Ireland

Manager who oversaw nursing home as it first was hit by Covid-19 wins unfair dismissal case

WRC describes contention that sacking was ‘devoid of natural justice’ as ‘compelling and persuasive’

The company said it had 'concerns' about the way the home was being managed. File photograph: Alan Betson

Stephen Bourke
Fri Oct 14 2022 - 13:42

The operator of a Co Monaghan care home which was hit by a Covid-19 outbreak in which a number of patients died during the first weeks of the pandemic has been ordered to pay its former nursing director more than €63,000 for unfair dismissal.

The Workplace Relations Commission found there was “no evidence” produced by the company to back up “inferences of misconduct or poor performance” made against Caroline McAree, who was nursing director at Drumbear Lodge.

Through her solicitor, she accused the operator of the centre of failing to provide administrative support and of refusing to buy scrubs for staff in its isolation unit who she said were wearing garments fashioned from bedsheets as they treated elderly people infected with the virus.

Her complaint under the Unfair Dismissals Act 1977 against Newbrook Lodge Nursing Home ULC, trading as Drumbear Lodge Nursing Home, was upheld by the commission in a decision published on Friday morning.

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The company’s position was that its chief executive Phil Darcy had “concerns” about the way the home was being managed in 2020.

He had written to the complainant early in April that year to ensure she had “complied with all of the relevant directions” after concerns were expressed by the Health Information and Quality Authority (Hiqa) about the home’s preparedness and contingency planning, its legal team told the commission.

Ms McAree then “failed to submit” required documents to Hiqa on April 21st, 2020, the company submitted.

Three days later the management was spoken to by a Hiqa representative again, who said the regulator had been notified of “significant health and safety concerns” at Drumbear Lodge, the tribunal was told.

Mr Darcy said he decided to dismiss Ms McAree in a “no-fault” termination as he “had to put the safety of his patients first”, the company argued.

Mr Hickey said his client had “kept herself fully informed and aware” of the safety measures required to stop Covid-19 infections, held daily meetings to brief managers and staff and “rigorously” informed them about the use of PPE.

Two-metre social distancing was “always maintained” and staff wore masks as soon as the direction came from the health authorities via the nursing home group’s head office.

“The apparent or open attempt to blame [my client] for the tragic outbreak of Covid-19 viral infection in Drumbear Lodge, which was confirmed on the April 9th, 2020, and its consequence[s] ... is grossly unfair and should not be allowed in this or any form,” Mr Hickey submitted.

“Under the direct supervision and tutelage of the complainant the staff did all in their power to prevent such from happening,” Mr Hickey said.

Staff went to collect home-made face masks from local women; along with 3-D printed visors and protective masks donated by a nearby furniture factory, he said.

“This viable PPE was in general use in the nursing home well before the respondent chose to supply Drumbear Lodge with medical masks,” he said.

He said the chief executive knew staff in the isolation unit were wearing scrubs made from bedsheets by the family of one resident.

“No scrubs were purchased for the staff by Newbrook Group and when the complainant sourced a supply ... Mr Darcy declined to purchase [them] on the basis that they would cost money,” he said.

He said his client had failed to send the notification to Hiqa on April 21st, 2020, because of an “oversight, tiredness and human error”.

Mr Hickey said she worked until nearly 7pm that evening in her office and made up to 70 phone calls to family members of the residents to update them on the situation in the home.

When she spoke to the Hiqa inspector by phone the following day she was told “not to worry about it and to make sure she did submit the notifications going forward”.

“Despite the enormous pressure she and her staff were under, no additional administrative staff, resources or support were provided by the respondent to the management of the nursing home,” Mr Hickey said.

He said the nursing home “did not dispute the dismissal was unfair”.

Cross-examining the Mr Darcy, Ms McAree’s solicitor said his client “had to carry dead patients out of the nursing home herself”. Mr Darcy said he “refuted that she was left unsupported”.

He said the decision to terminate Ms McAree was his alone and that he had been “no longer happy” for her to be in the nursing director role “but [I] did not deal with it until September”.

Asked what had changed between April and September, Mr Darcy said he “did not want to take a rushed decision” as it was “in the middle of the first wave of Covid-19.

He said he considered using a performance improvement plan for Ms McAree but that it was a “difficult time” and would have been “difficult to put one in place”.

Under cross-examination by Ms McAree’s solicitor Kevin Hickey, Mr Darcy said the decision to dismiss Ms McAree had been made in conjunction with the two other directors of the firm, who were identified only as by initials in the decision.

He said he would have executive authority in the matter.

The tribunal was told one company director was appointed as Ms McAree’s replacement.

Regan O’Driscoll of Colleen Cleary Solicitors said his client “did not dispute the dismissal was unfair but needed to put the matter into context”.

Mr Hickey, for the complainant, said the dismissal was “blatantly unfair” and that the nursing home was “attempting to blame” his client.

In her direct evidence, Ms McAree said that after losing her job as nursing director, she took up a clinical nurse manager post at a HSE hospital in the northwest and was at a loss of €30,000 to €35,000 a year as a result.

She said she had “lost confidence” in securing a senior role in the private sector again because of what had happened.

In her decision, adjudicating officer Emer O’Shea wrote that the company had “failed to produce or particularise evidence to support [the] inferences of misconduct or poor performance on the part of the claimant”.

She said that Mr Darcy’s evidence about the decision to terminate Ms McAree and replace her with a director had been “confusing and inconsistent”.

The argument by the complainant’s solicitor that the process was “devoid of natural justice” was “compelling and persuasive”.

She ruled the dismissal had been both substantively and procedurally unfair, and ordered the employer to pay Ms McAree €63,740.38 in compensation.

Ms O’Shea said this took account of the conduct of the company and the complainant’s loss of four weeks’ pay after being sacked and her new lower pay in the public sector.

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