Complainant

Respondent

Anonymised Parties

A Staff Nurse

A Residential Care Centre

Representatives

Self-represented

Joe O’Loughlin, Adare Trusted People Partners

Act

Complaint Reference No.

Date of Receipt

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

CA-00062425-001

26/03/2024

The respondent is a charity providing treatment, care and support to adults with severe mental health needs.  On August 17th 2020, the complainant commenced working with them as a staff nurse.  Around 18 months after his commencement, with financial support from the respondent, he qualified as a psychiatric nurse.  He is now a dual qualified general and psychiatric nurse.  The complainant worked full-time, and his annual salary was €49,487.  He had an entitlement to a location allowance of €2,731.

The complainant is from India, as is his wife.  He was on holidays for most of March and April 2023 and he was due back at work on April 26th.  He didn’t return to work because he contracted Covid-19 and he was absent until May 13th.  He was then absent because his son was sick due to asthma.  He was permitted to take some days as holidays and he also availed of emergency leave.  On May 16th, a member of the HR team wrote to the complainant to ask him to confirm when he would be back at work.  He replied and asked for unpaid leave or a career break for two months to take care of his family, including his father-in-law, who had been diagnosed with cancer in India.  Due to staff shortages in the hospital, his request was refused.

On May 30th 2023, the complainant sent an email to the HR generalist in the hospital explaining the cause of his absence.  In his email, he said that he was travelling to India on June 1st to help to take care of his father-in-law.  On June 22nd, the HR generalist wrote to the complainant informing him that he was absent without permission and that disciplinary action may be considered.  In reply, he confirmed that he intended returning to Ireland on July 11th.  He was rostered for work on July 18th and scheduled to attend a return-to-work meeting that day.

In his evidence at the hearing, the complainant said that his father-in-law had chest pain on July 7th and he had to cancel his flight home.  Due to all the running around he had to do, on July 14th, the complainant said that he sprained his ankle.  He submitted a medical certificate from an Ayurvedic practitioner in India to the effect that he was unable to attend work for two weeks initially, and then for a further two weeks. 

On August 10th 2023, the complainant said that his mother had a mini stroke and he had to travel 300 kilometres from his wife’s parents home to his family home to help to take care of his mother.

On September 6th 2023, the complainant travelled back to Ireland.  The previous day, the head of HR, Ms Fiona Monahan, had written to him to ask him to attend a disciplinary meeting to discuss his absence from work without permission since May.  A meeting was held on September 12th and the complainant was represented by Ms Moire Lafferty from the Irish Nurses and Midwives Organisation.  On September 27th, the complainant was dismissed.  In a letter on that date, the director of nursing explained the reasons for dismissing him:

§  Being on unauthorised leave without permission since May 2023;

§  Breaching the hospital’s absence management policy;

§  Breaching the hospital’s code of conduct;

§  Repeatedly failing to co-operate over an ongoing period of time to resolve his unapproved and unauthorised absence.

Although the complainant appealed against his dismissal, following an appeal meeting on October 25th 2023, the decision to terminate his employment was upheld.

In a comprehensive submission provided to me at the hearing, the respondent’s representative set out the chronology that led to the complainant’s dismissal, which is set out in the previous section.

The complainant commenced employment with the respondent on August 17th 2020 in the role of a staff nurse.  The respondent paid for him to train to achieve an additional qualification as a psychiatric nurse, a role that was required in their hospital and which attracts a premium on the basic rate of pay.

The last date on which the complainant worked for the respondent was March 6th 2023.  At the end of his holidays in April, he was absent due to illness and he was then absent without permission until he returned to Ireland from India in early September 2023.  He applied for a career break in May and his application was refused because of the need to retain nurses in the hospital.  In the full knowledge that his application was refused, he absented himself from work.  He refused to attend meetings over Zoom to discuss his absence and he failed to provide any evidence of his intention to return to work. 

It is the respondent’s position that the complainant was dismissed for gross misconduct and that his dismissal was not unfair.

It is the complainant’s case that he was absent from work because his his wife’s parents were ill then his mother was ill.  He went to India to help with to care for his in-laws, and he had to stay to look after his mother.  When he was in India, he had an injury himself and this resulted in him being unable to travel home. 

In May 2023, the complainant said that he was in “an impossible situation” where he was trying to appease his family and his commitments as an employee.  He described the conditions affecting his wife’s parents and his mother.  He spoke about there being no tradition of nursing home care in India and that, because his wife is an only child, the responsibility for taking care of her parents falls on her.  He said that his wife resigned from her job as a nurse in Dublin, because she wasn’t able to get leave to be in India for all the time that she needed to be there.   The complainant also informed me about his son’s asthma and about hurting his ankle due to being so busy.

In defence of his failure to attend a Zoom meeting to discuss his absence, the complainant said that he had internet problems when he was in India, and his constant travelling and the time difference prevented him from being able to attend meetings.

In December 2022, the complainant said that he made a complaint to the Mental Health Commission and that this resulted in him being in the respondent’s “black list.”  He claims that his decision to be treated for his ankle injury by an Ayurvedic practitioner was viewed with suspicion.  He said that his employer “easily forgot the services rendered by me during the Covid time” and that he worked through staff shortages.  He said that his training as a psychiatric nurse was delayed for over a year, resulting in a loss of pay until he became qualified in early 2022. 

In the submission he provided for the hearing, the complainant argued that his conduct was not so severe that he deserved to be dismissed.  He said that no consideration was given to a verbal or a written warning and he was dismissed without notice.  It is his view that the decision to dismiss him was biased and that it amounts to victimisation and harassment.  He claims that the unauthorised absence is “a fabricated allegation.”

The Relevant Law

Section 6(1) of the Unfair Dismissals Act 1977 provides that:

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

The burden of proof rests with the respondent to establish the substantial grounds justifying the dismissal of the complainant.  In May 2023, when his application for a career break was refused, the complainant went absent without permission.  He was dismissed because he failed to return to work when he was requested to and, when he was absent, he refused to attend meetings online or in person, to discuss his absence and to plan his return to work. 

Section 6(4)(b) of the Act provides that;

“…the dismissal of an employee shall be deemed, for the purposes of this Act not to be an unfair dismissal if it results wholly or mainly from …the conduct of the employee.”

In the case under consideration, the issue is the complainant’s decision to prioritise his need to care for his family over his obligation to attend work.  He opted for his family and he argues that this was a reasonable response and that his employer treated him unfairly by dismissing him.

The essence of the contract between an employer and an employee is that, in return for agreed wages, the employee will come to work regularly on the days they are contracted to do so.  It is accepted that when an employee is ill, they should not attend for work.  Other forms of leave are also permitted.  Section 13 of the Parental Leave Act 1998 recognises the occasional necessity for employees to be absent on “force majeure” leave, which is described in that Act as “leave for urgent family reasons.”  The law also makes provision for parental leave and carer’s leave; however, this leave is predicated on an organised approach by the employee, in consultation with their employer and the requirement to seek approval in advance for when the leave may be taken.  In the case of the complainant, he took the law into his own hands, and, to manage to his family commitments, he decided to take the leave without permission.  For a hospital, the absence of a nurse in these circumstances inhibits its capacity to provide the optimum care for patients, but, more seriously, it is a terrible example for other employees.   

Was the Decision to Dismiss the Complainant Reasonable in the Circumstances?

As was established more than 40 years ago in the case at the former Employment Appeals Tribunal (EAT) of Bunyan v UDT (Ireland) Limited[1], the fairness or otherwise of an employer’s decision to impose the most serious sanction of dismissal must be judged by an objective test:

“…the fairness or unfairness of the 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.”

Taking the circumstances confronting this employer and this employee into account, my role, as the adjudicator and the successor to the EAT, is to determine if the decision of the respondent to dismiss the complainant was the action of a reasonable employer.

On behalf of the respondent, Mr O’Loughlin asked me to consider why any hospital would dismiss a nurse.  In the current environment where there is a serious shortage of nurses, it seems to me that an employer would dismiss a dual qualified nurse only as a very last resort.  I have carefully reviewed the documents submitted by both parties at the hearing and it is clear to me that the decision to dismiss the complainant was only when all efforts to persuade him to return to work failed.  I note that, when he was absent without permission after four weeks, on May 26th 2023, he was informed that if he failed to return to work, disciplinary action may be taken.  Rather than take this warning seriously, the complainant replied, “my travel to India is inevitable.”  He said he was travelling on June 1st for two or three weeks.  On June 7th, when he was asked to let the hospital know when he would be back, he replied that he didn’t book a return ticket.  He refused to attend a meeting over Microsoft Teams. 

On June 22nd, when a member of the HR department wrote to ask complainant to provide flight booking confirmation as evidence of his intention to return to work, he said he was taking legal advice.  When he confirmed that he was returning on July 11th, he was rostered to work on July 18th.  He was asked to attend a return-to-work meeting on July 17th.  However, on July 4th, he wrote to the respondent and said that he was registering for work with the New Zealand Board of Nursing.  On July 16th he wrote to say he sprained his ankle and that he wouldn’t be able to attend the meeting the following day and that he wouldn’t be at work for two weeks.

On July 18th, when a member of the HR department instructed him to attend a meeting, the complainant refused and said that he would arrange to have his solicitor with him at a more convenient time.  The HR officer replied and told him that if he failed to submit a medical certificate, and, if he failed to attend a meeting on July 19th, disciplinary action would be taken and he may be dismissed.  He was asked to attend a meeting on July 20th.  When it became apparent that the complainant was not in Ireland as he had indicated he would be, on July 19th, he was requested to attend an online meeting over MS Teams, on July 24th.  The complainant replied that the meeting time wasn’t convenient for him and that he couldn’t arrange for his solicitor to be present at short notice.

On July 24th, the complainant was asked to attend a meeting in person in the hospital on July 28th.  The complainant was informed that, if he failed to attend, “we will take it that you are no longer available to work…and we will move to terminate your contract of employment.”  The complainant said that he wouldn’t attend until he had a certificate of fitness from his doctor.  He was complaining about a sprained ankle.  An appointment was then made for him to attend an occupational health consultant on August 1st.  The complainant replied and informed the HR team that he was not in Ireland, that he remained unwell and that he would not attend the appointment.

On August 1st, the HR officer wrote again to the complainant and asked him to provide a medical certificate from a registered doctor, and not an Ayurvedic practitioner and to confirm when he would return to Ireland.  The complainant did not confirm his return date and he argued that his Ayurvedic practitioner was registered as a medical practitioner in India.

When he was dismissed, following a disciplinary meeting on September 12th 2023, the complainant had been absent without permission for four months.  He was warned for the first time on May 26th that disciplinary action would be taken if he did not return to work.  On July 19th, he was warned again that if he didn’t attend a meeting over Zoom and, if he failed to return to his job, he would be dismissed.  This warning was repeated on July 28th. 

I find that the complainant’s responses to his employer’s concerns lacked any appreciation for the inconvenience that his absence caused to his employer or the time and resources being spent on trying to persuade him to return to his job.  I find that his conduct was a bad example to other employees, many of whom are foreign workers, who have to manage working in Ireland with family responsibilities in their home countries.  As the complainant explained at the hearing, he prioritised his family responsibilities over his responsibility to be at work and, while this is a loyal and noble attribute, there is an associated cost.  The legal provisions in place to facilitate time off to care for family members does not permit an employee to take time off without permission and to not engage with their employer about returning to work.

Was the Process Fair?

I have considered the process that ended with the dismissal of the complainant on September 27th 2023.  I am satisfied that, for a period of eight weeks prior to the termination of his employment, he was on notice that he was at risk of dismissal.  At the disciplinary hearing on September 12th, he was represented by his union official, who provided a great deal of support and assistance.  He had a right to state his case and to argue against the respondent’s proposal to dismiss him.  Finally, I am satisfied that, at a meeting on October 25th 2023, the complainant’s appeal of the decision to dismiss him was given proper consideration by the hospital’s deputy chief executive officer.

Conclusion

I have considered the arguments submitted by the complainant in support of his contention that the decision to dismiss him was too severe.  His argument is based on his sense that it was his duty to take care of his family and that this was a more important priority than his job.  Each case that ends in dismissal turns on its own facts and I have reached my conclusion here based on the evidence presented to me at the hearing.  I note the findings in the case of Samuel J Frizelle v New Ross Credit Union Limited[2].  Here, Mr Justice Flood held that, in reaching a decision to dismiss, “the decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in light of the explanation offered.”  The complainant’s explanation for his absence was compelling; however, the issue for his employer was that, despite being warned that his job was at risk, he remained in India with his family and he did not return to work when he was asked.  I very much regret that the complainant wasn’t able to take control of his situation and stay in his job.  However, having examined all the circumstances, I am satisfied that, in accordance with section 6 of the Unfair Dismissals Act, there were substantial grounds justifying his dismissal.

I have concluded that the decision of the respondent to dismiss the complainant in this case was reasonable and I also find that the process was fair.  On this basis, I have decided that his complaint under the Unfair Dismissals Act is not well founded.

Dismissal not unfair, absent from work without permission