A healthcare assistant who was dismissed after failing to screen a naked resident from others at a care home has been awarded €22,000 for unfair dismissal.
This follows the Employment Appeals Tribunal (EAT) finding that the decision by Elder Homes (Charleville) Ltd to sack Reda Kunceviciene was "disproportionate" and unfair.
The Elder Homes company told the tribunal it has “zero-tolerance” towards any deviation from its dignity policy.
However, in its ruling, the EAT said “a zero-tolerance policy does not mean that the most serious sanction is, or must be imposed, for all breaches, irrespective of the seriousness of the breach”.
The tribunal said it was satisfied the imposition of a sanction of dismissal was neither reasonable nor fair and falls well below the standard of a reasonable employer.
In the incident on May 6th, 2014, a senior staff nurse observed a resident sitting on his bed having been fully undressed by Ms Kunceviciene without either pulling the curtains around his bed or closing the door to the corridor.
When the nurse questioned her, Ms Kunceviciene told her she was taking the resident for a shower and that she had left the door open as she believed another healthcare assistant was following her.
Privacy and dignity
The senior staff nurses reminded Ms Kunceviciene of her duty to respect the resident’s privacy and dignity. The senior staff nurse notified her superiors of what she had seen. Ms Kunceviciene admitted to an investigation by the nursing home provider she had made a mistake.
At a disciplinary hearing on July 29th a panel concluded her behaviour constituted gross misconduct warranting dismissal.
The following day, Ms Kunceviciene was informed of Elder Homes’ decision and that her dismissal was effective from August 12th. However, she was relieved from duties on July 29th.
A director of Elder Homes told the tribunal that neglect or omission such as the one that occurred on May 6th came within the definition of elder abuse.
She said it is not necessary that a resident be aware, embarrassed, distressed or observed by a third party; the violation of the person’s dignity and privacy is sufficient to constitute abuse. It violates an elder person’s civil and human rights.
Ms Kunceviciene knew the resident in question for two years and got on very well with both him and his family. She said that neither the resident nor his family had commented on the incident to her.
The three-member tribunal found her dismissal was disproportionate and unfair.
It also found allowing Ms Kunceviciene to continue caring for residents for almost three months after the reporting of the incident was inconsistent with its position that such an incident warranted dismissal.
