Worker

Employer

Anonymised Parties

A carer

A homecare provider

Representatives

 Mr William Wall of Peninsula

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00000597

29/08/2022

The Worker worked as a part time care assistant for a period of approximately four months before her dismissal.

The Employer now alleges that the Worker resigned.

The Worker further argues that she was entitled to mileage.

A number of issues surrounding the Workers employment have already been subject to a series of statutory complaints. I do not believe it is appropriate or useful to relitigate these through this act particularly as the employment relationship has ended.

However I am satisfied that I ought to consider both the workers claim for mileage and her dismissal under this act.

I note that Section 8(10) of the Unfair Dismissals Act states that A dispute relating to a dismissal shall not be referred to an adjudication officer under the Industrial Relations Acts 1946 to 2012 if, in relation to the dismissal…..(ii) a decision (other than a decision consisting of a dismissal of the claim concerned) has been made by an adjudication officer under this Act,

While the Worker has submitted a claim under the Unfair Dismissals Act I have dismissed it as such I am free to consider the dismissal under this act.

The Worker submitted detailed written submissions and attended the hearing.

She had been told upon being hired that she would be paid mileage. Upon working for a few weeks she discovered the situation was very different as she was only being paid for the time assigned to a client’s home plus a subsistence payment. She was not paid for the time spent travelling from client to client. She began raising these issues with the Employer.

 Over time became clear that she was going to be dismissed. A client had told her she was going to be let go and the Employer unexpectedly paid her all her accrued annual leave. She had been seeking a meeting with management to raise some of her concerns and instead they sought to invite her to a disciplinary meeting however they were unclear as to what she was being disciplined for.  

The Worker has submitted that she believes she is owed €2,740.84 in mileage which she reduces down to approximately €1700 in deference to the subsistence paid by the Respondent.

The Employer made detailed written submissions and its directors attended and participated in the hearing.   

They are clear that they never offered the Worker mileage but opted to pay her subsistence on a discretionary basis.

Regarding the dismissal they outlined that a number of issues had come to her attention for which they believed the Worker was at fault for.

 A catheter bag was discovered with a twist in its line. A client’s mother complained about the Worker’s demeanour in her home. A different carer had notified them that the Worker was saying negative things about the directors.

They sought to arrange a meeting with the Worker to consider these issues however this engagement quickly became fraught. Ultimately the decision was made to terminate the Worker’s employment. She was offered an appeal but turned this down. 

The Employer indicated that the Worker refused to engage with the disciplinary process stating that she had already been terminated because she had received her annual leave in a single payment. This had been an error caused by a third party. They Worker handed in her equipment at this meeting and they took that to be her resignation.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

On the issue of mileage the Worker has failed to demonstrate that this is owing to her. She states that management stated to her in a recruitment meeting that she would get mileage but this is disputed. It is absent from her contract or any other company document. While paying a relatively low paid carer mileage for necessary travel would seem like reasonable request it is not an obligation. I do not think it would be appropriate to recommend that the Employer owes the Worker mileage it did not commit to pay in the first place. 

Regarding the Worker’s dismissal I am satisfied that the Employer did not organise a fair disciplinary processes.

On review of the correspondence it appears that at one stage they attempted to backtrack from a disciplinary dismissal to no fault probationary dismissal.

There was no fair hearing where evidence was put to the Worker nor were the grounds for dismissal properly established.

The Employer submissions in the hearing regarding the allegations against the Worker differ from the allegations as set out in correspondence to the Worker. No evidence to substantiate these allegations was presented to the hearing and they remain entirely unproven.

While the Employer indicated that they believe that the Worker resigned at a meeting they still opted to issue her with a letter of dismissal a week later.

As the employment relationship has ended I believe I can only reasonably recommend compensation for the breach of the Worker’s right to fair procedures when faced with allegations of misconduct.

I also take into account the Worker’s limited service and her contribution to the breakdown in the relationship between the parties.