Case Number: ADJ-00030296. Workplace Relations Commission

Judgment Date02 August 2022
Year2022
Hearing Date20 July 2022
Docket NumberADJ-00030296
CourtWorkplace Relations Commission
RespondentNorth Dublin Inner City Homecare & Home Help Services Company Limited by Guarantee t/a North Dublin Home Care
Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints. This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designated the Workplace Relations Commission as a body empowered to hold remote hearings. The hearing was held over two days and held in public. Both sides submitted extensive submissions and other documentation in advance.

Background:

The Complainant commenced working for the Respondent as a Scheduler/Systems Administrator on 5 December 2016. The Respondent provides a homecare and home help service. He was paid on a weekly basis as follows: 4-day week €360 net and 5-day week €405 net. He worked 4 or 5 days a week and varied between working day shifts and night shifts. The Complainant has two complaints: (1) that he was unfairly dismissed under the Unfair Dismissals Act 1977, as amended, and (2) That he was subject to discriminatory behaviour by the Respondent contrary to the Employment Equality Acts 1998-2015, in that the Respondent did not reasonably accommodate his asthma condition in the workplace. The Respondent denies both claims. The Respondent asserts that the Complainant was fairly dismissed due to gross misconduct. The fact of dismissal is not in dispute. The Respondent submits that it was not aware of the Complainant’s condition, nor did he seek accommodation for his disability.

Summary of Respondent’s Case:

The Respondent is a non-profit organisation with charitable status and is engaged in the provision of care services to service users with a variety of needs in the area of North Dublin in the clients’ own homes. During the Covid-19 pandemic, the respondent was providing front line services to its service users.

The Complainant commenced his employment with the Respondent on 5 December 2016. The Complainant’s contract of employment encompassed the Employee Handbook which contained the Respondent’s code of conduct. The Complainant acknowledged the Handbook by signature. It was a term of the Complainant’s contract of employment that the place of work would be North Dublin Home Care, or any other place linked to the business.

CA-00040576-001 UNFAIR DISMISSAL COMPLAINT:

On 25 April 2020, the Complainant was rostered to work at the Respondent’s premises. One of the core duties of the Complainant on this occasion was to allow access to the premises for carers to obtain Personal Protective Equipment (PPE) for subsequent use in the homes of service users. When the Complainant was required to be present in the office, he would have been the sole person in the office. However, on the day in question the Respondent submits that he was not present to carry out critical duties.

Summary of Evidence of the Community Supervisor:

The witness gave evidence on affirmation. On Saturday 25 April 2020, she was on her way to the home of a service user and required PPE. She made a phone call to the Complainant upon reaching the Respondent’s premises to let her in so that she could obtain the items of PPE. The Complainant was not in the office because he was working from home. She told the Complainant that she needed PPE and that someone was meant to be in the office for the day shifts to ensure there was access to the PPE. She told the Complainant that she would need to ring the CEO and report on the situation.

In cross examination the witness said that she could not have accessed the office even if she had been given the key/alarm code.

Summary of the Evidence of the CEO:

The witness gave evidence on affirmation. The CEO phoned the Complainant and asked him why he was not in the office on 25 April to which the Complainant replied that he was working from home. The Complainant did not have permission to work from home. The CEO reminded the Complainant that his role included being in the office and that he was responsible for giving out PPE and that only evening shifts could be done from home when no PPE needed to be handed out. The Complainant responded that he would prefer to work from home and refused to attend at the office on the following day, 26 April. The CEO relayed that the Complainant accepted that he had not told anybody that he was going to work from home on that date.

The witness denied that she had told the Complainant that he was fired during the phone conversation but had said to the Complainant that “he didn’t get to pick and choose”. She indicated that if the Complainant would not fulfil his contractual obligations, then she would need to source somebody that could.

The CEO telephoned the Complainant on Tuesday 28 April 2020 informing him that he was suspended with pay. The Complainant asked if he was “fired”. The CEO indicated that he was not dismissed and that a formal investigation procedure would be taking place.

In cross-examination the witness said that there was no written record from the original job interview of the Complainant’s statement that he was asthmatic. The witness accepted that the Complainant had a previously unblemished work record.

THE INVESTIGATION PROCEDURE AND OUTCOME:

On 6 May 2020 the Respondent’s HR Officer contacted the Complainant by letter requesting the Complainant to attend an investigation meeting. The text of that letter listed the issues to be investigated as follows:

• Failure to attend work on 25th of April 2020

• Failure to inform management that you would not attend work on 25th of April 2020

• Refusal to attend for work on 25th and 26th April 2020

• Failure to follow management instructions to attend work as an essential worker, resulting in potential harm to colleagues when you knowingly and willingly left your colleagues without access to the necessary and vital PPE they require in order to attend vulnerable clients.

The Complainant was invited to bring a representative of his choice.

On 14 May 2020 the HR Officer wrote to the claimant to advise him as to the outcome of the investigation meeting. This letter is annexed to these submissions. The letter contained the following findings (appropriate redaction):

I have reviewed the information that has been provided as part of this investigation in full detail. With regards to the allegations, Mr McLoughlin admits he did not ask permission to work from home on the day in question and did not notify anyone of same. Mr McLoughlin states that he did not think he needed to do this as he had been working from home for the evening shifts. However, as the Company is a front-line service and PPE is needed, access to the office is needed during the day. Mr McLoughlin also states that he refused to come into work to finish his shift or for the next day, Sunday 26th, though he was told by XX (the CEO) that this was part of his contract conditions.

It is now a matter for Management to decide what steps, if any, to take, in accordance with policies and procedures.

On 19 May 2020, the Service Manager, wrote to the Complainant inviting him to attend a disciplinary hearing. A disciplinary hearing was held via ‘Zoom’ on 22 May 2020. In attendance were the Complainant, the Service Manager, and a note taker.

Summary of the Evidence of the Service Manager: `

The witness gave evidence that the Complainant’s asthma was not brought to the attention of herself, nor any other members of management before the incident of 25 April. In cross examination the witness accepted that she did not consider a lesser sanction than dismissal nor did she consider using the informal disciplinary option as provided for in the procedures.

An appeal meeting took place on 25 June 2020. Present at that meeting was the Complainant, the designated appeals person, and a minute taker. The Complainant chose not to have a representative present. On 7 July 2020, the designated appeals person wrote to the Complainant with the appeal findings. That letter upheld the dismissal decision.

LEGAL SUBMISSION: CA-00040576-001 UNFAIR DIMISSAL: ...

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