In this case the respondent operates a residential care facility for the elderly and the claimant was employed as a care assistant from 1st August 2009 until her dismissal on 7th January 2013.

In December 2012, a colleague of the claimant complained to the manager that she had witnessed the claimant striking two residents. Following this complaint the manager placed the claimant on paid suspension and soon after an investigation meeting took place with the claimant, the manager and the Operations manager.

The outcome of this meeting was that the claimant was referred onto a disciplinary meeting. During the investigation and disciplinary meetings the claimant said she did not remember striking the residents but also said that she did not do it. The manager found this confusing and on the balance of probabilities decided that the claimant was guilty of gross misconduct and found she had no alternative but to dismiss the claimant.

The claimant denied ever striking any of the residents and stated that she blocked one person who tried to kick her but denied pushing him. She explained to the Tribunal that she denied the allegations put to her during the investigation and disciplinary meetings but that she also said she did not remember because she felt under pressure at the time. The claimant did not avail of the internal appeals procedure because she felt there would be no point.

DETERMINATION

The Tribunal found that the claimant was unfairly dismissed and stated that fair procedures and natural justice were not adhered to in arriving at the decision to dismiss the claimant.

However, the Tribunal were not fully satisfied with the claimant's efforts to mitigate her loss and taking into account other earnings the Tribunal awarded the claimant €15,000.00 under the Unfair Dismissals Acts, 1977 to 2007.

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