspended from duty on the 27th June 2017. The reason for the suspension was to allow the Respondent to fully investigate the alleged incident at W.  Confirmation of the suspension was sent to the Complainant. She was given a copy of the Respondent’s Disciplinary Policy & Procedure and advised that she would shortly be furnished with Terms of Reference for the Investigation and invited to attend a formal investigation meeting and have the right to representation at the meeting.

The Complainant received a copy of the Terms of Reference on the 22nd August 2017

which outlined how the investigation would be conducted.

On the 30th August 2017, the Complainant was invited to attend an investigatory meeting

on Friday, 08th September. The investigation was being conducted by BW,

Business Performance & Support Manager and JM, HR Business Partner

would also be in attendance. This meeting was postponed on the morning of the 08th

September and rescheduled for the 15th Sept and this was confirmed in writing. Again,

due to her representative being unavailable a further date was given and finally the 26th

September was agreed. Prior to the investigation, the Complainant was issued with a copy of statements from LS, Regional Manager and MOC, Head of Quality & Standards.

LS stated that he had arrived at the W at 2pm and had met the

Complainant in the office. When he asked her why she was there she advised him she

was there to complete her shift. He reminded her of the meeting with RRW whereby she had been redeployed to Shannon for operational reasons until the

investigation was completed. She had been due to start there on the 14th July. Therefore,

he asked her to leave and to report in Shannon the following morning. She refused to do

so and appeared to be very angry and agitated. He left the office and went outside. He

met MOC, Head of Quality & Standards and SD, Chief Risk

Officer there. Both he and MOC returned to the office to speak with the Complainant. MOC referenced the meeting the day previously and that the Complainant had been

redeployed to Shannon. The Complainant had stated that she could not be redeployed

without four weeks’ notice and that she was being discriminated against. She was asked to leave W

on a number of occasions and refused. He advised her that if she did not leave, he would

have no option but to suspend her. She refused to go home and said the Respondent had

no right to redeploy her. MOC advised the Complainant that she was suspended

and needed to leave the premises. MS stated that the Complainant was very

angry and agitated throughout the whole conversation. Both he and MOC left the house and had phoned HR. However, the Complainant was also on to another HR colleague by phone. During this time two service users returned to the W and again the Complainant appeared very angry and agitated and spent the time between the back garden and the office. Following the phone

conversation, the Complainant gathered her belongings and walked towards the door.

LS asked for her keys and she refused to give them to him. The Complainant

then headed out to the garden and made a phone call. A staff member went out to the

garden to her and asked the Complainant to keep her voice down on a few occasions and

the Complainant dismissed her. Eventually the Complainant departed and retained the

keys.

In his statement, MOC stated that he had come with a colleague SD,

Chief Risk Officer on an unannounced visit to two services where complaints had been

received. He was approached by LS who had advised them that a staff

member, the Complainant had been directed to work in another service while a grievance

against her in this service was to be investigated. She was refusing to leave and was

verbally aggressive. He requested MOC’s support when he went back in to speak

to her. When he spoke with the Complainant and stated that she was required to report for duty

elsewhere, in a loud voice she demanded to know why she was being moved. MOC advised that this was not the issue and that she was to leave the premises and

report to the other service. She refused to go. He had sought direction from HR. They

had advised that they should continue to persuade her to leave and he had cautioned this.

When he returned to the office the Complainant ignored him. He advised the

Complainant that if she refused to leave the premises that he would have no option but

to issue her with a suspension for refusing to carry out a reasonable instruction which

was to leave the premises. The Complainant made no comment. Shortly afterwards the

Complainant left the building.

The investigation meeting took place on the 26th September 2017 and the Complainant

was represented by her SIPTU Representative. At the meeting, the Complainant

confirmed that she had been instructed to go to Shannon, but she felt she was being

bullied and she had been told she was being redeployed. According to the Complainant

it was her colleague who became aggressive towards her and that when LS,

Regional Manager arrived he had told her she should be there, that he hadn’t been

expecting her, so she needed to go. She alleged that he became aggressive and abusive

and that he went to get another manager to assist him. She stated that she had requested a letter to confirm why she was being moved and that LS had not replied to her. She denied that she had been asked by a staff member to keep her voice down on the day. The Complainant alleged that she had been falsely imprisoned at the time as she was not let out of the service. When MOC   came into the room he also shouted at her. She stated that she became suicidal because of this and she did not believe that MOC was a manager. She had phoned HR during this incident and was advised to leave the W.

A copy of the investigation minutes was sent to the Complainant on the 11th October for

her review if she could sign and return as soon as possible. Equally if there were any

changes that were required to be made to the document, that she could contact BS for further discussion.  The Complainant returned her amendments minutes with a statement.

As part of the investigation a number of other witnesses were met with to provide

statements to the incident. This stage of the process was lengthy and detailed as there

were six people met with and having their statements signed off, sent to the Complainant

for review etc took longer that had been anticipated.

The investigation report was concluded and finally issued in September 2018, during

which time the Complainant remained on suspension on full pay. The outcome of the

investigation was that having carefully considered all of the investigatory material and

statements that:

The Complainant had been instructed to report to the Shannon Resource Centre by

LS on the 13th July 2016.

That she had reported to work at the W on the 14th July despite being instructed

to attend to Shannon Resource Centre.

That she did not follow management instruction and leave the W when

requested to do so on several occasions by LS and MOC.

Colleagues had heard the requests and her refusal

That LS had sought the assistance of MOC in dealing with the

situation and both had sought support and guidance from HR as incident was

unfolding.

That the Complainant did not return the keys of the Willow when requested.

That in the statements of MS and MOC they referred to the

Complainant as being angry and agitated and another witness stated she was

speaking very loud and shouting, that she was out of control and very angry. As a

result, the incident disrupted the whole house and upset service users and staff.

Based on the evidence, the Investigation Team upheld the allegation that the Complainant

had failed to follow an acceptable standard of conduct and reasonable management

instruction when requested to report for duty to a Rehabcare Day Service on a number of

occasions on the 14th July 2016 whilst at RehabCare, W.

 The Complainant was invited to attend a disciplinary hearing on Friday, 08th November

2018 which would be conducted by GF Regional Operating Officer, Rehab

Group. Included in the documentation which was issued on the 26th October 2018 was a

copy of all the documentation which had been used during the investigation again with

a copy of the Respondent’s Disciplinary Policy & Procedure.

Following an email from the Complainant on the 02nd November in which she advised

that her representative was away for a three-week period, the disciplinary hearing was

postponed until the 26 November 2028. There was a series of correspondences as the

Respondent was finding it challenging to have a date scheduling the disciplinary hearing

due to the Complainant’s SIPTU representative being away. In addition, the

Complainant was also subject to another disciplinary under the Dignity at Work policy

and was being represented by SIPTU. The Respondent sent a letter on the 26th November stating that there would be a third attempt to schedule this hearing which would be on Friday, 07th December 2018. Throughout this time the Complainant continued to be on paid suspension from her role.

The disciplinary hearing was conducted on the 07th December 2018 and the Complainant

attended with her SIPTU Representative and the hearing was conducted by GF and KF, HR who was the notetaker. At the disciplinary, the Complainant stated that she was satisfied that the disciplinary hearing process had been

fair and appropriate and that she was satisfied that she had been provided with the

opportunity to set out the basis for her case in full. A copy of the transcript was sent to the Complainant and her SIPTU Representative on the 12th December for their review and they were asked that they revert back to the Respondent by the 17th December 2018 with any comments.

At the disciplinary hearing, a number of points had been raised by the Complainant and

GF had investigated this further. On the 14th December 2018 she wrote to the

Complainant with the responses in respect of those points raised and hoped that they

provided the clarification requested.

Due to personal circumstances the Complainant had been in contact with the Respondent

and the timeframe had been extended until the 04th January 2019.

On the 04th January 2019, GF wrote to the Respondent with the outcome of the

disciplinary hearing. The conclusion was that in relation to the allegation that the

Complainant “failed to follow an acceptable standard of conduct and reasonable

management instructions when requested to report for duty to a RehabCare Day Service,

on a number of occasions, on 14th July 2016 whilst at RehabCare, W, Residential

Service”, that there was sufficient evidence to corroborate the allegation and

therefore the outcome was to be dismissal on the grounds of gross misconduct. Her

employment was to be summarily terminated with immediate effect.

The Complainant lodged her appeal to the Respondent on the 11th January 2019. She

submitted a detailed and comprehensive list as to her grounds for appeal.  Following this there was a series of correspondence between the parties and on the 16th January 2019, CW, Chief Operations Officer wrote to the Respondent to advise that she would be conducting the appeal hearing.  CW wrote to the Complainant on the 11th March 2019 and advised that the appeal

hearing would be conducted on Friday, 15th March 2019.  The appeal hearing was conducted on the 15th March 2019, the Complainant attended with a SIPTU Representative and the Respondent was represented by CW, Chief Operations Officer as Chair and KM  Head of ER & Participation as the HR Representative.

The outcome of the appeal was issued on the 04th June 2019 by CW The appeal

outcome was lengthy and detailed and went through all of the points raised by the

Respondent during her appeal. CW concluded and determined the following

with respect to the grounds of the Complainant’s appeal:

That she was instructed to report to Shannon Resource Centre by LS at a meeting

on the 13th July 2016.  That she reported to work at W on the 14th July 2016 despite being

instructed to report to the Shannon Resource centre by LS on the 13th July 2016.

That she did not follow management instruction and leave  W when

requested to do so (on numerous occasions) by LS and MOC on the 14th July 2016.

Therefore having taken into account all of the facts of the appeal and having considered

all of the information presented as part of the appeal, CW found that there was

sufficient evidence to corroborate the allegation “That you failed to follow an acceptable

standard of conduct and reasonable management instructions when requested to report for duty

to a RehabCare, Day Service, on a number of occasions, on 14th July 2016, whilst at RehabCare,

W, Residential Service, Clare.”

On that basis the decision to terminate the Complainant’s employment with the

Respondent was upheld.

In accordance with the Unfair Dismissals Acts 1977 - 2015, the dismissal of an employee

shall be deemed not to be unfair if it results wholly or mainly from the conduct of the

employee. Having considered all the facts, the responses and explanations of the Complainant were

not considered reasonable nor sufficient such as to mitigate the extreme seriousness and

far reaching implications of her actions. The Complainant’s actions amounted to gross misconduct. The conduct of the Complainant on the 14th July 2016 not only upset her colleagues but also upset the service users whom she was supporting (all of whom are diagnosed with Autism Spectrum

Disorder). As a result of this incident, the service users had to be sent to their bedrooms

to get away from the noise as the Complainant was very confrontational. W is

24 hours a day / seven days a week / 365 days a year Residential service for adults with

a diagnose of autism. At the time of the incident there were three service users living in

the residential house and one service user in a semi-independent apartment, attached to

the house. When considering what sanction to apply the company had regard to the seriousness of

the allegations and the representations made by the Complainant within the process

itself.  In relation to the sanction imposed by the Respondent, the principles to be applied in

cases of gross misconduct have been clearly established over time, and the test as set out

in Looney & Co. Ltd v Looney, UD 843/1984 is as follows:

“It is not for the Tribunal to seek to establish the guilt or innocence of the claimant,

nor is it for the Tribunal to indicate or consider whether we, in the employer’s

position, would have acted as he did in his investigation, or concluded as he did or

decided as he did, as to do so would substitute our mind and decision for that of the

employer. Our responsibility is to consider against the facts what a reasonable

employer in the same position and circumstances at that time would have done and

decided and to set this up as a standard against which the employer’s action and

decision be judged.”

It is the Respondent’s position that a “reasonable employer in the same position and

circumstances” would have reached the same determination in the circumstances of the

within case. As such the company’s decision to dismiss was reasonable and fair in the

circumstances, and no unfair dismissal took place. The actions of the Complainant destroyed the company’s trust and confidence in her and rendered the continuation of the employment relationship impossible, therefore justifying dismissal. This position has been upheld by the Employment Appeals Tribunal on a number of occasions, including in Knox Hotel and Resort Ltd, UD 27/2004, where the Tribunal stated that: “The claimant’s actions] destroyed the respondent’s trust and confidence in the claimant and rendered the continuation of the employment relationship impossible, thereby justifying her summary dismissal”`.

In relation to the procedures used to implement this dismissal, the Complainant was

afforded all benefits of fair procedure, in line with the company’s policy, the WRC Code

of Practice on Grievance and Disciplinary Procedures (SI 146/2000) and the universal

principles of natural justice. The Complainant was informed in advance as to the nature

of the allegation against her. She was afforded the right to representation. She was further

provided with a number of fair and impartial hearings, at which she was given every

opportunity to respond to the allegations against her. All the evidence in its entirety was

considered, including the Complainant’s representations before any decision was made

or action taken. In light of all of the above, the Respondent believes that the dismissal of

the Complainant was procedurally fair in all respects.

The Respondent contended that the actions of the Complainant contributed wholly to her

dismissal. Accordingly, it is the Respondent’s position that the Complainant is not

entitled to seek any redress under the Unfair Dismissals Acts, 1977-2015. This is in

accordance with the position taken by the Employment Appeals Tribunal on multiple

occasions, including in Murray v Meath County Council, UD 43/1978, where the Tribunal

saw appropriate not to award any redress to the Complainant in light of his inappropriate

actions.

The Respondent submitted a supplemental submission in respect of the recent supplementary submissions and documentation submitted by the Complainant in respect of their claims following the hearing on the 16th May 2022. The Respondent addressed each of the claims raised in the following order:

Loss of Earnings; The Complainant has advised that they been in receipt of illness benefit and/or disability pension since their dismissal and that their inability to work has been caused and/or contributed to by the Respondent.

This statement was strongly refuted by the Respondent who would argue that as the Complainant was not in a position to mitigate their loss that no award is due to them.

The maximum award if any under Section 7 of the Unfair Dismissals Act, 1977 as amended is four weeks and the Respondent would refer to the case of Employee v Employer, UD1137/09, MN1147/09, RP1308/09 where the Tribunal stated that: “The Tribunal also note that the claimant was on illness benefit until January 2010. The claimant stated that the reason she had made no efforts to find work was because she was not fit due to her illness. In those circumstances the claimant’s claim for compensation must fail”.

Equally in the case of Anna Liro v Tesco Ireland Ltd UD468/2015 the Tribunal stated that: “In deciding on the appropriate remedy, the Tribunal must have due regard to the fact that the claimant has been and is unfit for work since the termination of her employment”.

Payment of Wages Claims

 In respect of the claims that have been made under the Payment of Wages Act, 1991, Section 6(4) of the Act states that “A rights commissioner shall not entertain a complaint under this section unless it is presented to him within the period of 6 months beginning on the date of the contravention to which the complaint relates or (in a case where the rights 3 commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within the period aforesaid) such further period not exceeding 6 months as the rights commissioner considers reasonable. The claim form was lodged with the WRC on the 30 April 2019 and the relevant six months in this claim is the period 29th October 2018 to the 30 th April 2019.

In the claims that have now been detailed before the Adjudicator in the recent supplementary submission dated 20 July 2022, the Respondent would strongly state that these claims have varied on each of the occasions that they have been presented and it is not acceptable that following the hearing on the 16th May 2022, that further variations have been made to the claims before the Adjudicator in the most recent submission.  Therefore in respect of the claims that have now been referenced for the Payment of Wages Claim in the supplementary submission, the Respondent would state as follows: Deductions The Complainant received her final salary payment on 06th June 2019. As part of the final payment a deduction of €2,277.05 was made as this was the sum of monies that was due to the Respondent by the Complainant. This payment was made up of a number of parts. €492.13 was due to the fact that the Complainant had been overpaid by one week and had been paid for the week Monday, 07th January 2019 up to the 13th January 2019. As per the Complainant’s contract of employment any overpayment of remuneration will be deducted from salary payments once discovered.  During the period of the Complainant’s absence from work on sick leave for the period 14th July 2016 up to the 08th December 2016, a deduction payment of €1,692 gross should have been deducted from salary in respect of illness benefit from Social Welfare. Due to an administration error, which was highlighted to the Complainant that they were overpaid. Deduction made for Social Welfare payment are in line with the Respondent’s Absence Procedures. An extract from the Illness Benefit Deductions which is outlined in the Contract of Employment . The final element was in respect of one day’s overpayment when the paid sick pay was paid until the 09th December 2019, and this resulted in an overpayment of €92.62. It is important to note, the Complainant returned to work on the 27th June 2017 and was placed on paid suspension until the termination of their contract on the 04th January 2019.  On the 18th January 2019, the Respondent wrote to the Complainant to outline in detail the monies that were overpaid and the total due back to the Respondent. There was a proposal to repayment the full overpayment to the Respondent included as was the policy on the Management of Salary Overpayments at the time. Despite this correspondence and at the time of this correspondence and for a period following, the Complainant was engaged with SIPTU and at no time even then, did she raise the issue. The Complainant’s final payroll was processed by the Respondent on the 6th June 2019, and as there had been no communication received from the Complainant all monies due to the Respondent were deducted from the final salary in line with the Respondent’s procedures on monies due to be repaid, in line with the contract of employment which was signed by the Complainant. Furthermore, during the time of her absence from the 14th June 2016 up to the 08th December 2016, the Complainant was in receipt of her full salary in addition to the Social Welfare payment for Illness benefit. She would equally have been aware that the monies were not being deducted as she was in receipt of her weekly salary with no deduction for 5 Illness Benefit despite being in receipt of an email from the HR Department to advise that €188 per week would be deducted from her weekly wages.

Meetings:  In her claim for attending meetings, the Complainant is claiming for days that she attended investigation meetings in 2012, 2013, 2014, 2015, 2016 and 2017. It is important to note, that at no time during her employment did the Complainant raise any grievance with the Respondent in respect of unpaid hours of work. The first that this complaint came to light was on the 16th April 2019 when the Complainant during her emails to the HR Department stated she was due 100 hours in arrears, mileage and parking claims. No details of dates, times were submitted at that point. As per the Respondents reply to the Complainant on the 10th May 2019, they are not in a position to verify hours of work that date back to 2012 that should have been submitted at the time. It is not credible that hours allegedly due going back a number of years were not claimed by the Complainant if they had been due to her as the only evidence produced is that of a hand written record detailing all hours. Furthermore, in regard to hours for 2017, the Complainant was on paid suspension during that time so would not be entitled to additional hours for attending investigation or disciplinary meetings. Important to state that on the occasions when the Complainant was absence from work due to illness, that at all times she was medically certified as fit to attend meetings by a Medical Practitioner.

Other Unpaid Work and Holiday Pay.  The Complainant alleged that she kept a record of the hours that she has worked and for which she was not paid or annual leave. The Respondent strongly refutes this allegation and would firmly state that the Complainant received all monies that she was entitled to as was paid in the final payslip. The annual leave calculation from 2016 to 2019 was laid out very clearly to the Complainant in an email from  HR Administration Manager on the 10 6 May 2019. The Complainant received her full entitlement which was for a total of 343 hours .

Expenses; In regard to this complaint, the Complainant states that she was not reimbursed in respect of expenses arising from her employment and has included copies of claim forms 2014 (signed and dated 2016), 2016, 2017, 2018 and 2019. 2.19 The Complainant is alleging that she is due expenses arising from her employment which were submitted to the Respondent and unpaid. The Respondent strongly refuted such a claim as vexatious. The Complainant was paid for any expenses that were submitted in line with the Respondent’s expenses policy.  The Complainant has listed travel for EAP meetings, Irish Life appointments and meetings for investigations and disciplinary which are not covered by the Respondent’s policy. Furthermore, no receipts were submitted by the Complainant and in line with the expenses policy, only receipted expenses are reimbursed by the Respondent.

Finally, the Complainant never raised any grievance with the Respondent for the duration of this time that she alleged that her expenses were not paid. Throughout all of this time, the Complainant was represented by her  SIPTU  Representative (who was copied on correspondence) and there was never any follow up from SIPTU with regard to unpaid expenses. The Respondents position is that all monies due through expenses were probably paid to the Complainant once they were claimed in line with the requirements of the expenses policy.

 Requests/Assurances

The final complaint is that the Complainant was assured at meetings and/or in correspondence that matters regarding her pay, expenses and holiday pay would be addressed. Indeed, much of Schedules of the Complainant’s submission is a repetition of what has already been outlined in the above Schedules and addressed by the Respondent.

Conclusion; The Respondent’s position remains firmly that the Complainant was fairly dismissed by the Respondent. Without Prejudice to this, should the Adjudicator find otherwise, then the Respondent would steadfastly state that the Complainant has not mitigated her loss as required under the Unfair Dismissals Act 1977 - 2015. The Complainant has advised that they been in receipt of illness benefit and/or disability pension since their dismissal and that their inability to work has been caused and/or contributed to by the Respondent which was strongly refuted. Therefore, the maximum award in line with the legislation should be four weeks. In regard to the claim of monies under the Payment of Wages Act, 1991, the Respondent remains of the view that these claims are spurious in nature. On each occasion from the claim form, which was lodged on the 30th April 2019, to the day of the hearing on the 16th May 2022 and again to the supplementary submission on the 20th July 2022, the claims under this Act have varied significantly. Therefore, we strongly suggest that there is no evidence to support any of these claims. Furthermore, Section 6(4) of the Act is very clear in that only complaints presented within the period of 6 months beginning on the date of contravention to which the complaint relates to shall be heard. At the time of the lodging of this claim form on the 30th April 2019, the deduction of €2,277.05 had not taken place, this was not implemented until the 06th June 2019. Therefore, no breach or contravention of the Act on the 30th April 2019 in respect of this payment. The other claims relate back over a number of years dating back to 2012 and are clearly outside the timeframe permitted by the legislation.  In light of the foregoing, the Respondent requested that the Adjudication Officer upholds the Respondent’s position in this matter.  In regard to the above arguments, the Respondent acted in a reasonable manner and maintained the Complainant’s claim. Should be dismissed

Unfair Dismissal complaint.

The Law.

“6.1. Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

(4) Without prejudice to the generality of subsection (1) of this section the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of a kind which he was employed by the Employer to do.

(b) the conduct of the Employee

(c) the redundancy of the employee and

(d) the employee being unable to work or continue to work in a position which he held without contravention by him or by his employer of a duty or restriction imposed by or under any statute or instrument under statute.

A number of judgements were considered by the Adjudicator in arriving at my decision.

Mainly, the Looney v Looney, UD83/1984 in which the Eat referred to its role as “to consider, against the facts, what a reasonable employer would have done”.

Secondly, Bunyan v United Dominions Trust (1982) ILRM 404 that states “the fairness or unfairness of a dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business, would have behaved”.

Also relevant to consider is whether the decision to dismiss is proportionate to the gravity of the complaint and indeed as Flood J observed in Frizelle V New Ross Credit Union (1997) IEHC 137 “the decision must also be proportionate to the gravity and effect of dismissal on the employee”.

Finally, in dealing with the issue of “Procedural v Substantive Justice” in Redmond’s Dismissal Law in Ireland it notes “Procedural defects will not make a dismissal automatically unfair……An employer may be able to justify a procedural omission if it meets the onus of proving that, despite the omission, it acted reasonably in the circumstances in deciding to dismiss the employee”.

GF gave evidence that she knew the Complainant, that she had a meeting with her on return to work and the purpose was to facilitate a return to work. She advised she did not attend a follow up meeting that was held. She advised the Complainant was supported by HR. She advised there was an investigation commenced to review all the allegations. He stated any delay in the investigation or disciplinary timing was due to facilitating the representation of the Complainant. She stated the Complainant knew she was being redeployed and had no right to be at W premises. She stated the residents at the home are entitled to expect a level of conduct from staff and they should feel safe in the home. She stated the Complainants primary concern should be for the safety of clients and to not upset or disturb them.  She expected the Complainant to leave on the day  to reduce the conflict. She stated the clients had communication and challenging behaviours and had to be ushered into their rooms. She stated the witness for the Complainant was a family member of the Complainant. She stated MOC and LS statements were very clear as to what happened on the day. She questioned how the Complainant could say she was in fear for her life of LS and yet returned the following day. She stated she knew LS and he had never previously behaved as alleged by the Complainant to her knowledge.  She clarified with the Complainant on April 19 2018 that MOC and LS had not dismissed her.  She said JME was interviewed but had no relevant part in the incidents. She stated she analysed all the information and documentation and her major concern was for the vulnerable people. She stated there was no evidence to suggest the Managers were hostile to the Complainant and that other sanctions than dismissal were considered. She said the dismissal was a consequence of a choice the Complainant made and she could not defend it. She advised the MS issue was separate and that it had no bearing on the disciplinary action and MS had no involvement in the process.  She stated she was not influenced by others to dismiss the Complainant.

MOC gave evidence that he was not involved in the decision to suspend the Complainant. He stated the outcome of July 14th issue could not be addressed until the Complainant was back at work. He stated there was no decision or discussion on suspension prior to the meeting with the Complainant. He stated GF had no part in the decision to suspend. On cross examination he was questioned on the discrepancies as to who was outside on the day of the incident. He stated in was a matter of interpretation as to if blocking occurred. He stated the Complainant was trying to get her personal belongings. He did not believe LS was trying to get the Complainants personal belongings off her.  He stated the situation was a risk to users and that was his main concern. Under cross examination it was clarified the witness was not related to the Complainant. He stated some amendments to statement were taken into account unless the person was not present at the time. Asked did he interview a employee MB he stated no and therefore her observations could not be taken into account by MF. He stated there wa no evidence was abusive on the 13th July and there was nothing to collaborate that acquisition. MOC was questioned if LS had escalated the situation by going after the Complainants keys. MOC said LS had a responsibility that the situation did not occur and there was nothing to stop the Complainant giving up the Home keys and keeping hers. The witness was questioned that the dismissal was for not following instructions and that no risk to Users was mentioned in the documents. The Witness was also questioned on the disproportionately of the decision to dismiss and it was inappropriate due to the two issues gong in at the same time. The witness was told that the allegation users had to be moved to their rooms would be contested by the Complainant and that more weight was been given to the Users now than at the time.  

LS gave evidence he was the Regional Manager in 2016.  He stated he told the Complainant she was being redeployed on July 13th to Shannon pending an investigation. He stated the Complainant did not agree to be redeployed even though she lived in Shannon and that she would go back to Ennis. He felt she was hostile and angry at the time. He gave her time to move and advised her to follow the HR process and obey instructions. He advised the Complainant had worked in Shannon before. He advised the Complainant was hostile and abusive at the meeting and he never raised his voice. He stated he made no threats and was professional at all times. The day after the meeting he stated he went to the W and the Complainant was waiting for him in the office and he asked her why she was there. He told the Complainant to leave the premises and she refused point blank and was verbally aggressive.   He advised there was only the two of them in the office and the Complainant got up and stood in the door frame and raised her voice. He advised that MOC being there was not planned and was a co-incidence as he needed directions to another location. He introduced MOC who spoke to the Complainant. MOC reiterated that the Complainant had to leave the building but the Complainant refused and became agitated and aggressive with MOC. Es said he then contacted HR as to what to do nest and was told to continue to engage and try get the Complainant to leave the premises. He stated the Complainant did not engage with him. LS stated the situation was visible to Users and they could see the Complainant aggressive and abusive.  LS stated the staff decided to move the Users upstairs. LS asked the Complainant to keep her voice down and she then went out to the garden. LS stated he never obstructed the Complainant at any time.  The Complainant told LS she was talking to HR. He stated he asked the Complainant for her work keys and he did not try to grab them. He said eventually the Complainant left and took the House keys with her. He denied he ever told her he would dismiss her. Under cross examination LS was asked was there a history between both and he said the Complainant had come to his attention a couple of times. He was asked did he have the Complainant under surveillances and he said there was an issue on attending a course where the Instructor had not signed off. He said the Complainant eventually did get the certificate LS stated he did not know about any complaints against him by the Complainant. LS stated he had moved people before on one days notice. LS stated he never said that the Complainant would never work in the W again. LS was asked was he aware the Complainant felt unsafe reporting to Shannon and had requested to work in W.LS responded No.  It was put to LS that he grabbed the rota and threated to call the Garda. LS replied none of that was true. LS was asked did he tell the Complainant, who as of African descent, “to go back to Africa where she belongs” . LS replied he never said that and conducted himself professionally throughout. He accepted the Complainant may have cried a little. In response to being questioned was he physically abusive to the Complainant LS stated he never put his hand on the Complainant and would never do that. Asked was MOC aggressive to the Complainant and told her she was dismissed, LS said he was not and never said the Complainant was dismissed. Asked did he block the Complainants way out and lock the door LS said he did not. It was put to LS that he physically restrained the Complainant and pushed her around LS said this was not true. LS denied he chased the Complainant and did not follow her out to the garden on concern for the Users. LS denied he lost his temper and became physical at the meeting.

MOC gave further evidence that he was the Head of Quality since 2008 and responsible for the quality of service which involved reports/HIQA Inspections and Audit Inspections. He advised he was visiting another Home and asked to check out an issue with an Annex at the W. He had never been there before. He advised LS came out to the cark park to meet him and advised there was an issue with an employee who was redeployed and refusing to leave. He followed LS into his office were the Complainant was siting and she was asked to leave and did not respond. He asked the Complainant to leave in a non aggressive manner. She turned her back and they said they they would give her a few minutes to think about it. MOC then phoned YC for advice and was told to continue to ask the Complainant to leave but their requests wee ignored. The Complainant was advised she would be suspended if she did not carry out the instruction. MOC stated the Complainant jumped up and was in his face and he felt he could be struck. He stated the Complaint responded this was all because of her skin. MOC stated the Complaint went to the garden and then next time her saw her was at the front door with LS requesting her keys. MOC stated the front door was not locked an there were Users coming back from their day. MOC stated the Complainant was angry, upset and hostile. The Complainant was then suspended and not dismissed. He stated he has never instantly dismissed someone and is a senior Manager since 1985. Asked was the Complainant forcibly detained  and was there physical contact MOC said absolutely not. MOC stated he saw two staff member cojole two Users to go upstairs. MOC stated it was normal to remove someone in the circumstance and there was no presumption of guilt. It was put to MOC that the Complainant called him “Sir” and he relied “don’t call me Sir”. MOC stated this did not happen.

JM HR gave evidence she prepared the terms of reference for the investigation. She advised it took some months to get statements signed. LM  advised redeployment was on a case by case basis and normally there was 4 weeks notice. JM stated she dd not recall anyone saying the door was locked.

Ms B gave evidence she left Rehab after 6 months or so. She stated she saw LS stopping the Complainant from leaving. She stated that no one ever asked her if she was present at the time.

KA, Head of HR gave evidence that it is normal to give one months notice for redeployment and the reasons why an employee may be redeployed. KA stated there were 47 grounds of appeal of the dismissal decision. She stated MB was not involved in the process and the issue of Ms B, the Complainant witness, was never raised as an issue. She stated the issue of the Complainant being prevented from leaving did not arise in the appeal.

The Complainant gave evidence she was from Nigeria and was 20 years in Ireland. She and her husband had 4 children and was a Teacher of English and Literature in Nigeria. She stated she did a social care course in college and had received no increments. She stated LS wa unprofessional and verbally abused her in the past and he made the decision she reports to a Manager. On July 12th she got a phone call to discuss an email about the other issue and met LS who was aggressive and unfriendly and was angry with her. Her name wa removed from the roster and she stated redeployment was mentioned. She stated thats why she had to leave the meeting as that was not the reason she was there for and she called HR and was told report to W on the 14th. On reporting to the W she was met by a staff member who said she should not be her and go back to Africa where she belongs. She then sent an email to the CEO. She was told by HR to take a few days off and she got her bag. She stated LS blocked the door  an tried to gab her bag. She stated she told LS “you re not supposed to lock me in”. She stated LS “molested her” and MOC was outside. She stated MOC “released her” from LS. She stated she met Ms. B at the front door when leaving. She stated she wanted to see the Company Doctor and a Psychiatrist or Counsellor. She was advised when fit to return and an appointment would be made. She remained out sick and was pressurized to attend the investigation. She stated LS was back in Shannon and already there was a grievance against him. The was a return to work meeting in April 2017 and she was happy to return but was encouraged to take holidays. In June there wa a meeting to see if she was fit to return to work and she was ambushed. She stated YC told her the purpose of the meeting was her turn to work. She stated no prior correspondence mention suspension. She was suspended pending an investigation into what happened . She stated the Irish Life Psychologist said retuning to work would be good for her. The Complainant was asked about how she felt in not being able to change her statement and she was disheartened. She stated the investigation was not straight forward and the company choose to interview who they wanted. The Complainant advised she has not worked since and been on disability.

In cross examination the Complainant was asked did she see a key in the door when she said she was locked in. No reply. The Complainant was asked did SIPTU object to her suspension. No reply. The Complainant was asked about her involvement in a number of road traffic accidents The Complainant stated the company are regretting now that the road traffic accidents did not stop her from working. The Complainant was asked about a case she took to the Circuit Court and what was the outcome. She stated her allegation was not upheld. The Complainant advised she suffered from post traumatic stress disorder and was a Pastor in the community but that’s discontinued now.

Mr. O Keeffe, Consultant Psychologist who prepared a report on July 26th 2017 and was submitted in evidence gave evidence that the Complainant was taking anti depressant medication, she felt terrible after the incident and was in shock, that it affected her life and she felt damaged.

PO gave evidence she worked at Rehab and was at the W on July 14th 2017 and saw the Complainant out the back in the garden. She stated she saw LS put her hand on the Complainant in the lounge and the Complainant said “let me go..let me go” and LS went from door to door blocking the Complainant. She stated she did not receive any statement and asked about it and the company  said it would be sent. She stated some of the questions did come up at the interview and she sent back unsigned with corrections before she would sign it. She stated the Company  should check the record of the interview for her version of events.

Section 6.1.C  of the act does not classify a dismissal as unfair if it is due to the conduct of an employee. The core question for consideration is was the dismissal of the Complainant reasonable in the circumstances. The Complainant submitted their was a history of difficulties with management. The Complainant advised she was being managed by a Manager and not her Supervisor. The reasons the Complainant was dismissed were;

Her refused to accept a number of legitimate instruction to move to another location

Her  refusal to leave the Respondents premises when instructed to do so by two senior Managers

Her  refusal to hand back the keys of the House when requested to do so and most significantly

The evidence of Witnesses that she caused distress to Users by her behaviour and causing them to be moved upstairs by other staff members was overwhelming, reasonable and believable. 

The obligation on an employee to put the safety and well being of Users in a Home is paramount. The evidence of MOC and LS was more convincing than the Complainants as to her behaviours on the days which lead to her dismissal. 

One of the Complainants main arguments was that she was treated unfairly by being redeployed while there were parallel grievances, hers and another employees, into events surrounding the Complainant not driving carefully back to the Respondents premises and the other employee feeling of being held against her will in a car by the Complainant for around an hour. The events happened in April 2016 and the investigation report issued on October 2018. The report was inconclusive as to the events as there were no collaborating witnesses but did substantially uphold the allegation that the Complainant detained the other employee against her will in the car. The investigation into this grievance was not the reason the Complainant was dismissed nor did the issue of her grievance not being investigated as quickly as the other grievance. The finished report into the allegations against the Complainant did not issue until 2 years after the Complainant was dismissed and once the Complainant was dismissed it was impossible and not practical to continue the investigation into her grievance. The Complainant was being redeployed due to the seriousness of the allegation against her. There was no disciplinary sanction against the Complainant at that time of dismissal and redeployment was a reasonable response from the Employer. It was the Complainants actions subsequently that led to her dismissal. The Complainant disobeyed a legitimate instruction given on July 13th to redeploy to Shannon, possibly the redeployment was partly for her own benefit given the assertion of discord with other members of staff, to move to Shannon. She was not at a loss of wages and the redeployment was closer to her home so there was no loss of income involved or extra time or expenses to travel to work. It was the Complainant who stirred up matters by turning up at W on July 14th and refusing to leave and not hand back her keys. The Complainants assertion that she was not told on July 13th to go to Shannon on July 14th was not credible and indeed she admitted this in meetings with the Respondent in September.  Also, if as the Complainant alleged, she feared for her life as a result of LS actions and was “molested” by him on July 14th 2016 it is not credible that it took her until February 8th 2017 to lodge a grievance against LS. This does not feel like she felt seriously threatened by his alleged behaviour if it took so long to make a complaint against LS. Also the Complainant stated she was dismissed on July 14th by MOC/LS yet engaged with YC in HR soon after on her return to work. The Complainant never used the grievance procedure, even under protest, to dispute the reasons for her redeployment. This would be a standard industrial relations course of action and the Complainant had access to a Union Representative, which she does not appear to have used at the time. Based on an assessment of the evidence given to the Hearing it was the Complainants actions that lead to the confrontations in the House. The Complainants assertions that she was subject to being detained and aggressive behaviour are not supported by the investigation evidence. The contention she was blocked from leaving or physically held against her will are serious but were contested and unproven. The witness who supported the allegation LS put his hand on the Complainant did not complete her evidence to the investigation, for whatever reason.

Any weaknesses in the investigation were minor and the Complainant was given the right of Union representation, which she did not continue with after her dismissal, throughout the Investigation and Disciplinary procedure. The Complainant was given the right of appeal where again she was represented. 

It is long established since Bunyan v United Dominions Trust (1982) ILRM 404 that states “the fairness or unfairness of a dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business, would have behaved” guides decision making on dismissal. The words “in that line of business” are especially important in this case.  I have given a lot of consideration as to whether any other disciplinary action was appropriate and whether a lesser sanction than dismissal was the right course of action in the circumstances. It is conceivable that in another line of business a lesser sanction might be appropriate. However, it was the Complainants actions in this case that caused her dismissal and given the seriousness of the issues involved and critically “the line of business” of the Respondent I have concluded dismissal was fair. The Respondent may have run the risk of being negligent or risking User safety by deciding on a lesser sanction. The Respondent was quite willing to redeploy the Complainant to Shannon before the incidents involved on July 14th so with regard to the allegation the Complainant had detained another employee against her will in a car the Respondent had not made any decision prior to the incidents involved of July 14th to discipline or penalise the Complainant. Once the Complainant conducted herself as described on July 14th in the presence of vulnerable Users and refused a number of legitimate instructions from management to leave the W premises and hand back her keys  there was no option to redeploy the Complainant to another Care Home or to retain her in employment under a lesser disciplinary sanction.

With regard to the claim for unpaid wages the Respondent has the right under the Act to deduct any overpayments. Expenses which were claimed by the Complainant in her complaint are not covered by the Act. The Complainant sought a payment of 2800 Euros but the Respondent gave a very detailed and logical explanation in their post Hearing submission as to why this claim was not valid. I find their explanation, detailed above in their submission, shows that any payment due was counteracted by deductions due to the Respondent due to overpayments which it was entitled to deduct under the Act and therefore the claim fails.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act. I find it was the conduct of the Complainant that led to her dismissal and the Respondent had substantial grounds for the dismissal. I find that the Dismissal was not unfair. (CA-00028080-001).

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act. I find that the Payment of Wages Act complaint is not well founded. CA-00028080-002).

Unfair Dismissal