Complainant

Respondent

Parties

Eileen  Scanlan

Killeline Nursing Home Limited T/A Killeline Care Centre

Representatives

Rossa McMahon, PG McMahon Solicitors LLP

Deirdre Vaughan, Operations Manager

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-00061356-001

02/02/2024

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

CA-00061356-002

02/02/2024

The Complainant commenced her employment with the Respondent on 4 July 2022 as a Healthcare Assistant. Her employment was terminated on 8 September 2023. The parties confirmed that the Complainant’s pay was €270.83 per week.

On 2 February 2024, the Complainant referred her complaints to the Director General of the WRC pursuant to the Unfair Dismissals Act, 1977 and the Minimum Notice & Terms of Employment Act, 1973.

The Respondent submits as follows.

The Complainant commenced her employment on 4 July 2022. Her employment was terminated by letter dated 8 September 2023, which took effect on 8 September 2023, following a thorough investigation and disciplinary process arising out of the alleged theft or unauthorised possession of money or property, whether belonging to the Respondent, another employee, or a third party.

Investigation and disciplinary process

On 27 July 2023, an employee, Ms K reported her runners stolen from the staff changing room to the Director of Nursing.

The HR Manager issues a letter of suspension to the Complainant to allow investigation to take place.

The Director of Nursing then met with Ms K who furnished a statement. She also contacted the Complainant.

Due to Covid-19 outbreaks and associated restrictions, an investigation meeting could not take place until 24 August 2023 with the Complainant and the HR Manager present.

A statement was then requested from a witness, Ms E. Ms E in an email to the Director of Nursing stating that when she arrived to work on 12 August 2023, the Complainant was in the changing room. She picked up a pair of shoes and commented that these shoes were not hers and they were miles too big. She put them on and left.

The outcome of the investigation was to commence a disciplinary hearing. The hearing took place on 7 September 2023 with the Complainant and the Clinical Director, Mr McElligott present. This resulted in the dismissal of the Complainant on 8 September 2023.

The Respondent submits that the Complainant was not unfairly dismissed.

She was offered an appeal in line with the Respondent’s Disciplinary Rules and Procedures which she did not avail of.

At the adjudication hearing, Ms Vaughan, Operations Manager, on behalf of the Respondent submitted that the Respondent has duty of care towards the vulnerable adults in its care.  It was submitted that the Respondent conducts intensive screening of the staff as it takes its responsibility seriously.

Ms Vaughan asserted that the Complainant took a pair of runners which did not belong to her. It was not only a disciplinary matter, but it also had to be reported to HIQA. Ms Vaughan said that it did not matter what was taken, the Respondent could not turn a blind eye. The Complainant admitted to taking something that did not belong to her.

It was submitted on behalf of the Respondent that the Respondent’s procedures were followed. The Disciplinary Procedure does not contain a requirement to give copies of statements to an employee or permit them to question the witnesses. The appeal is there for an employee to defend themselves if they wish to do so.

Ms Vaughan submitted that the Complainant would be left with over 60 residents and the Respondent must make sure that she is trustworthy and reliable. She said that what the Complainant was saying was not adding up. The Complainant did know that the shoes were not hers, she was given numerous opportunities to furnish a receipt showing that she bought similar shoes. She had an opportunity to appeal the decision to dismiss her.

It was submitted that if there is an allegation of theft, it is considered to be gross misconduct, which leads to a dismissal. It was suggested that, if an employee does it once, a question arises would they do it again?

Ms Vaughan said that the matter was reported to HIQA but not to Gardaí as the Complainant returned the shoes.

There was no written submission furnished by, or on behalf of, the Complainant.

In her WRC complaint referral form, the Complainant submitted that on 27 July 2023 she finished a shift and changed in the staff changing room. On her way home she was called on her phone by a colleague to say that she had taken her shoes. The Complainant was also called by the Director of Nursing. The Complainant summitted that she explained that she had changed in a rush and took the wrong shoes by accident. The Complainant was asked to return with the shoes which she did. Her own shoes were nowhere to be seen.

The Complainant took annual leave but was not rostered to return. She was informed that she was not to carry out duties until the matter was resolved.

The Complainant was called to attend a meeting on 24 August 2024 at which she explained the situation. The Complainant was called to another meeting on 8 September 2023 and her employment was terminated at that meeting.

Mr McMahon, solicitor exhibited a letter sent to the Respondent on 20 November 2023 in which he asserted that the Complainant’s termination appears to have arisen out of a simple misunderstanding which took place when the Complainant finished a shift and appears to have put on the wrong pair of shoes when changing before leaving. Another member of staff subsequently complained that the Complainant had taken her shoes. On being informed the Complainant realised her error and returned the shoes to the Respondent.

Mr McMahon stated in his letter that the Complainant’s own pair of shoes was never located and despite requests and complaints in relation to same, nothing was done about the matter. He further stated that it is extraordinary that the Complainant was suspended in relation to such a misunderstanding and even more so, that she had her employment terminated. The Complainant is a student Psychiatric Nurse and, given that she is at the outset of her career, she takes any allegation of this nature, particularly one which relates to an allegation of dishonesty or theft, extremely seriously. He asserted that the Complainant’s employment was terminated unfairly.

At the adjudication hearing, it was submitted on behalf of the Complainant that Ms K did not allege theft. She believed that the Complainant might have taken her shoes, she contacted the Complainant who accepted that she did and brought them back. Ms K did not say that her shoes were stolen. The Complainant was tired after her shift and in a rush to catch a bus. There was no suggestion put forward that it had anything to do with residents.

Mr McMahon said that there was no determination of theft. The Complainant accepted “unlawful possession” due to a mix-up. There was no consideration given to her explanation and no other disciplinary sanction was considered.

Mr McMahon said that the Complainant did not appeal the dismissal, as she thought that she could only be re-instated if the appeal found in her favour. She could not go back to work for the Respondent after what had happened.

Mr McMahon said that the Respondent seemed to suggest now that the Complainant was dismissed for theft, but the letters refer to theft or unauthorised possession and there is a distinction between them. Furthermore, Ms K did not allege theft, she simply said that her shoes were not there. Given the career the Complainant embarked on, she would not compromise it to steal a pair of runners. She was tired after a night shift and got mixed-up.

It was suggested, on behalf of the Complainant that suspension in this case was extraordinary. Prevention or interference were not relevant in this case. Mr McMahon asserted that no element of this complaint touches on residents, there was no risk of repetition. Examples of gross misconduct include theft or assault not a mistake. The allegation of theft was not found.

It was asserted that the decision was not proportionate, and no consideration was given to any other form of disciplinary action.

Summary of direct evidence, cross-examination and redirect of the Complainant

The Complainant said that on 26 July 2023 she started her shift at 8pm. She went to the assigned unit. She changed in the changing room. She left her shoes, bag, and jacket in a locker (shelves, no lock). She changed to her work shoes.

The Complainant said that she finished her shift, with permission, a bit earlier, at 7.40am to make the bus at 8am. She said that when she went to the changing room, her shoes were not there. She might have made a comment that the shoes there were not hers, she was tired. When she got on the bus, she got a phone call from Ms K. The Complainant realised that the shoes were not hers and she said that she would get back to work as soon as possible. The Director of Nursing rang then. The Complainant went home, changed her shoes, and went back to work. She was there by 9.30am.  The Complainant said that she was suspended by the Director of Nursing.

The Complainant said that she is a 4th year student (Psychiatric Nurse). She was out of work, with no pocket money. She returned to college full-time in the third week of September. The Complainant said that she was afraid that the dismissal would go against her.

The Complainant accepted that the shoes belonged to Ms K and that she did not ask Ms K for permission to take them. However, she insisted that she did not steal them.

In cross-examination, the Complainant accepted that she took something without permission. She said that it was not her intention, she has never stolen anything.

It was put to the Complainant that she knew how strict the Respondent was. If her shoes were missing, she should have brough it to the attention of the Director of Nursing or tell Ms K rather than just take her shoes without telling anyone. The Complainant asserted that it was an honest mistake.  Her shoes were very similar to Ms K’s.

The Complainant said that she did not receive copies of the statements that were exhibited by the Respondent at the adjudication hearing. She said that they were read out to her at the disciplinary hearing. They were not shown or read to her at the investigation stage. She said that she had no opportunity to talk to any of the witnesses.

Questions from the Adjudication Officer

When asked if she knew that the shoes in question were not her shoes, the Complainant said she did not, that they were in her locker. She could not clarify why, if that was the case, she said “these are not my shoes, they are too big”. The Complainant said that the shoes were there with her stuff, she was tired, she was not 100% sure that they were hers.

With regards to the appeal, the Complainant said that, in her head, she could only be re-instated. She dreaded that as people were talking about her dismissal. The Complainant questioned the delay on part of the Respondent in the investigation process and noted that there were rumours about her.

The Complainant said that she started working for the Respondent in the summer of 2022. She worked on a full-time basis during school breaks and part-time when in college. She was back to college full-time from 21 September 2023. She secured new employment from January 2024 on comparable pay. She said that between September 2023 and January 2024 she had very limited possibility to work as she was full-time in college.

The Complainant alleges that she was unfairly dismissed by the Respondent. The Respondent rejects the claim and contends that the Complainant’s dismissal was due to her conduct.

The Law

Section 1 of the Unfair Dismissals Act provides the following definition of ‘dismissal’:

‘dismissal’, in relation to an employee, means—

“(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer.”

Section 6 of the Act stipulates as follows:

‘Unfair dismissal

(1) 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.

 (4) Without prejudice to the generality of subsection (1) of this section, 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 one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act 1993) of section 7(2) of this Act.

The Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 (S.I. No. 146/2000) promotes best practice in the conduct of grievance and disciplinary procedures and emphasises the importance of procedures to ensure fairness and natural justice. 

The core tenet of the Code is that all employees are entitled to fair procedures and natural justice in all of their engagements with their employer.

The combined effect of the above requires me to consider whether or not the Respondent's decision to dismiss the Complainant, on the grounds stated, was reasonable in the circumstances. The Act places the burden of proof on the Respondent to demonstrate that the dismissal was fair. As part of exercising this burden of proof, the Respondent needs to show that fair process and procedures were applied when conducting the disciplinary process.

The approach of whether a reasonable employer would have dismissed the employee in the same circumstances was explained by Noonan J. in the High Court case of Bank of Ireland v O’Reilly [2015] 26 E.L.R. 229 where it was held that: ‘…the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s.6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned …. ‘.

In the case of Samuel J. Frizelle v New Ross Credit Union [1997] IEHC 137 the High Court set out the following legal principles to be observed by an employer to support a decision to terminate employment for misconduct:

‘Where a question of unfair dismissal is in issue, there are certain premises which must be established to support the decision to terminate employment for misconduct.

1. The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

2. Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

3. The employee should be interviewed, and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

4. The decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in the light of the explanation offered.

5. The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.’

In considering the fairness or otherwise of the dismissal, I am also obliged to consider if the sanction of dismissal was proportionate to the alleged misconduct the circumstances. The Employment Appeals Tribunal held in the case of Bigaignon v Powerteam Electrical Services Ltd. [2012] 23 E.L.R.195 that: 

‘The Tribunal had to consider if the respondent acted fairly and if dismissal was proportionate to the alleged misconduct. Does the punishment fit the crime? In considering this question the fact that the Tribunal itself would have taken a different view in a particular case is not relevant. The task of the Tribunal is not to consider what sanctions the Tribunal might impose but rather whether the reaction of the Respondent and the sanction imposed lay within the range of reasonable responses. The proportionality of the response is key and that even where proper procedures are followed in effecting a dismissal, if the sanction is disproportionate, the dismissal will be rendered unfair …… The precise terms of the test to be applied as to whether the sanction was reasonable was set out in Noritake (Ireland) Limited v Kenna UD88/1983 where the Tribunal considered the matter in the light of three questions: 1. Did the company believe that the employee mis-conducted himself as alleged? If so, 2. Did the company have reasonable grounds to sustain that belief? If so, 3. Was the penalty of dismissal proportionate to the alleged misconduct?’.

In Panasov v Pottle Pig Farm UDD1735 the Labour Court outlined the importance of applying fair procedures in relation to the investigation of allegations of misconduct where it held that: “The Court is of the view that a failure to properly investigate allegations of misconduct or to afford an employee who is accused of misconduct a fair opportunity to advance a defence will take the decision to dismiss outside the range of reasonable responses thus rendering the dismissal unfair.”

In Dunne v Harrington UD166/1979 the EAT provided guidance in relation to the approach that should be applied by an employer when conducting an investigation into a case of dishonesty which may lead to dismissal. The EAT held that:

‘(a) personally in a fair and reasonable manner, i.e. as fully as is reasonably possible, confronting the “suspected” employee with “evidence”, checking on and giving fair value to the employee’s explanation or comments and allowing the employee to be represented at all such meetings/confrontations if the employee requests it or a union/management agreement requires it and to produce “counter evidence” or he may:

(b) rely on the reports of others. If he does so without confronting the accused employee with the contents of the same, without hearing, investigating and giving value to his replies, giving him reasonable opportunity to produce rebutting “evidence”, and to be represented if the employee feels this to be desirable, then such employer breaches a fundamental rule of natural justice, viz, that the other party (i.e. the employee in these circumstances) should be heard. In short, an employer acting on the reports of third parties and not acquainting the employee with same does so at his peril if it results in the dismissal of that employee.’

It is well established that is not the role or function of the Adjudication Officer to determine the guilt or innocence of the employee, to re-investigate disciplinary complaints or to substitute their view for that of a Respondent employer. Rather the focus is whether the decisions arrived at are reasonable, based on the information available.

The Labour Court summarised this rationale in Clancourt Management Ltd T/A Clancourt Management v Mr Jason Cahill UDD2234:

‘In cases under the Unfair Dismissals Act where misconduct is stated as the basis for dismissal the test for this Court is that which was set by Lord Denning in the British case of British Leyland UK Ltd v. Swift (1981) IRLR 91, to determine if the dismissal falls into a ‘band of reasonableness’, a test which was confirmed in this jurisdiction in Foley v. Post Office (2000) ICR1283. Lord Denning stated that “If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might have dismissed him, then the dismissal was fair.” He went on to describe ‘a band of reasonableness’, within which one employer might reasonably take one view; another reasonably take another view but “If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair; even though some other employers may not have dismissed him”. Therefore, the test for the Court in cases where misconduct is stated to be the basis for dismissal is to ask does the decision to dismiss fall into this band of reasonableness? […] It is not the function of the Court to re-investigate disciplinary complaints. In looking at the outcomes of the investigations, the Court needs to consider if the decisions arrived at are rational, based on the information available to the investigators.’

Notably, as held in the same case, ‘a failure to adhere to proper procedures renders a dismissal outside a band of reasonableness’. 

In the case of O'Riordan v Great Southern Hotels UD1469/03 the EAT held that: ‘In cases of gross misconduct the function of the Tribunal is not to determine the innocence or guilt of the accused of wrongdoing. The test for the Tribunal in such cases is whether the Respondent had a genuine base to believe, on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged wrongdoing.’

The dismissal of the Complainant, as a fact, is not in dispute and therefore, it is for the Respondent to establish that in the circumstances of this case the dismissal was fair.

The two issues which I must consider in the context of deciding the fairness or otherwise of the dismissal in the present complaint are (1) whether the Respondent acted reasonably in dismissing the Complainant and (2) whether the dismissal adhered to the principles of fair procedures. 

The first matter I must decide is if the procedural framework adopted by the Respondent is this case was in accordance with the Code of Practice on Grievance and Disciplinary Procedures (S.I. 146 of 2000), which promotes best practice in the conduct of grievance and disciplinary procedures and emphasises the importance of procedures to ensure fairness and natural justice. 

The Code of Practice provides that best practice entails a number of stages in the discipline and grievance process as follows:

·         That employee grievances are fairly examined and processed;

·         That details of any allegations or complaints are put to the employee concerned;

·         That the employee concerned is given the opportunity to respond fully to any such allegations or complaints;

·         That the employee concerned is given the opportunity to avail of the right to be represented during the procedure; and,

·         That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, circumstances.

It was not in dispute that the Complainant was dismissed on 8 September 2023. There was also no dispute that an incident occurred on the morning of 27 July 2023, when the Complainant put on another employee’s shoes after her shift and left for home. She was contacted both by the employee whose shoes she was wearing and by the Director of Nursing by phone. She returned to the workplace and returned the shoes. The Complainant was suspended and, in a letter dated 28 July 2023, the HR Manager stated that an investigation would take place following the allegations of “Alleged theft or unauthorised possessions of money or property, whether belonging to us, another employee, or a third part”. The HR Manager then stated that “Suspension from duty is not regarded as disciplinary action but merely a holding measure pending further investigations and for which it is clearly undesirable for an individual to remain on duty”.

In Bank of Ireland v Reilly [20145] IEHC 241, Noonan J found that -

“The suspension of an employee, whether paid or unpaid, is an extremely serious measure which can cause irreparable damage to his or her reputation and standing. It is potentially capable of constituting a significant blemish on the employee’s employment record with consequences for his or her future career. As noted by Kearns J. (as he was then) in Morgan v Trinity College Dublin [2003] 3 IR 157 there are two types of suspension, holding and punitive. However even a holding suspension can have consequences of the kind mentioned. Inevitably, speculation will arise as to the reasons for the suspension on the premise of there being no smoke without fire.

Thus, even a holding suspension ought not be undertaken lightly and only after full consideration of the necessity for it pending a full investigation of the conduct in question. It will normally be justified if seen as necessary to prevent a repetition of the conduct complained of, interference with evidence or perhaps to protect persons at risk from such conduct. It may perhaps be necessary to protect the employer's own business and reputation where the conduct in issue is known by those doing business with the employer. In general, however, it ought to be seen as a measure designed to facilitate the proper conduct of the investigation and any consequent disciplinary process.

The corollary presumably therefore is that an employee ought not be suspended where suspension is not necessary to facilitate these matters.”

There was no dispute that there were no previous disciplinary issues regarding the Complainant. There was also no dispute that after receiving the phone call, she returned to the workplace and returned the shoes. There was no meeting as such at which she could be accompanied and put her views forward regarding the suspension.  She was asked to return to the workplace with the shoes, which she did.

The decision was then made to suspend the Complainant. I note that the suspension letter dated 28 July 2023 is signed by the HR Manager, who had not met with the Complainant regarding the incident at that stage. The HR Manager stated that she was suspending the Complainant. I note that the Complainant’s evidence was that it was the Director of Nursing who had already suspended her on 27 July 2023. It is unclear on what basis this decision was made. I note that the Respondent’s Disciplinary Rules and Procedures refer to suspension as follows:

“…on some occasions temporary suspension on contractual pay may be necessary in order that an uninterrupted investigation can take place.”

There was nothing put forward to suggest that the Complainant‘s presence at the workplace would in any way interrupt the investigation. The Complainant did not deny taking the shoes and seemed to have realised that it was a mistake on her part. I cannot accept the Respondent’s view that the Complainant might repeat the impugned conduct. I, therefore, find the Respondent’s decision to suspend the Complainant was not appropriate in all the circumstances of the case.

Nearly a month later, on 22 August 2023, the HR Manager who made the decision to suspend the Complainant invited her to an investigation meeting to be held on 24 August 2023. The Complainant was advised of her right to representation. The meeting was chaired by the HR Manager.

The HR Manager wrote to the Complainant on 28 August 2023 advising her that she recommended the matter to proceed to a disciplinary hearing.

On 5 September 2023, the HR Manager invited the Complainant to a disciplinary hearing to be held on 7 September 2023 and to be conducted by Mr McElligott, Clinical Director. The Complainant was advised of her right to representation and the seriousness of the matter which could lead to “summary termination” of her employment.

While the Respondent was unable to confirm whether the Complainant received the written statements pertaining to the disciplinary matter, it is clear from the minutes of the disciplinary meeting that she had not seen them prior to the meeting and was not provided with copies. The Complainant confirmed that the statements were only read to her at the disciplinary hearing stage. The Complainant had no opportunity to review them properly or question the witnesses. It is particularly important in light of the fact that Mr McElligott seemed to form an opinion at the disciplinary hearing that there was a conflict between the information given to him by the Complainant and the written statements.

I have some serious concerns with regards to the statements, which are outlined below.

The undated statement entitled “Meeting with Eileen Scanlan on 12th August 2023” is purported to be typed up and signed by the Director of Nursing. I note that while the statement seems to outline the events that occurred on 27 July 2023, the undated document states that it occurred on 12 August 2023 and advised further of a meeting with HR Manager on 13 August 2023.

The undated statement entitled “Statement Re: incident on 12th August 2023 concerning staff member Eileen Scanlan” again purportedly typed up and signed by the Director of Nursing outlines the conversation she had with Ms K whose shoes were missing. Again, an incorrect date of the incident is recorded (12 August 2023). Moreover, the statement records what was allegedly heard and said by third parties in the changing room.

The statement purportedly sent by email by Ms K to the Director of Nursing was dated 11 August 2023. At this stage the Complainant was suspended for two weeks. The email does not record the date of the incident. The Director of Nursing forwarded the email to the HR Manager on 16 August 2023.

The statement purportedly sent by email to the Director of Nursing by the witness, Ms E was dated 28 August 2023. At that stage, the Complainant was suspended for 4 weeks. Ms E, in the email states that the incident occurred on 12 August 2023.

The undated and unsigned statement purportedly typed up by the HR Manager summarises interactions between Ms K, the Complainant and the Director of Nursing on 27 July 2023. It noted that on 10 August 2023 the Complainant emailed the HR Manager inquiring if her own runners were returned and notes that while the Complainant confirmed that she reported her shoes missing to the Director of Nursing, the Director had never heard of that.

The report submitted to HIQA by the Respondent stated that the incident occurred on 1 August 2023.

I note the Clinical Director’s concerns regarding inconsistencies between the Complainant’s verbal statement to him and the written statements described above. It is somewhat surprising that the inconsistencies in the statements did not raise any concerns at the investigation and/or at the disciplinary stage. Regrettably, while the Clinical Director attended the hearing, he did not avail of the opportunity to give direct evidence to the hearing.

I find that the Complainant was suspended before any formal statements were gathered by the Respondent. Indeed, the investigation meeting was held on 24 August 2023 prior to obtaining the witness’ statement some four days later. The letter informing the Complainant of the decision to proceed with the disciplinary action was dated 28 August 2023, the day on which the Respondent received the witness’ statement. It is, therefore, debatable that the Respondent’s decisions as to the suspension and the recommendation of the commencement of a disciplinary process were fully informed and considered.

The principles contained in S.I 146 of 2000 listed above “may require that the allegations or complaints be set out in writing, that the source of the allegations or complaint be given or that the employee concerned be allowed to confront or question witnesses”. I note that the Complainant at no stage was provided with any record of the statements of employees who were witnesses in her disciplinary process. Neither was she given an opportunity to question them. I also note that there was no report of the investigation issued. The outcome letter simply stated that the HR Manager recommended a disciplinary action.

I find that that the Respondent failed to provide the Complainant with details of the information it had gathered during the course of the investigation. The Complainant was not fully informed of relevant appropriate evidence, factors or circumstances and consequently had no opportunity to respond fully to the allegation against her.

Gross Misconduct

The Labour Court in DHL Express (Ireland) Ltd. v M. Coughlan UDD1738 stated that established jurisprudence in relation to dismissal law in this jurisdiction takes a very restricted view of what constitutes gross misconduct justifying summary dismissal. In Lennon v Bredin M160/1978 the Employment Appeals Tribunal held:

“Section 8 of the Minimum Notice and Terms of Employment Act 1973 saves an employer from liability for minimum notice where the dismissal is for misconduct. We have always held that this exemption applies only to cases of very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe the legislature had in mind such things as violent assault or larceny or behaviour in the same sort of serious category. If the legislature had intended to exempt an employer from giving notice in such cases where the behaviour fell short of being able to fairly be called by the dirty word ‘misconduct’ we have always felt that they would have said so by adding such words (after the word misconduct) as negligence, slovenly workmanship, bad timekeeping, etc. They did not do so.”

In Kilsaran Concrete, Kilsaran International Ltd v Vitalie Vet [2016] 27 E.L.R. 237 the Labour Court held:

“(iii) One of the key principles regulating the reasonableness of a dismissal is compliance with the principle of proportionality: McCurdy v Adelphi [1992] E.L.R. 14. The principle is a component of the general s.6(7)(a) principle of reasonableness. It is also a component of S.I. No. 146 of 2000, imported by s.6(7)(b) of the Act.

Summary dismissal is the nuclear weapon in the employer's arsenal of disciplinary sanctions. Section 8 of the Minimum Notice and Terms of Employment Act 1973 saves an employer from liability (under that Act) for statutory minimum notice where the dismissal is for certain forms of very serious misconduct.”

It has long been accepted that it is not the role of the Adjudication Officer to re-investigate a matter that led to the dismissal of a complainant.  Rather it is the role of the Adjudication Officer as set out by the EAT in Looney & Co. Ltd. V Looney UD843/1984 to “consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decisions are to be judged.”

Having carefully considered the matter, I am of the view that, in all of the circumstances of this complaint, the incident that occurred on 27 July 2023, while undoubtedly very serious did not amount to gross misconduct.

I note that there was no consideration of any mitigating circumstances during the disciplinary process such as the Complainant’s unblemished record. Neither, it appears, any consideration was given to a sanction other than dismissal. 

I cannot accept that any employer faced with the same circumstances to those that pertained in this case would have acted in the same way. I, therefore, find that the conclusion reached by the Respondent in relation to the conduct of the Complainant was not reasonable in all of these circumstances.

I note that the Complainant was given the opportunity to appeal the decision to dismiss her to the Managing Director of the Respondent. The Complainant decided not to avail of this opportunity.

In the case of An employee v An employer ADJ – 00000381 the Adjudication Officer commented as follows:

‘An appeal is not just an afterthought or a procedure that must be completed as a matter of course. It is a very important part of the disciplinary process and the greater the sanction that has been imposed the greater its importance. An appeal allows a dismissed employee the last chance to make their case, highlight any mitigating factors and seek protection for faulty procedures or disproportionality of sanction.’

In Aryzta Bakeries v Vilnis Cacs UDD 1812 the Labour Court held that ‘there is an obligation on the Claimant to exhaust available internal procedures.’

Similarly, in Musgrave Wholeslae Partners v Jonathan Fox UDD1972 the Labour Court held;

‘It is clear that he [the complainant] was advised in writing that he could appeal and was given instructions on how to do so. As found in Aryzta Bakeries, the Court is of the view that there was an obligation on the Complainant to exhaust the available internal procedures which he failed to do.’

The Complainant did not avail of this opportunity. The Complainant believed that, at best, in the event that her appeal was upheld, she would be re-instated in her position with the Respondent. She gave evidence that, in the circumstances, she could not face working for the Respondent again, particularly in light of the reputational damage. It appears that the Complainant had lost her trust in the Respondent. This is somewhat understandable given the Respondent’s quite predetermined view that an allegation of theft is inevitably gross misconduct which leads to a dismissal. While I appreciate the Respondent’s firm position regarding trustworthiness of its staff, particularly in the context of working with vulnerable adults, it might raise a question as to the objectivity of the process.

Having considered the evidence available to me I find that the procedure employed by the Respondent was flawed. Moreover, I do not accept that summary dismissal was a reasonable response open to a reasonable employer in the circumstances of this case. However, I do find that the Complainant contributed to the situation she found herself in by taking a colleague’s shoes.

Redress 

I find that the Complainant was unfairly dismissed by the Respondent within the meaning of section 6 of the Unfair Dismissals Act. Accordingly, I find that the complaint is well founded.

Section 7 Redress for unfair dismissal of the Act provides:

(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c)

(i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,…”

Section 7(2) of the Acts provides: -

“(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid….”

Section 7(3) of the Act provides that future loss may be taken into account as follows: ‘”financial loss”, in relation to the dismissal of an employee, includes any actual loss and any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts 1967 to 2022, or in relation to superannuation;’

In accordance with the provisions of section 7(1) of the Act, I am obliged to determine which of the three forms of redress open to me is most appropriate having regard to the circumstances of this case. The Complainant sought compensation. In the circumstances, and in light of the fundamental breakdown of the relationship between the parties, I am inclined to agree with the Complainant that compensation is the appropriate redress in this case. In the circumstances of this case re-engagement or reinstatement are not tenable alternatives to compensation.

I note that the Complainant’s evidence was that she secured new position as a healthcare assistant in January 2024 on comparable pay. Her evidence was that between the date of dismissal and January 2024, she had very limited possibility to work as from 21 September 2023 she was back in college on a full-time basis.

I find this complaint to be well founded. I order the Respondent to pay the Complainant €1,083.32 (approximately four weeks’ wage) in compensation for loss of remuneration arising from the Complainant’s unfair dismissal which I deem to be just and equitable having regard to all the circumstances.

The Complainant submits that she was notified that her employment was to terminate on 8 September 2023 with immediate effect. She was not paid her statutory notice.

The Complainant was dismissed for gross misconduct.

I found that the dismissal of the Complainant was unfair. Consequently, the Complainant was entitled to a notice of termination of her contract of employment.

Section 4 of the Act provides:

4. Minimum period of notice

(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(a) if the employee has been in the continuous service of his employer for less than two years, one week,

(b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks,

(c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks,

(d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks,

(e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks.

It was not disputed that the Complainant commenced her employment on 4 July 2022. Her employment was terminated on 8 September 2023. She was, therefore, entitled to one week’s notice. No notice of the termination was served to the Complainant. In such circumstances, I find that the Complainant is entitled to compensation for the loss of her statutory notice.

I declare this complaint to be well founded. I order the Respondent to pay the Complainant €270.83 being one week’s notice pay.

Unfair dismissal – gross misconduct – minimum notice