Complainant

Respondent

Parties

Varghese Mathew

Donegal Home Care Ltd Home Instead Senior Care Ltd

Representatives

Donna Crampsie O'Gorman, Cunningham & Co. LLP

Tommy Cummins Adare Human Resource Management

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-00047540-001

07/12/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00047540-002

07/12/2021

This case is concerned with a claim of alleged unfair dismissal who was assigned to healthcare settings as a care worker. The dismissal occurred in June 2021 almost fifteen months after a complaint was received from the HSE regarding the care given by the Complainant to a resident at Ballywaltrim, a HSE run care facility for people with intellectual disabilities.

Summary of oral submission by Complainant representative

The Complainant commenced employment on the 2nd of February 2019. He was normally employed as a day person. The 31st of March 2020 was one of his first times on night duty. On the night in question the Complainant received a handover from a HSE employee P who instructed him in relation to the service user’s medication, that he was in bed and that no further attention would be required. He was told that the service user can become confused, could be difficult and required dedicated care. The Complainant was told that the service user had contracted Covid. He understood his duties on the night in question to be one of caretaker/doorkeeper, that he was not to intervene and that he would communicate with the service user through the door. The Complainant was dressed in full PPE on that night. The Complainant sat outside the door and observed the service user through the door. He did not check the door as it was not his function; it was impossible for him to lock the door as he had no access to a key. On the 20th of May 2020 the Employer requested his resignation (without any investigation) when he sought a reference. He refused to resign.

There was correspondence from the Respondent, but the Complainant was left in limbo; he was not able to obtain alternative employment. He was informed that there would be no investigation by the HSE during Covid but was offered no other employment; was advised that the Employer was waiting for a HSE investigation. Following an approach to his legal advisors, contact was made with the Employer who then conducted their own investigation a year later. That investigation occurred on the 14th of April 2021 and the Complainant had no opportunity to confront his accuser; no opportunity to respond to the report; and received no outcome of the appeal. It was acknowledged that he was unemployed throughout that period as he was unable to get alternative employment; he would be unable to do so because he could not provide Garda vetting; and the complaint was not investigated for over a year. This was a finding of gross misconduct and it was submitted that the Complainant was left to take the blame for what had happened; there was no just investigation; he did not receive the documents; statements from others were included but without any interviews; the Employer did not examine the CCTV for evidence of who had locked the door; there was complete inaction for a year.

Responding to the Respondent, the Complainant’s representative stated that this incident took place at the start of the pandemic and that the Respondent’s side were sidestepping the fact that the person in the room had Covid and there were no clear understandings how to deal with a service user in that position in that environment. The Complainant understood from the handover that he was not to come into one-to-one contact with the service user, and he was not aware when he came on duty as to whether the door was open or locked. At 5.00am he did not ignore the service user; he spoke to him through the door which had a glass panel; there was a toilet in the room which the service user could use. The Complainant worked to calm the service user down; he remained there; his position is that there were no obvious difficulties and he provided that service user with care. Somebody locked the door to the service user’s room, but it could not have been the Complainant; he did not have a key and did not have access to a key.

Accepting that there is a responsibility on the Complainant to mitigate his losses, the question would be why he should do so by seeking work in an alternative sector when his professional qualifications and training related to the sector in question.

The letter of dismissal on an allegation of gross misconduct states:

“Incompetence or failure to apply sound professional judgment – leaving a client unattended in their room with the door locked against Ballywaltrim’s policy. Failure to observe and/or comply with company regulations and procedures – carried out on shift in Ballywaltrim House Raphoe (HSE residential care home centre for adults with intellectual disability) on 31.03.20”.

It is the Complainant’s case that at no point was he provided with a copy of Ballywaltrim’s policy nor is it the contractual position that a breach of Ballywaltrim’s policies will be treated as a breach of a contractual term of his contract of employment. The Complainant is not aware of which specific provision of the company’s own regulations was breached.

In advance of the resumed hearing the Complainant provided details of his efforts to mitigate losses. The calculation of loss was given at €17,901.52 based on average earnings of €172.13 x 135 x 104 weeks. The Complainant remains unemployed at the time of the hearings before the WRC.

Evidence of the witness Varghese Matthew – Complainant

The Complainant confirmed that he was employed by the Respondent from 28th February 2018 and last worked on 31st March 2021. Asked by his representative to describe what occurred, the Complainant said that at 4.30 he received a call to come in for a shift at Ballywaltrim. Shortly before 9.00pm he attended at the main reception from where he was sent to Area B where there was a service user in isolation and was advised that he was to report to a named member of staff. He went over to the designated area and met a member of staff who told him to get on his PPE. He also told him that the service user was in the room sleeping and that he was to sit there, meaning outside the door on a chair. He was told there was tea and coffee in the kitchen. The witness stated that he stayed outside the door as directed. Nothing happened all night. At 5.00am he heard sounds as the service user started to move around the room. Mr Matthew spoke to him through the door; the door was locked, and he could not get in. In response to a question, he stated that he became aware that the door was locked after the staff member had left and stated that this was not normal, that the door (to a bedroom) was locked. He said that the patient was in isolation due to Covid. Asked about the service user, he stated that the person had an intellectual disability, that there was no trouble with this service user, he knew him very well; sometimes he could be hard to manage and two people would be required to take him out for a walk. Regarding his response at 5.00am, the service user woke up, he had a bathroom of his own and was a very hygienic person. The service user used the bathroom and the witness spoke to him through the door saying take it easy and telling him that others would come for him at 9.00am to take care of him, to get him ready and to provide breakfast.

At 9.00am another person whose name he does not recall arrived for handover and he showed that person how to put on PPE. Asked was he there when the door was opened, he said no he just handed over the shift and asked the staff member to take him out as he had no key to leave the area. He did not see the state of the room and the service user described in the complaint against him. He then went to the main office to report in. Asked when he first knew there was a problem about the service user, he said that it was as he got home he received a call from MM’s office and then an email. He was told he was terminated from the job, that he was to handover keys or anything else he had, and he then went to bed. He was not offered any further work after that. Later he was asked for details of what happened, and MM asked him to resign [see 1st May 2020 email referred to earlier]. The Complainant said he wanted to work, and he rang every couple of months to find out what was happening. Asked was he offered the opportunity to speak to the staff on duty at any stage, he replied no.

Under cross-examination he was asked when he found the door locked and he was unable to enter what did he do. The witness replied that he could not do anything; he was unable to go to the reception as the corridor door was also locked. Asked did he establish why the bedroom door was locked, he replied that is a question for whoever locked the door. Asked about his care for the person inside the room, he said that there was no point in going into a room when a person was asleep. Asked when the person got up roaming around his room should he not have ensured that he could attend to him, and he replied you do what staff tell you and he did engage with the client through the door. Asked what was his role, he said if anything happened, if there was an emergency, but again stated that you cannot go into a room while the person is sleeping. Asked what he would do in an emergency, he said he would break the glass; that the person cannot be locked in the room. He understood that the person was isolated due to Covid. Asked what he did when he could see the service user up around in the room at 5.00am and distressed, he said that he calmed him down, he let him know that he was there. He spoke to him on and off for three hours. The service user in question would know that breakfast would be organised for him, so he was continuing to communicate with him from outside the door. Asked why he did not establish where the key was or seek assistance, he replied again that the agency workers work to staff, he was in a locked corridor and there was no way he could exit the door himself. Covid was a factor here; people did not know what to do and they were putting on PPE. Asked did he agree that there was a half glass partition door at the end of that corridor and that he could speak to colleagues through that door to get direct access and why he did not do that, he said that he was not told to do that.

Evidence on Mitigation of losses

The Complainant supported by his representative gave details of the efforts he had made to obtain work either in care roles or in other alternative employment. His situation was that he could not succeed in Garda vetting because of the complaint and therefore had difficulty supplying a CV because of the allegation. The last time he had applied for work was the previous week. He had very few interviews and he was not entitled to apply for social welfare after a period because of his wife’s income. Asked when he had ceased claiming PUP, he replied in June 2021. He also stated that he was in India with his wife for a period of four months commencing in October 2021.

The Complainant and Respondent sides agreed that compensation would be the appropriate form of redress in the circumstances of the case.

The Respondent company is a care service provider where support services are delivered on behalf of the HSE. The incident which led to the dismissal took place in a HSE facility, i.e., Ballywaltrim House, which provides residential care and support to children and adults with a disability.

The Complainant commenced employment on 28th February 2019 and was employed as a caregiver. During his employment the Complainant was provided with a copy of the employee handbook, policies and procedures and received training specifically relating to trust in care and elder abuse. On 31st March 2020 the Complainant attended at Ballywaltrim House, Raphoe, County Donegal, where at 9.00pm a member of the care staff (an employee of the HSE) undertook a handover with the Complainant. During this handover the Complainant was advised of the location of the PPE due to the Covid-19 positive test of the service user who was isolating. The Complainant was updated on the service user and was advised to phone the office to request food if needed.

The role of the Complainant was to ensure that all necessary care was provided to the service user who was in his own bedroom. According to witness statements, when a healthcare assistant (employee of the HSE) arrived the following morning to check on the service user the bedroom door was locked. Upon unlocking the door, the healthcare assistant found the service user on his hands and knees on the floor in his bedroom. The healthcare assistant described the scene where he outlined that there was faeces on the floor and a few pieces of jigsaw puzzle. The healthcare assistant immediately assisted the service user showering him and cleaning the bedroom which he stated had a very foul smell. The incident was then reported to the nurse in charge. The Respondent received a complaint from the management at Ballywaltrim House on 1st April 2020. The Respondent immediately cancelled all booked hours for services in Ballywaltrim involving the Complainant until further notice. He was suspended on 1st April 2020 without pay due to the serious nature of the concerns raised. The HSE then commenced actions as part of the Trust in Care Policy, conducting a preliminary review. As part of that review the HSE wrote to the Respondent employer asking for a statement from the Complainant in relation to the events during the night of 31st March/1st April 2020. On 10th April 2020 the Complainant submitted a statement outlining his version of events. The HSE were then to conduct a full investigation into the incident under the Trust in Care Policy. However, due to the pandemic and ensuing pressures in responding to rising Covid numbers, the HSE notified the Respondent on 20th May 2020 that in essence they were “parking” their investigation at that time due to the extenuating circumstances. During the intervening period the Respondent employer sought to maintain as much contact as permissible with the HSE regarding updates in respect of the required investigation but was advised that the Trust in Care investigation team were redeployed due to Covid. Ultimately the Respondent employer had no alternative but to move forward with their own internal investigation notwithstanding the fact that the Safeguarding Vulnerable Persons at Risk of Abuse National Policy and Procedures had not been completed. In this setting the Respondent was acting outside of the statutory provisions of Trust in Care, but this was done in a context to afford the Complainant his rights in the ongoing absence of the HSE personnel who were required to conduct the Trust in Care investigation.

On 31st March 2021 the Respondent notified the Complainant that an investigation into the serious allegations of gross misconduct would be commencing. The invitation to investigation meetings was issued to the Complainant outlining his opportunity to respond to the allegations and raise any other matters which he deemed relevant. He was advised of his right to bring a support person with him.

The investigation centred on potential acts of gross misconduct relating specifically to alleged incompetence or failure to apply sound professional judgment in leaving the service user unattended in their room with the door locked and an alleged failure to observe and/or comply with company regulations and Trust in Care provisions. The Complainant was provided with a copy of the statements from HSE employees. An investigation meeting took place on 14th April 2021, copies of all evidence were discussed in full, and the Complainant was offered an opportunity to respond to the allegations. While the Complainant denied locking the service user’s door for the 12-hour period of his shift he did note that he did not make any attempt to check on the service user throughout this period even when the service user awoke at 5.00am that morning. The Complainant acknowledged and agreed that he completed training in safeguarding and had read the Company’s handbook procedures and policies so was aware of the work practices and requirements in caring for vulnerable adults. Training certificates were provided with the Respondent’s submission.

Having conducted a thorough investigation in accordance with natural justice and fair procedures the investigator found the allegations to be upheld on the balance of probabilities. A summary of the investigation report and outcome of the investigation was provided to the Complainant in April 2021. On 30th April 2021 the Complainant was invited to a disciplinary hearing by the Chief Operations Officer and was advised of his right of representation. The purpose of the hearing was to discuss the Complainant’s alleged gross misconduct including incompetence/failure to apply sound professional judgment and failure to observe and comply with company regulation and procedures.

The disciplinary hearing took place on 6th May 2021 and the Complainant waived his right to representation at this hearing. No new evidence or information was put forward by the Complainant in response to the allegations of gross misconduct, nor were any mitigating factors raised by him in his defence. On 9th June 2021 the Complainant received notification of the outcome of the disciplinary hearing and sanction and he was advised of his dismissal due to the finding of gross misconduct. The Complainant was also notified of his right to appeal the decision within five working days and did so with his grounds of appeal in a communication dated 11th June 2021.

On 21st June 2021 the Complainant was invited to an appeal hearing which took place on 29th June 2021. The Complainant did not bring forward any further evidence to support his grounds of appeal. On 29th July 2021 the Complainant was advised of the outcome of the appeal which upheld the sanction of dismissal. It is the position of the Respondent that at all times in the application of the investigation process, the disciplinary hearing and appeal meeting that natural justice and fair procedures were applied.

Claim for pay in lieu of notice, i.e., statutory minimum notice.

It is the Respondent’s submission that given the nature of the termination, i.e., that it was a summary dismissal for gross misconduct, the right to minimum notice does not apply. The Respondent in their submission cited Boots Retail Limited v Luka Glogoski [2018] as follows:

“In a case of dismissal for incompetence, it is not for the court to establish whether or not the complainant was incompetent or underperforming in the discharge of his duties. Were the court to adopt that approach it would in effect be trying to second-guess, from a removed standpoint, the respondent’s managers who are responsible for managing performance of subordinates and who are best placed to evaluate performance on the job.

Rather the court’s role is to decide on whether or not the employer’s decision was reasonable such that it was properly arrived at by virtue of being based on up to date and relevant information which had been considered through appropriate processes applied in a consistent manner in accordance with basic fairness and in observance of the rights of fair procedures.”

Citing the EAT the Respondent stated:

“The fairness or unfairness of 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. The Tribunal therefore does not decide the question whether or not, on the evidence before it, the employee should be dismissed. The decision to dismiss has been taken, and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded.”

And again citing the EAT in Looney & Company Ltd v Looney:

“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.”

Regarding the suspension without pay, the Respondent cited a recent case of Mr A. Agbeze v Barnet Enfield and Haringey Mental Health NHS Trust where the Employment Appeal Tribunal in the UK determined that as a zero-hour worker the complainant was not entitled to be paid whilst he was suspended pending an investigation into an allegation of misconduct. In that case the complainant had lodged a claim for unlawful deduction of wages claiming that he should have been paid an average wage during any period of suspension provided that the Respondent had work available for him to undertake during this time. That claim was dismissed. In its judgment the EAT referred to the provisions of the agreement between the two parties under which there was no obligation on the Respondent to provide work and no obligation on the complainant to accept any work offered to him. The agreement also provided that the complainant would be remunerated in accordance with the duties he carried out whilst providing services. It was adjudged that there was no underlying right for the complainant to be paid unless he actually carried out work for the Respondent and the appeal was dismissed.

In summary, the Respondent submits that they acted fairly and reasonably in respect to any dealings with the Complainant and sought at all times to act in accordance with the national policies and procedures as set out by the Health Service Executive. The Respondent vehemently denies the Complainant’s allegation that he was unfairly dismissed. The Respondent due to the significant acts of the Complainant made the appropriate and proportionate decision to terminate the Complainant’s employment. On this basis the Complainant’s case cannot succeed.

Responding to the outline of case provided by the Complainant’s representative Mr Cummins, representing the Respondent, stated that there was not a lot in dispute on core issues. The investigation was completely appropriate and was governed by terms of reference. The Complainant had acknowledged that he went to work; that the door was locked; that he did not get a key; that his care was exclusive to that one service user on that night; and that given that the Complainant had acknowledged that he had never seen a door locked when he was on duty previously, it was bizarre that he just sat outside. He added that it was not in dispute that the resident was walking around his room between 5.00am and 9.00am. The Complainant did nothing (to provide care to that resident). What did not take place is the substantive issue in this case: a failure to provide care or to obtain a key to unlock the door.

In relation to mitigation of losses, there was nothing to prevent the Complainant seeking work where Garda vetting is not required during the period of his suspension without pay. In addition, Garda vetting previously completed by the Complainant was still in place for some time after his suspension without pay. Based on questioning of the Complainant the Respondent representative submitted that the Complainant was in receipt of PUP for a period following his dismissal; that he was unavailable for work while he was in India for four months; that it would appear from the evidence of applications for positions that the Complainant first became active seeking work in the third quarter of 2022 and was not actively seeking to mitigate his losses or to seek employment prior to that time.

Witness 1 for the Respondent, Martin Murphy

The witness stated that he was the former owner and MD of Home Instead which provided a service to the HSE in Ballywaltrim at the time. He first became aware of the events on the 31st of March 2020 when he received a report from a colleague in which he was told of the incident. He later received an email from a manager at the centre and then had to take the action of suspending the Complainant. Asked about his organisation’s obligations to service users in those settings, Mr Murphy replied that it was to prevent any or any further elder abuse; staff were fully trained in safeguarding; his organisation had responsibility to ensure that all files were in order and that policies and procedures (within the setting) are followed by their employees. In response to his own representative the witness stated that he was not aware of any set of circumstances which would involve locking a service user in a room for 12 hours, in any circumstances. Under cross-examination the witness acknowledged that there are restricted practice protocols (BSP) where there are identified behaviours of concern and that staff were trained in handling those situations at induction. He was unaware of any protocols in place in relation to the service user in question. He stated that it was the employee’s responsibility on finding that the door was locked to get the key and/or to raise the alarm. He stated that using sign language to communicate with a service user through a door was not normal, that he had never heard of it before himself and that employees would not be instructed that this was the correct response. Asked about reporting the matter to the HSE, Mr Murphy replied that the HSE had alerted them through the manager’s email. He was then advised by the HSE that they had their hands full (with Covid) and they were not in a position to conduct an investigation at that time, although he followed up on this many times to be told it was not possible. He stated that he was not aware at the time whether that service user had Covid, and he is not aware of that since. The Complainant was wearing PPE at the time. He accepted that the staff would have the keys to all the doors (and not the Complainant). His position was that the door was never to be locked and that this would have been the policy of the residence in question. It is not disputed that the Complainant had not locked the door or had no access to a key, and he was not entirely aware what had been said to the Complainant in the handover from the member of staff. He is not sure if he was told to stay outside the door. The witness stated that he had never before heard of a situation where when a service user wakes up and starts walking around a room that a person (employee) would refuse to go to that person and would use sign language to communicate with them. This was not normal, and the Complainant was never instructed to engage with a service user in that way. He himself had never heard of a situation where communications would take place with a service user from behind a locked door.

Asked why he did not place the Complainant in another employment, one that was not HSE related, Mr Murphy stated that there was no suitable employment available, that the Complainant wanted to work 12-hour shifts, and there were other factors which did not work out for him so that there was no work for him outside of the residence in question. Asked by the Complainant’s representative did he accept that there were no other difficulties in the Complainant’s work record, Mr Murphy responded that yes there were other difficulties. There had been an issue with another manager in a different HSE location and they were asked not to place him there again.

The witness was asked about seeking the resignation of the Complainant in return for a reference. Mr Murphy stated that he had informed the Complainant that he could not supply a reference based on the complaint. The witness was referred to an email exchange on 20th May 2020 and accepted that he had asked the Complainant to provide a written resignation in return for a reference and that the Complainant had refused this request seeking that the HSE would clear his name as soon as possible.

Under questioning Mr Murphy accepted that persons such as the Complainant could work in more than one place and for more than one employment at a time, hence they could request a reference for another employment. He stated that there was a three-year timeframe for the duration of a Garda vetting, and it was not necessary to get a new vetting in applying for different employments during that period and the three-year period had not expired in April 2020. Asked if he had reviewed CCTV footage as to who might have locked the door, he stated that no he did not. In relation to the suspension without pay, he stated that he followed the terms of the contract of employment. He did accept that an unpaid suspension of 12 months would not be usual, but he left it to the HSE to conduct that investigation and they were unable to do so.

Extracts from the Trust in Care Policy were put to the witness by the undersigned pointing out to him that these were references to staff of the HSE and why he considered that as the employer he would not conduct his own investigation and how the Trust in Care Policy applied to the Complainant who was not an employee of the HSE. The witness stated that it was his understanding at the time that it was a matter for the HSE to conduct the investigation in the first instance. They would also have access to their own employees to interview them as part of an investigation.

Respondent Witness 2, Shane Jennings

Mr Jennings described his position as Chief Operations Officer based at the national office providing a support function to franchise operations around the country. His role in this matter was that he conducted the disciplinary hearing having received the investigation report. His decision was based on the findings from the investigation and when he met the Complainant, he provided nothing of any significance which would alter the findings from the investigation. His concerns related to the lack of interaction with the service user in his bedroom; not to look for anyone when he realised the door was locked; not being entirely clear when he was asked for a reason for his inaction, that he had just sat down there and thought it would be okay (to do that). Asked if he had considered any other sanction short of dismissal, the witness stated yes, but for him the overarching issue was the Complainant’s failure to use his professional judgment and look after that service user. He stated that there was a failure to observe regulations. Asked to clarify what material he had used in arriving at his decision, he stated the investigation report, documents regarding local policies, and the statements from various people. In cross-examination the witness was asked if notes were taken at the meeting, and he replied that he was sure they were. When it was put to him that there was no opportunity to comment on those notes, the witness stated he was sure the Complainant had received that opportunity. He stated that if a door was never to be locked it should not have been locked and was contrary to policies and regulations and guidelines. In relation to Covid-19, he stated there were HSE guidelines at the time and PPE was provided. He stated that he had no understanding that the service user in question was positive with Covid at the time. Regarding any restricted procedure for that person, this was not disclosed in the investigation. Asked did he know what was advised to the Complainant regarding the handover, the witness said that he did not. It was put to him that the Complainant said that everything was okay to which the witness replied that it was his responsibility to go in and check on the service user. It was management’s understanding that no door was to be locked and that this was a clear instruction and there was no effort made to check on the service user. He referred to a report from a person by the name of SD which said that the door should not be locked. The Complainant was aware of the policy that no door should be locked, and at the disciplinary hearing he tried to get a satisfactory reason as to why the Complainant had not sought assistance, or a key.

This case raises some interesting issues which merit observation.

1. The date of dismissal.

The Complainant was effectively employed by an agency and the response of the agency was to effectively remove the Complainant from consideration for future work as a carer on 1st April 2020 following the receipt of a complaint from Ballywaltrim. As the Complainant was no longer on the payroll of the agency from that date and no longer considered for placement as a carer it could be argued that his effective date of dismissal was 1st April 2020. In that case, the UK legal precedent cited by the Respondent might have come into consideration regarding the obligations of the Respondent in such circumstances including whether an unpaid suspension was justifiable. However, given that both sides agree that the effective date of dismissal was 9th June 2021 and not April 2020, the effect of the unpaid suspension on the continuance of an employment relationship is not considered further within this decision.

2. The responsibility of the Respondent to investigate.

By any standards, a delay of a year to commence an investigation particularly while the employee is on an unpaid suspension is not the action of a reasonable employer. There may be some circumstances where an investigation might be ongoing for an extended period in a complex matter. However, in this case it is the very absence of any investigation until representations were made by a solicitor on behalf of the Complainant that is fundamentally unreasonable. It is difficult to avoid a consideration that were the Complainant on the payroll for the period of in excess of one year the Respondent would not have been so tardy. This is supported by the Respondent’s willingness to provide a reference in circumstances were the Complainant to resign and left the organisation and therefore the complaint behind him. I take the view the Respondent was acting in their own interests throughout 2020 without any due regard for their obligations or the rights of the Complainant until representations were made on his behalf by his solicitor.

Fundamentally the Respondent’s reliance on the HSE to conduct an investigation and placing the blame for the failure to conduct an investigation at the door of the HSE displays an ignorance of the Respondent’s own responsibilities to their employee. The Trust in Care Policy upon which the Respondent relies is one which encompasses staff of the HSE and complaints and procedures agreed between the trade unions and the HSE and related employers. There is no reference to the Trust in Care Policy’s application to non-HSE employees. There was no reference to the Trust in Care Policy applying within the Respondent employment. Indeed, even if the Respondent had that policy as part of their own procedures and terms and conditions, it would still remain their responsibility to conduct their own investigation in their own right in relation to their employee. This is a particularly important point in respect of a person who is an agency worker and solely reliant on the Respondent for their placement in different locations. It is acknowledged that the Respondent might or indeed would have some difficulty conducting a thorough investigation in circumstances where they would not and did not have direct access to the HSE employee or employees who were involved in this matter. Instead, they took into account written statements provided by employees of the HSE to the HSE which were not tested at any stage. Given that the Respondent in this case did not conduct an investigation for over 12 months and then relied greatly on statements made by persons who were not their own employees and were not subject to questioning, the absence of any immediate investigation while their employee was suspended is a very serious matter and one which has been weighed in the round in the circumstances of this case in arriving at a decision as to whether or not this was an unfair dismissal. Noting the absence any process during that period and the self-interest of the Respondent does not of itself render the decision to dismiss unfair in circumstances where the Respondent did react correctly to the representations made on behalf of the Complainant.

It would be remiss of me not to point out that no investigation into the events of 31st March 2020 was ever conducted by the HSE, according to the Respondent. Such an investigation might have encompassed inquiries as to why the bedroom door was locked and why also the corridor on which the Complainant was located for the duration of his 12 hour shift was also locked leaving him with no direct or immediate access to the remainder of the facility. Leaving him with no ability to enter the service user’s room without seeking a key or as he said himself, in the case of emergency leaving him to break the glass into the room all the time. Allowing that the Complainants evidence was credible, no member of the HSE staff told him when or how he was to obtain a key if he needed one. In these circumstances it is not difficult to agree with the solicitor for the Complainant when she says that he was the scapegoat for everything that happened that night. Her observation that Covid was a factor at that time is also both pertinent and reasonable although whether the service user in question actually had Covid is no longer clear from the evidence before the hearing. The Respondent does not seem to know whether or not the service user involved had Covid, but if this was the case any suspicion of the service user having Covid might provide some insight as to why that service user’s door was locked. These  observations notwithstanding, for the purposes of this case it is the actions of the Complainant when finding the door was locked shortly after he came on duty and in particular his failure to seek to open that door when the service user awoke at 5.00am which are at the heart of this case in terms of his role and responsibility to and on behalf of the Respondent.

Once the Respondent commenced an investigation the question which remains for decision here is whether or not the ultimate decision of the Respondent to dismiss the Complainant was a reasonable disciplinary sanction. Having met the Complainant and listened to his evidence and his forthright responses to questions at the hearing, I conclude that there was no malice or deliberate neglect whatsoever on his part in relation to the service user in question. Also concluding that the existence of Covid-19 and the heightened concerns that existed in healthcare settings in particular in March 2020 may have been a factor in what occurred on the night, there is an inescapable conclusion that it was not unreasonable of the Respondent to conclude that the Complainant had failed in his professional duty of care to the service user. The stance the Complainant took on the night/morning in question was crucially according to his own evidence based solely on his unquestioning adherence to a direction given to him by a member of staff. That direction according to his own evidence was that the Complainant was to stay outside the door for the duration of the shift. Quite early on in that shift he discovered that the door was locked. One would expect that in his position as a trained carer this situation should have at least raised an issue for him as to how he was to enter the room if required. Yet he sought no advice or guidance on this matter instead blindly accepting a direction given to him that he was to “stay outside the door”. I take the view that it was reasonable of the Employer to decide that making signs and speaking through a glass insert in a door when the service user was awake and to continue to do so for a period of four hours reached a threshold of gross misconduct based on incompetence and failure to provide sound professional judgment as a care provider. Also that in a general sense,  leaving that(or any) service user behind a locked door for an extended period combined with a blind adherence to an instruction from a member of staff, who apparently did not tell him the door was locked or what to do if the service user woke before the end of the shift, would not have accorded with the policies and procedures on which he had been trained and which he acknowledged himself at the hearing was not something he had encountered previously in Ballywaltrim.

Looking at the response of the Complainant to the internal investigation; to the appeal hearing and overall, his apparent lack of insight into the significance of what he had and had not done as a care provider acting on behalf of the Respondent and for the HSE, reinforces a definitive conclusion that the Respondent’s decision that dismissal was merited was a reasonable one. In arriving at the decision to accept the position of the Respondent, I am satisfied that it was reasonable to conclude that the Complainant knew or ought to have known that his primary responsibility was to the service user and not to a member of the Ballywaltrim staff and that he had an obligation to ensure that he had access to that service user and should have ensured that he could provide direct care to that person. There were substantial grounds for the dismissal.

The Complainant representative has criticised the procedures followed by the Respondent once they commenced their investigation. Given that the Respondent had no direct access to the HSE employees the extent of their investigation was limited to some degree. However, I am satisfied that once the Respondent carried out their obligation to investigate their own employee, received the Complainant every opportunity to state his case and to explain his actions and inactions throughout the stages of the procedure which were both investigation and separately disciplinary in nature. He had the opportunity to have representation at all meetings and he declined. He received copies of the notes of the meetings which he attended and any documents which were available to the Respondent. I find therefore that while imperfect in their completeness and allowing for the delay, the fundamental issue of the Complainant’s own actions and inactions on the night and morning in question were eventually fully and fairly investigated by the Respondent.

The decision in this case is that the dismissal of Varghese Matthew by the Donegal Homecare Limited was not unfair either in substance or in procedural terms.

Claim for payment of minimum notice.

Section 8 of the Minimum Notice and Terms of Employment Act states “Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party”. The Employer in the notice of dismissal defined the conduct of the Employee as gross misconduct and having found that a dismissal on grounds of gross misconduct was not unfair the claim for pay in lieu of notice is not upheld.

CA-00047540-001 Unfair Dismissals Act 1977

I find that the dismissal of Varghese Matthew by Donegal Healthcare Ltd was not unfair and therefore no order for redress is required.

CA-00047540-002 Minimum Notice and Terms of Employment Act 1973

As I find that the Respondent in this case did not contravene the terms of the Minimum Notice and Terms of Employment Act 1973, this complaint brought by Varghese Mathew against Donegal Healthcare Ltd is not well founded.

 Dismissal Gross Misconduct/Minimum Notice