ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00034915
Parties:
| Complainant | Respondent |
Parties | Ciara Higgins Coyle | Comfort Keepers |
Representatives | Crushell & Co Solicitors |
|
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-00045995-001 | 07/09/2021 |
Date of Adjudication Hearing: 12/10/2022
Workplace Relations Commission Adjudication Officer: Pat Brady
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following 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 first hearing took place on July 12th, 2022, and was adjourned as the complainant was given inadequate notice of the respondent’s evidence. The complainant says she was unfairly dismissed following her non-attendance with clients. |
Summary of Respondent’s Case:
On the May 26th, 2021, a client of the respondent called the office to advise that she had received no care. After receiving such calls, the respondent office team will audit the company’s attendance system records to review the carer's login/off activity for the scheduled visits of the day.
After they did so, it appeared that the complainant had been scheduled to attend three clients on the 26th of May 2021: at 09.00, 11.45 and 14.00. The audit showed that the complainant logged into her last two scheduled visits from her mobile application as if she had attended the visits.
The same audit showed that on both log-in occasions, the “location on” mode had been turned off (which is against the instructions of using the application while the user, carers, logs in and out, as per the company’s policies and procedures and HSE requirements to confirm service delivery to the client)
As the next step, the office will call the carer to understand more about the attendance or nonattendance of the visit and the carer’s activity. The Client Care Coordinator who received the client complaint call called the carer to ask whether she had attended the client’s visit.
The complainant advised that she got a call from her son’s school to inform her that her son had fallen and needed medical attention, and she would need to leave the client she currently attended to go to her son.
The complainant also confirmed that she had earlier contacted the office (morning of May 26th 2021 at approximately 9:15 am) to communicate this and the office confirmed this also. It was also confirmed that they asked the complainant to confirm whether or not she will attend the rest of her scheduled calls. She said she would contact the office again to confirm attendance to later calls or request emergency leave for the rest of the day.
The office did not receive any further calls from her that day and therefore, her scheduled visits remained in place for 12:00 and 14:00. The office removed from the schedule the one the complainant called to say she was not attending.
She logged into the scheduled visits for 12:00 and 14:00 without attending to the clients. Therefore, the clients were left without care. Additionally, based on the reported incident and the preliminary facts gathered from the office, it was alleged that the complainant fraudulently logged in and logged out.
As part of the escalation process (in cases of non-adherence to the client visits and the correct login/log-out process), the Office Carer Executive reported the incident to the HR department.
It acted according to the company policies and procedures and commenced the investigation process (4/6/2021) to gather more information and establish the facts around the referral.
The Investigation findings upheld the allegations. The complainant logged in from her device on both visits when they were not attending the scheduled visits.
This was a breach of several company policies covered under the disciplinary policies as actions of gross misconduct (and examples were submitted). Additionally, logging in to a client visit and not attending is contrary the company Vulnerable Adults Policy.
As the next step in the disciplinary process, the HR department invited the complainant to a disciplinary hearing (17/6/2021 inviting to attend a DH on 21/6/2022) to allow her to present her version of events.
During the disciplinary hearing, the complainant rejected the allegations. However, given the evidence and the unsatisfactory reasoning given by the complainant versus the severity of the incident, the hearing manager decided to terminate the complainant's employment.
During the hearing, the complainant did not provide any information or reason for her actions, or show insight into the gravity of her actions, the consequences for herself and the impact of those on the clients, remorse or offer an apology.
Following a review of her employment history the hearing manager based the decision to dismiss on the findings of the investigation and the understanding that the consequence of actions/duty of care taken that day were not accepted, thus breaching the trust in care required for the protection of vulnerable adults.
This decision was consistent with similar breaches of these policies in the past. The hearing manager gave the complainant the outcome on the June 25th, 2021, with the right to appeal within the next seven days.
She appealed on July 1st, 2021, and on July 9th, was invited to attend an appeal hearing on July 12th 2021. The appeal hearing manager did not uphold the appeal and stood by the original employment termination decision on the grounds of gross misconduct.
On the May 18th 2022, the respondent received correspondence from WRC regarding the complaint of unfair dismissal.
The company MD Dimitra Darra gave evidence on affirmation.
She conducted the disciplinary process and before doing spoke to the investigator and read the report.
Her main objective was to get a clear statement as to what happened regarding the failure of the complainant to fulfill her later shifts in particular, and whether any other person had access to her phone to establish the facts about the later log-in and whether it might have happened by accident.
In the course of this she got no acceptable explanation or apology from the complainant.
She concluded therefore that there had been a breach of a number of policies; those relating to login/out, attendance, and vulnerable adults. She concluded that the correct sanction for this based on it being gross misconduct was dismissal.
In response to cross examination, she confirmed that the complainant had a clean disciplinary record and also that she had been aware of the significance of the problem with her child on the morning in question.
Likewise she confirmed that one of the issues was the failure of the complainant to confirm her non-availability for the rest of the day as she had promised and was required to under the respondent’s policy (three hours’ notice is required).
The witness said she had compassion for the complainant, and this was taken into account but still there had been no remorse or apology. When questioned as to why the complainant had not been suspended the witness said that this had not been her decision.
Witness evidence was also heard on affirmation (online) from Jessica Schwitek and Eamon O’Donoghue on behalf of the company which provides and monitors the software system for logging in etc as some questions had been raised about its reliability
Specifically, Mr. O’Donoghue confirmed that if a login is made it can only be from the device, unless another user had the login credentials. The data showed that when the login took place it was not at the client’s residence.
In response to a question the witness confirmed that occasionally data will not be captured. Substantial documentary evidence was also submitted. |
Summary of Complainant’s Case:
The complainant commenced employment as Health Care Assistant with the Respondent on September 4th 2019 and her employment terminated on 25 June 2021.
In summary, the complainant contends that the respondent failed to adequately consider the defence offered by her and notwithstanding her guilt or innocence of the claims against her, the sanction of summary dismissal is disproportionate, in any event.
She describes her work as follows. Shewasaloneworkerformostoftheday.Iftherewasadoubleupshift,workingwith another person, it would only be two or three times a week, not every day. There were always issues regarding lunch breaks, being off at a certain time and then being contacted to attend more clients, not being given enough time to get from one place to another.
The complainant gave evidence on affirmation.
She generally agreed with the factual narrative and stated that prior to these events she had an unblemished record. She had contacted the respondent on learning of the emergency regarding her son and she definitely did inform the respondent that she had not attended the first call.
On May 25th she had three or four visits to make that morning and went to the first client but she did not answer so she rang the office, told them what happened, and they told her to leave.
On her way to the next client, she learned her son had an accident in school and she was asked me to pick him up. She rang the office they took her next client off my roster. She was asked to call back later that day but forgot.
Later that afternoon she got a phone call from one the managers regarding the earlier failed call. and she explained what happened and that she would not be available for the rest of the day. The manager basically said that she was logged into two calls, which she says she did not because she did not attend the premises.
Her location was on her phone which could be checked and confirmed that she had not been at the house. Basically, the respondent did not believe that she logged in to the house. She told her employer she was not being sly and had not been at the house. She did not expect to lose her job over this. Her employer just kept asking if she had done this kind of thing before. She said she had not done anything but she felt that they did not listen to her. During the investigation, which was by phone, she was allowed to continue working. The investigator did not listen to her story and said she was lying, and the same thing happened during the disciplinary process was the same. Regarding the appeal, which was the last step, she went to work that morning and they had a disciplinary meeting. At the end of that, she was basically told not to go back to her next client and was dismissed Subsequently she was offered her job back or a settlement. She declined both.
The complainant contends that the claim for unfair dismissal was not brought in a manner which was procedurally compliant with the relevant requirements. The evidential burden of truth rests with the Respondent.
A number of authorities were relied on including Hennessy – v – Read and Write Shop Ltd UD 192 /1978.
The Complainant contends that the Respondent, Comfort Keepers, did not have reasonable grounds to sustain a belief that the penalty of dismissal was proportionate to the alleged misconduct.
The Act places the burden of proof on the employer to demonstrate that the dismissal was fair. As part of exercising this burden of proof, the respondent needs to show that fair process and procedures were applied when conducting the disciplinary process.
The complainant contends that, ostensibly, an investigation and disciplinary process was carried out. However, in reality, all assertions made by the complainant with respect to her innocence were completely ignored.
The complainant contends that she was suspended without any reasonable justification. She had an unblemished performance and disciplinary record and the accusation made against her was relatively minor or trivial. In effect, the respondent had already made a determination as to the guilt of the complainant in respect of this matter.
The established jurisprudence in relation to dismissal law in this jurisdiction takes a very restricted view of what constitutes gross misconduct justifying summary dismissal.
This is evidenced, for example, by the determination of the Employment Appeals Tribunal in Lennon v Bredin M160/1978 (reproduced at page 315 of Madden and Kerr Unfair Dismissal Cases and Commentary (IBEC, 1996)) wherein the Tribunal states:
‘If the legislature had intended to exempt an employer from giving notice in such cases where the behaviour fell short of being able to fairly be called by the dirty word ‘misconduct’ we have always felt that they would have said so by adding such words (after the word misconduct) as negligence, slovenly workmanship, bad timekeeping, etc. They did not do so.’
The Complainant contends that she was not guilty of gross misconduct and therefore her dismissal in the manner in which it was effected was unfair and unreasonable. |
Findings and Conclusions:
The narrative of events set out in both parties’ submissions is largely the same.
The complainant had a first visit of the morning with a client but to whom she could not gain admission.
Then, while on the way from that appointment she got a call saying her child had been hurt at school and she was required to make her way there and bring him home. She rang her employer to tell them, and they asked her to call back and let them know whether she could fulfill two appointments later in the day.
She accepts that she did not do so, as she forgot.
Then, the login system showed her as having been with a client, but in fact she had not been and confirmed that she was not. To compound maters the system showed the complainant’s ’location on’ mode as having been turned off, in breach of its regulations.
This then led to the investigation and on to the disciplinary process which ultimately led to the termination of her employment.
According to the respondent’s submission this led to a formidable set of alleged breaches established following the investigation which it set out as follows.
Forgery or falsification of financial transaction records/ record timesheets/ log in/ log outs Failure to attend shifts, unauthorised and unapproved absence section Breach of the absence policy, section 32. Client Homes, paragraph relating to Logging in procedures and the Log in/ out Additionally, logging in to a client visit and not attending is contrary to 5.17 Vulnerable Adults Policy on CK Way and section 63 Vulnerable Adults in the Employee Handbook.
This answers the first question facing an Adjudicator in approaching a complaint of unfair dismissal; bearing in mind the essentially oversight jurisdiction of the WRC in such case, it is whether the respondent had reasonable cause to initiate the disciplinary proceedings.
It is easy to see that it did in this case.
That oversight jurisdiction derives from the substantial jurisprudence going back to the (then) EAT decision in Looney and Co v Looney UD843/1984 and the view of Dr Mary Redmond to the same effect that;
‘It is not for the EAT to establish the guilt or innocence of the claimant nor is it for the EAT to indicate or consider whether we, in the employer’s position, would have acted as it did in its investigation or concluded as it did or decided as it did, as to do so would be to substitute our own mind and decisions for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decisions are to be judged’. This leads to the other two questions which have to be considered; the process which has been followed which is to be assessed by the substantial body of case law on fair procedure and, finally the proportionality of the sanction.
The jurisprudence on this latter point is to be found in Allied Irish Banks v. Purcell [2012] 23 ELR 189, where Linnane J commented (at p. 4):
“Reference is made to the decision of the Court of Appeal in British Leyland UK Ltd v. Swift [1981] IRLR 91 and the following statement of Lord Denning MR at page 93: ‘The correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.’
This was confirmed by the decision of Noonan J. in the High Court case of Governor and Company of the Bank of Ireland v Reilly [2015] 26 ELR 229. It has also been referred to with approval in the Supreme Court by O’Donnell J in Ruffley v Board of Management of St Anne’s School [2017] 2 IR at paragraph 41. On the matter of the procedure both the respondent submission and the direct evidence of the disciplinary maker were important. An investigation was begun on June 4th, 2021, which concluded that the complainant had logged in in respect of two visits which she had not actually made. She complained in her evidence that she was not listened to, but this was a relatively simple matter of finding facts and the investigator reached such clear conclusions as she could on the basis of the evidence. In the course of the investigation interview the complainant is asked to explain how the login could have occurred while she was not at the venue claimed and she failed to do so. Faced with that the investigator reached the only conclusion she could. The disciplinary meeting followed on June 21st, and she was dismissed on the grounds of ‘failure to attend rostered shifts and follow the correct absence reporting procedures, fraudulent logs ad failure to inform the office of this’ (Letter from respondent of June 25th 2021). She was given the right of appeal and did so, but unsuccessfully and again the issue of her failure to explain the login for the clients for whom she did not attend features prominently. There are some inconsistencies in the respondent’s position. For example, despite the seriousness of the allegations the complainant was not placed on suspension. Then, subsequent to the termination she says the respondent offered to re-employ her, or reach a settlement with her. Of course, anything that happens after the dismissal is not relevant to this decision, but these facts seem to be at odds with the gravity alleged in respect of the complainant’s conduct. In any event they are no more than inconsistencies, and they do not undermine the conduct of the matter by the respondent, which fell well within the requirements of a fair process at all stages, as set out above.
On the matter of sanction I find that, having regard to the facts of the case and in particular the nature of the respondent’s business it fell within the range of sanctions a reasonable employer might apply.
I find therefore that the dismissal was fair. |
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.
For the reasons set out above I find that the dismissal was fair and Complaint CA-00045995-001 is not upheld. |
Dated: 5th January 2023
Workplace Relations Commission Adjudication Officer: Pat Brady
Key Words:
Unfair Dismissal |