ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00027289
Parties:
| Complainant | Respondent |
Anonymised Parties | A healthcare assistant | A nursing home |
Representatives | Diarmuid Ó Gruagáin, Independent Workers Union | Michael Kinsley, BL instructed by Kamila Tuhtahunova HBMO Solicitors LLP |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00034857-001 | 26/02/2020 |
Date of Adjudication Hearing: 14/09/2020
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Procedure:
On the 26th February 2020, the complainant referred a complaint to the Workplace Relations Commission pursuant to the Unfair Dismissals Act. The complaint was scheduled for adjudication on the 14th September 2020. The complainant was represented by the Independent Workers Union and one witness gave evidence on her behalf. Michael Kinsley BL instructed by Kamila Tuhtahunova, solicitor, HBMO Solicitors appeared for the respondent. The Executive Director gave evidence for the respondent.
In accordance with section 8 of the Unfair Dismissals Acts, 1977 - 2015following 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 worked for the respondent as a healthcare assistant between the 22nd August 2017 and the 16th August 2019. She resigned and submitted this complaint on the 22nd February 2020. She was paid €12 per hour and was contracted to work 39 hours per week. |
Summary of Complainant’s Case:
The complainant started her employment with the respondent on the 22nd August 2017. She worked as a nursing home assistant. Her employment ended on the 16th August 2019 following her resignation. The complainant said that he was physically assaulted by the accommodation manager who asked the complainant: ‘do you want me to kill you?’ and ‘do you want to die?’. This happened on the 20th April 2019. The accommodation manager was known for her verbal aggressive behaviour. The complainant approached her line manager immediately. The complainant said that the HR Manager investigated the matter. This was delayed until the HR Manager returned from annual leave on the 8th May 2019. The complainant said that the investigation was deficient as it concluded that there was no assault despite the statement of the colleague who had observed the complainant’s hair being pulled. The investigation report accepted the witness testimony about the accommodation manager shouting, but at the same time concluded that there was insufficient evidence of the assault. The complainant outlined that she appealed the conclusion of the investigation on the 31st May 2019. The first appeal hearing was held on the 5th June 2019. The appeal manager, present at the adjudication, said that it would take one month to process the appeal. The complainant went to the Garda station on the 8th June 2019. She outlined that the incident had a psychological impact on her and her children as she was often upset at home, causing them to be upset. The complainant said that the appeal outcome accepted that the assault took place. She received this on the 21st June 2019, and she then met the appeal manager and another staff member. The complainant outlined that prior to receiving the appeal outcome she suffered two panic attacks where she could not stand and was out of breath. She outlined that her assailant, the accommodation manager, continued to work. By contrast, the complainant went on sick leave on the 17th June until the 5th August 2019. The first certificate referred to work-related stress and the other to stress. The complainant said that she met the appeal manager on the 5th July 2019 to discuss the appeal outcome. It was recommended that the complainant move to a different nursing home. The complainant was not happy with this proposal. The complainant had received paid sick leave for one month, but not for the entire period. The complainant was offered counselling and attended five sessions. The complainant said that she had not asked for anything else from the respondent. The complainant believed that there was a disciplinary process involving the accommodation manager, who received a written warning. The complainant resigned by letter on 29th July. She returned to work on 10/11/12 August 2019, to say goodbye to colleagues and the residents. She had an exit interview with HR but did not mention the assault as it was time for her to move on. The complainant submitted that the respondent should have taken the assault more seriously and the witness should have been believed. She should not have had to appeal. Nothing was done to make her stay there as no one could be expected to stay there after being assaulted. The complainant said that after the assault, she avoided contact at work with the accommodation manager but sometimes they came across each other at work. This made the complainant feel panicky. The complainant said that no manager spoke to her about their intervention with the accommodation manager even when they had the addressed the issue with the accommodation manager. The complainant said that she started a full-time healthcare supervisor with another employer, where she started from scratch. She had been a mentor at the respondent and received additional pay for this duty. The complainant said that she was pregnant at this time and very sick arising from the pregnancy. She was also working 42 hours per week and looking after two other children. The complainant said that she submitted the complaint to the Workplace Relations Commission after the end of the Garda investigation. She had waited until the end of the criminal investigation and her conversation with the Garda was a trigger for her to submit the complaint. In cross-examination, it was put to the complainant that she had been a good and valued employee of the respondent. It was put to the complainant that the respondent accepted that the incident of the 20th April had occurred, and it regretted that it had happened. It was put to the complainant that she had reported the incident by email on the 21st April 2019. It was put to the complainant that the respondent had initiated the investigation and interviewed witnesses. It was put to the complainant that the respondent managed her rosters so that she had limited contact with the accommodation manager; the complainant did not accept that this was the case. She acknowledged being paid one month of sick pay. It was put to the complainant that her emailed resignation of the 29th July 2019 makes no reference to the assault; she replied that she was afraid that she would not get a reference. The complainant said that she interviewed for the new role on the 17th August 2019 and started the role on the 19th August 2019. She said that she worked more hours in this role. The complainant said that the respondent had offered to move her to a different nursing home but did not suggest that the accommodation manager would move. The complainant said that it was not possible to roster them so their paths would not cross. The colleague gave evidence. The colleague said that there had been a previous incident involving the accommodation manager when they were eating food in the canteen. The accommodation manager had berated them for eating. On the 20th April 2019, the colleague had been chatting with a resident and the complainant when the accommodation manager approached to ask what they had done with the chocolate. The accommodation manager then pulled the complainant’s hair back. The complainant looked scared. The colleague spoke to the investigator about the incident and explained what happened. The colleague did not feel safe around the accommodation manager and left this employment in September 2019. The colleague was later called by the Gardaí to give a statement. The colleague also spoke to the appeal manager. In cross-examination, the colleague did not make a complaint about the accommodation manager to avoid making her an enemy. The colleague was advised that it was best to leave this alone. In closing, the complainant said that it was clear that the resignation was linked to the incident, for example the complainant suffered the panic attacks and then resigned. She referred to the decision in An Accountant v An Accountancy firm ADJ 17674 and the reference to the employer trying to talk the complainant out of resigning, which did not occur here. The complainant said that the first investigation was botched. She outlined that the most important reason for the delay in submitting the complaint form was her pregnancy and the related illness, but also that she had waited for the Garda investigation to be completed. |
Summary of Respondent’s Case:
The respondent submitted that an employer’s investigation did not need to be perfect and any issues with the investigation in this case were cured by the appeal. The accommodation manager has been disciplined. The Executive Director said that this was a serious incident and made more serious because it took place because in front of a resident. She formed the view that it was not violent. She defined it as misconduct as it was insulting behaviour. She spoke to the witnesses, including a nurse who had previously not been interviewed. The accommodation manager received a first written warning for nine months and was very sorry for her behaviour. The accommodation manager denied the physical contact and accepted that the verbal conduct was inappropriate. The Executive Director was told of the resignation but did not want to contact the complainant while she was on sick leave. The Executive Director could see that the complainant was upset so the respondent offered counselling. The Executive Director had also recommended sick leave. The respondent had promoted the complainant as a mentor, a role attracting additional pay. The offer made to the complainant was that she moved to a different nursing home, which is smaller and operates at a slower pace. The executive director said that the purpose of an exit interview is to garner why staff are leaving and to make changes if they raise points. In cross-examination, the executive manager acknowledged that she has received the investigator’s report and made no comment as it was the investigator’s report. The executive director was aware of the impact the incident had on the complainant, for example the panic attacks and the sick leave. The exit interview or her email did not point to the reason for the resignation. The complainant never raised an issue with a reference. The executive director said that she could not say that the complainant was resigning because of the incidents. The complainant had told her manager that her new role was closer to home and was a supervisor role. The executive director outlined that mediation was suggested in order to give the accommodation manager the opportunity to apologise to the complainant in a controlled environment. The accommodation manager had completed a communication course and not an anger management course. There had been no further incidents with the accommodation manager. In closing, the respondent submitted that the complainant had not demonstrated reasonable cause for the late submission of the complaint. It submitted that the complainant now earns more in her role. In respect of the test of constructive dismissal, the respondent outlined that there was no evidence of a breach of contract. The respondent had acted reasonably in dealing with the complaint, including the full appeal. It submitted that it was not the case that the respondent had to dismiss the assailant to discharge its duty to the complainant. Even if a warning was too lenient, this was not so intolerable. The employer’s conduct was not the reason for the complainant leaving and there were other reasons given to the manager. This is also no mention of the assault in the email and the exit interview. |
Findings and Conclusions:
The complainant worked as a healthcare assistant for the respondent from the 22nd August 2017 to the 16th August 2019. According to the contract of employment, the complainant was paid €12 per hour. She mentored other respondent staff and was paid a premium for this role. The contract of employment addressed what happens in the event of an ‘accident’: they must be reported to a line manager as soon as possible and full details entered into an incident record. The contract defines ‘gross misconduct’ as including a serious breach of duty under the Safety, Health and Welfare at Work Act as well as ‘violent and disorderly behaviour in the workplace.’ The contract also cites ‘assault’ as a ground of gross misconduct. The incident of the 20th April 2019 amounts to a serious and unprovoked physical assault of the complainant. She was sitting with a colleague and a resident a few days before Easter. The accommodation manager entered the room and was apparently irate that chocolate to be distributed over the Easter weekend had already been handed out. On the scale of things, this is a matter of little significance, yet led to a violent and disproportionate reaction of the accommodation manager. Following the appeal, the respondent accepted the complainant’s account of the incident as true and therefore, by logical extension, that the accommodation manager’s account was inaccurate or, at best, incomplete. As a matter of fact, what happened was that the accommodation manager entered the room and approached the complainant, then seated. The accommodation manager pulled the complainant by the hair and pulled her head back. When the complainant was in this position, the accommodation manager said the following words to the complainant ‘do you want me to kill you?’ and ‘do you want to die?’ This took place in front of a both colleague and, very alarmingly, a resident. The complainant reported the matter immediately to her line manager. The matter was referred to investigation and this was delayed until the return from annual leave of the manager who conducted the investigation. The investigation was clearly lacking as it was impossible for the investigator to find that the accommodation manager was verbally abusive but not physically violent. This is because the complainant and her colleague described both these aspects of the incident. While the accommodation manager accepted some of the former, she denied the hair-pulling. It was for the investigation manager to explain who she believed and if she was going to believe some of what the complainant said, the investigator needed to say why she did not believe the latter part. She could have also said why she did not believe the colleague, for example that the colleague’s evidence was unreliable, or the colleague could not have seen what she said she saw. The complainant appealed the investigation finding and the Executive Director conducted the appeal. In the report of the 21st June 2019, the Executive Director accepted that the assault had taken place. The complainant took sick leave from the 17th June to the 5th August 2019. She tendered her resignation during this period of sick leave (29th July 2019), ending her employment on the 16th August 2019. She was paid more sick leave than provided for in the contract, but not for the entire period. The complainant went to work for three days in August. The respondent recommended that the complainant move to a different nursing home and suggested mediation. At the adjudication hearing, it outlined that the accommodation manager had received a first written warning, but this was not disclosed to the complainant at the time. The complainant attended an exit interview and did not mention the assault at the interview and nor in her resignation letter. It is also notable that the respondent did not refer to the incident during the exit interview. In assessing whether the claim of constructive unfair dismissal succeeds, it should first be borne in mind that central to the contract of employment is the mutual term of trust and confidence. An employer is entitled to have trust and confidence in the employee, and, ditto, the employee is entitled to have trust and confidence in the employer. Trust and confidence is a term in every contract of employment and one that is fundamental to the employment relationship. As outlined above, there was delay in replying to the complainant’s initial email reporting the incident. It was addressed as a grievance when it should have been dealt with as a report of a health and safety breach. The initial investigation did not adequately weigh up the evidence and discounted the clear account of the complainant and her colleague without proper justification. These are aspects of the case that would not garner confidence for an employee who was the victim of the assault the complainant incurred. The appeal was thorough and reached the correct conclusion that the complainant had been assaulted and that this was a serious incident. The respondent agreed to sick pay above the contractual entitlement and provided counselling sessions. It offered mediation and a role in another, smaller nursing home. While the complainant was not informed of this, the accommodation manager was subject to a disciplinary process and a first written warning. In deciding whether the complainant could have confidence in the respondent, I note that the complainant was already on sick leave when the appeal report was issued. It was clear that the sick leave arose because of the assault and the respondent, fairly, acknowledged the panic attacks and distress of the complainant. The complainant was on sick leave before and after tendering her resignation. The complainant returned to work for a few days and her employment ended on the last day of the notice period. Her evidence was that in the months following the incident in April, she inevitably crossed paths with the accommodation manager, who worked all through this period. The respondent places weight on the complainant not raising the assault during her exit interview. Equally, it is true that the respondent did not raise it, and one would expect it to be raised given that the complainant resigned during a period of sick leave attributable to the assault in the workplace. While the respondent took some steps which addressed the complainant’s confidence in the contract of employment, they were not sufficient for the following reasons. First, they did not address the key issue: the culpability of the accommodation manager. It is not that the accommodation manager ought to have been dismissed (this was the complainant’s view) but that sufficient steps were taken, and seen to be taken, to address this very serious incident. The complainant was not aware of the disciplinary process and sanction, and this would have been the basis of any confidence. Second, there were the procedural issues: the delay and the incorrect first investigation. Third, the offer of mediation was not an adequate substitute for information regarding the disciplinary sanction. Mediation was unlikely to succeed given that the accommodation manager continued to deny that the assault had taken place. Fourth, the proposal to transfer the complainant did not adequately address the root cause of the problem, which was not the complainant’s presence but the accommodation manager’s behaviour. Transferring an employee would not garner this confidence as a standalone measure. Fifth, it is true that the complainant did not mention the assault in her resignation or at the exit interview. Given that the resignation was sent during the period of sick leave, the logical question to ask was whether the assault/sick leave were connected to the resignation. The complainant did not vocalise the link and nor did the respondent ask after it. In ordinary situations, an employer is entitled to take at face value the reason(s) given by the employee for resigning. These were, however, extraordinary, and not ordinary, circumstances. The extraordinary nature arises from the violence and humiliation of the assault and the procedural delays causing the complainant to take such extended sick leave. These facets would have been obvious to the respondent, and they ought to have ruled out any link between the assault and the resignation before taking the resignation at face value. For the above reasons, I find that the complainant was entitled to consider herself to have been dismissed and the complaint of unfair dismissal is, therefore, made out. As redress, I find that redress of €1,200 is just and equitable in the circumstances. The complainant did not incur financial loss arising from the dismissal, so this is an award per section 7(1)(c)(ii). In respect of time, the date of dismissal was the 16th August 2019 and the complaint referred to the Workplace Relations Commission on the 26th February 2020. The complaint was made ten days outside of the six-month period provided by section 8(2)(a) and so the question is whether the complainant can show reasonable cause in giving notice of the claim later than six months from the date of the dismissal. I find that there is reasonable cause in this case. Each case is decided on its particular facts and the complainant must set out reasons that explain and excuse the delay. It is important to recognise that the 2015 amendment to the Unfair Dismissals Act represents a lowering of the threshold needed to submit a complaint between six and twelve months of the date of dismissal. Initially, there was no allowance for a claim made after six months; from 1993, it was ‘exceptional circumstances’ and since 2015, it is ‘reasonable cause’. Looking at this case, first, the delay is slight (ten days), so, applying Cementation Skanska v Carroll WTC 0338, requiring only a slight explanation. Second, there was the ongoing Garda investigation, and the complainant was understandably waiting for that process to finish. Third, the slight delay in this case is reasonable in the light of the complainant’s personal circumstances, in particular her pregnancy and related illness, as well as her family circumstances and the new role. Fourth, there was no prejudice faced by the respondent in allowing the case to proceed. Just as in an assessment of whether there are ‘good reasons’ to extend time in judicial review, any prejudice faced by the respondent is a factor to be taken into account in assessing reasonable cause (see O’Donnell v Dun Laoghaire Corporation [1991] ILRM 301). In Murphy v Health Service Executive [2021] IECA 3, the Court of Appeal held that prejudice was an element to be weighed up in assessing whether there were ‘special circumstances’ to renew a Personal Injury summons per Rule 8(4) RSC. In common with these other provisions which extend time, an assessment of prejudice to an employer is an element of the assessment of whether there is reasonable cause. Taking these factors together, I find that reasonable cause arises in this case due to the personal circumstances outlined by the complainant and the short period of delay. |
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 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.
CA-00034857-001 For the reasons set out above, I decide that the complainant was unfairly dismissed, and the respondent shall pay to the complainant redress of €1,200. |
Dated: 10th September 2021
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Key Words:
Unfair Dismissal Act / assault at work / trust and confidence / constructive dismissal / reasonable cause |