EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD359/2014
CLAIM(S) OF:
Julie O'Sullivan - claimant
Against
Patrick Keane - Registered Provider – Oranmore Nursing Home - respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms C. Egan B L
Members: Mr T. Gill
Ms H. Murphy
heard this claim at Galway on 22nd July 2015 and 29th September 2015
Representation:
Claimant(s) :Ms Caoimhe Heery, RDJ Glynn, Solicitors, Aengus House, Long Walk, Galway
Respondent(s) : Mr Patrick Higgins, Keane, Solicitors, Hardiman House, Eyre Square, Galway
Respondent’s Case
The claimant was employed as an administrator by the respondent nursing home. She carried out general administration duties and had responsibility for finance and payroll. The Tribunal heard evidence from (E), a chartered accountant, that he was engaged by the respondent in September/October 2012 in a consultancy capacity to carry out a review of the respondent’s business. He currently holds a management role in the business. In September/ October 2012 the business was struggling and he was tasked with putting it on a strong financial footing.
During the course of his review, he discovered a number of irregularities in relation to the claimant’s recorded hours of work and payments processed. He outlined to the Tribunal the systems in place for recording hours worked, namely (1) a clock in finger print time-point system (2) a signing in book and (3) a roster system. He gave evidence that he reviewed the whole system and investigated dates throughout 2012 and 2013. Following this process a letter issued to the claimant dated 10 December 2013 suspending the claimant on full pay pending the outcome of further investigation.
The claimant was informed of two issues in question, (1) falsified timesheets on time-point system when she was absent from work and (2) processed payroll to account for her being at work when she was on holidays. She was asked to provide a response to the issues raised and a meeting was scheduled for 13 December 2013. Further meetings took place in January and February 2014. The claimant was afforded representation at the meetings. Following the conclusion of the process the claimant was dismissed for gross misconduct by way of letter dated 19 February 2014. The decision to dismiss the claimant was taken by the owner of the business, Mr. K, and the reasons for her dismissal were outlined in the detailed letter of 19 December 2013 (a copy of which was opened to the Tribunal). The witness had no involvement in that decision.
The owner of the respondent business PK gave evidence of the business experiencing serious financial problems, and he employed the services of a financial consultant. The consultant (EO’C) brought concerns he had to him regarding the claimant’s attendance at work and time sheets. In a letter to the claimant in December 2013 PK set out his concerns. A meeting was held with the claimant on either the 10 or 11 December 2013. PK was of the view that all employees were required to clock in/sign in and clock out/sign out and found it incredible that the claimant had not done this as she was aware of the policy. On the 3 February the claimant was given an opportunity to examine the sign in records and take copies. PK received a letter dated 5 February 2014 setting out the claimant’s explanation. PK examined all of the evidence put forward by EO’C and reached a decision to dismiss the claimant. The witness acknowledged that the appeal offered to the claimant was the Rights Commissioner service or the Employment Appeals Tribunal as set out in the company policies and procedures. PK offered an alternative appeals process involving the general manager of another nursing home in the Galway area which the claimant declined.
PK described the claimant as able and well liked by employees and residents. The claimant resided on site and was on call during the night.
Claimant’s Case
The claimant was first employed as a care assistant while attending college. She progressed to office administration in the nursing home with additional responsibilities assigned to her role. She was fully aware of the financial pressures the respondent was experiencing. She resided in an apartment on site and was on call as security for residents. Prior to the letter and meeting of the 10 December 2013, she had no disciplinary issues. She was informed that day of an investigation and findings, and was handed a letter. She was suspended and left the premises. The claimant recalled how she noticed some changes in work practices in early December including the removal of residents’ accounts from her responsibility. A notice appeared for all employees to clock in while previously the system was loosely observed. The system required the manual correcting of the clock-in system to provide for breaks and leave. The claimant was conscious that the system was open to error and had raised this as an issue with EO’C on one occasion, and no changes were made. Her role involved manually entering hours on the system for all employees by using the rosters and time sheets. This information was then transferred to the payroll system. When entering times on the system the claimant was responsible for calculating and adjusting times taking into account breaks. This ensured employees were paid for the hours worked. The claimant stated she never premeditated entering times on her clock when she was not in the workplace. She provided the respondent with her own personal diary to support her case. The respondent, to date, had not returned the diary to her.
In order to prove her attendance at work on the dates in dispute, the claimant requested that CCTV and cash receipt books could be checked but this was not done. When she attended the office to examine the books she established proof that she had made a lodgement on the 2 January which was one of the dates she was accused of not attending work.
The claimant did not accept that the appeal of her dismissal was an independent appeal as the officer eventually appointed was a personal friend of the respondent.
Determination
The Tribunal carefully considered the evidence adduced by both parties over the course of two hearings. The Tribunal finds that the respondent failed to provide convincing evidence of the claimant’s non-attendance at work on the dates disputed. The respondent conceded at the hearing that the claimant was in attendance at work on the 2 January and the 4 January after the claimant had provided proof that she was in the workplace on those dates.
In support of the decision to dismiss the claimant, the Tribunal heard evidence from the respondent that the investigation found that the claimant’s workstation was idle with no activity on the dates disputed. However, the Tribunal heard evidence that the work station in question was accessible to other employees and it was not realistic to suggest that where others used the workstation that there was no activity on the days in question. This evidence was not disputed by the respondent.
The Tribunal noted the respondent’s lack of recording any minutes of the meeting held with the claimant and in particular is concerned with the respondent’s view expressed at the hearing that he did not see any purpose in taking a note of what was discussed with the claimant.
No disciplinary meeting was held with the claimant and the Tribunal is particularly concerned that no independent appeal was offered to the claimant initially although an appeal was eventually offered. The Tribunal noted that an appeal was eventually offered to the claimant.
The Tribunal finds that the dismissal in this case was unfair and awards the claimant the sum of €55,000 compensation under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)