Case Number: ADJ-00009418. Workplace Relations Commission

• Date: 30 January 2019
• Docket Number: ADJ-00009418
• Court: Workplace Relations Commission
• Parties: A Care Assistant v A Nursing Home

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The complainant was employed by the respondent as a Care Assistant from 15th January 2008 until 2nd June 2017. The complaint relates to alleged Unfair Dismissal.

Summary of Respondent’s Case:

The respondent submits that the dismissal of the complainant was not unfair. The respondent stated that on 9th May 2017 the complainant was asleep while on night duty. The respondent stated that a daughter of one of the service users of the Nursing Home was frantically looking for a Nurse in an emergency situation and discovered the complainant asleep in the kitchen. The respondent stated that a complaint was made in relation to the incident. The respondent also stated that a further issue was raised by a colleague that the complainant had neglected her duties on the night in question by failing to answer bells that rang seeking assistance from the carers on duty. The respondent contends that an investigation and disciplinary process was conducted in line with its procedures and the complaints were upheld. The complainant was dismissed with effect from 2nd June 2017 pursuant to Section 6(4)(b) of the Unfair Dismissals Act, 1977 and did not appeal the decision to dismiss her. The respondent stated that the complainant alleges that there were procedural flaws in the process but had not previously specified the nature of the flaws. The respondent cited Labour Court Determination No: DWT1319 (Able Security Ltd v Hardijs Langsteins) in support of its position that there is an evidential burden on the complainant to outline the specifics of her complaint to allow the respondent to adequately deal with the matters raised.

Summary of Complainant’s Case:

The complainant contends that she was unfairly dismissed as a result of a flawed disciplinary process. The complainant stated that when the complaints were made she was not permitted to confront her accusers. In addition, the complainant stated that the same person was involved in the investigation and the disciplinary process and the respondent dismissed her for an incident that was alleged to have taken place on 9th May 2017 whereas the complaints relate to incidents that took place on 10th May 2017. The complainant also stated that the respondent failed to provide the CCTV footage and witness statements relevant to the complaint and that she did not know the purpose of the meetings which she was required to attend. Notwithstanding the complainant’s view on the procedural shortcomings of the disciplinary process, the complainant stated that she was not asleep on the night in question and did not fail to carry out her duties as claimed. The complainant stated that as the entire process was unfair, she was of the view that appealing the decision to dismiss her was pointless. The complainant’s representative cited the cases of Maguire V Ardagh [2002] 2IR 272, P127, Kiely v Minister for Social Welfare [1977]IR 267 p129, Frizelle v New Ross Credit Union Limited [1997] IEHC 137Lyons v Longford Westmeath Education and Training Board and A Worker (Mr O) v An Employer (no 2) [2005] ELR 132 in support of its position.

Findings and Conclusions:

In relation to this complaint I find as follows: The complainant was subject to an investigation and disciplinary process in line with the respondent’s procedures. The complainant stated that the same person was involved in the investigation process and the disciplinary process which was one of the issues which the complainant contends rendered the process procedurally unfair. From reviewing the notes on each of the meetings that took place, the person who conducted the investigation appears to have notified the complainant of the date and time of the disciplinary meeting but according to the note of the meeting she did not attend the disciplinary process....