Complainant

Respondent

Parties

Gintare  Coyle

Jim Cahill, Tara Seepersad, Karl Seepersad, Des Seepersad Hillview Private Nursing & Retirement Residence

Representatives

Mark Cassidy Mark Cassidy & Company Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00034056-001

29/01/2020

The Complainant commenced employment as a Care Assistant with the Respondent employer on 8th February 2018. The Complainant alleged she was summarily dismissed without warning and without notice by email on the 7th August 2019 by the Respondent. The Complainant alleged that the dismissal was of immediate effect and was in breach of her rights. At the time of the termination of employment, the Complainant had 52 weeks continuous service.

The Respondent denied the allegations, contending that the Complainant had terminated her own employment.

The Complainant submitted that of the 31st July 2019 she was on duty at the nursing home when she was intimated and bullied at the workplace by another member of staff, she stated that she was very upset by his behaviour and reported this to the Respondent.  She stated that this grievance was raised orally and in writing via a WhatsApp message to the employer.

The Complainant submitted that her husband was very upset at the treatment his wife had been subjected to and also complained to the employer. The Complainant submitted that the employer was aware of the employee’s complaint and of her upset and of her fear and, she contended, the employer’s response was to summarily suspend the Complainant.

The Complainant submitted that there was no communication whatsoever between the Respondent and Complainant between the 1st August 2019 until the 7th August 2019 when the Complainant was advised of her dismissal.

The Complainant pointed to Section 1 of the Unfair Dismissal Act 1977, which states:“(a) termination by his employer of the employees contact of employment with the employer, whether prior notice of termination was or was not given to the employee; (b) termination by the employee of his contact of his employment with his employer, whether notice of the termination was or was not given to the employer, the employee was or would have been entitled, or it was of would have been reasonable for the employee, to terminate the contact or employment without giving prior notice of the termination of the employer; or (c) the expiration of a contact of employment for a fixed term without its being renewed under the same contact or in the case of a contact for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose”.

The Complainant submitted that the Respondent dismissed the Complainant as per section of 1.a of the Act by email of the 07/08/2019 stating “we are not in a position to offer you any future shifts in Hill View”.  The Complainant submitted that she responded “I am disappointed with the outcome of your investigation, I feel that I have been let down, considering I was the one been bullied and abused at work”. The Complainant pointed to Section 6.1 of the Unfair Dismissals Act 1977 which provides presumption in favour of the Complainant in the Unfair Dismissals Act that the dismissal was unfair. Section 6-(1) states “Subject to the provisions of this section, the dismissal of an employee shall be deemed, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.” The Complainant submitted that the burden of proof rests with the Respondent to establish its reason or reasons for the dismissal. The Complainant submitted that her dismissal was not in accordance with fair procedures or in accordance with natural and constitutional justice. In this regard the Complainant made the following points:

·       The Respondent failed to follow its own code of practise on grievance procedures, the Complainant raised her grievance orally and in writing and contrary to its own policy no hearing was convened.

·       The Respondent was aware or ought to have been aware that the Complainant was upset and frightened following the incident at work of the 31/07/2019. Notwithstanding same, the Respondent did not investigate the Complainants grievance and failed to adopt any or any reasonable process whereby the Complainant would be afforded an opportunity to be heard.

·       If the Respondent was purporting to dismiss the Complainant on disciplinary grounds, which are denied, then it failed entirely to follow its own code of practise on disciplinary procedure. It also failed to follow procedures in SI146 of 2000 (which it adopted). The Complainant was dismissed without warning and without notice.

·       The claimant was dismissed in breach of her rights.

o   The Respondent did not entertain the Complainant’s grievance.

o   The employer never sought to interview the Complainant.

o   The employer never sought the Complainant’s version of events.

o   The employer did not inform the Complainant of any intended process or processes.

o   The Respondent did not conduct an investigation in accordance with the principles of natural justice.

o   The Respondent never informed the Complainant of any alleged complaints against her.

o   The Respondent never provided the Complainant with statements/evidence of any alleged complaints against her.

o   The Respondent never sought to test any allegations against the Complainant.

o   The Respondent actively sought evidence against the Complainant, purportedly pursuing additional charges of racism against the Complainant. The Complainant was never advised of the charges against her or of the basis for her summary dismissal.

In summary the Complainant submitted that she successfully passed her probation and worked for the employer for a period of 18 months without complaint. She submitted that she was subjected to an incident in the workplace, where on foot of same the Respondent elected to suspend her summarily and ultimately dismiss her, having failed to have any consideration whatsoever for the Complainants grievances of bullying and intimidation from a co-worker. The Complainant submitted that the Respondent failed to communicate with the Complainant and failed to follow up and check that she was all right, when they were aware that the Complainant was upset and in fear.

The Complainant was informed that the incident would be investigated, but she was never interviewed, and her statement of events was never taken. The Complainant submitted that she was not advised of the outcome of any investigation save and in so far as she was notified of her summary dismissal by email of the 07/08/2019. The Complainant further submitted that dismissal and the manner of the dismissal was devastating to her and that she was abruptly cut adrift from her livelihood, her income and her reputation. The Complainant submitted that she suffered panic attacks and insomnia and she provided a doctor’s note dated the 13/08/2019 to support her contention in that regard. Finally, the Complainant submitted that the instant case is one where it is so clearly apparent that the employer did not follow fair procedures, that the employer did not inform or consult the Complainant and that the employer dismissed the Complainant in circumstances where no procedure was engaged in justifying her dismissal and in those circumstance the Complainant submitted that she was unfairly dismissed.

In addition to her submission and medical certification provided the Complainant also submitted copies of each of the following;

·       Copy of correspondence of the 27th of November 2019 from the Complainant representative to the Respondent

·       Copy of letter of letter of 27th November 2019 from the Complainant solicitors to Mr. JC

·       Copy of correspondence of 27th November 2019 from the Complainant solicitors to Ms TF

·       Copy of correspondence of 27th November 2019 from the Complainant’s representative to Mr KF

·       Copy of correspondence of the 27th of November 2019 from the Complainant’s representative to Mr DF

·       Copy of correspondence received from the Respondent dated 5th December 2019

The Complainant sought compensation for the unfair termination of her employment.

Additional information giving by the Complainant’s representative:

The Complainant’s representative stated that, in summary, the Complainant was dismissed by email of the 07/08/2019 which stated that the Respondent “was not in a position to offer you any further shifts” and he stated that there was no further contact from the Respondent from that time until February. The Complainant’s representative stated that the burden of proof to demonstrate that this was a fair dismissal rested with the Respondent.

The Complainant’s representative pointed out that at the time of the incident in July 2019 there was no documented emergency number for contact and that in those circumstances the Complainant felt it was better to deal with the matter the following morning, that she was endeavouring to be professional and that there was clearly no documented procedure for contacting out of hours. The Complainant’s representative pointed out that there was no information given to the Complainant regarding an investigation procedure and that while she was told that there would be an investigation carried out, she never received notification of an investigation and that the next notification she received from the Respondent was the email to confirm to her that there were no more shifts to be offered to her.

The Complainant’s representative pointed out that at no time was the Complainant invited into an interview and the Complainant had medical evidence about the impact of the incident on her, but she had no opportunity to provide this to an investigation conducted by the Respondent. The Complainant’s representative pointed out that there was no fair procedure, no review of the Complainants complaint and that she was never informed that there was a counter complaint against her. The Complainant representative noted that the Respondent had actually sought complaints against her and raised additional charges of racism after she had highlighted her complaint. Despite all of this the Complainant’s representative said that the Complainant was given no opportunity to defend herself against these new allegations nor was she ever giving details of those allegations. The Complainant’s representative pointed out that the Complainant had responded to the email of the 07th of August to state that she was most disappointed with the correspondence that she had understood an investigation would be conducted and that it appeared that the investigation had made findings against the Complainant, yet she did not receive a response to that correspondence, nor was she ever provided with the outcome of the investigation into her complaint/the incident that occurred in July 2019 nor any investigation that may have taken place into allegations of racism.

Complainant evidence under oath:

At hearing the Complainant confirmed that her shift had started at 8.00 am on the 31st of July 2019 and that she was looking after residents.  She stated that she was due to work until 12 o’clock at night and that she had spent her time avoiding ‘M’s’ company.  She stated that he wasn’t being professional, that he wanted to do rounds and to take his break with her.  She stated that she was not happy to do so, that he wanted to bring her into the office to listen to his “stories” (which she said were suggestive and full of innuendo).  She stated that she suggested doing other tasks in order to avoid his company but that when she did, he became aggressive and banged the table at her.  She stated that she left the office and she started doing her job, that she had other duties to undertake such as cleaning etc.

She stated that she went for her tea break but that he wouldn’t let her answer bells and that he wanted her to stay in the sitting room. She described his behaviour towards her as rude and aggressive and stated that he was screaming at her.  She advised that ultimately, she said to him that he was not her boss and that he could not tell her what to do.  She stated that she felt like she needed to escape from him and that he was talking inappropriately to her, asking her questions about her relationship with her husband and telling her stories about other people cheating on their partners. She stated that she considered ringing her husband but that it was late and that they had a small child that she did not want to disturb. She advised that she told the nurse on duty the followings morning at around 7.50 am what had happened, and the nurse confirmed that she would talk to a more senior member of staff.  She said that the nurse on duty told the nurse coming on the next shift that she had been crying and she had a terrible night.  She stated that she called her husband and went home. She confirmed that she told her husband what had happened, that she was very tired, that her husband brought their child to the creche.  The Complainant advised that she had gone to bed and woke up late and that she had the phone on silent and that when she woke up, she saw the missed calls from the Respondent.

She stated that her husband had finished work early and that she did not feel ready to talk to the Respondent at that time. her husband made a call on her behalf.  She confirmed that she had written the WhatsApp message outlining her concerns.  She stated that she did not want her job to end, that her job was very important to her as the family were in the process of buying a house.  She confirmed that her husband had answered the phone to the Respondent and had spoken to them and that she could overhear what was being said because her husband had the phone on speaker because his English was not as good as hers.

In response to questions from her representative the Complainant confirmed that her understanding of the phone conversation she had with the Respondent was that the Respondent would arrange a meeting with her to discuss matters and so she awaited contact from them. She confirmed that the events that took place on the 31st of July had resulted in a poor health outcome from her, that she had panic attacks as a consequence and was on medication for anxiety and that she was never previously been on medication.

In relation her employment she confirmed that she had been out of work, that she had made efforts to find work, that she had interviewed for a nursing home job and eventually she got one close to home but that she had no income for 6 months.  She stated that she commenced employment in November 2020 but that she found that the employee ‘M’, who was an agency worker, was also working at that nursing home and that she became panicked and had a flash back.  She stated that she had to leave work within a few hours and that ultimately this resulted in her having to seek employment during the pandemic.  She stated that she had been offered a job in a factory and that she took it straight away as she needed the money and then that she eventually got back into the nursing home sector. 

Her representative asked her in relation to a finding that she had compromised patient care how she felt about that and she said that in her view that was absolutely not true, that she loved her job.  She stated that she was concerned if that was the message given to other employers.

Cross examination of the Complainant:

Mr C (owner) put it to the Complainant that she had received her contract of employment on the outset of her employment and she confirmed that she had and she also confirmed that she had read and understood that contract.  He further put it to her that having read and understood the contract she understood the procedures that were appended to that contact and she confirmed to him that it was a long time since she received that contact and that there was a lot of documentation in it and while she had read it, she didn’t remember every detail of it.

Mr C put it to the Complainant that on the night of the 31st of July she had actually refused to carry out an instruction of a nurse on duty and she responded that she had not. Mr C put it to the Complainant that she understood and was aware of how to make contact out of hours if there was a problem and asked if she not understand that she could have made contact.  Ms. C replied that as it was a verbal incident and not a physical incident, she felt that it was more appropriate to wait and speak to someone in person. Mr C put it to the Complainant that she did not make a formal complaint because she and ‘M’ did not work together very often, perhaps 2 to 3 shifts in a year and that she hadn’t sufficient evidence against him to ground a complaint.  Ms. C responded that she wanted to be professional.   She stated that she understood that nurses were in charge and that HCA’s reported to them and in that context, she felt it was obvious who would have been believed.

Mr C asked her if she was aware of the policy on bullying and that the policy was referred to in her contract as being available at the nurses’ station. The Complainant confirmed that she  had indeed signed the contract and that it did refer her to the bullying policy, however she stated that the policy was not available at the nurses’ work station. Mr C asked the Complainant why she had not met with the director of Nursing and the Complainant confirmed that she was waiting for the Director of Nursing to invite her into a meeting but that she was never invited to a meeting.  Mr C asked the Complainant if she had not told the Director of Nursing that she and her husband would come to a meeting and the Complainant responded “no” that she was waiting for the Director of Nursing to set up a meeting. Mr C also put it to the Complainant that she did not make contact to ask when and where the meeting was to take place to which the Complainant responded, “I am just the worker it was her role to set up the meeting”. The Complainant also stated that the Director of Nursing had managed to arrange meetings with all others.

Mr C asked the Complainant if she had read the 3 statements from the Director of Nursing, the Assistant Director of Nursing and the nurse on duty.  The Complainant confirmed that she had read the 3 statements.  Mr C asked if she agreed or disagreed with those statements and she confirmed that she disagreed with those statements. Mr C asked the Complainant in what context did she disagree and the Complainant pointed out that there were totally contradictory statements contained in the various statements.  She stated that she understood the mandatory obligations on the Respondent in terms of the care of the residence and that despite the difficultly experienced on the evening of the 31st of July she still did her job and the patients were looked after and that no resident was put at risk. 

Mr C said he was very concerned at the allegations the Complainant had made, that it was a reflection on the Director of Nursing, the Assistant Director of Nursing and the nursing home and that it was the first such complaint ever received and that it was totally unfounded.

Complainant witness - Mr GC :

The Complainants’ representative asked Mr GC when he first became aware that there had been an incident on the night of 31/07/2019 and he advised that it was when his wife called him the following morning. He confirmed that she told him about what had happened the night before and that she was like a prisoner in the sitting room, that she wasn’t allowed to do anything or go anywhere in the building.  He advised that the Complainant had told him  that ‘M’ had gotten very angry.

Mr GC advised that he had finished work early on the day of the 01st of August and that he was present when Ms C phoned and that he had her on speaker phone.  He confirmed that he told her what had happened and that it appeared to him that she didn’t really care, that she was just concerned about the attention for the residents but that she did say that she would investigate. He confirmed that there was no further contact from Ms C and just an email letting the Complainant go. The Complainant’s representative asked Mr C if the Complainant was planning to resign and he confirmed that no she was not, that they were in the process of purchasing a house and that it was an extremely stressful time for them.

Concluding submission on behalf of the Complainant:

The Complainant’s representative stated that there was no evidence that there was an out of hours contact number available to staff where issues arise out of hours. He stated that  there was also a question as to why ‘M’s’ evidence was preferred over that of the Complainant, that upon reflection, the Complainant was very concerned that there was no acknowledgement of her complaint and that it was central to the principles of natural justice that both parties be heard. The Complainant’s representative pointed out that that Respondent had a duty of care to the Complainant in relation to her allegations of incidents that took place on the evening of the 31st of July but that in fact they displayed prejudice towards her. He stated that it appeared that the evidence given by ‘M’ in relation to the evening of the 31st of July was interpreted as more truthful and more factual, and that this was the case without ever interviewing the Complainant in relation to her concerns.

The Complainant’s representative outlined that the gross wages of the Complainant had been €1560 per month and that in 2018 she had worked 1144 hours, with gross earnings of €14,252 euro.  He stated that in 2019 between January and August she had earned €10,701 in the first 7 months of the year and that she was seeking compensation for her loss of earnings.

The Respondent submitted that the person in charge (PIC) at the nursing home received a text from the nurse on duty at 5.14 am on 31st July 2019 and at 5.17 am asking to “report a serious breach of conduct regarding (the Complainant)”. The Respondent submitted that at 6.39 am the same morning the Assistant Director of Nursing (ADON) received a separate message from the nurse on duty that night stating that the nurse on duty had experienced issues with the Complainant and had serious concerns about her conduct during the night shift, the following points were captured in the content of the messages from the nurse on duty:

·       The nurse on duty stated the issues commenced at 11 pm when the Complainant approached the nurse on duty saying she would do her ward round at 11.30 pm in order to take her break at midnight for a period of three hours.

·       The nurse on duty informed the Complainant that a three-hour break was not acceptable and that the Complainant could take breaks as per her entitlement.

·       The nurse on duty reiterated that this was not possible and expressed concern for the care and welfare of the residents if the nurse on duty was left to carry out the night shift single-handed.

·       At midnight the Complainant left the floor and went to the reading room and did not partake of the work for the rest of the night shift. The Complainant remained seated in the reading room on her phone and refused to carry out her duties.

·       The nurse on duty was left to answer call bells and carry out ward rounds alone.

·       The nurse on duty noted that the Complainant behaved aggressively, raising her voice and shouting in her native language.

·       The nurse on duty did not receive a break that night and was disturbed by both the Complainants conduct and her refusal to carry out reasonable instructions as pertaining to her duties.

The Respondent noted that if a Care Assistant unreasonably refuses to carry out their duty during a shift it is not only a direct contravention of the written standards of care enacted by the Respondent - that residents care, welfare, comfort and safety are requisite at all times, but it does not comply with regulatory standards. These standards not only form the backbone of the Respondent ethos but are mandatory by the regulator, HIQA. The Respondent noted that including, but not limited to the roles and responsibilities of a Care Assistant working with the Respondent as part of their contractual obligations, the Complainant was required to;

·       Carry out all duties in a safe manner having regard for the health, safety and welfare of self, staff, residents and any other person visiting Hillview Nursing Home

·       Perform delegated duties to provide care and comfort to residents and assist with activities of daily living.

·       Deliver personal care along with other responsibilities in the Hillview Care Assistant job description which the Complainant received with her contract of employment on the 8th of February 2018. The Respondent appended a copy of the employment contract to their submission.

The Respondent submitted that at 8.30 am on the 1st of August 2019 it was agreed by the PIC and the Hillview management team that the matter could constitute a breach of duty under the Safety, Health and Welfare at Work Act 1989 and the Complainant’s contract of employment and given the content of the nurse on duties message it would be investigated and the issues examined in detail. The nurse on duty was informed that any outcome considered would be forthcoming in due course.

The Respondent submitted that at the same time several Hillview staff members came to the ADON to voice their concern and upset at the racially abusive commentary made by the Complainant about the nurse on duty as she was leaving the Hillview premises on the morning of the 1st of August 2018. The Respondent submitted that considering this all staff were met with immediately and asked if they had ever experience issues with the nurse on duty. All staff reported that they had never experienced issues with the nurse on duty, and that they were happy to work with the nurse on duty. The Respondent submitted that a further discussion with the day nurse that was on duty on the morning of the 1st of August 2019 confirmed that she was particularly distressed by the Complainants racially offensive comments as she herself was of the same nationality as the nurse on duty.

The Respondent submitted that at 8.45 am the ADON sent a message to the Complainant informing and inviting her to discuss the events of the night shift of the 31st of July 2019 and the Respondent confirmed that no reply or acknowledgment was received from the Complainant to this message. The Respondent submitted that the ADON persisted on numerous occasions throughout the day attempting to contact the Complainant from the Respondent main phone to discuss matters. The Respondent further submitted that at approximately 15.30 the PIC received a call from the Complainant’s husband stating the Complainant had been “held prisoner in the reading room” and was locked in the room unable to come out all night. The Respondent submitted that the PIC requested to speak directly with the Complainant who then came on to the telephone who was asked directly by the PIC if she had in fact been locked or confined against her will in the room as her husband had stated. The Respondent submitted that the Complainant said no and agreed that she was not prevented from leaving the room but that she did not want to come out of the room due to her disagreement with the nurse on duty. The Respondent noted that are no locks on the doors to the reading room that the Complainant chose to sit in. The Respondent submitted that during this conversation the Complainant was asked repeatedly why she did not choose to contact anyone if she felt afraid all night and she responded that she did not want to speak until the morning giving the lateness of the hour which the Respondent said was approximately midnight. The Respondent noted that given the nature of the Respondent’s business it is a documented and accepted stipulation that the PIC and ADON are contactable at any time day or night in the case of an emergency.

The Respondent submitted that the PIC advised the Complainant that the Respondent would investigate and would speak to the nurse on duty. The Respondent submitted that the Complainant advised she would send a WhatsApp message to the PIC detailing what had happened on the night of the 31st of July 2019. The Complainant also stated that she was afraid to come to work again if the nurse on duty on 31st July 2019 was on duty. The Respondent submitted that in response the PIC assured the Complainant that the Respondent would arrange cover for her next night duty shift so the Complainant would not have to be in work until the Respondent had concluded the investigation and likewise the Complainant would not have to encounter the nurse on duty during this time. The Respondent noted that at no time during this phone call was either the Complainant or her husband advised that the Complainant was suspended pending investigation.

The Respondent submitted that the Complainant’s husband then came back on the phone to the person in charge, that his tone was aggressive and that he repeatedly stated that the Respondent must immediately get rid of the nurse on duty and the Complainant would not return to work with the Respondent if this nurse remained in the Respondents employ. The Respondent submitted that the call was concluded with the person in charge confirming a review of matters and the person in charge would also review the WhatsApp message when received from the Complainant.

At 15.47 the person in charge received a WhatsApp message from the Complainant which stated that she had concerns regarding working with the nurse on duty in the past stating “I want to let you know I am not going to work with (the nurse on duty) anymore.  I better leave for good but to not to be in one place with him”. The Respondent submitted that a subsequent review of the Respondents staff records confirmed that the Complainant had at no point raised this with a relevant line manager or to any member of management in the Respondent employ either verbally or in writing and in accordance with the Respondent grievance policy.  The Respondent noted that the grievance procedure was appended to the Complainants contract of employment and that it provided clear guidelines in the event of grievance issues.

The Respondent submitted that the Complainant stated in her WhatsApp message that she and her husband would come to meet the person in charge but that subsequently they took no further action and failed to arrange a meeting at their convenience to discuss matters, therefore depriving themselves of the opportunity to discuss further or hear any of her outcomes of the investigation conducted by the Respondent during this time. The Respondent submitted that they received no further communication or contact from the Complainant for the period August the 1St to the 7th of August 2019 and at this point the person in charge had no alternative but to accept, in the absence of contact from the Complainant, her previous statement contained in her final communication with the Respondent (WhatsApp) stating that she had “better leave for good”.  The Respondent submitted that in these circumstances the Respondent took this as confirmation of the Complainant’s decision to cease her employment and the person in charge emailed the Complainant to confirm same on the 07/08/2019.

In addition the Respondent submitted that the investigation by the person in charge, and the ADON into issues of the 31/07/2019 included detailed meetings with all relevant staff members/ relevant parties and that it also included the documentation of written statements by the person in charge, the ADON and the nurse on duty, together with a detailed review of the written message from the Complainant to ensure a complete understanding of the events which took place on and after the 31/07/2019. The Respondent noted that one aspect of the Respondent’s investigation arising from staff feedback was that the nurse on duty who had been employed at the Respondent nursing home from the 24/06/2017, is a trusted, well respected and well-liked member of the Respondent team, with an experienced and unblemished record. The Respondent submitted that in line with its written grievance procedure that it fully anticipated and would have welcomed the opportunity to meet with the Complainant as she suggested initially to discuss her grievance in person. The Respondent submitted that it was regrettable that the Complainant choose not to avail or her entitlement to a hearing on the matter which would have been fair at all times as clearly outlined on her contract of employment. The Respondent noted that the Complainant choose to notify the Respondent through her legal representatives 3 months later on the 27/11/2019.

In addition to the submission the Respondent submitted a statement from the person in charge in relation to interactions which occurred on the 01/08/2019 and thereafter and a statement from the nurse on duty dated 31/07/2019. In addition, the Respondent submitted a copy of a statement from the assistant director of nursing in relation to incidents 01/08/2019 and thereafter. All of those statements were unsigned and undated.

Additional information provided by the Respondent’s representative:

The Respondent representative stated that the nursing home wanted to emphases that the resident’s welfare was of the utmost importance and that this was not just a matter of their own ethos, but was mandated in legislation. The Respondent representative further stated that the Complainant was aware of how to proceed to make a complaint if she had any concerns, that the grievance procedure had been appended to her contract of employment and that this was covered in the induction pack provided by the Respondent to the Complainant upon commencement of employment.

The Respondent’s representative outlined that the Respondent did engage in a process to investigate the issues and that unfortunately the Complainant did not co- operate with the process. The Respondent’s representative outlined that a phone call took place on the 24/07/2019 but there was no further communication after that occasion. The Respondent stated that the claim of unfair dismissal is a false claim and that the Respondent did not accept the evidence by the Complainant, that they had endeavoured to follow procedure and that they had given every opportunity to the Complainant to go through procedure. The Respondent representative pointed out that again the Complainant did not comply with that procedure and that the investigation had found that the Complainant had put the safety and welfare of residence at risk and that, in the context that residents must come first, the investigation had found against the Complainant.

Witness evidence Ms C (Director of Nursing/PIC):

The witness confirmed to the Respondent’s representative that the Complainant was given a reference.  She further confirmed that the Respondent conducted a thorough investigation and had interviewed a number of other staff, she confirmed that the Respondent had investigated complaints made by both the Complainant and by other staff and that she did have a terms of reference for that investigation and the terms of reference were set out in the Complainant’s contract. She confirmed that the Complainant had refused to engage and that she had spoken to her by phone in relation to the matter and that the Complainant had also been contacted by WhatsApp and by text, she further confirmed that there had been phone conversations between the ADON where she had a direct conversation with the Complainant and that the ADON had a conversation with the Complainant’s husband.

Cross examination Ms C (Director of Nursing/PIC):

It was put Ms. C that the Complainant refuted that there was any lack of co-operation on her part in relation to the investigation of an incident on the 31/07/2019 and that the Complainant was at home on the 01st of August, that she was tired following the incident that had occurred the night before and that as a result she had missed several calls. It was put to Ms C that there was only one phone conversation with the Complainant and that there was no future correspondence and Ms. C confirmed that, that was the case. She stated that on the 31st of July there was an alleged incident and that the following morning the Complainant had made a complaint to the nurse in charge of the shift who had then brought the matter to the attention of the PIC/ Director of nursing on the same morning.

It was put to Ms. C. that there were no terms of reference ever provided to the Complainant and she confirmed that there was no written terms of reference for the investigation, however she confirmed that she attempted to contact the Complainant on the 01st of August in relation to her concerns and that the ADON had also sent a number of texts. She confirmed that at 3.30 pm that afternoon a call was received from the Complainant’s husband and that the Respondent sought to speak directly to the Complainant who did come on the phone. She further confirmed that during that phone conversation the Complainant was asked to set out the details of her complaint and she agreed that she would do so by WhatsApp message. Ms. C confirmed that the ADON had advised the Complainant that she would cover her shift in order to allow an investigation to take place She advised that the Complainant confirmed that she would arrange to come in and have a meeting. The Complainant’s representative put it to Ms. C that she had perhaps not been clear in relation to the status of the arrangements to cover that shift and Ms. C confirmed that she was clear in relation to that matter.

Ms. C confirmed that she had concluded that the Complainant did not want to work in the nursing home if the employee whom she had the alleged difficulty with on the 31st of July was still employed. Ms C confirmed that there were no previous complaints about that particular employee. It was put to Ms. C that she had not considered any alternatives to the Complainant remaining of duty and she responded that the Complainant was contracted specifically to do night duty. The Complainant’s representative also put it to Ms. C that she made no further attempt to contact the Complainant and Ms. C stated that when the investigation concluded the investigation did find that the Complainant had compromised patient care and that they had expected her to make contact but when that had not occurred, they assumed that her earlier email to say that she would not be working was taking effect.

The Complainant’s representative asked Ms. C if she would had given a reference to the Complainant and she said “well it depends on what was asked for”, she stated that she would have said that “she did her duties.” The Complainant representative asked her if she was saying that she would have provided a statement to say that the Complainant did her duties notwithstanding the fact that the Respondent had made findings that she had compromised patient care and Ms. C stated that she “did not know.”

The Complainant’s representative put it to Ms. C that she had made findings against the Complainant in the absence of having interviewed the Complainant, that the Complainant had never been told about those findings nor had she ever been advised that there were any allegations against her.  Ms. C responded that the Complainant did not request any findings and never made contact.

It was also put to Ms. C that the Complainant, in advance of addressing her claims with the WRC, had sought copies of any documentation relating to her and despite that request no document had been provided that demonstrated a finding against the Complainant that she had compromised patient care. He asked Ms. C, in light of her previous evidence if there was such a file on the Respondent premises, to which Ms. C replied that there was. The Complainant’s representative then asked if a file existed, why had it not been sent to the Complainant and Ms. C responded she did not know.

The Complainant’s representative then asked if Ms. C had the document available at the hearing, which point the Mr C. (the owner) said he wanted the questions to stop and that he was seeking a 5-minute recess. He stated that he found it unacceptable for the Director of Nursing (Ms. C) to be questioned in such a manner.  At this point I (the Adjudication Officer) again clarified for all parties the rights to cross examine witnesses and advised Mr. C that it was the Respondent who had called Ms. C as a witness and therefore the Complainant was entitled to test her evidence by cross examination.  A short recess was taken and Ms. C was advised not to discuss her evidence with others on the Respondent team.

After the recess the cross examination of Ms C continued, with the Complainant representative asking her to confirm if she did have a document outlining findings against the Complainant. Ms. C confirmed that she had she kept notes on a laptop, that there was no formal documentation only her own personal notes and her own opinion and she said it never became a formal document because the Complainant never came in. The Complainant’s representative put it to Ms. C that the Complainant had been advised that the Respondent would be conducting an investigation and that the Complainant had submitted a message outlining her concerns.  He stated that in that message she had said she was scared and uncomfortable to come to work, that the nurse with whom she had the interaction had screamed at her and had been aggressive and that she thought he would hit her. The Complainant’s representative asked Ms. C if she recalled that information being shared with her and she confirmed that she did recall, that the information was contained in the message.  She further confirmed that the Complainant’s husband had phoned and indicated that she wasn’t well on that day and she advised that it was her intention to talk to the Complainant in her office in due course. The Complainant’s representative asked Ms. C what her response was to the issues of concerns raised by the Complainant and Ms. C confirmed that she advised the Complainant that she would look into what happened and that she would arrange cover for the Complainant’s shift.

The Complainant’s representative asked her if she made any further contact with the Complainant after that phone call and she confirmed that she had not. The Complainant’s representative put it to her that the Complainant was expecting her to make contact and Ms. C stated that was not how she interpreted that conversation. The Complainant’s representative put it to Ms. C that there had been no hearing of the Complainant’s grievance and that she had made no contact and that the Respondent as a consequence had failed to follow their own grievance procedure and failed to convene a hearing under the grievance procedure.  Ms. C said that she didn’t understand and that she had no reason to contact the Complainant again the next day.

At that point in the proceedings, it became clear that other members of the management team were prompting Ms. C with answers and the taking of evidence was stopped by the Adjudication Officer and all parties again advised that they could not prompt a witness in the giving of evidence and that each witness was obliged to give their own evidence when under oath.

Ms. Cs’ evidence resumed and she stated that she had sent text messages to the Complainant.  The Adjudication Officer asked to see copies of them but Ms McM intervened to say that they had been on her phone and that she no longer had that phone. The Complainant’s representative put it to Ms. C that she has suspended the Complainant pending an investigation and Ms. C confirmed that she had never said that and that she had agreed to cover shifts and look into the matter. The Complainant’s representative put it to Ms. C that she had never come back to the Complainant in relation to the investigation and Ms. C confirmed that she was waiting for the Complainant to come back to her. The Complainant’s representative put it to Ms C that it would have been entirely unreasonable to expect the Complainant to make the next contact, in circumstances where she was unwell and in fear and he asked if it was not possible to arrange both parties to work separated shift arrangements, to which Ms. C responded that it was difficult to put people on different shifts. The Complainant’s representative asked Ms. C had she not considered the potential of different shifts to which Ms C responded that she had not thought about it, that the Complainant had not made contact with her and that it appeared that she did not want to work there anymore.

The Complainant’s representative put it to Ms. C that she had had given no response to the Complainant saying that she was afraid, and Ms C said that yes it did resonate with her.  The Complainant’s representative put it to Ms. C that nonetheless she was happy to let the Complainant go and Ms. C responded that no she was not happy but she understood that she would.

The Complainant’s representative put it to Ms C that it fell to her to set a meeting to hear the complaint and to inform the Complainant that an investigation into her grievance’s was being carried out.  He stated that where other complaints were made against the Complainant it was Ms. Cs’ responsibility to bring those to her attention and advise her of the process for addressing those allegations. Ms C gave no response. 

The Complainant’s representative referred Ms C to the comments about the Complainant being racist and asked how those had resulted from her seeking information from staff about the July incident.  Ms C stated that the allegations came from staff when she had sought information in relation into what happened on the 31st July. The Complainant’s representative asked Ms C about her written statement which had been submitted to the WRC and asked when she had actually written the statement, as it was an undated statement. Ms C responded that she wasn’t sure when she had written it, but it was around the time the incident occurred. The Complainant’s representative asked Ms C if it was written prior to receipt of the email from the Complainant and she confirmed initially that it was not.  She went on to advise that she wasn’t sure when she had written it. The Complainant’s representative asked her why she had not dated the document and Ms. C responded that she was not sure. The Complainant’s representative asked Ms C why she had said in her email that she had no further shifts available for the Complainant and Ms. C stated that was just “the way I worded it”.  The Complainant’s representative said that in his view that had a certain meaning and Ms. C responded “ok”.

The Respondent confirmed that he had no further concluding statement(s).

I considered carefully the content of the submissions and supporting documentation provided by the Respondent and I considered the oral evidence given by both parties at the hearing. 

The first matter to be considered is whether the Respondent dismissed the Complainant. It was the Respondent position that the Complainant terminated her own employment in her WhatsApp message of 1st August 2019 where she stated that “I want to let you know I am not going to work with (the nurse on duty) anymore.  I better leave for good but not to be in one place with him.”  In circumstances where the Complainant made no further contact with the Respondent it was the Respondent position that the Director of Nursing had no alternative but to accept, the Complainants previous statement in her WhatsApp message stating she had “better leave for good” as her confirming her intention to resign her position.

I noted the Complainant position that she did not make contact during that time as she was awaiting contact from the Respondent in relation to the investigation into her complaint and I noted that it was the Complainant position that the Respondent dismissed her by email of 7th August 2019, stating that “we are not in a position to offer you any further shifts in Hillview.”

In considering this matter it is important to examine what was happening at this time:

·       The Complainant had made allegations of a serious nature to the Respondent in relation to the behaviour of a colleague towards her while on night duty

·       When the Complainant had initially made the Respondent aware of her allegations she had presented as “quite distressed”, as per the statement written by the Director of Nursing.

·       The Respondent had undertaken to investigate the matter and to seek cover for future shifts in order to ensure that the parties would not be required to work together in the immediate aftermath of the alleged incident and both these positions had been confirmed to the Complainant in a telephone conversation on 1st August 2019.  There is no dispute between the parties on this point.

In reviewing this matter, I consider that the Respondent did not behave reasonably in this regard.  The Respondent was on notice of a serious allegation by the Complainant.  The Respondent was also aware that the Complainant was “distressed” and in all of those circumstances a reasonable employer would have made contact with the Complainant to advise her of the investigation process to be undertaken and to clarify interim working arrangements.  If there was any suggestions that the Complainant intended to resign a reasonable employer would have made contact to clarify matters and to encourage the Complainant to remain in employment while the investigation process was underway.  Instead, the Respondent proceeded with undue haste, not to accept a resignation, but to advise the Complainant that they were not in a position to offer her any further shifts.  The Respondents’ evidence on this matter is simply not credible.

In all of these circumstances I find that the Complainant did not terminate her own employment but rather that her employment was terminated by the Respondent.

The second matter which I must therefore decide, is whether or not the termination of employment constituted a fair dismissal.

Section 6. – (1) of the Act states that “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.”

I noted the Respondent outlined the obligations of management and staff of nursing homes in relation to the care of residents and those obligations are fully understood and accepted.  I noted that the Respondent referred to having made findings against the Complainant that she had compromised the residents care, although the Respondent did not raise this as a reason for termination of employment.

I paid particular attention to the procedural matters arising and I noted the following:

·       That the Complainant put the Respondent on notice of her serious concerns in relation to an alleged incident with a colleague, while on duty on the evening of 31st July 2019.  She did so in writing, by WhatsApp message and verbally, on at least 2 occasions, the first being when she advised the nurse on duty before she left work on 1st August, and again later during a phone call with the Respondent.

·       That the colleague of whom she complained gave a statement about her behaviour on the night of 31st July and apparently alleged that she did not carry out her care duties to an acceptable standard.  There is no evidence that the Complainant was ever made aware of this allegation.

·       Notwithstanding a difference of opinion between the parties as to the content of the phone conversation regarding a follow up meeting, it was clearly the responsibility of the Respondent to convene a process to investigate both those complaints and to advise the parties to those complaints of the process to be undertaken to investigate both sets of complaints and to formally invite them to participate in that process.  In relation to the Complainants involvement this did not happen.

·       The Respondent could not furnish the Complainant with terms of reference for the investigation.  At hearing the Respondent initially stated that there was a terms of reference, but changed that position when asked to provide it to the hearing.  I consider that the evidence of the Director of Nursing on this matter was not credible.

·       It was apparent that the Respondent interviewed staff in general, including some who had no direct evidence of what actually occurred on the evening of 31st July and gathered further allegations against the Complainant, in that process.  Those allegations were never put to the Complainant and it is unclear as to whether or not they formed part of the findings of made against the Complainant.

·       The Respondent gathered statements in relation to the Complainants’ complaint from the Director of Nursing, the Assistant Director of Nursing and the Nurse on duty on 31st July.  Those statements were neither signed nor dated and were never give to the Complainant as part of the investigation process.  She was never given a right of reply to the content of those statements.

·       It is of particular concern that both the Director of Nursing and the Assistant Director of Nursing, having both provided statements to the investigation, then proceeded to conduct the investigation.

·       The Director of Nursing gave evidence that the investigation had found that the Complainant had compromised patient care on the evening of 31st July but she could not provide the hearing with a copy of an investigation report.  Initially, at hearing she indicated that the file did exist but when asked to provide a copy she amended her testimony to say that there were only her own notes, on her own laptop and that it was her own opinion.

It is evident from the above that the Respondent failed in their duty of care to the Complainant who was showing signs of distress on 1st August, failed to examine her allegations fully and failed to give her any real opportunity to participate in the process to investigate her allegations.  It is not sufficient to simply say that the Complainant said she would attend to discuss matters further.  It was the clear responsibility of the Respondent to establish a process to consider the allegations and to invite the parties to that complaint to engage in the process.

It is also evident from the above information that in the course of enquiring into the Complainants allegations the Respondent received allegations against the Complainant.  It was abundantly clear that the Respondent did not make the Complainant aware of those allegations or of the fact that they were making enquiries into those allegations.  In this context it is clear that the Respondent failed to adhere to the principles of natural justice and gave preference to the evidence of the nurse on duty without ever hearing from the Complainant.

It is also evident that while general enquiries were carried out, no formal investigation took place. I base this finding on the following evidence which emerged at hearing:

·       that there were no terms of reference for an investigation,

·       the Complainant was not notified of an investigation process nor was she invited to participate in any process

·       that statements were provided from 2 of the parties whom it is suggested conducted the investigation,

·       that there was no list of witnesses interviewed, though it appears that many staff were talked to,

·       that there was no report of the outcome of the investigation containing details of witness’ interviews, evidence gathered, and no documented findings

·       while the Respondent verbally outlined the findings in relation to the Complainants behaviour on the night of 31st July there appears to have been no finding in relation to the behaviour of the staff member of whom the Complaint complained.

On the basis of the foregoing, I find that the Respondent did terminate the Complainant’s employment and that the Respondent did so without conducting a fair and thorough investigation of her allegations against her colleague and without conducting a fair and thorough investigation into her colleagues’ allegations against her. 

In all these circumstances, I find that the Respondent unfairly dismissed the Complainant.

I have found that the Respondent did terminate the Complainant’s employment and that the Respondent did so without conducting a fair and thorough investigation of her allegations against her colleague and without conducting a fair and thorough investigation into her colleagues’ allegations against her.  It is therefore my decision that this complaint is well founded.

I noted that the Complainant was out of work for a period of 6 months before she secured alternative employment.  She advised that the delay was exacerbated by the Covid pandemic. 

The Complainant representative furnished the WRC with copies of the Complainants’ last 4 pay slips post hearing, in order to clearly establish her earnings prior to termination of employment.  Based on those pay slips I noted that the Complainant was in receipt of €9.80 per hour based on an average 36-hour week. In accordance with Section 7 of the Act the Complainant is entitled to redress for the unfair dismissal.  On the basis of her rate of pay and her working week and based on her being at a loss of income for a 6 month period consequent to her dismissal it is my decision that the Respondent must pay the Complainant the amount of €9,172.80 as compensation for her loss as a result of the unfair dismissal.

Unfair dismissal