Worker

Employer

Anonymised Parties

{A Healthcare Assistant}

{A Nursing Home}

Representatives

M P Guinness BL Hayes Solicitors

Act

Dispute Reference No.

Date of Receipt

S13 of the Industrial Relations Act 1969 (as amended)

1/7/2021

The Complainant was employed as a healthcare assistant from 3rd May 2020 until 22nd November 2020.

The Complainant complains he was unfairly dismissed by the company on 22nd November 2020. He submitted an appeal, and his dismissal was upheld on 2nd February 2021.

He believes his appeal allows an earlier decision based on racist criteria to be upheld. The Complainant was dismissed on grounds of poor performance. He denies signing his performance appraisal form and says this was forged. He recalls being given an excellent and positive performance appraisal by his Team Leader.

The Complainant says he was subject to a racist slur by a colleague who said she did not want to work with him due to his height and colour. It is alleged she described him as a “big black man”. He believes that rather than the Chief Nurse Manager investigating this properly, she initiated a Performance Improvement Plan. The Complainant denies there were prior discussions regarding his performance. He says there were no meetings or prior discussions regarding his performance. There was only one conversation where he was commended for his performance. The Complainant says he was subject to a racist slight, and this paved the way for his dismissal. He believes there is no evidence to show his work was below par and that he was dismissed unfairly.

The Respondent makes a preliminary objection. They say the Complainant must elect whether he is seeking redress for unfair dismissal or for discriminatory dismissal.

The Complainant’s employment ended on 30th November 2020. His complaints are out of time as these were not lodged until 1 July 2021. The Complainant tries to bring the complaints in time by alleging the most recent date of discrimination was 2 February 2021, when he was no longer an employee. The Respondent submits there cannot be an act of alleged discrimination when the Complainant was no longer an employee. The Complainant is out of time and has not applied for an extension of time. There is no reference to any alleged act of discrimination in February 2021 in the Complainant’s submissions.

Without prejudice to the above, the Complainant commenced employment as a healthcare assistant on 3rd May 2020. He was initially mentored by senior healthcare assistant and team leads. He was put on night duty. His work was not of a high standard. The Complainant was placed back on the day shift for a further mentoring programme for two weeks with the Team Lead. On 2nd August 2020, the Team Lead emailed the Home Manager in relation to a number of issues regarding the Complainant. When he gave the Complainant a five minute break, he did not return for forty-five minutes. The Complainant indicated he assisted DD to his bedroom for help. The Team Lead informed the Complainant he could not have done this as he brought DD down for tea at 3.30pm. He informed the Complainant that he was the manager on the floor, he was on a second round of training as there was concern about his work. He warned him that if his behaviour and conduct did not improve, he may be out of a job.

The Complainant’s performance appraisal for the first three months shows a performance rating of 2 “partially meets job requirements”. On 5th August 2020 discussions took place with the Complainant and the probation policy was explained to him. On 7th November 2020, a colleague of the Complainant (A) sent an email of complaint to the Home Manager. She said he refused to help bring people to their bedrooms, raised his voice in front of residents, and spent the night on the sofa. She asked that she not be put on the same shift as him.  Another colleague (B) emailed the Home Manager stated she did not feel comfortable working with the Complainant. She said he was difficult and did not seem to like working as part of a team. He raised his voice to her and another colleague in front of residents.

On 19th November 2020, the Home Manager wrote to the Complainant referring to previous conversations that his performance including quality and standard, team player, and general performance was not satisfactory since 5th August 2020. A meeting took place on 20th November 2020. The Complainant denied any incident took place, but felt his two colleagues had a plan not to work with him that night. The Home Manager outlined concerns about his performance. She had completed spot checks on paperwork which found gaps on the night shift, and records completed at the start and end of shifts. Issues with colleagues occurred on both day and night shifts. A further meeting took place on 23rd November 2020. The Home Manager advised despite meeting in August, she was not satisfied there was a significant improvement in his work and relationships with colleagues. She then terminated the Complainants employment.

On 25th November 2020, the Complainant lodged a complaint against the Chief Nurse Manager for racist conduct and false allegations leading to dismissal. The grievance was treated as an appeal against dismissal by the company. The appeal hearing took place on 7th January 2021 and the Complainant was represented by his trade union. A Senior Manager considered the grievance and interviewed witnesses. The Home Manager and Team Leader confirmed the Complainant signed his performance appraisal at the meeting. The Complainant said discrimination occurred when the Home Manager refused his request for holidays. The Senior Manager found this decision was due to a Covid-19 backlog of holidays for other staff and balancing all requests. The Complainant’s appeal was not upheld.

The Complainant has a separate complaint of discriminatory dismissal which he has opted to pursue. The Complainant withdraws his complaint of unfair dismissal pursuant to S13 of the Industrial Relations Act 1969.

This dispute was withdrawn.

Unfair dismissal and discriminatory dismissal complaint, burden of proof