Care worker fired for allegedly striking patient awarded €15k after home fails to follow dismissal protocols

The allegation came to light in March 2018 after a workplace student working alongside the house care assistant made a complaint to the care home bosses that the house care assistant had mistreated a patient with advanced dementia and struck him when he became agitated.

The care home subsequently submitted a complaint to the Gardaí and the worker has since been unable to get alternative work following her dismissal.

Workplace Relations Commission (WRC) Adjudication Officer, Joe Donnelly stated a factor in the worker unable to get new work is that the complainant is awaiting Garda vetting which has been delayed because a court case was pending following the referral of a complaint about the incident by the care home to the Gardaí.

In his findings, Mr Donnelly found that the care worker’s actions “contributed to the decision to dismiss”.

In his determination, Mr Donnelly found that along with procedural defects, the disciplinary process was flawed such as to render the decision to dismiss to be an unfair dismissal.

Mr Donnelly said that in the case before him, the Director of Nursing at the care home was involved in all stages of the process from the initial interview with the student worker making the allegation; the suspension of the complainant; the disciplinary hearings and the decision to dismiss the complainant.

Mr Donnelly said: “It is a long-established principle of natural justice that no one should be a judge in their own cause and that there should be a clear division between the person who investigates and the person conducting the disciplinary process.

"In addition, at no stage was the complainant advised that the outcome of the meeting could result in her dismissal.”

In deciding to dismiss the worker, the Managing Director said that both he and a fellow director had considered the evidence around the alleged striking of the patient and had decided that the student’s account was credible and that the complainant’s conduct amounted to gross misconduct for which the sanction was dismissal.

Mr Donnelly said, however, that the care worker at all times denied having struck the resident and did so again in evidence at the hearing.

The care worker also denied that she was guilty of gross misconduct.

According to Mr Donnelly, the care worker accepted that there was a care plan in place for that particular resident.

The resident was elderly, suffered from dementia and had behavioural issues and the care plan included playing music and speaking softly to him.

On the day of the alleged incident, the care worker accepted that she did not follow the care plan as she did not believe that it worked with this resident.

The care worker said that other members of staff also did not follow the plan.

The care worker claimed that the resident actively resisted attempts to prepare him for bed and tried to punch her. She said that she spoke loudly to the resident and restrained him and that two male carers also assisted her.

On the disciplinary investigation, Mr Donnelly said that “it appears to me that if there was an investigation it consisted solely of the interview with the trainee by the Director of Nursing”.

Mr Donnelly said he accepted that the care home was faced with a very serious issue whereby the duty of care in respect of a vulnerable resident under their care was alleged to have been gravely compromised.

He said: “The matter, therefore, required careful investigation.

“The complainant, however, was not interviewed as part of the investigation nor were the other members of staff who had interaction with the resident and complainant on that day.”

Mr Donnelly awarded the care worker an additional €370 as she wasn't given her notice and wasn't paid her time in lieu.