Complainant

Respondent

Parties

Prathibha  Tharayil Prakasan

Castlebridge Manor Private Clinic Limited t/a Castlebridge Manor Nursing Home

Representatives

Caroline Doyle BL instructed by E. P. Daly & Company Solicitors

MP Guinness BL instructed by Philip Lee LLP

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-00061070-001

18/01/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00061070-002

18/01/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00061070-003

18/01/2024

The Complainant, formerly the Director of Nursing with the Respondent, gave her evidence on affirmation. Ms Brid Beeler, a family representative, also gave evidence on affirmation. Time was given for a third witness for the Complainant who did not attend.

Ms Rosetta Herr, Chief Operations Officer, gave evidence along with Karen Byrne, Interim Person in Charge; Emmett Duffy, Group HR; Deepa George; and Sruthy Panajikkal, both Persons in Charge at other facilities operated by the Respondent. All five gave evidence on affirmation. The Respondent operates a number of nursing homes throughout Ireland. In early October 2022, Castlebridge Manor Nursing Home was acquired by the Respondent.

The fact the Complainant was dismissed was not in dispute where the Respondent believed it was objectively justified for the health and safety of the residents. The complaint under the Safety Health and Welfare at Work Act 2005 was in dispute between the parties. The complaint under the Minimum Notice & Terms of Employment Act, 1973 was withdrawn at the hearing by the Complainant.

The parties were given an opportunity to make submissions on anonymisation. The Complainant submitted that she wished the parties to be named, with the Respondent stating that it was a matter for the Complainant.

CA-00061070-001 - Section 8 of the Unfair Dismissals Act, 1977

The Complainant’s employment with the Respondent commenced on 13 August 2018 and terminated on 02 October 2023 as Director of Nursing and Person in Charge (“PIC”). The Complainant received a salary of €88,000 annually + €3,500 annual pension contribution, bonus and life insurance.

It was the Complainant’s case that she was unfairly dismissed without due regard for fair procedures, and that she was penalised for raising health and safety concerns. These concerns included staffing shortages, which she claimed led to her demotion, a transfer of duties, and the requirement to wear a Health Care Assistant uniform.

The Complainant outlined her career history, stating she had 15 years’ experience in management and four years as a PIC. She commenced employment with the nursing home in or around October 2018 and worked well with the previous owner. She described the difficulties faced by the nursing home in navigating COVID-19 and managing staff shortages due to illness.

She highlighted positive HIQA inspection reports from 2019 to 2022, referring in particular to an unannounced inspection in November 2022, where staffing levels, governance and management, record keeping, and healthcare were all found to be substantially compliant.

In October 2022, the Respondent took over Castlebridge Manor Nursing Home. While the Complainant initially sought to resign, she remained in her role as Director of Nursing at the request of Mr. Eamon Prone (CEO) and Ms. Herr (COO). In December 2022, she received a bonus payment from the Respondent, acknowledging her “hard-working dedication” and describing her as “competent and dedicated.”

In January 2023, the Respondent instructed her to reduce both daily nursing hours and management hours. She disputed this instruction, particularly with Ms. Herr and Ms. Byrne, on the basis that it would negatively affect the care and welfare of residents. She noted that Castlebridge Manor was significantly larger than other Evergreen Care homes, making comparisons inappropriate. She further submitted that most residents had high to maximum dependency needs, which would be adversely impacted by the proposed staffing model.

The Complainant received a grievance letter from staff, also addressed to Ms. Herr, outlining concerns about staffing shortages in February 2023. She gave evidence of interactions with residents’ families who expressed similar concerns. These complaints were logged in the company’s complaints register and followed up with an email to Ms. Byrne. The Complainant requested meetings with both Ms. Byrne and Ms. Herr to discuss the issues.

In March 2023, she again raised concerns about pressure on staff and her own ability to complete her work during periods when key managers were on sick leave. In an email dated 12 April 2023 to Ms. Herr, she expressed concern of “staff burnout is high,” management support was poor, she was “really struggling,” and that staff sickness was “an everyday challenge.”

An unannounced HIQA inspection in June 2023 identified significant non-compliance in staffing, governance, and residents’ rights. It was the Complainant’s evidence that the compliance plan prepared by Ms. Herr and Ms. Byrne was rejected by HIQA as inadequate. The Complainant attended the online meeting with HIQA where it instructed the nursing home’s staff levels provided for at the time of the registration renewal in 2021. HIQA did not accept a reduction in staffing from those levels but this was not initially accepted by the Respondent. Eventually, the Respondent accepted HIQA’s direction and commenced recruitment.

The Complainant took annual leave in July 2023 for approximately three weeks. During this time, Ms. George acted as PIC. While on leave, the Complainant continued to receive calls and, upon her return, received a lengthy handover email, which included an incident report of a resident being locked in their room. She queried with Ms. Herr why no staff statements had been taken and why HIQA had not been notified. Dissatisfied with the response, she notified HIQA herself and began an investigation, which she said identified staffing shortages as a contributing factor.

On 29 and 30 July 2023, two further incidents occurred. The Complainant again notified HIQA and commenced investigations, engaging with families, medical personnel, the safeguarding team, and HIQA. She described being under extreme pressure, covering for multiple staff absences and working additional hours at this time.

An unannounced HIQA inspection on 23 August 2023 found that adequate measures had not been implemented to address staffing and clinical supervision issues despite the Respondent’s assurances. The Complainant gave evidence that ongoing non compliance placed residents’ safety and welfare at risk. Following an emergency meeting on 1 September 2023, HIQA directed the implementation of a new compliance plan with proper staffing and managerial support. Again she submitted that these provisions had existed during the 2021 prior to the takeover by the Respondent.

Shortly after the HIQA meeting, the Complainant was presented with a PIP by Ms. Byrne, who she felt blamed her for inadequate staffing. She was shocked and upset by this and believed Ms. Byrne was attempting to shift responsibility for HIQA issues onto her, despite her consistent efforts to maintain the 2021 staffing levels. The Complainant sought time to understand the PIP which she was granted. At a follow up meeting on 11 September 2023, she received an updated PIP but was never warned her job was at risk. An email from Ms. Byrne on 19 September 2023 was opened which stated: “You have already started some of these, so we are on our way!”

The Complainant was tasked with conducting multiple disciplinary meetings with staff in addition to care review meetings for residents whose families had raised concerns with HIQA.

Throughout September, she continued raising concerns with Ms. Herr about ongoing staffing reductions, inadequate clinical supervision, and insufficient managerial support, while working overtime and at times performing healthcare assistant duties without taking breaks.

On 2 October 2023, the Complainant arrived to find Ms. Herr waiting for her. In an unscheduled meeting, Ms. Herr told her she had consistently used staff shortages as an excuse for ongoing problems and suggested she resign. She was handed a document and told to sign immediately or face termination without a reference. She refused and was told to leave immediately without engaging with staff or residents.

The next day, she emailed CEO Mr. Prone seeking reasons for her termination. He referred her to Ms. Herr, who subsequently informed her by email that her contract would end on 6 October 2023 and that she was not required to work the remainder of the week. She was again told to sign the settlement offer in exchange for a reference.

On 3 October 2023, she notified HIQA that she had been forced to resign, noting that the Respondent’s notification to HIQA incorrectly stated she had left voluntarily on 6 October 2023. In December 2023, HIQA confirmed in writing that the information she had disclosed was considered a protected disclosure of serious concern and had been escalated.

The Complainant received a termination letter from Ms. Herr dated 5 October 2023. She noted that there was no right of appeal.

She gave evidence of efforts to mitigate her loss, including applying for roles from October 2023. In March 2024, a recruiter advised she was unsuccessful due to recent non-compliant HIQA reports. In May 2024, she registered with a nursing agency, securing employment as an agency nurse on a reduced salary of €55,000, a step down from her previous role. At the date of the hearing, she had progressed in a recruitment process for a Director of Nursing role which she hoped to be successful.

The Complainant described the negative financial and personal impact of the Respondent’s actions. She had relocated her family to Wexford for the role and could not relocate again due to her children’s education. She was cross-examined on her job search, with several similar roles put to her. She maintained she had made extensive efforts to secure alternative employment but was hindered by the public availability of non-compliant HIQA reports.

Ms Beeler

Ms Brid Beeler gave evidence as the daughter of a 94-year-old resident in the respondent’s nursing home. She stated that prior to the respondent’s takeover, the food was excellent, staffing levels were high, and the Complainant was always very accommodating.

After the takeover, Ms Beeler claimed conditions deteriorated significantly. She described her mother as “just lying there,” with no staff visible on the floor or at the desk. She said assistance was unavailable when her mother needed the bathroom. She described the floors as “filthy” and the toilets as like “dirty public toilets,” noting her feet would stick to the floor due to the dirt.

In April 2023, Ms Beeler raised her concerns with the Complainant and agency staff but felt there was no improvement.

In cross-examination, it was put to her that the facility had sufficient staffing and that responsibility for hygiene and resident care lay with the Person in Charge.

Legal Submissions

The Complainant’s written and legal submissions have been carefully considered. By way of summary only, the Complainant relied upon case law; Mooney v An Post [1998] 4 IR 288, Redmond v Ryanair Ltd UD123/05, O’Ceallaigh v An Bord Altranais [2000] 4 IR 54 and Shortt v Royal Liver Insurance [2008] IEHC 332, to support her case that there was a complete absence of fair procedures applied prior to her dismissal. Instead, she was dismissed on the spot. It was further submitted in oral submissions that regardless of the outcome of the disciplinary process fair procedures must be applied in response to the Respondent’s argument.

It was submitted that the Complainant had an exemplary employment record with 15 years in management and 4 years as a Director of Nursing. In relation to the HIQA reports, it was submitted that the duties of the Person in Charge had been discharged and the noncompliance was due to staffing issues.

CA-00061070-002 - Section 12 of the Minimum Notice & Terms of Employment Act, 1973

The complaint was withdrawn at the hearing.

CA-00061070-003 - Section 28 of the Safety, Health & Welfare at Work Act, 2005

In September 2023, Ms. Byrne instructed her to wear a uniform and work on the floor assisting healthcare assistants. The Complainant objected, stating that no other Director of Nursing in the Respondent’s homes was required to wear a uniform. She described being very upset following a phone call with Ms. Herr on this issue and felt humiliated by a subsequent email of 21 September 2023 requesting that she wear a uniform from the store.

Regarding her complaint of penalisation, the September 2023 email from Ms. Herr was put to her, and she accepted that it requested her to wear a plain polo shirt, rather than the uniform of a healthcare assistant.

CA-00061070-001 - Section 8 of the Unfair Dismissals Act, 1977

Ms Herr

Ms Herr set out her professional background, detailing her progression from a nurse to a PIC, along with her educational qualifications, which include, inter alia, an MBA in Nurse Management. It was her evidence that it was not long since she “wore a uniform” and that she worked onsite even in her current position.

She outlined the transfer of the nursing home facility to the Respondent in 2019.

Ms Herr described a HIQA report arising from an inspection on 3 February 2021 as “substantially compliant.” A subsequent HIQA inspection on 23 November 2022 also resulted in a substantially compliant report, though staffing levels were flagged.

The next HIQA inspection occurred in January 2023, with the report issued in June 2023. It noted issues with staffing, records, governance, and residents' rights. According to Ms Herr’s evidence, all of these matters fell within the remit and direct control of the PIC, in this case, the Complainant. At this stage, it became clear to the Respondent that the Complainant was unsuitable for the role and the Respondent would have to put in more support than would usually be given to a PIC.

Ms Herr referred to the engagement with HIQA regarding staffing levels. Following the completion of a Barthel 2 assessment, based on resident dependency and numbers, it was determined that the Respondent was, in fact, overstaffed. She described the 2018 Statement of Purpose, which was drafted and compiled by the Complainant, as containing “bizarre staffing” arrangements, resulting in a heavily overstaffed facility.

Ms Herr acknowledged there was a very high turnover of staff at the nursing home, particularly to an HSE hospital within the region. This, coupled with the challenges presented by the COVID-19 pandemic, made staffing very difficult, particularly in light of the existing Statement of Purpose.

Ms Herr referred to a letter of grievance from the staff of February 2023 that addressed issues with staffing, including absence management and recruitment and retention. She stated that these responsibilities were within the Complainant's remit.

To address recruitment challenges, it was her evidence that an HR Partner and an Administrator were tasked with launching an active and aggressive recruitment campaign, despite a very difficult labour market.

The Complainant was instructed to use agency staff when necessary; however, she was reportedly reluctant to do so. Staff from other nursing homes were sent to assist with shortages.

Ms Karen Byrne, Regional Operations Manager, also assisted the Complainant with absence management. She attended onsite weekly, compared to the other nursing homes, which was once a month. On 1 March 2023, the Complainant was invited to another nursing home to help her better understand and manage the staffing requirements model, including how much staffing was required and what efficiencies could be achieved. It was Ms Herr’s evidence that all the Complainant needed to do was engage with the Respondent’s advice.

Ms Herr stated that there was no acting deputy at the time, as the person in that role was on long-term sick leave. There was constant engagement with the Complainant regarding staffing issues. A CNM role, along with a second deputy, was approved, along with the use of agency staff. It was Ms Herr’s evidence that this staffing level was above what was applied in their other nursing homes.

Mr Herr referred emails in July 2023 with the Complainant, referring to the need for cover while the Complainant was on annual leave and the requirement to find a CNM where it had been approved, to which HIQA had been advised. A series of emails between the Complainant and Ms Herr ensued around concerns about staffing, absenteeism and training.

It was Ms Herr’s evidence that the Complainant was in dispute with HIQA regarding the trend in falls by residents. As a result, the Regional Manager had to follow up with the Complainant to ensure timely responses to HIQA’s requests. She also requested another PIC from one of the other nursing homes to go onsite with the Complainant to draft the necessary responses to HIQA, but the Complainant did not engage constructively with Ms Panajikka.

While the Complainant was on annual leave, Ms Herr arranged for another PIC, Ms George, from one of the Respondent’s other nursing homes, to cover the leave. Ms George brought a nurse and a healthcare assistant with her for the period from 30 June to 23 July 2023 and also worked on the floor to observe staff. This led to a detailed report dated 21 July 2023 from Ms George to Ms Herr raising serious concerns about the management.

It was Ms Herr’s evidence that she held a meeting with the Complainant following her return from annual leave in 2023, during which the content of the report was discussed in detail. The Complainant denied that the reported matters were regular practice. It was Ms Herr’s evidence that she instructed the Complainant to submit a required notification to HIQA, but the Complainant refused, stating that she believed it was unnecessary and would negatively impact her own career. It was also Ms Herr’s evidence that she received an email from HIQA on 14 July 2023 requesting that an NF07 notification be made.

The Complainant was subsequently placed on a Performance Improvement Plan, which was supervised by Ms Byrne beginning on 1 September 2023.

Ms Herr gave evidence regarding her meeting with the Complainant on 2 October 2023, during which she stated that she felt she had “no other option available to her” but to terminate the complainant’s employment. It was her evidence that she had a “duty of care to the residents, staff, and the company,” and while she aimed to be as kind as possible, she “spoke the truth” during the meeting.

A subsequent letter dated 5 October 2023, signed by Ms Herr, confirmed the Complainant’s termination of employment. The letter noted that the Complainant had “declined to engage with me to come to a settlement,” though the offer remained open until 6 October 2023. Ms Herr cited the complainant’s “ongoing poor performance” as the reason for the termination.

It was Ms Herr’s evidence that the Complainant was very upset at the meeting. She said she did not regret the decision to terminate the Complainant’s employment as there has been a turnaround in the management of the nursing home, referring to the recent positive HIQA report, with the same compliment of staff available when the Complainant was in charge.

Ms Herr confirmed that the HIQA reports prior to the Respondent taking over the nursing home were largely compliant when cross examined.

Opening the letter of 1 December 2022, Ms Herr was asked why the Complainant was given a bonus.  In response Ms Herr stated at times the Complainant could be very positive but also confrontational. Ms Herr said that she was “hopeful for the next year that things could proceed”.

It was put to Ms Herr that the focus was on occupancy to which she replied that her role included revenue, and this was discussed every Monday.

Ms Herr accepted there had been a push back on the staffing model suggested by the Respondent. It was her evidence that it had been applied in other nursing homes successfully. It was then put to her that 18 of the nursing staff signed a grievance letter on 24 February 2023. Ms Herr accepted this, stating that it was the PIC responsibility to lead and give reassurances.

The witness was challenged on the instruction by HIQA to follow the SOP regarding staffing and not the Respondent’s model. It was put to her that prior to the Respondent, there was no issue with staff. It was Ms Herr’s evidence that the Barthtel model was applied which was undertaken in other nursing homes and was successful.

The HIQA cautionary meeting record of 12 June 2023 was opened and in particular Regulation 15 which highlighted concerns at the staffing levels with resident’s dissatisfied at the high turnover. Ms Herr denied having a “spat” with HIQA instead describing it as a debate with the Inspector where she showed evidence of the new model which did not previously require notification to HIQA.  

Ms Herr denied that the Respondent further reduced staffing levels. It was put to her that the HIQA report from June 2023 inspection noted a repeated non-compliance of staffing levels. Ms Herr’s evidence was that it was actively recruiting and managing absenteeism.

It was put to Ms Herr that when the previous staffing model was implemented there was no issue with staff. She “disagreed completely” with this assertion.

It was put to Ms Herr that the safeguarding incident occurred while the Complainant was on leave and that the responsibility to notify HIQA lay with another Director of Nursing who was then the Person in Charge. Ms Herr maintained that the obligation to notify HIQA within three days arises from when the issue first comes to the attention of the person in charge.

The witness was questioned about the lack of procedures applied, which ultimately led to the termination of the Complainant's employment. It was Ms Herr’s evidence that “My number one duty of care is to the patients”

Ms Herr stated that the Complainant was provided with multiple supports under a Personal Improvement Plan (“PIP”).

When questioned about the disciplinary procedures outlined in the Employee Handbook, Ms Herr accepted that none of the formal steps were followed before the Complainant’s dismissal.

She confirmed it was her own decision to terminate the Complainant’s employment, as communicated in an email to Ms Duffy dated 28 September 2023. This decision was based on concerns for patient care and welfare, and her belief that her efforts to address issues with the Complainant were being ignored.

Ms Herr said that during the dismissal meeting on 2 October 2023, she clearly explained the reasons for termination. When asked about warnings, she referred to “numerous conversations” about the Complainant’s performance, documented in emails. The only instance she described as a warning was when she told the Complainant, after Ms George’s report, “I would be more upset about my job.”

Regarding a reference, Ms Herr said that had the Complainant accepted the offer made at the termination meeting, she would have been allowed to dictate the reference.

Ms Byrne

Ms Byrne qualified as a nurse in 1993 and progressed her career to Operations Manager with the Respondent in 2021, eventually taking over as the PIC from the Complainant upon her termination. By 2023, it was her evidence that she had participated in 21 HIQA inspections.

Asked about the concern the Complainant had regarding staffing levels, it was Ms Byrne’s evidence that she was more concerned about staff management and staffing levels in practice. A number of emails were put to Ms Byrne regarding the recruitment of staff and management of absenteeism and annual leave. She accepted that there had been positive engagement from the Complainant initially, which was supported by documentary evidence.

Following an unannounced HIQA inspection in June 2023, prompted by a referral from a local hospital, Ms Byrne received a list of concerns from HIQA that she had never encountered before, relating to issues with patient care. There was a considerable amount of information sought by HIQA, which she managed while the Complainant was on annual leave. Upon the Complainant’s return, Ms Byrne engaged in a series of email correspondence in July 2023, issuing instructions and seeking updates. This engagement followed Ms George’s concerning report. It was Ms Byrne’s evidence that the issues highlighted reflected a basic level of nursing care, and that the training and requests she was making were more akin to the training required of a healthcare assistant.

Ms Byrne gave evidence, with reference to the detailed task lists, of her engagement with the Complainant in July 2023 following Ms George’s report, during a period when the Complainant was on annual leave and there were serious concerns about practices at the nursing home. She had a list of tasks from that report which she continuously worked with the Complainant to complete.

It was Ms Byrne’s evidence that in September 2023 she engaged with the Complainant on her PIP, meeting regularly. Ms Byrne described the PIP as very difficult; the Complainant became upset, and Ms Byrne asked if she wished to take a break. Overall, she felt the Complainant did not want to engage with it and believed that the role of PIC was to ensure staff completed tasks rather than to carry them out herself. A reschedule was agreed in the PIP.

Ms Byrne gave evidence that she took over from the Complainant following her termination of employment until January 2024. She was left with the same number of staff, and the rosters worked well.

Under cross-examination, Ms Byrne accepted that she had a close working relationship with the Complainant and also had concerns about staffing. It was her evidence that the Respondent’s staffing quota was never intended to be reduced in one step, but rather gradually. She accepted that HIQA had made adverse findings in its reports regarding staffing.

Ms Byrne accepted that in two emails of 5 May 2023, there had been positive responses and suggestions from the Complainant. She also accepted that, according to the July 2023 HIQA report, Ms George had completed the inspection form while the Complainant was on annual leave. Ms Byrne did not accept that the high level of absenteeism due to sick leave was the result of staff burnout or that this was a negative consequence of the Respondent’s staffing model, which was found not to be in compliance with HIQA. She stated that staffing levels in June 2023 had increased following a conversation with HIQA.

Ms Byrne accepted that the PIP commenced one month before the Complainant’s dismissal but did not accept that the Complainant’s performance improved after its commencement. She stated that at all times she tried to encourage the Complainant to participate in the process. Ms Byrne accepted that the Complainant was not given any notice that her job was at risk.

In reply to a query, Ms Byrne stated there were 104 staff members in the nursing home, supported by a full-time HR Business Partner and an HR Administrator who worked four days a week. She noted that no other nursing home she was aware of had a dedicated HR Administrator.

Ms George

Ms George outlined her qualifications and experience as a Director of Nursing for the Respondent company at a different location from that of the Complainant.

She was asked to detail her concerns from a report she compiled while acting as the person in charge during the Complainant’s annual leave. Ms George identified 17 areas of concern, including patient care, hygiene, staff engagement, management, and overall governance of the nursing home.

Under cross-examination, Ms George confirmed there was no overlap between her time in charge and that of the Complainant. Her report was based solely on her own observations and discussions with staff.

She acknowledged that a patient being locked in a room was a serious incident. She accepted that she observed this throughout 17–19 June 2023, reported it to Ms Byrne, and ensured the lock was removed.

Ms Panajikka

Ms Panajikka, outlined her qualifications and experience as a Director of Nursing for the Respondent company at a different location from that of the Complainant. She was sent to assist the Complainant with the HIQA responses. Ms Panajikka’s evidence was that it was standard practice for PIC’s support each other, and she had willingly agreed to Ms Herr’s request for assistance.

Ms Panajikka attended on-site with the Complainant over two days, during which she shared template responses, offered support, and volunteered to review the documentation before it was submitted to HIQA. She described the Complainant appeared “quite frustrated” and submitted the reports without allowing her to review them. Upon reading the submissions, Ms Panajikka found them to be very basic and not in compliance with regulatory requirements.

She stated that she attempted to further engage with the Complainant, offering reassurance that support was available and even drafting a more detailed response to HIQA. However, she felt that the Complainant was not willing to engage. Ms Panajikka confirmed that she had a follow-up call with Ms Herr regarding the matter.

Ms Panajikka described needing support in her role and described the group as being supportive to each other.

Ms Panajikka was challenged in cross examination on the timing of her report which was done at the request of HR. It was her evidence that she provided a report to Ms Herr at the time during their phone call after Ms Panajikka’s visit to Complainant.

Mr Duffy

Mr. Duffy, the HR Manager for the group, outlined the recruitment policy in relation to EEA and non-EEA employees, along with the extensive advertising campaign undertaken to recruit for Castlebridge.

Regarding the higher level of absenteeism, he stated that there were 500 unplanned absenteeism days in addition to scheduled leave. There had previously been no method of addressing absenteeism in the nursing home. Mr. Duffy described the support provided to the Complainant, noting that he had even taken over the return to work interviews for absent employees, along with Ms. Byrne. Feedback from employees indicated frustration at the lack of repercussions for persistent absences.

In terms of staff turnover, he said it was the highest in the group, double that of other nursing homes with a turnover rate of 60% in 2022. This had since improved, with the last six months showing a turnover rate of 30–33%, which was more in line with the industry standard.

Mr. Duffy was asked whether he had received a reference request for the Complainant since her termination. He stated that in June 2024, one party requested such a reference, and he provided a standard statement of employment. He also confirmed that he had never refused to provide a reference for the Complainant to any potential employer. In October 2024, he received a verification of service request for the Complainant, which he responded to the very next day.

During cross examination on the disciplinary procedures for absenteeism, Mr. Duffy explained that the first step was always to start a conversation, with coaching and counselling provided where necessary. If these measures were unsuccessful, disciplinary action could follow.

He was asked about an email from Ms. Herr on 28 September 2023 and replied that the decision on how to proceed was always at the discretion of the manager.

Legal Submissions

The Respondent’s written and legal submissions have been carefully considered. By way of summary only, the Respondent relied on Shortt v Royal Liver Insurance [2008] IEHC 332 and submitted that if the outcome of an investigation would have resulted in the same result, fair procedures can be bypast, as was the case in the complaint for unfair dismissal. It was submitted the Respondent’s priority was the health of the residents.

Legal submissions were made on the issue of mitigation of loss, relying on Sheehan v Continental Administration Co Ltd UD858/1999 regarding the level of effort required of an employee to mitigate their loss. In summary, it was submitted that the Respondent had presented more evidence of available vacancies to the Complainant than she had applied for. It was further submitted that the Complainant’s conduct should be taken into account if a finding were to be made in her favour.

CA-00061070-002 - Section 12 of the Minimum Notice & Terms of Employment Act, 1973

The complaint was withdrawn at the hearing

CA-00061070-003 - Section 28 of the Safety, Health & Welfare at Work Act, 2005

By email dated 21 September 2023, Ms Herr outlined her very serious concerns about the Complainant’s supervision and oversight of the nursing home referring to recent HIQA’s inspections, observations and family complaints. To address these concerns, she requested that the Complainant to work on the floor. It was Ms Herr’s evidence that it was normal for a PIC to work on the floor, describing it as “very normal and expected.” In her communication to the Complainant on 21 September 2023, she expressed disappointment at the Complainant's reluctance to work alongside her team. She referenced a recent HIQA inspection and observations from an internal audit, noting that “it was found that the staff would benefit from a hands-on approach by their PIC, who can teach, encourage, and offer your experience and understanding in all aspects of resident care.”

Ms Herr continued in the letter, responding to the Complainant’s claim that she had no uniform, advising he take one from the store or wear plain polo and comfortable trousers.

Ms Herr confirmed, when cross examined, that the Complainant’s contract and the Employee Handbook did not require the Person in Charge to wear a uniform or specify a colour. The Complainant responded to Ms Herr’s request by noting that working on the floor without a uniform breached infection control policy. In response, Ms Herr advised that uniforms were available in the onsite supply for the Complainant.

Regarding an email sent to the Complainant on 21 September 2023, it was put to Ms Herr that the timing, just before the Complainant's holiday, appeared punitive, particularly as the Complainant had recently raised concerns about her working hours and lack of rest breaks. Ms Herr denied any punitive intent and said the Complainant had to be instructed to respond to HIQA regarding a safeguarding issue, as she had not done so until prompted.

In re-examination, the uniform issue was revisited. An email from 21 September 2023 instructed the Complainant to take a new uniform from the store or wear plain alternatives if none were available. Ms Herr confirmed that this attire was not the uniform of a healthcare assistant and confirmed that training staff was not a healthcare assistant’s role.

It was Ms Byrne’s evidence that the Regulator, HIQA, wanted to see if time on the floor was rostered for such interaction by the Complainant from September 2023. However, she felt the Complainant did not see the benefit of being on the floor with staff and residents and considered it demeaning to be asked to wear a uniform. Ms Byrne stated that she had always worn a uniform when she was PIC, as she wanted to be part of the team and, from a practical point of view, it was easier to assist residents and was also more comfortable and consistent with good infection control practice.

When asked whether she supported her team by working on the floor, Ms George stated that she did, wearing a tunic in line with infection control policies and for personal comfort. She explained that her presence on the floor was necessary for staff training and to cover shortages. She rejected the suggestion that this was a demotion or that it undermined her role, noting that staff, residents, and families understood her position and responsibilities.

Ms Panajikka confirmed that as a PIC that she does work on the floor along with the staff stating, “it is very important to me”. In terms of wearing a uniform on the floor, Ms Panajikka said, “definitely, I have scrubs with me at all times.”

In relation to the complaint of peanalisation, Ms Herr’s email of September 2023 was heavily replied upon along with the HIQA reports and the evidence of the other PIC’s. It was submitted that the Complainant did not suffer a detriment nor did she satisfy the “but for” test.

CA-00061070-001 - Section 8 of the Unfair Dismissals Act, 1977

Section 6 of the Unfair Dismissals Act 1977 sets out the legislative basis for a complaint of unfair dismissal:-

“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.”

“6. --(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 the kind which he was employed by the employer to do…”

“6.—(6) 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 of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

6.—(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—

(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.”

The dismissal was not in dispute between the parties. The Respondent accepted in its evidence that its disciplinary procedures were not followed in the Complainant’s dismissal. The termination letter issued by the Respondent dated 5 October 2023 cited poor performance as the reason for dismissal.

Having regard to the caselaw submitted on behalf of the Complainant, McMahon J in Khan v Health Service Executive [2008] IEHC 234 summaries the meaning fair procedures, “What does fair procedures mean? At the very minimum it means that the person at whom a charge is levelled has proper notice of the charge; that he has proper opportunity to take legal advice and to prepare for hearing; that no one is to be a judge in their own cause; (nemo judex in causa sua) that both parties are given a full opportunity to be heard (audi alteram partem) and that the judge is free from bias. Moreover, it is clichéd law that not only must these principles be adhered to, but they must be seen to be adhered to. Justice must be seen to be done. Perception is significant and this is vital in the present case.”

In this case, the Respondent engaged with the Complainant on performance issues through peer and management support, including Ms Byrne’s frequent on-site attendance, onsite HR Support, and direct instructions from Ms Herr, culminating in a PIP opened in September 2023. The extensive efforts made to practically support the Complainant on the part of the Respondent must be acknowledged. However, while it may appear obvious in light of the number of issues being raised which directly affected vulnerable residents of the nursing home, the evidence does not demonstrate that the Complainant was warned at the outset of the PIP that failure to improve her performance could result in dismissal. The Complainant was fundamentally entitled to be put on notice of the risk of disciplinary action and potential dismissal she was facing.

All tasks in the three-page PIP were recorded as completed by 30 September 2023 and signed off by both parties on 19 September 2023. However, despite this a unilateral decision to terminate had already been taken by Ms Herr, as set out in her email to HR dated 28 September 2023, without invoking fair procedures, following the Code of Practice on Disciplinary Procedures (S.I. No. 117 of 1996) or its own disciplinary procedures.

Making a decision to dismiss before completing the agreed process, and without adherence to the principles outlined in Khan, cannot be regarded as reasonable in light of Section 6(7)(a) and (b) of the Act.

For these reasons, I find the dismissal was unfair.

Redress

Where the Complainant has been deemed to be unfairly dismissed from her employment, she is entitled to redress under Section 7 of the Act. In considering what would be an appropriate form of redress, it was agreed by all parties that in this instance compensation as provided for under Section 7 (1) (c) (i) is the only option.

In considering the appropriate amount of financial loss, Section 7 (2) provides for the following considerations:

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

(d) 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 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,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal”.

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation; “remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.”

Employer’s conduct and failure to comply with the Code of Practice

The Complainant has been found to have been unfairly dismissed. The Respondent applied no fair procedures in terminating her employment of four years, despite the paramount importance of procedural justice, particularly where termination of employment is concerned.

The Complainant’s employment was terminated on 6 October 2023, and she received one month’s notice pay. She remained out of work until May 2024, when she secured a role earning €33,000 per annum less than her previous position. No evidence was adduced as to whether she received pension contributions, bonus payments, or life insurance in her new role. Her actual financial loss arising from her dismissal, from the end of her notice period to October 2024, amounts to €90,700 gross, accounting for pension, loss of salary, and the difference in her agency salary. There was no breakdown of the value of the life insurance policy provided and therefore, it cannot be quantified.

I find this to be her financial loss arising out of her unfair dismissal.

Mitigation of Loss

It is acknowledged that the Complainant obtained alternative employment after the hearing and had previously registered with an agency, securing work from May 2024.

During cross-examination, the Respondent presented 12 pages of job vacancies in Wexford, Kilkenny, Wicklow, and Waterford from January 2024 to 29 March 2024, which it was submitted she could have applied for to mitigate her loss. The Complainant appears to have applied for one such role in Wexford.

While the shock and suddenness of her dismissal, particularly the manner in which it was executed, is acknowledged and the financial impact on her family was immediate following the expiry of her notice period. However, there is a notable absence of evidence of any effort to seek alternative employment from November 2023 to March 2024.

Of particular note is the Complainant’s own evidence; a 12 March 2024 email from a recruiter stating that a potential employer declined to progress her application due to “poor” previous HIQA reports. While the Complainant submitted that not every non-compliance was attributable solely to her, she was the PIC.

Furthermore, the Complainant was not limited to only PIC roles, as she her self-demonstrated but not until May 2024.

I find that the Complainant failed to adequately mitigate her loss until May 2024, thereby falling short of the standard in Sheehan v Continental Administration Co Ltd UD858/1999, which held that an employee must “employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work.”

Conduct

Section 7(2)(f) of the Unfair Dismissals Acts allows consideration of whether the employee’s conduct contributed to the dismissal.

In this case, the evidence shows that the Respondent devoted significant efforts and resources to assisting the Complainant with the difficulties she faced in her role. The correspondence indicates that the Complainant’s focus was on preserving her position rather than availing of the support offered, by way of example, peer assistance from Ms Panajikka in responding to HIQA, and HR guidance in managing high absenteeism and resultant staff frustration.

The Respondent’s professionalism in correspondence is noted, though Ms Herr’s frustration is clear in her 21 September 2023 email, in which she felt obliged to explain to the most senior member of staff the breakdown of a practitioner’s uniform. The ongoing reluctance of a Director of Nursing to understand the reasoning why she was being asked to wear a uniform, i.e. infection control standards, to lead her team, and to engage with residents particularly in a challenging work environment, and home environment for residents, is a matter of real concern.

Between April and September 2023, the high level of engagement with HIQA; through inspections, reports, family and third-party complaints, self-notifications, cautionary meetings, and compliance plans, demonstrates the Regulator’s serious concerns about the Complainant’s management of care for vulnerable residents.

Finally, the evidence of the Complainant’s own witness, Ms Beeler, describing the lack of care for her 94-year-old mother and likening the state of the toilets to “dirty public toilets,” requires no further commentary.

I am in no doubt that the Complainant’s conduct is material in determining the appropriate level of compensation. As confirmed by the Supreme Court in Carney v Balkan Tours Ltd (20 January 1997, 34/96), it is legitimate to take into account an employee’s contribution to their dismissal when assessing compensation.

CA-00061070-002 - Section 12 of the Minimum Notice & Terms of Employment Act, 1973

The complaint was withdrawn at the hearing.

CA-00061070-003 - Section 28 of the Safety, Health & Welfare at Work Act, 2005

Section 27(1) of the Safety, Health and Welfare at Work Act provides that “penalisation” includes:

“In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

(2) Without prejudice to the generality of subsection (1), penalisation includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) imposition of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.”

Section 27(3) of the Act prohibits penalisation or the threat of penalisation against employees provides:

“(a) acting in compliance with the relevant statutory provisions,

(b) performing any duty or exercising any right under the relevant statutory provisions,

(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,

(d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,

(e) being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or

(f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.”

The second limb of the test requires consideration as to whether the Complainant suffered “detriment” as a result of raising the complaint with a causal connection between the acts and the complaint.

In St. John’s National School v Akduman (HSD102), the Labour Court held:

“In order to succeed, the Complainant must establish that the acts or omissions on the part of the Respondent affected her terms or conditions detrimentally. She must then establish that there is a causal connection between these acts of omissions and her complaint regarding health and safety matters.”

The Court continued: -

“This Section [Section 27] is intended to protect employees who exercise any of the rights referred to at Subsection (3) from retaliatory conduct by their employer. In applying the provision the Court must be careful to recognise the distinction between a detriment which may be suffered by an employee as a result of an employer’s failure to fulfil a duty under the Act and a detriment amounting to “penalisation”.”

The Labour Court identified the appropriate test: -

“It is therefore clear that a cause of action can only accrue to an employee under Section 27 of the Act if conduct or omissions, which come within the statutory meaning of the term penalisation, arise because of an act protected by Subsection (3) and but for the protected act the employee would not have suffered the detriment complained of”.

The Labour Court in Patrick Kelly t/a Western Insulation v Algirdas Girdsius (HSD081) was clear in its requirement for there to be a causal connection between the detriment suffered and that detriment was imposed in reprisal for the employee’s complaint:

“Thus it is perfectly plain that in order to succeed in a cause of action grounded on the Section a Claimant must establish not only that he/she suffered a detriment of a type referred to at subsection (1) but that the detriment was imposed because of, or was in retaliation for, the employee having acted in a manner referred to at subsection (2).”

It was the Complainant’s evidence that Ms Herr’s instruction to wear a uniform and work alongside staff and residents amounted to penalisation after she raised concerns about staffing levels.

It was not disputed that there were differing views between the Complainant, the Respondent, and HIQA as to the appropriate number of staff to be rostered at one time. Following a cautionary meeting with HIQA in June 2023, the staff ratio reverted to that set out in the SOP in place prior to the Respondent’s takeover a position supported by the Complainant.

Ms Byrne and Mr Duffy gave evidence of extensive recruitment efforts, including 25 campaigns, and of measures taken to assist the Complainant in managing high absenteeism.

The uniform issue arose from an email dated 21 September 2023 from Ms Herr, following HIQA’s April 2023 request regarding nursing care quality, a non-compliant HIQA report in June 2023, Ms George’s report, and follow-up emails from Ms Byrne in July 2023 after the Complainant’s return from annual leave. The matter was also addressed in the PIP, with additional on-site office support provided to allow the Complainant time on the floor with residents and staff.

The Respondent’s evidence, given by Ms Herr, Ms Byrne, and Ms George, was that all staff working with residents must wear a uniform in line with Infection Prevention and Control requirements. Given HIQA’s concerns, the Complainant was required to provide hands-on training and supervision of her team on the floor, necessitating the use of a uniform.

The email of 21 September 2023 instructed the Complainant to “please take one of the new uniforms from the store and use it failing that you may wear comfortable trousers, non-slip shoes, and a plain polo tee-shirt.” I accept Ms Herr’s evidence that she did not intend to demote the Complainant by this instruction, nor require her to wear the uniform of a care assistant or any other grade.

The email also set out clear reasons for the request, offered flexibility in uniform choice, and provided for additional administrative support. I find no evidence that the Complainant’s working conditions were detrimentally altered after she raised staffing concerns; rather, the evidence suggests the opposite.

I find the complaint is not well founded.

CA-00061070-001 - Section 8 of the Unfair Dismissals Act, 1977

I find the Complainant was unfairly dismissed from her employment.

Having regard for the reasoning set out above, I am awarding compensation in the sum of €30,233.33 (gross) as being just and equitable having regard to all the circumstances. The award does account for a deduction of 33% for the Complainant’s failure to properly mitigate her losses and an additional 33% for the employee’s contribution to the dismissal.

CA-00061070-002 - Section 12 of the Minimum Notice & Terms of Employment Act, 1973

The complaint was withdrawn at the hearing.

CA-00061070-003 - Section 28 of the Safety, Health & Welfare at Work Act, 2005

I find the complaint is not well founded.

Unfair Dismissal – Mitigation of Loss – Contribution to Dismissal - Award