Care worker's disputed 'do it in the bed' reply to resident's toilet request costs home €14k

Her solicitors argued her purported resignation was caused by duress, so “ does not amount to a resignation but to a dismissal and/or constructive dismissal”.

The ruling has cost a Donegal care home operator €14,377. File photo

The fall-out from a disputed comment by a care worker to a 92-year-old resident that she should "do it in the bed” in response to the resident's toilet request has cost a Donegal care home operator €14,377.

This follows Workplace Relations Commission (WRC) Adjudicator, Shay Henry, finding that care worker, Teresa Bradley, was unfairly dismissed by the operator, Drumhill Inn Ltd, of a south Donegal care home, Aras Mhic Suibhne in July 2019.

Mr Henry has ordered the care home operator to pay Ms Bradley €13,350 compensation for her unfair dismissal and an additional €1,027 for non-payment of her notice.

In his findings, Mr Henry found that based on the lack of appropriate procedures afforded to Ms Bradley “I conclude that the resignation given (by her) was effectively under duress” and that Ms Bradley was constructively dismissed on July 22, 2019, under the Unfair Dismissals Act.

A qualified support worker and care assistant, Ms Bradley was employed by Aras Mhic Suibhne from October 8, 2012, and has successfully sued for unfair dismissal in the case.

The incident

The nursing home operator stated that on July 20, 2019, an elderly client who was aged 92 and fully compos mentis, was located in a unit where Ms Bradley was working on her night shift. The care operator said that at around 2am the resident had been assisted to the toilet.

Upon returning to bed, the resident felt that she needed to go to the toilet again and subsequently rang the bell for assistance. The nursing home operator states that Ms Bradley then came into the room and the resident explained that she needed to go to the toilet again.

The resident alleged that Ms Bradley replied that she should "do it in the bed" and further alleged that Ms Bradley then remarked, "do you think that you are the only one here, there are 48 residents and you are number 47.” The care home alleged that as a result of the incident, the elderly resident was very upset, frightened and her daughter was subsequently contacted.

The care home operator stated that at a subsequent meeting with family members, Ms Bradley admitted that the incident took place, as described by the resident after an initial denial. In his report, Mr Henry noted that Ms Bradley denies admitting to the allegations.

WRC findings

In his findings, Mr Henry stated that evidence was given that Ms Bradley’s resignation was offered after she was told that the Guards and Hiqa would be involved.

Mr Henry said: “It is difficult to see what the purpose of telling the complainant this was, other than to push for a resignation.” Mr Henry also noted that Ms Bradley had no opportunity to take advice before confirming her resignation.

Mr Henry also found that it is clear from the evidence that the care home operator’s representatives “saw no distinction between the investigations and the disciplinary procedure”.

The WRC Adjudicator stated that in such circumstances, Ms Bradley was entitled to the protections afforded in the Disciplinary Procedure, including being informed of the precise nature of the allegation in advance of the meeting and adequate time to prepare for the meeting.

Mr Henry stated: “Lack of opportunity to prepare meant in effect the resignation was given without knowledge of the full resources available to her under the disciplinary procedure.” 

Submissions from both sides

At the hearing, it was submitted on behalf of Ms Bradley that shortly after the meeting with the resident’s family members, Ms Bradley was taken to the manager’s office where Ms Bradley was presented with a sheet of paper and told to commence writing, where Ms Bradley was compelled by the nursing home operator to complete and sign a document which the care home alleges constitutes a valid resignation.

Solicitors for Ms Bradley, Canny Corbett Solicitors, submitted that as a principle of law, where the purported resignation of an employee is caused by duress, “this does not amount to a resignation but to a dismissal and/or constructive dismissal”.

The solicitors argued: “Therefore a valid resignation of the complainant did not occur.” The solicitors state that even where the complaint, as against Ms Bradley was made out, summary dismissal was not reasonable.

The solicitors also stated that no proper investigation of the alleged complaint was carried out and that no separate processes of investigation and disciplinary meeting(s) were carried out by different individuals.

The care home operator argued that Ms Bradley cannot be unfairly dismissed where no dismissal took place and where she voluntarily resigned her position. The nursing home operator stated that at no time did it deny Ms Bradley the right to representation.

The care home operator claimed that Ms Bradley “voluntarily and without hesitation, verbally resigned her position and wrote and signed a letter to this effect”.