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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Spakauskiene v Hillcrest Care Facility Limite... [2013] NIIT 444_13IT (01 August 2013)
URL: http://www.bailii.org/nie/cases/NIIT/2013/444_13IT.html
Cite as: [2013] NIIT 444_13IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 444/13
CLAIMANT: Regina Spakauskiene
RESPONDENT: Hillcrest Care Facility Limited
DECISION
The decision of the tribunal is as follows:-
1. The correct respondent to the claim is Hillcrest Care Facility Limited and the title of the proceedings is therefore amended accordingly.
2. The claimant was not unfairly dismissed and the claimant’s claim for unfair dismissal is hereby dismissed.
Constitution of Tribunal:
Chairman: Ms J Turkington
Members: Mr A Crawford
Mr B Collins
Appearances:
The claimant did not appear at the hearing.
The respondent appeared at the hearing and was represented by Mr T Warnock, Barrister-at-Law instructed by Meyler McGuigan, Solicitors
THE CLAIM
1. The claim was a claim for unfair dismissal.
THE ISSUES
2. The issues to be determined by the tribunal were as follows:-
(a) The tribunal had to consider whether the statutory dismissal procedure had been completed. If not, whether the respondent was responsible for such non-completion and whether the dismissal of the claimant was thereby rendered automatically unfair.
(b) In the event that the tribunal found that the claimant was not automatically unfairly dismissed, the tribunal had to determine whether the respondent had shown the reason for dismissal and whether dismissal was within the range of reasonable responses of a reasonable employer.
(c) In the event that it found the dismissal of the claimant to be unfair, the tribunal had to determine the appropriate remedy.
DISPOSAL OF THE CLAIM IN THE ABSENCE OF THE CLAIMANT
3. The claimant did not attend at the hearing. The tribunal was satisfied that the Notice of Hearing had been sent to the claimant at the address given in the claim form. The claimant had given an indication that she would not be present at the hearing, but it was made clear that the hearing would proceed. In the circumstances, the tribunal decided that it was appropriate for it to proceed to hear the claim in the absence of the claimant. In doing so, the tribunal considered the content of the claim form lodged by the claimant.
SOURCES OF EVIDENCE
4. The tribunal heard evidence from Therese McGarvey, Group Manager on behalf of the respondent and the respondent also referred the tribunal to a number of documents.
FACTS OF THE CASE
Having heard the oral evidence given by Mrs McGarvey at the hearing and having considered the documents referred to in evidence, the tribunal found the following relevant facts:-
5. The claimant was employed by the respondent at the Hillcrest Nursing Home in Omagh. This is a 55 bedded nursing home for elderly clients, some of whom have dementia and related illnesses and physical disabilities. The nursing home has approximately 70 staff. The claimant’s employment commenced on 1 October 2006. The claimant was employed as a Kitchen Assistant/Housekeeper.
6. The respondent’s sickness absence notification procedure was attached to the Statement of Main Terms and Conditions of employment (“the Statement”) which the claimant signed on 20 September 2008. This required employees “to ensure that the Nurse in charge is advised of the nature and expected duration of any absence. This must be done by telephone as early as possible on the first day of absence, at least 1 hour before your shift start time.” This was “because the residents in the home are vulnerable adults and minimum staffing levels are required at all times”.
7. Employees can self-certify for absences between 3 days and 7 days, then the employee must submit a GP’s certificate.
8. The respondent’s Disciplinary Rules and Procedures were set out in the Statement. Under these Rules, absenteeism and failure to comply with the absence notification and certification procedure were classified as minor misconduct. The Procedure set out a staged procedure for cases of minor misconduct which involved a number of warnings. Stage 3 of this procedure is that when a final warning is given, it will contain a clear notice that a repeat of the offence within 12 months will result in dismissal.
9. The tribunal found as a fact that the claimant was aware of the absence notification and certification procedure because she had received and signed a copy of the Statement, but also because she had on a number of occasions notified her absence and submitted certificates in accordance with this procedure.
10. The claimant was absent from 6 December to 18 December 2011 without giving any explanation or receiving permission. The claimant was absent again on 2 January 2012. The respondent did not take disciplinary action on either of these occasions. However, Mrs McGarvey spoke to the claimant and reminded her of the importance of notification of her absence.
11. The claimant was again absent on 27 March 2012 without permission or explanation. Mrs McGarvey wrote to the claimant on the same day asking her to contact the home manager Mrs Taylor to arrange an appointment to meet and discuss her absence and failure to contact the home regarding her absence.
12. This meeting took place on 30 March 2012. The claimant explained that she had been sick. Mrs Taylor reminded the claimant of the importance of notifying the home if she was unable to attend work. Mrs Taylor said that she would consider the options and she arranged to meet with the claimant again on 2 April 2012.
13. At the meeting on 2 April 2012, the claimant was issued with a first warning in respect of failure to attend work and comply with absence notification. This warning was to remain in force for 6 months. The claimant signed this warning on 2 April to confirm that she had received the warning and understood its implications.
14. The claimant was then absent again in June 2012. The respondent was unable to contact her. The respondent arranged a disciplinary meeting for 15 June 2012. The claimant attended this meeting with Mrs McGarvey. The claimant was advised again of the importance of notifying the home as early as possible if she was going to be absent. A further warning was issued to the claimant in respect of the failure to contract the nursing home with regard to non-attendance. This warning was to remain on the claimant’s record for 12 months. The claimant signed to acknowledge receipt of the warning and its implications.
15. The claimant was again absent during the week commencing 23 July 2012. The claimant was invited to a meeting on 8 August to explain her absence. The claimant was advised of her right to be accompanied. This meeting took place on that date. Mrs McGarvey explained to the claimant the impact of her absence on the residents of the home and that the home should be advised properly of her absences. The claimant apologised. A final warning was issued by Mrs McGarvey and the claimant was warned that if there was a recurrence within 12 months, she would lose her job. The claimant signed this final warning on 8 August and confirmed that she understood its implications. The claimant was advised of her right of appeal. No appeal was lodged.
16. The claimant again failed to attend work during the week commencing 26 November 2012 and failed to notify the nursing home of her absence. The home was unable to contact her and her daughter and other relatives who worked at the home were not able to provide an explanation.
17. The claimant was invited to attend a further disciplinary meeting on 5 December 2012. The claimant was advised of her right to be accompanied at this meeting. The disciplinary meeting proceeded on 5 December. The claimant explained that she had fallen and was in hospital. The claimant did not produce any letter from the hospital nor did she produce any GP certificate. Mrs McGarvey adjourned the hearing to consider her decision. The claimant left in a sick line on 6 December.
18. On 10 December 2012, Mrs McGarvey wrote to the claimant to confirm that her employment was being terminated due to her failure to follow the absence notification procedure again. Mrs McGarvey noted that the claimant had received 3 warnings in respect of her failure to attend for duty and to notify the nursing home. It was also noted that the claimant had been spoken to about the same issue in October 2012, although no formal action had been taken at that stage. The claimant was informed of her right of appeal.
19. The claimant exercised her right of appeal and an appeal meeting was arranged for 13 December 2012. The appeal was heard by Mrs Taylor. The claimant was accompanied by her daughter. The claimant’s daughter asked for her mother’s period of service to be taken into account. Mrs Taylor took time to consider her decision.
20. On 17 December 2012, Mrs Taylor wrote to the claimant to confirm that the decision to dismiss her was being upheld. Mrs Taylor’s decision was based on the previous documented warnings received by the claimant the fact that she had also been spoken to in October about non-compliance with the absence notification policy. Mrs Taylor confirmed that the claimant would receive her holiday entitlement and her P45.
STATEMENT OF LAW
21. The statutory dismissal procedure introduced by the Employment Rights (Northern Ireland) Order (“the 2003 Order”) applies in this case. In basic terms, the statutory procedure set out in Schedule 1 of the 2003 Order requires the following steps:-
Step 1 – written statement of grounds for action and invitation to meeting – the employer must set out in writing the grounds which lead the employer to contemplate dismissing the employee
Step 2 – meeting – the meeting must take place before action is taken. The meeting must not take place unless –
(a) the employer has informed the employee what the basis was for including in the statement the grounds given in it, and
(b) the employee has had a reasonable opportunity to consider his response to that information.
The timing and location of meetings must be reasonable.
After the meeting, the employer must inform the employee of his decision and notify him of the right to appeal against the decision.
Step 3 - appeal – if the employee informs the employer of his wish to appeal, the employer must invite him to attend a further meeting. After the appeal meeting, the employer must inform the employee of his final decision. The employee must be afforded the right to be accompanied at any meetings under the statutory dismissal procedure.
22. By Article 130A (1) of the Employment Rights (Northern Ireland) Order 1996 (“the Order”), where the statutory dismissal procedure is applicable in any case and the employer is responsible for non-completion of that procedure, the dismissal is automatically unfair.
23. A tribunal is required to consider whether the dismissal is automatically unfair under Article 130A even where this issue has not been specifically raised by the claimant – see Venniri v Autodex Ltd (EAT 0436/07). Further, by Article 17 of the 2003 Order, where the tribunal is satisfied that the non-completion of an applicable statutory procedure is wholly or mainly attributable to failure by the employer, it shall increase any award which it makes to the employee by 10% and may, if it considers it just and equitable in all the circumstances to do so, increase it by a further amount up to an increase of 50%.
24. Leaving to one side the question of potentially automatically unfair dismissal as referred to above, pursuant to Article 130(1) of the Order, it is for the employer to show the reason for the dismissal. Further, the employer must show that the reason shown by it is a reason falling within para (2). A reason falls within para (2) if it relates to the conduct of the employee.
25. Article 130(4) of the Order states as follows:-
“where the employer has fulfilled the requirements of para (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –
(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and
(b) shall be determined in accordance with equity and the substantial merits of the case”.
26. The leading cases in relation to conduct dismissals are summarised in the judgement of the Northern Ireland Court of Appeal in the case of Patrick Joseph Rogan v South Eastern Health and Social Care Trust [2009] NICA 47. In his judgment in that case, the Lord Chief Justice refers to the case of Iceland Frozen Foods Ltd v Jones 1983 ICR 17 where Browne-Wilkinson J said as follows:-
“(1) the starting point should always be the words of [article 130(4) themselves;
(2) in applying the section an industrial tribunal must consider the reasonableness of the employer's conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair;
(3) in judging the reasonableness of the employer's conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;
(4) in many, though not all, cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another;
(5) the function of the industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.”
27. The Court in the Rogan case also quoted with approval the following passage from the case of British Home Stores v Burchell 1980 ICR 303:-
“What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further. It is not relevant, as we think, that the tribunal would themselves have shared that view in those circumstances. It is not relevant, as we think, for the tribunal to examine the quality of the material which the employer had before them, for instance to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only upon the basis of being “sure,” as it is now said more normally in a criminal context, or, to use the more old-fashioned term, such as to put the matter “beyond reasonable doubt.” The test, and the test all the way through, is reasonableness; and certainly, as it seems to us, a conclusion on the balance of probabilities will in any surmisable circumstance be a reasonable conclusion’.”
28. In the Rogan case, the Court described the task of the tribunal as follows:-
“It is for the employer to establish the belief in the particular misconduct. The tribunal must then consider whether the employer had reasonable grounds upon which to sustain the belief and thirdly whether the employer had carried out as much investigation into the matter as was reasonable in all circumstances. The tribunal must also, of course, consider whether the misconduct in question was a sufficient reason for dismissing the employee.”
CONCLUSIONS
29. The tribunal considered firstly whether the statutory dismissal procedure had been complied with in this case. The respondent had sent a letter to the claimant asking her to come to a meeting to discuss her non-attendance at work and failure to notify the home. The claimant was already aware from the terms of the final warning previously issued to her and from what she had been told by Mrs McGarvey in October 2012 that she was at risk of being dismissed. The tribunal considered that step 1 of the statutory dismissal procedure was complied with.
30. The disciplinary meeting proceeded on 5 December 2012. The claimant was given the right to be accompanied and she exercised that right. The claimant was given an opportunity explain her case. The respondent’s concerns were outlined to her. The tribunal concluded that step 2 of the statutory procedure was completed.
31. The claimant was given a right of appeal and exercised that right. She was again given an opportunity to outline her case. The tribunal was satisfied that step 3 of the statutory dismissal procedure was completed.
32. The tribunal then proceeded to consider whether the dismissal was fair in accordance with general principles. Firstly, the tribunal considered whether the respondent had showed the reason for dismissal. The respondent contended that the claimant was dismissed by reason of her conduct, namely the claimant’s repeated failure to notify the respondent in advance when she was going to be absent. The tribunal was satisfied on the evidence before it that the respondent had shown that conduct was the reason for dismissal.
33. The tribunal then had to determine whether the dismissal was fair or unfair in all the circumstances. In this case, the respondent had followed a staged process with 3 successive warnings being given to the claimant. The claimant was afforded a meeting and an opportunity to put forward her explanation at each stage of the procedure. This eventually culminated in the final written warning issued in August 2012 which the claimant did not appeal. Having given the claimant the benefit of the doubt in relation to a further instance of the same behaviour in October 2012, the claimant was dismissed in December 2012 having committed the same type of misconduct again. In considering the reasonableness of the respondent’s decision to dismiss the claimant, the tribunal took into account the nature of the respondent’s business. The respondent was the operator of a nursing home for elderly and vulnerable adults. When the claimant was absent unexpectedly, the tribunal fully understood that this had a significant impact on the nursing home and potentially its clients.
34. In the circumstances, the tribunal was of the view that the respondent had, if anything, been patient with the claimant. The tribunal therefore had little hesitation in concluding that the dismissal of the claimant fell comfortably within the range of reasonable responses open to a reasonable employer.
35. Accordingly, the claimant’s claim of unfair dismissal is therefore dismissed and there is no need for the tribunal to consider the question of remedy.
Chairman:
Date and place of hearing: 25 June 2013, Belfast.
Date decision recorded in register and issued to parties: