ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00000267
Complaint for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 |
CA-00000328-001 |
20/10/2015 |
Date of Adjudication Hearing: 24/02/2016
Workplace Relations Commission Adjudication Officer: Pat Brady
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8(1B) of the Unfair Dismissals Act, 1977, following the referral of the complaint(s)/dispute(s) 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..
Complainant’s Submission and Presentation:
The complainant was employed as a Care Assistant with the respondent nursing home. He says that he raised concerns about the care of a resident initially with his nursing superiors who had an obligation to take action on his complaints.
Eventually he raised it with a family member of the service user in question and says he only did so because of a failure to respond to his earlier raising of the matter.
He submits that on foot of this he was threatened with dismissal. He had a further engagement on the telephone with the family member who ended the conversation, and this in turn also led to an approach from his employer on the matter. He says that he was also evicted from staff quarters.
He also says he was shunned by some of his co-workers on the instructions of his employer and eventually he went sick suffering from stress.
In the course of this absence he made a telephone call to his place of work to say that he would be returning to be told that he was no longer on the roster and that his details had been removed from the computer system.
Also, in the course of his sick leave absence he was invited to attend two disciplinary meetings which he could not attend due to his poor health. When he eventually did attend on August 25th the disciplinary meeting was adjourned to permit the holding of an independent investigation.
He says that his actions fall to be considered under the Protected Disclosures Act in the first instance as he made an honest declaration about the incident which concerned him. He responds to the respondent’s assertion that he did not make the disclosure in accordance with the respondent’s policy by saying that there is no obligation on him to do so in that specific manner.
He terminated his employment as he had no faith in the impartiality or fairness of the independent investigation
Respondent’s Submission and Presentation:
The respondent denies that this falls to be considered a ‘Protected Disclosure’ in that it was not made in accordance with the hospital policy and not made to the correct person. His contract requires him to formally report the matter to the nurse in charge and he failed to do so. The Director of Nursing denied that he had ever reported the matter to her.
It says that the complainant took it upon himself to raise the matter with the family without making his concerns known to the employer and the first it knew of this fact was when the family member approached them.
The respondent challenges the nature of the alleged mistreatment of the service user saying that the complainant did not witness the incident and the person about whom he complained as being an inappropriate carer ceased caring for the service user in question a matter of three days after the alleged incident took place. It says further that there was nothing inappropriate about the involvement of the complainant’s co-worker with the service user in question and that general non medical care could be performed by the individual in question who was an experienced member of the staff.
The respondent says that its response to the raising of the matter by the complainant was to commission an independent investigation from a well respected nursing expert. She gave direct evidence to the hearing to the effect that there was no basis for the complainant’s concern about the care of the service user or the qualifications of the co[worker about whom the complainant raised the issue.
In the conclusions of the report from the independent investigator she opined that the complainant;
‘acted and behaved in a manner that breached the trust and confidence of his colleagues, the residents and his employers. It was evident that he was untruthful on a number of occasions. He made serious accusations in relation to care afforded to [the service user] that, when investigated were without substance or evidence’.
In relation to the alleged removal of the complainant from the roster the respondent says that this did not happen. It says that the complainant rang the Nursing Home very early on the morning he was due to return (instead of notifying them on the previous day when the administrative staff was working) and spoke to a person who had not role in rosters etc and no authority to give the respondent the information she gave.
At no stage did the complainant raise the matter of this alleged removel from the roster with his employer.
Findings and Conclusions
I have considered all the evidence oral and written that was laid before me prior to and in the course of the hearing.
There are two issues for decision here. One is whether the actions of the complainant fall to be considered under the Protected Disclosures Act. The bar for determining that is low, and there is a presumption that until the contrary is proved, a disclosure shall be presumed to be one. All that is required is a reasonably held belief of ‘relevant wrongdoing’..
The complainant is a qualified Care Assistant. His complaint, that an unqualified person was attending to the service user was roundly dismissed by the Independent investigator. This raises a question about whether ‘wrongdoing’ of any sort was present to give rise to the complainant’s concerns.
Apart from the complainant’s oral evidence there was no corroboration of his claims that he brought it to the attention of nursing co-workers or the Director of Nursing as claimed. The Director of Nursing said the first she heard of the matter was from the family member following the complainant raising it with that family member.
It is hard to imagine that an employee who was a registered nurse on hearing of any suggestion of mistreatment (and the complainant said in evidence that he raised it with four nurses) would, in the context of the heightened awareness of such things fail to take the appropriate steps. It seems more likely that either he did not raise it with them, or they did not consider his concerns to be justified (as the investigator concluded).
Equally it seems clear that the respondent reacted in a negative, if not hostile manner to the revelations, (and perhaps with some justification) and did not handle the matter well; in particular the convening of disciplinary hearings when the complainant was on sick leave was not aappropriate.
However the ultimate question is whether the facts in the case support the termination by the complainant of his contract of employment.
Consider the timeline of events.
The complainant spoke to the service user’s daughter on June 7th, 2015 and was approached by the Director of Nursing the following day to attend a meeting with the family. At that meeting the complainant falsely denied that he had raised the matter with the daughter.
While it is alleged that the respondent instructed co-workers not to discuss the matter with the complainant he went on certified sick leave on June 13th, less than one week later and he remained on sick leave until July 20th.
I find the complainant’s version of his allegedly being taken off the roster lacking in credibility. He had worked with the respondent for ten years and presumably knew, or ought to have known the operation of the rostering system and the steps he needed to take to arrange a return to work. He also failed to check this information with the management at any stage.
Equally unconvincing is his dismissal of the independent investigation bearing in mind that at that point he had the benefit of legal advice. It would not have taken much effort to establish the credentials of the investigator who is a national figure in the nursing world and his assertion that she would not be independent or fair could have been very easily tested and verified or otherwise.
His failure to do so is fatal to any attempt to justify the termination of his contract. The test here is whether an employer’s behaviour has become so intolerable as to justify resignation and the action for unfair dismissal. But as can be seen here the employer was offering an independent investigation into the allegations (somewhat belatedly but nevertheless did so) and the complainant’s reasons for rejecting this option and as a basis for resigning at the point where this had come into play come nowhere within the necessary criteria for a constructive dismissal.
In all the circumstances, despite the reservations expressed about the management’s handling of the matter by the time of the August 25th disciplinary hearing it had mended its hand. I find that his decision to terminate his employment was without the justification necessary to ground a case of constructive dismissal.
I note also that he failed to use the company grievance procedures at any stage which is also damaging to his complaint.
Given that finding it is not necessary for me to reach a conclusion on the protected disclosure.
Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
The complainant was not unfairly, constructively dismissed and I dismiss the complaint
Dated: 25th May 2016