Complainant

Respondent

Parties

Regina  Walsh

BKE Care Ltd t/a Bluebird Care Carlow, Kilkenny & Waterford

Representatives

Andrew Walsh, KOD Lyons Solicitors

 Robin McKenna, Ibec

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-00065345-001

07/08/2024

The Complainant was employed as a Care Assistant with the Respondent from 8th April 2017 until her dismissal on 28th February 2024.  It is the Complainant’s case that her dismissal was substantively and procedurally unfair.  She seeks compensation for her alleged unfair dismissal.  The Complainant contends that she was subjected to a process which was biased and procedurally flawed in that the same persons were involved in parallel disciplinary matters and also had taken details of the complaint that lead to the Complainant’s dismissal.  Further, the Respondent failed to adhere to its own disciplinary procedure and or the requirements of fair procedures and natural justice in so far as the decision to dismiss was predetermined in advance of the disciplinary hearing and that the Complainant’s dismissal was disproportionate in the circumstances. 

It is the Respondent’s case that the Complainant was dismissed for ‘serious misconduct’ namely, ‘fraudulent behaviour’ (being paid for calls over a 3-month period which she did not attend) and failure to comply with reporting procedures; the company policy on care notes; failure to attend calls at scheduled times; to remain for the full duration of calls; and failure to complete mandatory training.  The Complainant, during the investigation meeting and disciplinary hearing, accepted she was paid for calls she did not attend or only partially attended, and she accepted she breached procedure with respect to the care diary and reporting requirements.  The process was completed in line with the disciplinary procedure, fair procedures generally and S.I. No 146 (Code of Practice on Grievance and Disciplinary Procedures).  The bond of trust essential to the employment relationship had been broken and the dismissal of the Complainant was fair in the circumstances.

Oral Testimony of the Complainant (under oath)

The Complainant submitted that she was a good worker, was always on time for work and that she got on very well with the customers she had responsibility for caring for.  She enjoyed working for the Respondent.  She commenced working with the Respondent in 2017.  She completed three to four calls on average every morning and evening.  Sometimes the GPS system was not working correctly, and it was contingent on mobile coverage.  The Complainant had a very good relationship with the relevant customer.  This person was elderly but was well able to dress and take care of herself.  Frequently, she was up and dressed when the Complainant made her morning call to her, and she might only ask for toast and a cup of tea.  The customer often told the Complainant to head off before the call time was complete and, on several occasions, she told the Complainant that she did not require her to do the evening call.  The Complainant completed the care diary by inserting the care provided, the times of calls and she would then sign it.

The Complainant outlined to the hearing the difficult personal family circumstances that she was dealing with at the time disciplinary action was taken against her in relation to her communication and attendance.  The Complainant submitted that she was shocked that she received a written warning in relation to her attendance as the Respondent was aware of the difficult family circumstances she was facing at the time.  She was hurt as she had worked for the Respondent for years.

The Complainant submitted that when the relevant customer did not require her for evening calls she rang On Call, but she did not ring every time the customer told her she was not needed.  When she called On Call the named individuals she spoke to said that everything was noted and was OK. 

The customer was very fond of the Complainant.  The Complainant was at a loss as to why there was a complaint from this customer as she had been instructed by the customer that she did need her to complete some of the evening calls.  The Complainant outlined that the customer was able to do most things for herself, or her neighbour assisted her.  On several occasions in the morning when the Complainant called, the customer was up and dressed or had already been looked after by the neighbour.  The customer would then instruct the Complainant to head off.  If a customer asks the carer to leave, the carer must respect that request.

The Complainant submitted that she was shocked when she was accused of fraudulent behaviour.  She outlined that she always did her job well, she got on great with those she cared for, and she was an honest hardworking person.  At the disciplinary hearing when she said she agreed to the minutes of the disciplinary investigation, she was merely agreeing that she had received the minutes.  She was not indicating that she agreed to the contents of same. The disciplinary hearing lasted for no more than five minutes. She was not shown any documents that formed part of the investigation, and she was handed a letter of dismissal during the disciplinary hearing.

The Complainant submitted that she did not appeal her dismissal because of the way she was treated and because Mr Egan told her during a phone call the day following the disciplinary hearing, that she had let herself and his family down, that he was disgusted and that the best thing she could do was get another job.

The Complainant outlined that she was paid fortnightly. Her hourly rate of pay was €14.50.  Her gross average weekly earnings for 2023 was €330.  The Complainant stated that she did not look for any other work since her dismissal as she was and continues to suffer ill-health because of her dismissal.  A medical report dated April 2025 was opened to the hearing.    The Complainant remains unfit for work.

During cross-examination the Complainant accepted she was advised in advance that the matter was an allegation of gross misconduct, that it could result in her dismissal, and that she had the right to avail of representation during the investigation and disciplinary process.  The Complainant accepted that she knew the situation was serious.  The Complainant accepted that she was paid for calls she did not complete.  She added that she had alerted On Call to the fact that the customer told her she was not required.  It was put to the Complainant that she provided no evidence that she made those calls.  The Complainant accepted that this detail would be available from mobile phone records and submitted that she was never asked to prove she made the calls.  It was put to the Complainant that her dismissal was being considered and surely it crossed her mind to provide evidence of the calls she alleges she made to On Call.  The Complainant responded: “I suppose I could produce my phone records, but I was not asked to . . . I had a lot going on at that time and [the customer] told me I wasn’t needed those evenings, and I called On Call. They are saying I didn’t, but I did”.   It was put to the Complainant that not only did she get paid for calls she did not complete but that she was also paid travel and mileage for those calls.   

It was put to the Complainant that over the 3 months examined by the Respondent as part of the investigation, 29 evening calls were scheduled for the relevant customer across 5 carers, 1 of whom was the Complainant.  The Complainant was scheduled to do 11 of those 29 calls, but she only attended 10 of these 11 calls.  Of the other 18 calls, involving 4 other carers, all 18 calls were completed, and the relevant customer did not cancel any of these 18 calls.  The Complainant responded: “I don’t know why that is”.  The Complainant outlined that she was told not to attend the evening calls by the customer and that she cannot force the customer to allow her to attend or to remain at a call.  The Complainant accepted the customer should be getting the care provided for in her care plan.   It was put to the Complainant that she knew she was not supposed to postdate entries in the care diary.  The Complainant responded that she honestly entered 6.50pm when she did her morning visit and the fact she was asked not to attend.  The Complainant was asked why she agreed to pay the wages back if she had done nothing wrong.  The Complainant responded that she did nothing wrong, she was asked not to attend the evening call and that she called On Call.  The Complainant submitted that she should have called On Call on each occasion, but she had called them a few times.  It was put to the Complainant that at no time during the investigation meeting or disciplinary hearing did she seek to mitigate her actions.  The Complainant responded that she did not get an opportunity to explain herself at the disciplinary hearing, that it was over in 5 minutes, and that in any event the manager said to her that the findings of the investigation were upheld.  The Complainant accepted that the Respondent was good to her, and that it made wage advances to her when she requested same and that she had a very good relationship with Ms Dooley. The Complainant submitted: “I know I should have picked up the phone and rang more often, but I don’t think they should have fired me. They know I am honest. I don’t think it was fair to dismiss me. I think they should have given a lesser sanction. When I spoke to Brian the following day and he told me there was no point in appealing and that I had let his family down . . . I decided not to appeal because of the way Miriam spoke to me and because Brian said go and look for a job elsewhere”.  

The Complainant acknowledged that the medical report submitted to the hearing had been issued 13 months after the termination of her employment.  It was put to the witness that she had not provided any medical evidence that her medical status was attributable to the actions of the Respondent.  

Closing & Legal Submission

It was submitted on behalf of the Complainant that her dismissal was substantively and procedurally unfair.  It was alleged that the Complainant ‘defrauded’ the Respondent.  This is strenuously denied.  The Complainant noted in the care diary the occasions that she was not at the evening call.  There was no intention to ‘defraud’ the Respondent.    The investigation manager and disciplining manager should not have conducted the investigation and disciplinary hearing into the allegation of gross misconduct as both had been involved in a parallel matter concerning the Complainant for which the Complainant had been given a formal written warning on 20th February 2024.  Further, with respect to the matter that led to the Complainant’s dismissal, both the investigation and disciplining managers had visited the relevant customer and taken an account of her complaint.  Mr Walsh cited Connolly v. McConnell [1983] IR 88 and Mooney v. An Post [1998] 4 IR 88 as authorities for the proposition that persons charged with conducting any subsequent disciplinary hearing must not be the same persons involved in the investigation.  The disciplinary hearing which followed the investigation into the allegation of gross misconduct was flawed.  The outcome of the disciplinary hearing was predetermined as the disciplining manager made assertions including that the allegation of gross misconduct had been upheld and issued a letter of dismissal in advance of the conclusion of the disciplinary hearing.  Mr Walsh directed the hearing to Dunne v. Harrington, UD 166/1979 in which the Employment Appeals Tribunal outlined the obligations on employers with respect to fair procedures.  The Respondent failed to give adequate weight to the Complainant’s explanation in respect of contacting On Call and that the Complainant’s responses were dismissed and not examined sufficiently.  Further, the original complaint and details of the investigation findings were not shared with the Complainant in advance of the disciplinary process.  Mr Walsh directed the hearing to Glover v. BLN [197] IR 388 and highlighted the Supreme Court’s finding that a disciplinary process must be operated in a manner consistent with natural justice.  The decision to dismiss was wholly disproportionate.  In Preston v. Standard Piping Limited [1999] ELR 233 it was made clear that an investigation be conducted in a complete fashion.  The Respondent failed to do this at the subsequent disciplinary hearing.  Further in Kelly v. An Post UD 974/1986 the Employment Appeals Tribunal placed an obligation on the Respondent to seek out evidence that exonerates as well as tends towards guilt in order to meet the requirement of fair procedures.  It was clear from the minutes of the disciplinary hearing, that the hearing was completed in less than 5 minutes and that the Complainant was denied a meaningful opportunity to address the allegations against her.  Mr Walsh directed the hearing to State (Gleeson) v. Minister for Defence [1976] IR 280 and emphasised the importance of following fair procedures in effecting a dismissal, specifically the requirement to give an employee an opportunity to be heard, to rebut any evidence against them, and to present their own side of the story.  

Oral Testimony of Mirian Doyle (under oath)

The witness works as a Clinical Nurse Manager (CNM).  She joined the Respondent company in 2021. Her role includes supervising staff and liaising with customers.  She is also required to conduct disciplinary investigations and or hearings as the need arises. 

The Complainant worked as a Carer.  Her role involved calling to the home of a customer and providing such care and assistance as set out in the care plan for the customer.  The duration of the calls varied from thirty minutes to one hour, depending on the needs of the customer.  The Complainant’s schedule specified the duration of the call.  Carers are required to remain the full duration of the call even if all tasks have been completed.  Customers are vulnerable persons, many live alone or may have no family and the Carer may be the only person they see during that day.     

There was always an issue with the Complainant’s attendance.  This had been dealt with formally in 2021 and again on 20th February 2024 when the Complainant was issued with a first written warning.  The witness submitted that she completed the investigation into this attendance issue and handed her findings to Ms Dooley who then conducted a disciplinary hearing and issued the written warning.

The GPS system informs the Carer of the call schedule and allows a Carer to clock in and out.  On occasion a Carer may forget to clock in or out, or there may be a poor reception preventing them from doing so.  The Respondent assumes that the Carer attends to their calls as scheduled and the Carer is paid according to the schedule.  Should a customer advise the Carer that they do not require them to attend the evening call, this must be reported to On Call. 

On 16th February 2024 the witness was required to attend the home of the customer following a complaint in relation to the Complainant.  She was accompanied by Ms Dooley, CNM.  Details of the complaint were given in evidence at the hearing.  An investigation ensued under the Respondent’s disciplinary policy.  This investigation was conducted by Ms Dooley.  The Complainant admitted the wrongdoing during the investigation.  The findings of the investigation were given to the witness who then conducted a disciplinary hearing.  The written invite to the disciplinary hearing outlined the allegations which included fraudulent behaviour (being paid for calls not completed) and failure to: (a) comply with reporting procedures and care notes; (b) to attend calls on time and remain for the full duration of the call; and (c) to complete mandatory training.

During the disciplinary hearing the Complainant acknowledged again that she had engaged in the alleged behaviour and that this had been going on for some time.  The witness issued the Complainant with a letter of dismissal at the meeting as the Complainant admitted the wrongdoing, expressed no remorse and offered no mitigating factors either during the investigation meeting or the disciplinary hearing.  The witness confirmed that the dismissal letter was drafted in advance of the hearing but that she would not have issued the letter of dismissal had the Complainant contested the allegations or explained her behaviour.  Instead, she had several times admitted to the wrongdoing and the witness felt that it would have been irresponsible of her to allow the Carer to resume her duties pending the final decision.  The witness read the letter of dismissal to the Complainant and verbally advised her of her right of appeal.  A copy of the letter was then issued to the Complainant on the same date.  The letter of dismissal confirmed to the Complainant that she was being summarily dismissed for gross misconduct for fraudulent behaviour (being paid for calls she did not attend over several months) and for non-compliance with correct reporting procedures.  The Complainant was fully aware of the appeals process but did not appeal the decision to dismiss.

In cross-examination the witness confirmed that there were no formal warnings concerning absence between 2021 and 2024 but that there had been informal counselling sessions regarding the Complainant’s attendance.  It was put to the witness that it was inappropriate for her to document the customer’s complaint and then later conduct the disciplinary hearing, especially given that the witness was also involved in the other separate and still active disciplinary issue concerning the Complainant’s attendance.  The witness gave in the evidence the reason why she and Ms Dooley called to the customer’s home to take details of the complaint.  She added that it was Ms Dooley who then conducted the investigation and made the findings. 

The Respondent’s disciplinary procedure was opened to the hearing, and the commitment within that procedure to “consider all the facts and any mitigating circumstances” was highlighted.  The witness was asked if she considered that she had adhered to this procedural requirement given she issued a dismissal letter at the disciplinary hearing.  The witness replied that no mitigating factors were offered and therefore there was nothing other than the Complainant’s admission of wrongdoing to consider. 

The dismissal letter was opened to the hearing and the documentation which the Respondent stated it had regard to in coming to the decision to dismiss was highlighted.  The witness was asked did she not think it would have been wise to share this documentation with the Complainant to allow her to comment on same before reaching a decision to dismiss.  The witness responded that these documents were available at the disciplinary hearing and that the Complainant could have asked to see them, but she did not request to see them and had admitted to the wrongdoing.  It was put to the witness that the disciplinary hearing took mere minutes only, and that she had arrived at the hearing with a letter of dismissal and that the decision to dismiss had been decided in advance of the hearing.   The witness agreed that the hearing was over quickly and added that the matter was very serious, the Complainant had admitted the wrongdoing twice already, trust had been broken, and she did not want to permit the Complainant to return to her caring duties.  The witness accepted that the letter of invitation to the disciplinary hearing included conclusions that were more appropriate after the conclusion of a disciplinary process.  Minutes of the investigation were opened to the hearing and the Complainant’s submission that she had called On Call was highlighted.  The witness responded that she checked the On Call records and there were no calls from the Complainant to say that the customer had told her not to complete the evening calls in question.  The witness submitted that she had these details with her at the disciplinary hearing but that she had not shared them with the Complainant in advance of or during the hearing.  The witness stated that she also had a prepared final written warning with her but when the Complainant did not offer any mitigation or remorse, the witness determined that the appropriate sanction was dismissal.  It was put to the witness that it was remarkable that this final written warning was not disclosed as part of the data access request made prior to the adjudication hearing. 

In re-examination the witness confirmed that at no time did the Complainant deny or challenge the allegations.  Rather she admitted to the wrongdoing both at the investigation stage, over the phone and during the disciplinary hearing.

Oral Testimony of Bridget Dooley (under oath)

The witness works as a CNM.  A ‘contact person’ for a customer complained to the witness that the Complainant was not fulfilling her duties as per the care plan.  The witness gave evidence as to why two CNMs (her and Ms Doyle) called to the home of the customer to take details of the complaint.  Details of the complaint was given in evidence which included that the Complainant was not fulfilling her obligations with respect to making evening calls to the customer.  It is a legal requirement that a care diary is maintained in the home of the customer.  This diary notes the time and duration of the call made by the Carer and the care provided on each visit.  On an examination of the diary, it showed that, on several occasions over the previous three months, at the time of the morning call, the Complainant entered the scheduled time for the evening call with a note that she was not required by the customer for the evening call.  It may happen that a customer will tell the Carer they are not required on any given evening, however, should this be the case the Carer is required to ring the On Call service and advise them accordingly.  This is extremely important to ensure that management are alerted to any pattern arising such as the customer declining the care plan set out for them and to ensure that the HSE is not billed for work which was not undertaken.  Staff are repeatedly reminded of this requirement as it is a prompt for the Respondent to ensure that the customer is contacted and asked why they are declining evening calls.  The customer concerned is a very elderly and vulnerable person.

On receipt of the complaint concerning the customer, the witness spoke with the Director of Care.  The Director of Care agreed an investigation should be conducted.  An examination of the On Call records showed that the Complainant did not, on any of the relevant occasions, contact On Call as required.  The impact of this is that the Respondent was not aware that evening calls were not being fulfilled as per the Customer’s care plan; the Complainant was paid for work not performed; and the HSE was billed for work not performed.  Further, clocking records showed that on several occasions when the Complainant did make the scheduled call, she had clocked out early.  Carers are required to remain for the full scheduled duration of the call even where tasks have been completed and to speak with the customer as the Carer might be the only person the customer sees any given day.  This is an essential part of the care plan.  At the investigation meeting these concerns were put to the Complainant.  The Complainant agreed that she had not completed the calls or followed the procedure.  She stated that she did contact a named person working in On Call.  The witness told the hearing that there were two persons with the same name employed by the Respondent, however, neither were in the employ of the Respondent at the time the Complainant claimed she spoke to them.

The witness submitted that the Complainant had worked for the Respondent for many years, and she was well aware of the procedure to be followed if a customer declined a call. The Respondent does not investigate whether a Carer clocked in or out as this would be a disproportionate requirement given that there are over two hundred Carers and several calls completed by each per day.  Rather, a Carer is trusted to clock in and out and to notify On Call if they do not actually perform a call.  During the investigation meeting the Complainant fully acknowledged her wrongdoing and said that it had been going on for some time and that the money wrongly claimed by her could be taken back out of her wages.  Minutes of the investigation meeting were recorded and issued to the Complainant.  The Complainant responded by email to say she accepted the minutes of the investigation meeting.  The witness submitted that there was nothing hostile about the meeting as claimed in the Complainant’s written submission to the WRC.

In cross-examination, the witness did not agree that she was an inappropriate person to have completed the investigation and submitted that it was part of her role to do so.  The witness stated that it was not apparent to her that someone else should have completed the investigation.  It was put to the witness that she had completed the disciplinary hearing with respect to the absence issue and therefore she should not have been involved in this matter also.  Minutes of the investigation and meeting and the disciplinary hearing were opened to the adjudication hearing, and terminology highlighted therein.  It was put to the witness that the terminology was more indicative of conclusions rather than allegations and was not in line with the commitment given in the disciplinary procedure to not draw adverse conclusions prior to the completion of the process.  The witness agreed that the terminology could have been worded differently.  The witness agreed that the Care Diary was not shared with the Complainant in advance of the investigation meeting and that she did not specifically ask the Complainant if the customer had in fact not asked her to attend the evening calls on the relevant dates.  The witness submitted that the Complainant knew well to report that fact to On Call and she did not.  Further, the customer, who the witness is very familiar with, did not at any time say that she told her not to come.  Rather the complaint received was that the Complainant had on several occasions not completed the evening call.

In re-examination, the witness submitted that the Complainant did not exercise her right of appeal, and the Complainant did not at any stage say that the customer specifically asked her to leave before her call had been completed.

Oral Testimony of Brian Egan (under oath)

The witness spoke with the Complainant over the phone the day after her dismissal. He was not involved in the process prior to that.  He told the Complainant that he was disappointed and that she had let herself down.  The Complainant said it was a disgrace how she had been treated.  The witness told her that there was an appeal process, and she was free to utilise it if she wished.

In cross-examination it was put to the witness that he said to the Complainant: “the best you can do is get another job”.  The witness stated he did not say that.  He told her that he was disappointed to hear what she had done.  He told her there was an appeal process and if she did not wish to utilise same, he wished her well.

Legal Submission

The following cases were highlighted in the Respondent’s written submission: Burtchaell v. Premier Recruitment International Ltd T/A Premier Group, UD1290/2002 MN 3661/2002 in relation to the importance of trust to the employment relationship; O’Riordan v. Great Southern Hotels, UD 1469/2003 in relation to the appropriate test for determining claims relating to gross misconduct; and Looney & Co. Ltd v. Looney, UD 843/1984 in relation to the principles to be applied in cases of serious misconduct. 

Without prejudice to the foregoing, Murray v. Meath County Council, UD 43/1978 was highlighted with respect to the practice of the Employment Appeals Tribunal not to award redress considering the conduct of the dismissed employee. 

Mr McKenna also directed the hearing to Ringsend Community Services Forum v. Sueann Moore, UDD2432 and highlighted the findings of the Labour Court including that where an employee is unable to work following their dismissal, in accordance with the Unfair Dismissals Act, their former employer cannot be held liable for any financial losses that result and that the maximum compensation in the event of a finding of unfair dismissal is four weeks’ pay.  Mr McKenna also directed the hearing to Vevay Childcare Ltd T/A Little People Academy Creche v. Eman Chennit, UDD242 in which the Labour Court held: “. . . where the Complainant was availing herself of Illness Benefit for an extended period following the date of her dismissal she has not technically accrued a loss within the meaning of the Act.  The Court is, therefore, restricted to awarding her a maximum of four weeks’ pay by way of compensation . . . .”

Relevant Law & Code of Practice

The Unfair Dismissal Acts, 1977-2015 (“the Acts”) defines “dismissal” in relation to an employee as including the termination by the employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee.

Section 6(1) of the Acts provides:

“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”.

Section 6(4) of the Acts provides:

“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 conduct of the employee . . . .”

In Glover v. B.L.N. Ltd. [1973] I.R. 388 Kenny J stated:

“It is impossible to define the misconduct which justifies immediate dismissal . . . What is or is not misconduct must be decided in each case . . . all one can say about serious misconduct is that it is misconduct which the court regards as being grave and deliberate . . . .” (at 405).

Section 6(7) of the Acts provides:

“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 [the procedure which the employer will observe before and for the purpose of dismissing the employee] or with the provisions of any code of practice referred to in paragraph (d) of section 7 (2) of this Act”.

An adjudication officer may have regard to the reasonableness of the employer’s conduct in relation to the dismissal.  This requires a determination of the range of responses which a reasonable employer could have taken having regard to the nature of the case and then a consideration as to whether the employer’s decision lay within that range (Governor and Company of Bank of Ireland v. James Reilly [2015] IEHC 241, approved in An Bord Banistíochta Gaelscoil Moshíolog v. Labour Court [2024] IESC 38).

Where a decision may adversely affect a person’s good name or livelihood, a range of procedural protections are engaged.  In Re Haughey [1971] IR 217 the Supreme Court interpreted Article 40.3 of the Irish Constitution as encompassing a guarantee of fair procedures in any proceedings where a person’s conduct is impugned. The right to fair procedures is not absolute, and the requirements of fair procedures will vary according to the circumstances of the case, however, at a minimum a person is entitled to be informed of the charge against him and to be given an opportunity to answer it and to make submissions in their defence (Mooney v. An Post [1998] 4 IR 288).  In Pottle Pig Farm v. Pasanov, UDD1735 the Labour Court was of the view that “. . .  a failure to properly investigate allegations of misconduct or to afford an employee who is accused of misconduct a fair opportunity to advance a defence will take the decision to dismiss outside the range of reasonable responses thus rendering the dismissal unfair”.

Fair procedures are to be assessed within a process which may incorporate several stages including an appeal (Crayden Fishing Company v. Sea Fisheries Protection Authority [2017] 3 I.R. and Rowland v. An Post [2017] IESC 20).  In Rowland v. An Post [2017] IESC 20 the Supreme Court was of the view that many errors of procedure could be “. . . corrected by appropriate measures being taken before the process comes to an end” (per Clarke J. at [2.4]).  In Aryzta Bakeries v Vilnis Cacs, UDD 1812 the Labour Court outlined that “there is an obligation on the Claimant to exhaust available internal procedures.”

S.I. No. 146 of 2000 (Code of Practice on Grievance and Disciplinary Procedures) outlines best practice for the handling of disciplinary proceedings by employers.  The Code is admissible in any proceedings before the WRC and any provision of the code which appears to the Adjudication Officer concerned to be relevant to any question arising in the proceedings shall be considered in determining that question.  The purpose of the Code is to ensure that any disciplinary procedures are fair and rational, that the basis for any disciplinary action is made clear to the employee concerned, and that any possible sanction and the opportunity to appeal same is clearly outlined.  Constitutional justice and fair procedures require that details of any allegations of wrongdoing are put to the employee concerned, the employee is given the opportunity to respond to these concerns, the employee is given an opportunity to avail of the right to be represented, and the employee is afforded a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, and circumstances.

Section 7 (1) of the Acts provides:

“Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer . . . , or

(b) re-engagement by the employer . . . , or

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or (ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances . . . .” (emphasis added).

Section 7(2) of the Acts provides:

“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.”

Section 7(3) of the Acts provides:

“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.”

Findings

The fact of dismissal is not in dispute and accordingly the burden of proof rests on the Respondent in this case to show that it had substantial grounds to dismiss the Complainant, that it followed fair and reasonable procedures, and that the sanction of dismissal was proportionate having regard to all the circumstances.  It is well established that it is not my role as an Adjudication Officer to determine the guilt or innocence of the Complainant.  Rather, I must ask was it reasonably open to the Respondent to make the decision it made.

It is common case the Complainant did not attend several scheduled evening calls in relation to the relevant customer over a 3-month period.  It is the Complainant’s case the customer told her not to attend.  It is common case the Complainant knew that she was obliged to call On Call on each occasion she was told by the customer not to attend.  Minutes opened to the hearing show that during the investigation meeting the Complainant initially stated that she “always” called On Call when she was requested not to attend an evening call by the relevant customer.  It was Ms Dooley’s sworn evidence that, as part of the investigation, the On Call records for the relevant period were checked and she found that there was no record of the Complainant contacting On Call in relation to the relevant customer at any stage over the 3 months.  During the adjudication hearing, the Complainant’s oral testimony was that she did contact On Call “sometimes” but not on all the occasions she should have done so.  In cross-examination the Complainant accepted that she could have produced her own mobile phone records of the calls she made to On Call but did not do so because she “wasn’t asked to”.  It is also common case the Complainant did not stay the full duration of some of the morning calls in relation to the same customer.  The Complainant stated that she had been asked to leave the morning calls early by the customer as there was nothing to be done.  It was the Respondent’s position that the Complainant should have remained the full duration of the call regardless.   As a result of not completing the evening calls and not reporting same to On Call, the Complainant was paid her full pay and travel expenses for calls she did not complete, the HSE was billed for calls not completed, and the relevant customer was not getting the care as per her care plan.  I accept the evidence of the Respondent concerning the implications this could have for the care recipient and the Respondent’s business.  I accept the sworn evidence of Ms Dooley that there was no record of the Complainant having contacted On Call at any time over the 3 months in relation to the relevant customer and that the Complainant expressed no remorse, other than to say: “you can take it back from my wages” and “If they want to let me go, there is no problem, just give me a letter”.  Accordingly, I am satisfied that a reasonable employer would have concluded that there was misconduct and that such misconduct constituted substantial grounds to justify a dismissal.

There were, however, several procedural shortcomings both at the investigation and disciplinary stages of the process leading to the Complainant’s dismissal.  The Respondent regarded the matter as one of gross misconduct and told the Complainant early in the process that her job was at risk.  Yet in these circumstances Ms Doyle and Ms Dooley managed the process notwithstanding that they were already involved in a live parallel disciplinary process involving the Complainant.  Further, both Ms Doyle and Ms Dooley attended the meeting with the relevant customer to take details of the customer’s complaint.  It was accepted by the Respondent during the adjudication hearing that the Complainant was not presented with a copy of that complaint. 

Mr Walsh, on behalf of the Complainant, opened the Respondent’s disciplinary procedure and highlighted at 5.1(b) of that procedure that the “sole purpose of the investigation is to gather facts and not draw adverse conclusions”.  I accept Mr Walsh’s submission that the minutes of the investigation meeting show that adverse conclusions appear to have been drawn early in the process.  Certain findings of the investigation, most notably the On Call records for the relevant period, were not shared with the Complainant.  The Complainant repeatedly submitted in her defence that she did call On Call.  Yet she was never informed that the Respondent’s findings following an examination of the On Call records, did not support that defence.  There was therefore nothing to prompt the Complainant to produce her own mobile records if she wished to contest the Respondent’s findings in that regard.          

The disciplinary procedure further provided: “. . . upon the conclusion of an investigation, the investigator may recommend either that the matter proceed to the disciplinary procedure, or that the disciplinary procedure does not need to be invoked”.  In this case, it was determined that a disciplinary hearing was necessary.  A disciplinary hearing was scheduled which the Complainant attended.  At the outset of the disciplinary hearing it was put to the Complainant that she had admitted at the investigation meeting to not doing the evening calls and to not calling On Call every time.  When the Complainant agreed that this was the case, Ms Dooley advised the Complainant that the complaint of gross misconduct was “upheld”.  The Complainant was handed a letter of dismissal which had been prepared in advance of the hearing, and she was asked for her badge.  The purpose of a disciplinary hearing is to put to an employee the findings of the investigation; to allow the employee a reasonable opportunity to make representations in relation to those findings; to make submissions as to why disciplinary action should not be taken; and if so desired, to proffer any other mitigating factors.  I find the Complainant was not given a meaningful opportunity to do the foregoing at the disciplinary hearing.  It is impossible to avoid the conclusion that the decision to dismiss had been taken after the investigation process was completed.  The following day, in an email to Mr Egan (opened to the hearing), the Complainant outlined that she felt what the Respondent had done was “unfair” and again seeks to proffer the same defence i.e., that she did make some calls to On Call. 

Notwithstanding the foregoing, the Respondent’s disciplinary procedure provided for an appeal against the decision of the disciplining manager.  As noted in Crayden, fair procedures are to be assessed within a process which may incorporate several stages including an appeal.  Further, there is an obligation on the Complainant to exhaust all available internal procedures.  The Complainant was advised of the right of appeal in writing on 28th February 2024.  The name of the senior manager to whom she was to appeal was detailed.  The Complainant did not exercise her right to appeal.  She contends that she was told by Mr Egan that there was no point in doing so.  In the email to Mr Egan, the day following her dismissal, the Complainant requests a reference from Mr Egan.  The Complainant and Mr Egan spoke after she sent that email to him.  While I prefer the evidence of Mr Egan that he did not say to the Complainant that there was no point in appealing, it was not disputed that he expressed his disappointment in the Complainant’s conduct.  While it is regrettable that the Complainant did not exercise her right of appeal, I accept the evidence of the Complainant that her decision not to do so was influenced by the words of Mr Egan especially given that he is a senior Director of the Respondent business.

In conclusion, I find the procedural deficits as identified above, take the decision to dismiss outside the range of reasonable responses to render the dismissal unfair. 

I am satisfied that compensation is the most appropriate form of redress in this case.  Section 7(2) of the Acts provides that in determining the amount of compensation payable I must have regard to the matters outlined at (a) to (f) of that section.  The Respondent provides home care to vulnerable persons.  The Complainant was employed as a Carer: a position of considerable trust.  The Complainant accepted that she did not attend the evening calls and that she did not call On Call on every occasion contrary to company policy.  She gained financially from her actions.  I am satisfied the Complainant contributed to her own dismissal.  The Complainant told the hearing that she has been unfit for work since her dismissal, therefore she has not technically accrued a loss within the meaning of the Acts.  In such circumstances the maximum award is four weeks’ pay as set out at s 7(1)(c) of the Acts.  Having regard to all the circumstances, I find it is just and equitable to direct the Respondent to pay to the Complainant compensation in the amount of €660 (being two weeks’ wages) as compensation for her unfair dismissal.

I decide the Complainant was unfairly dismissed and the Respondent shall pay to the Complainant compensation of €660, the equivalent of two weeks wages.

Gross misconduct. Fair procedures.