Complainant

Respondent

Anonymised Parties

A Health Care Assistant

A Health Services Provider

Representatives

Victoria Stephens SIPTU Representative

 Comyn Kelleher Tobin

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-00067331-001

12/11/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00067331-002

12/11/2024

The Complainant, a Male, was employed as a Health Care Assistant and alleged he was unfairly dismissed as a result of a complaint by a female patient (Service User) that he had inappropriately touched her during a personal cleaning session of the patient. The complaint under the Equality Act was withdrawn in advance of the Hearing.

The Complainant commenced his employment with the Respondent as a Healthcare Assistant on the 13 January 2020.

The Respondent received a written complaint from a Service User on Monday, the 1st November 2021 alleging assault against the Complainant which was alleged to have occurred on early Friday morning, the 29 October 2021. 

The Complainant was moved to cleaning duties at this time and remained working full-time in this non-patient-facing role until the Respondent terminated the Complainant’s employment, almost three years later, on the 15 September 2024 for gross misconduct as alleged to have occurred on the 29 October 2021.

The Complainant refuted these allegations entirely and sought redress and to have his matter considered by an unbiased Adjudicator.

The Complainant commenced his employment with the Respondent as a Healthcare Assistant, this contract of employment was a fixed-term contract for 6 months, however on the lapse of the six month period, there was no discussion or change and as such the Complainant remained doing his duties as contracted for.

The Complainant had his annual review meeting with Agents acting on behalf of the Respondent on October 14th 2021.  It was decided that there were performance issues to include poor communication and as such failing to take direction and/or work independently. The Respondent sought to put the Complainant on a Performance Improvement Plan (PIP) at this time, and asked to sign the PIP presented, however he refused to sign as he didn’t agree with what was being alleged against him and sought clarity, of which was never provided. MC, a CNM 1 was one of the two agents acting on behalf of the Respondent in this matter.

On the 01 November 2021 – The Respondent made the Complainant aware of an assault allegation made against him by a service user alleged to have occurred on 29 October 2021. MC was the agent acting on behalf of the Respondent on the 01 November. 

On or around the 01 November 2021 – The Complainant was moved to a full-time position of cleaning duties, as a non-patient-facing role for the Respondent until the completion of the investigation process. At this time, the Complainant provided the Respondent with a written statement in response to what he was accused of. This statement included the fact that he was attending to the service user with a nurse, who instructed him to stay with the service user when she left him. He refuted the allegations and stated due and owing to the patient’s size and type of commode, it was not possible to do what she has alleged due and owing to her size. He continued to attend to her on the return of nursing staff and there had been no issues raised for concern. None of this was responded to by the Respondent.

On 28 September 2022 – The Service User, who made the allegation against the Complainant, was interviewed by  2 Investigators.

 On 28 September 2022 – The Service User noted on page 8 of her investigation transcript that on the 29 October 2021 ‘that afternoon I asked the regular ward carer if what he had done this morning was the way things were done now. He told me no, and that was not proper procedure, and I should tell my nurse-in-charge.’ The Service user also confirmed that ‘Monday, the 1st November, the CNM, MC  visited me. She took the report of what happened.’ . 

On 21 October 2022 – Mr. MJ,, the alleged person that the Service User spoke to on the 29 October 2021 was interviewed.  Pages 7, 8 and 9 of Mr. MJ  transcript demonstrate that he has no knowledge of the allegation made against the Complainant. Though he states that he remembers the Service User, but no knowledge of a report or allegation of abuse made by her until well after the Complainant was moved. 

 On 24 October 2022 – Ms. OOM, the nurse that attended with the Complainant that morning with the Service User, was interviewed.  On pages 7 to 11 of her transcript demonstrate her lack of knowledge also with regard to the allegation made against the Complainant. Expressing her shock on page 11.

On 14 November 2022 – Ms. KH, the alleged night staff nurse that heard the allegation made by the Service User.  On page 4 of her transcript, it is alleged that ‘your name was brought up in the interview with Ms S, as the Complainant, she gave us your name.’ This is not contained in the Service User’s Investigation Transcript anywhere. 

On page 5 of Ms. KHs transcript, she notes how the Service User complained earlier that day and it was Ms. KH that asked her if she wanted to lodge a formal complaint. 

On page 6 of Ms Kh’s  transcript she further states that ‘so then like that was night shift. So, I waited until the morning to tell the Line Manager. I can’t remember if it was MC  or WT.

On 14 November 2022 – Ms. MC was also interviewed. 

On page 5 of her transcript is when she confirms that Ms KH was the nurse working on nightshift on Friday 29 October 2021.  

On page 6 of her transcript Ms. MC further confirms how she was able to identify who the Service User was talking about when she allegedly said ‘yes, from the pale blue uniform and no English, that narrowed it down very much but she did not have his name.’ 

On page 7 of her transcript, Ms. MC states ‘it obviouslyhappened on the Friday. ……. She sat on it until the Saturday or Sunday and that staff nurse brought it to my attention on the Monday..

On the 21 July 2023 – The Complainant was interviewed. The interview had to be adjourned as Ms. Stephens attended same with the Complainant and the alleged the investigator asked leading questions. The Complainant outlined his position. An interpreter was required for the Complainant for his interview to ensure that a clear picture of all of the facts would be presented in his defence of what has been alleged against him.  

On the 07 December 2023 – The Complainant received the Human Resources Investigation Report / Draft Report. 

On page 5 of 22, those interviewed and when is provided.

On page 8 of 22, the subject matter of the Complaint is detailed. In this it was alleged that on Saturday, 29th (which is the 30th October 2021) the Service User complained to MS. KH which is not clear from above. 

On pages 9 and 10 of 22, summary of evidence as perceived by the Investigators is provided.

On pages 10 and 10 of 22, it was noted that the Complainant submitted a written statement on the 23 December 2022 and that was not formed part of the investigation, however, this was the retyped version of what was already submitted.

The Complainant fully denied all allegations of assault that was made against him by Service User.

The Complainant does not accept that due process took place throughout this investigation of which resulted in the termination of his employment. 

The Complainant was put through a criminal investigation with the Gardai in relation to this allegation and it was determined as an unfounded allegation. 

The Complainant’s reputation has been broadly brought into disrepute due and owing to what was alleged and upheld against him due to what we say was a flawed investigation process.

The Complainant was employed by the Respondent as a Healthcare Assistant between 13th January 2020 and 15th September 2024. The Complainant was employed pursuant to a specified purpose contract of employment dated 30th December 2019.

 On 29th October 2021 a verbal complaint was received by a Staff Nurse regarding the alleged conduct of the Complainant on the 28th October 2021. The verbal complaint was transcribed to a written complaint on 1st November 2021.  The complaint alleged that a patient (the Patient was in the shower room of the ward with the Complainant and a Staff Nurse). The Complainant was asked to assist the Staff Nurse in showering the patient. Due to another matter that arose on the ward the Staff Nurse was called away and the Complainant continued to shower the Patient alone. The Patient alleged that they were made feel uncomfortable while being washed by the Complainant, that the Complainant proceeded to wash the Patient without the Staff Nurse being present and that the Complainant touched/rubbed genital area without a cloth or glove and with force.

 Preliminary screening was conducted on the written complaint as an allegation of abuse. The Complainant was advised of the outcome of preliminary screening by letter dated 17th November 2021.

 Pursuant to Section 5.2 of the TIC, the Complainant was redeployed to a non-patient facing role as a protective (control) measure. The letter also notes that a union official was in contact on behalf of the Complainant at this time. A TIC Investigation was then commissioned by the Respondent. 2 independent staff were appointed as the investigators.  The Terms of Reference for the TIC investigation were supplied. the TIC investigation interviews took place between 28th September 2022 and 21st July 2023. A draft of the TIC investigation report was prepared on 7th December 2023 and shared with the Complainant. No comments were received on the draft report from the Complainant. The final TIC investigation report issued to the investigation commissioner after completion on 28th December 2023.

 On 27th February 2024 the Respondent wrote to the Complainant to note that the final TIC investigation report had been received and that it had been forwarded to the Group. On 7th March 2024 the Respondent wrote to the Complainant to advise that the TIC investigation had upheld the allegation and advising that the matter would now proceed to be considered in accordance with Stage 4.  A disciplinary hearing took place on 18th July 2024. In attendance at that hearing was the Complainant, the CEO, the Human Resources Business Manager and Victoria Stephens (Advocate on behalf of the Complainant, SIPTU). At the end of this hearing, the matter was adjourned to allow the CEO time to consider the matter further.

On the 19th August 2024, the CEO wrote to the Complainant with her decision which was that his employment should be terminated.  The Outcome Letter afforded the Complainant a period of 14 days within which he may appeal, the Complainant did not appeal the outcome letter to the DAC.  The Complaints were subsequently filed with the WRC on 12th November 2024.

 Without prejudice to the objections raised above the Respondent submits that the Complainant was dismissed following a procedure which reflected fair procedures and natural justice. 26. Section 6(1) of the Unfair Dismissals Act 1977 (as amended) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act; to be an unfair dismissal unless, having regard Section 6(4) of the Act provides: · (4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following...(b) the . The conduct for the purposes of the above legislation in this case was the allegation that the Complainant engaged in an abuse interaction with the Patient, in contravention of the TIC.

In the High Court case of Samuel Frizelle v New Ross Credit Union [1997] IEHC 137, considering the sanction of dismissal, Mr Justice Flood stated, The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity of the effect of the dismissal on the employee The complaint which formed the allegation under the TIC investigation was of a most serious nature. It follows therefore that the effect of the dismissal (while of a most serious nature also) is appropriate in light of the findings of the TIC investigation. It should be highlighted that the Respondent followed its internal procedures carefully and ensured that the Complainant was afforded the right to be accompanied by a work colleague or a trade union representative (who the Complainant was accompanied by throughout).  Furthermore the protective measures invoked at the outset of the TIC process were measured in not simply moving the Complainant to administrative leave but rather taking temporary steps to move the Complainant to a non-patient facing role pending the outcome of the investigation. This reasonable approach follows the decision of Mr Justice Noonan in the High Court case of the Governor and Company of the Bank of Ireland v Reilly, [2015] 26 ELR 17, where it was held that employee suspension is only justifiable where it is necessary to prevent a repetition of the conduct complained of or to prevent interference with evidence.

in line with fair procedures and natural justice the Respondent procured an external investigation into the alleged conduct of the Complainant and that investigation upheld the allegation that a abusive interaction. In light of the foregoing the Respondent urged the Adjudication Officer to dismiss the Complaints.

The Respondent further submitted that the Complainant has failed to provide any evidence of mitigation in respect of losses alleged on foot of the alleged Unfair Dismissal

The complaint under the Equality Act was withdrawn by the Complainant in advance of the Hearing.

In relation to the unfair dismissal complaint I have considered the written submissions and the submission of the Representatives at the Hearing. No oral evidence was provided to the Hearing.

I was made aware of a complaint to the Garda in relation to the issue involved in this case (the complaint was not initiated to the Garda by the Respondent) and was informed the Garda investigation is ongoing and therefore I have decided to anonymize the decision due to these special circumstances.

The Law.

“6.1. Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

(4) Without prejudice to the generality of subsection (1) of this section the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of a kind which he was employed by the Employer to do.

(b) the conduct of the Employee

(c) the redundancy of the employee and

(d) the employee being unable to work or continue to work in a position which he held without contravention by him or by his employer of a duty or restriction imposed by or under any statute or instrument under statute.

Section 6(6) of the UD Act states:

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more grounds specified in subsection (4) of this section or that there were other substantial grounds for justifying the dismissal.”

Section 6(7) of the UD Act states:

“Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had [….]

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.”

Section 14(1) of the UD Act refers to such dismissal procedure as was furnished to the employee upon entering the contract of employment.

Section 7(2) of the UD Act provides that an Adjudication Officer may consider “compliance or failure to comply by the employer in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister”.

The combined effect of the above provisions is to place the statutory burden of proof on the Respondent to show that the reason for the dismissal was substantial and/or within the parameters of Section 6(4); and that it acted reasonably and in accordance with its disciplinary procedure or relevant code of practice.

A number of judgements were considered by the Adjudicator in arriving at my decision.

Mainly, the Looney v Looney, UD83/1984 in which the Eat referred to its role as “to consider, against the facts, what a reasonable employer would have done”.

Secondly, Bunyan v United Dominions Trust (1982) ILRM 404 that states “the fairness or unfairness of a dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business, would have behaved”.

Also relevant to consider is whether the decision to dismiss is proportionate to the gravity of the complaint and indeed as Flood J observed in Frizelle V New Ross Credit Union (1997) IEHC 137 “the decision must also be proportionate to the gravity and effect of dismissal on the employee”.

In Pacelli v Irish Distillers Ltd (2004) ELR25 the EAT stated that any investigation should have regard to all the facts, issues and circumstances.

I note that the Complainant did not appeal the decision to dismiss internally but this was due to family circumstances and not material to my decision in this case.

I have to make my decision on the basis of what was presented to me and given there was no oral evidence supplied, which is not essential, I have to make my decision on the basis of the written submissions and the Representatives arguments at the Hearing. I have concluded that a serious complaint of assault was made against the Complainant for inappropriate touching of a female patient and that there was not sufficient counter evidence provided to support the withdrawal of the allegation or to justify mitigation of circumstances in this case.  I find that from the information submitted the Respondent had reasonable grounds to dismiss the Complainant and that a reasonable employer would have done so and the Respondents actions where within the band of reasonable responses to the situation and the complaint fails.

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.

I find that the Complainant was not unfairly dismissed. (CA-00067331-001)

The complaint under the Equality Act was withdrawn in advance of the Hearing.( CA-00067331-002)

Unfair Dismissal