Leah Buckley -v- Maracrest Ltd The Windmill Nursing Group At Ferbane Nursing Home
Facts: The Complainant commenced employment with the Respondent as a healthcare assistant on 17/10/2017. A visiting GP reported an incident, an interaction between the Complainant and a resident on the 15/07/2019. The Complainant claimed that the resident in question was hard of hearing and unco-operative and that the Complainant informed the resident that she did not like her (the resident’s) behaviour and that she (the Complainant) was “not a dog”. An investigation meeting was conducted on 25/07/2019. The Complainant stated that the notes of the meeting were taken by an employee who she recognised as a cleaner as she wore a green uniform and that the meeting notes were incomplete and did not reflect the entire meeting. Based on this, the Complainant was placed on paid suspension pending the outcome of the investigation process. The Respondent commenced the investigation, which resulted in a disciplinary hearing and the Complainant was dismissed on 14/08/2019. The Respondent believed that the conduct of the Complainant amounted to maltreatment of a resident, which constituted gross misconduct.
The Complainant did not appeal the decision as the timeline had expired while she was hospitalised in an ICU setting for about 2 weeks. The Complainant lodged a WRC claim on 18/12/2019 seeking compensation.
Findings and Conclusion: The Adjudication Officer, John Harraghy (“AO”), noted that there were no disputes in the facts of the matter. The AO further observed that the Respondents used the Trust in Care Policy, which is a nationally agreed policy for managing allegations. The policy is a 2-staged process and lays down specific guidelines regarding preliminary screening, investigation, and disciplinary processes. Referring to Sections 6(1), 6(4) and 6(6) of the Unfair Dismissals Act, the AO stated that a dismissal is deemed to be unfair until the Respondent can demonstrate that it was neither substantively nor procedurally unfair. While the AO noted that it is not for the adjudicator to determine the guilt or innocence of the employee, the Adjudicator needs to consider the reasonableness of Respondent’s decisions [O’Riordan v. Great Southern Hotels [UD1469-2003]].
The AO observed that from the facts of the case, it was evident that there were a number of significant procedural shortcomings in relation to the preliminary screening, investigation and disciplinary processes and the procedures outlined in the Policy were not adhered to. There was no documentary evidence in relation to any of the procedures followed. The Complainant was not afforded an opportunity to state her case or to cross examine her accuser before any finding is made. The AO referred to Borges v. The Fitness to Practice Committee [2004]1 IR 103 and noted that in investigative processes which could lead to dismissal, cross examination becomes a vital safeguard to the complainant to ensure fair procedures. In addition to this, there is a further entitlement to be told of this right, The AO noted that the Respondent considered only one option – dismissal. In relation to the Complainant not appealing the decision, the AO noted that she had a valid reason, although it would have been preferable to notify the Respondent of same.
The AO concluded that in the light of the above, the dismissal of the Complainant was procedurally and substantially unfair, and without any regard to the principles of fair procedures or natural justice.
In deciding the quantum of the compensation, the AO noted that the Complainant was on a final written warning and should have been more aware of the need to report or document even the slightest concern in relation to any negative interaction with a resident. However, the AO found that any contribution by the Complainant to her dismissal was neutralised by the Respondent’s disregard for proper procedure. The AO awarded the Complainant compensation of €6,700.
Takeaway for the Employers: While it is extremely important for employers to follow the respective policy that is in place, any process, whether or not in line with the policy will be measured against the requirement of fair procedures and natural justice. One key right, where dismissal is a potential consideration, is the right for an employee to cross examine his/her accusers as part of fair procedures and natural justice.
Link – https://www.workplacerelations.ie/en/cases/2021/july/adj-00026081.html
Authors – Chaitra Girish Mallya & Anne O’Connell
28th July 2021
Anne O’Connell Solicitors
19-22 Lower Baggot Street, Dublin 2
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