Worker

Employer

Anonymised Parties

A Care Assistant

A Disability Care Provider

Representatives

Peter D Jones, Solicitor

Peter Gilfedder, IBEC

Act

Dispute Reference No.

Date of Receipt

Dispute seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00062573-001

03/04/2024

The employer is a long-established provider of care to people with intellectual disabilities.  The worker commenced with them as a care assistant on November 6th 2023.  She was contracted to work for 39 hours per week.  Her gross annual salary was €36,309, which is the salary at point 6 of the HSE’s pay scale for healthcare assistants.

In advance of her proper commencement in her role, the worker attended induction training between November 6th and 9th 2023.  As part of this training, she completed mandatory modules in the national standard for adult safeguarding, an introduction to “Children First” policies, hand hygiene and the basics of infection prevention and control.

On March 26th 2024, the worker was dismissed when her employer concluded that she had not satisfactorily completed her probation.  The worker argues that her dismissal followed from a protected disclosure she made to her employer regarding the treatment of a service user on February 24th 2024.

On Saturday, February 24th 2024, the worker and a colleague accompanied a highly dependent resident who is a wheelchair user on a trip to Dublin Zoo.  I will refer to the worker’s colleague as “AB.”  The worker claims that she felt bullied by AB for some time and that AB was hostile to her on the outing to the zoo.  When they were at the zoo, the worker went to take a smoking break in a designated smoking hut.  When AB joined her, she realised that the resident had been left on his own and she told AB to go back to him.  She claims that AB insulted her for the remainder of their visit.  On their return from the zoo, the worker reported what occurred to three members of management.

On Tuesday, February 27th, the worker was subjected to verbal abuse by AB for taking a smoking break and for smelling of cigarettes.  She claims that she raised her voice to tell AB to “leave me alone.”  The worker was asked to set out in writing her version of what occurred, which she did on February 28th.  In her report, she also informed her managers about what happened in the zoo the previous Saturday.

At a meeting with two members of management on March 26th 2024, the worker was informed that she hadn’t successfully passed her probation.  In his submission behalf of the worker, Mr Jones said that the issue of smoking was a contributory factor in the employer’s decision to fail her probation, as well as the incident in Dublin Zoo on February 24th. 

Mr Jones complained that the worker didn’t receive the notes of the meeting at which her employment was terminated.  He argued that the worker was entitled to another review in the fourth month of her probation and finally, he submitted that, if smoking at work was an issue for the employer, an improvement support plan should have been invoked.  Mr Jones also referred to the fact that the managers at the meeting on March 26th referred to the worker not following the absence procedure, and that a remark was made that she had taken holidays shortly after she started in her job.  He alleged that the managers remarked that she “hadn’t bothered” to come to work on a day on which it had snowed.

It is the worker’s case that she was dismissed for making a protected disclosure, when she informed management, on no less than five occasions, that her colleague left a resident alone in the zoo, posing a significant risk to his health and safety.

In his submission on behalf of the employer, Mr Gilfedder said that the worker had her first review meeting on February 1st 2024, at which no issues about her performance or conduct were raised and she was considered to be meeting the expectations of her job.

Mr Gilfedder referred to an incident on Tuesday, February 27th when a staff nurse reported to the on-call manager that the worker and AB were shouting at each other in front of the residents.  The on-call manager spoke to the two employees and reminded them of the policy that staff are to promote a safe and caring environment in every care home.  AB was moved to a different house.  The next day, the worker submitted a statement, setting out her version of what occurred between her and AB on February 27th.  She also referred to the incident in the zoo the previous Saturday.  AB also provided a statement, as did a member of staff who was on duty in the house on February 27th.    

The complainant didn’t come to work on Friday, March 1st, but she attended the next day for a full day, although she was rostered for a half day shift.

On March 26th 2024, the employer’s HR manager and programme manager met with AB and informed her that the way she spoke to the worker in front of the residents was unacceptable.  The worker was informed that her behaviour was also unacceptable.  In addition, she was informed that the number of smoking breaks she required and her request to a bus driver to stop the bus so that she could have a cigarette was unprofessional.  She was informed that her probation had ended and that she had not passed.

It is the respondent’s position that the worker was dismissed in accordance with a term in her contract that provides for dismissal during probation.  Mr Gilfedder said that the employer must provide care to vulnerable residents at the highest level of professional standards.  Although the worker was an experienced care assistant, she did not demonstrate skills that her skills were aligned with the employer’s values.

A Protected Disclosure

This dispute was submitted under s.13 of the Industrial Relations Act 1969 and, although, at the hearing, the worker claims to have made a protected disclosure, she did not assert any rights under s.6 of the Unfair Dismissals Act 1977.  On the form she submitted to the WRC on April 3rd 2024, in response to the question, “what was the reason given for your dismissal?” the worker wrote:

“Too may holidays taken and didn’t come into work the day of the snow as well as trivial things.  Nothing that warrants gross misconduct.”

In the narrative part of the form, she stated,  

“It was made very clear to me early on in the meeting (on March 26th 2024) that I was being sacked, the reasonings behind this unjust decision was the fact that I had taken ‘too many days off’ which were holidays as well as not coming into work the day of the snow which they said ‘I just didn’t bother coming to work and decided to work the next day instead’ on the day that was a red alert for snow….All of these complaints were either exaggerated or not true.”

Later in this narrative, the complainant stated,

“At no point was the bullying referenced or my complaint about it.”

The worker makes no reference in her complaint form to having made a protected disclosure or to a concern about having been dismissed for making a protected disclosure.  She claims that she was dismissed unfairly for taking too many days off, and she complains that no one addressed her claim that she was bullied by her colleague.

In a submission to the WRC on April 24th 2024, the worker wrote,

“Nothing happened in my job to warrant being fired I had two supervisions that went very well (sic).”

Later on, she said,

“Nothing happened in this job other than me complaining about bullying and safeguarding the lady who came from on call had asked me to write a letter of complaint and this I did 28th February (sic).”

In the statement that she submitted to her employer on February 28th 2024, which she claims is a protected disclosure, in just two lines of a document containing 100 lines, the worker referred to the resident being left unattended during a trip to the zoo:

“To my surprise she (“AB”) passed me by and sat on the seat in the smoking hut…I asked what the hell is she doing you need to stay with (the resident), you can’t leave him alone on that footpath.”

From this, it seems to me that, by asking AB to return to the resident, the worker dealt properly with her concern and, from her statement, it appears that AB did return to him. 

I do not accept that the worker made a protected disclosure when she wrote these lines as part of a much longer statement on February 28th 2024 and I am satisfied that she was not dismissed for making a protected disclosure.  I am further satisfied that, if the “shouting” incident that occurred on February 27th had not occurred, the worker would not have made the statement about the resident being left unattended in the zoo.

The Argument that the Dismissal of the Worker was Unfair

The worker argues that, rather than terminate her employment on March 26th 2024, four months into her probation, she should have been reviewed again before her probation was confirmed or her employment was terminated.  While there is provision for a third review in the worker’s contract of employment, the period of probation is an opportunity for the employer to review an employee’s conduct and performance on an ongoing basis.  As a mature and experienced person, the worker was aware of the standard of behaviour required in this workplace and the fact that she failed to meet this standard was clear before the expiry of the fourth month.  Where there appears to be intractable behavioural issues, it is acceptable for a manager to use his or her discretion and to end the probation before the expected end date.

It is apparent from the information provided to me at the hearing that one of the key reasons that the complainant was not kept on was because of her need to take smoking breaks.  Mr Jones argued that she should have been given an opportunity to address this issue under the heading of clause 6.6 of the probation policy, “Managing Unsatisfactory Performance with Improvement Support Plans.”  A basic interpretation of this title that the objective of the clause is to help employees to address deficits in their performance.  Smoking in the workplace is a behavioural issue and is not related to performance.  No issues were identified with the worker’s performance and, until she was in a position to manage her smoking habit, it seems to me that there was no merit in invoking this clause of the probation policy.

In the letter issued to the worker on March 27th 2024, the reason for her dismissal is given simply as “a failure to pass probation.”  I accept that this explanation is unhelpful; however, in a copy of a text message that the worker provided in advance of the hearing, it is clear that she understands that one of the reasons she was dismissed is because she and a colleague were shouting at each other in the home of the residents. 

Conclusion

I accept that, in general, a dispute being considered under the Industrial Relations Act is a less formal matter than a hearing under the Unfair Dismissals Act.  I accept also that the worker was on probation and that the managers decided that she had not demonstrated that she was suitable in the long term.  I am influenced however, by the decision of the Labour Court in the case of Beechside Company Limited, trading as the Park Hotel Kenmare and A Worker, LCR 21798.  It is clear from this decision that the requirement for fair procedures is not confined to employees who have adequate service to benefit from the protection of the Unfair Dismissals Act, and the Labour Court has consistently determined that employees with short service come within the protection of Statutory Instrument 146 of 2000, the Code of Practice on Grievance and Disciplinary Procedures.

If the worker’s conduct was such that the managers decided that her employment should be terminated immediately, then, it was unreasonable for her to be kept on for another four weeks.  If her conduct was not so serious as to warrant immediate dismissal, then, considering that she was eventually dismissed, it must have been serious enough for her to be issued with a disciplinary sanction.  As she had had short service, it would not have been appropriate to go through each stage of a disciplinary process; however, she should have been given an opportunity to address the issues that were causing concern.  If the managers had explained to her what was required to ensure that she met the expected standard, and, if she had been given clear instructions about smoking breaks and relationships in the workplace, she may have adapted and reached the standard of performance necessary to remain in her job in the long term.  Because of the failure of the employer to engage in any procedures, I have reached the conclusion that dismissal of this worker was unfair.

In my consideration of an award of compensation for this worker for her unfair dismissal, I am mindful of the contribution that she made to her dismissal, and her failure to acknowledge any responsibility for her actions.  I have taken account of the fact that she is an experienced and trained care assistant and that there are ample opportunities for employment in this sector.  I must also have regard to the failure of the employer to follow any procedures in the lead-up to her dismissal.  Taking all these facts into account, I recommend that the employer pay the worker compensation of €700, equivalent to one week’s pay.

Unfair dismissal, procedures