UD1690/2011, MN1749/2011

 EMPLOYMENT APPEALS TRIBUNAL

UNFAIR DISMISSALS ACTS, 1977 TO 2007

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005

I certify that the Tribunal

(Division of Tribunal)

Chairman:    Ms P. McGrath BL

Members:     Mr J. Reid

                     Mr N. Dowling

heard these claims at Dublin on 18 April 2013 

Representation:

Claimant: 

                      Mr Michael O’Neill, O’Doherty Warren & Associates,

                      “Melrose”, Charlotte Row, Gorey, Co. Wexford

Respondent:

          Mr Des Ryan BL instructed by Ms Aoife Raftery,

          Maurice E. Veale Solicitors, 6 Lower Baggot Street, Dublin 2

The determination of the Tribunal was as follows:

Determination:

The Tribunal has carefully considered the evidence it has heard in the course of this three-day hearing. The claimant comes before the Tribunal on foot of her dismissal for gross misconduct from the medical practice operated by the respondent. The onus rests with the respondent to establish that he has acted fairly and reasonably in all the circumstances.

The claimant came to the respondent workplace initially by way of an agency placement. The claimant was given a certain amount of training by the practice manager who was also the respondent’s wife and who was not present at the practice at all times. It is common case that the claimant’s background and experience meant that she was quick to pick up the idiosyncrasies of the respondent consultant. Whilst the claimant was not a medical secretary she was a highly capable secretary/receptionist who understood the particular “front of house” requirements that the practice demanded of her.

The claimant was taken on full-time in and around December 2006. It is noted by the Tribunal that the best practices and procedures employed by the respondent in his practice were never formally drawn up and could only be made known to the claimant as she went along. In fact the respondent believed the procedures were largely “self-evident”. The parties agreed that the claimant settled into her job and worked very successfully in the first twelve months.

The respondent in his evidence described his own methodology for drafting letters. The practice used the U-scribe service which involved dictated letters being outsourced. (in this case to the Philippines) and being returned to the practice at which point the claimant had the discretion to edit and amend and correct in accordance with what she knew or ought to have known might be acceptable to the respondent. The respondent was emphatic that the editing could only ever relate to “style” and never to “substance”. The claimant had no medical training and therefore was not at liberty to interfere with medical aspects of the correspondence and was expected to address these with the respondent.

The respondent explained that he trusted and had every confidence in the claimant in this regard. It is noted by the Tribunal that once dictated and sent to U-scribe the respondent’s correspondence was rarely seen by the respondent again and indeed he had sanctioned the claimant to sign off on his letters. The claimant’s representative noted this procedure was “destined to fail”.

The practice manager gave evidence to the effect that the claimant’s performance deteriorated after the first year and that a number of issues had to be addressed. These seemed primarily to do with small issues such as correct appellation but there may even at this time have been issues as to the boundaries that the claimant was expected to operate in. There can be no doubt  that the claimant’s objective was to ensure that the respondent was allowed to run as smooth a practice as possible and she had to work very hard to ensure that the practice presented its best facade to the public and patients.

A more serious matter arose in November/December 2011 when the severe winter weather meant that the claimant, who lived in Wexford, was absent from work for a number of days. The practice manager gave evidence that this was extremely frustrating as the claimant failed to ring and notify the practice of her inability to attend and of her intended date of return. The Tribunal accepts that the failure to place a phone call was extraordinary and the claimant had behaved unreasonably and the letter of warning she received on foot of same was to be expected. On balance however the Tribunal finds this incident had no bearing either way on the events that subsequently unfolded.

At around about this time the evidence given by the practice manager was to the effect that she had received communication from patient K by telephone regarding the potential refusal by patient K’s medical insurance company to cover the cost of a stay in a medical Clinic undertaken by patient K to enable a medical procedure to be carried out on him by the respondent. Clearly the Clinics accounts department was looking to have their bill satisfied and patient K communicated with the practice manager to say that he had understood that the claimant  had filled out an insurance claim form to the insurance company so that he would be fully covered for the procedure being carried out by the respondent. The insurance company was now questioning the claim form and the claimant’s medical history. In essence, the paperwork had been filled out in such a way that patient K’s history of heart complaint was much more immediate than may have been the case.

The practice manager did make an investigation of patient K’s file and found that the insurance claim form backdated the medical complaint by a few short months as the Respondent/Consultant’s letter on file had no reference to a long-standing condition. The practice manager looked for the original letter dictated by the respondent and a comparative study of the two letters demonstrated that there were small edits and changes made to the original draft such that it appeared that the claimant’s diagnosis had just been made and there was no long standing “20 year history of heart palpitation”.

The respondent gave evidence of his shock and dismay at the way in which his letter had been materially changed as regards substance. The changes went well beyond the changes as to style that might be acceptable to him. The respondent described the potential exposure to his professional reputation and the damage such a thing could have had on his practice and his relationship with the  Clinic. The respondent further pointed to the dropping of the word “duodenitis” from the letter together with the reduction of the number of previous episodes of atrial fibrillation already experienced by patient K as having the potential effect of leaving him open to a claim for professional negligence had anything gone wrong.

The claimant was put on paid leave pending an investigation. At this point in time a number of other issues came to light concerning insurance issues and the practice manager, admitting that she had no formal medical and/or HR training herself, opted to engage a HR investigation consultant to conduct an investigation and on foot of that investigation together with her own into patient K, a decision would be made as to whether disciplinary action would be required.

It is noted that the other issues fell away from the picture as patients were not willing to get involved and the disciplinary conducted by a Mr G ultimately related to the manner in which the letter and insurance form for patient K was altered and what effect those alterations might have on the employer/employee relationship.

The respondent engaged stenographer services for the interviews so the Tribunal has had every opportunity to know how the interview and disciplinary process went. The Tribunal notes that the claimant was not allowed legal representation though this fact is denied and this is seen by the Tribunal as having been unreasonably withheld in circumstances where gross misconduct which could lead to dismissal was what was being investigated.

In the course of the evidence it was repeatedly put to the claimant that she had exceeded the parameters of her post and that she failed to understand the boundaries of her position. This however does not speak to the fact that the claimant was allowed to sign off on the respondent’s work and was generally left by the respondent to operate without his interference so long as the practice ran smoothly. The claimant had no formal training with respect to the insurance industry aspect of the business and there is no doubt that the claimant had nothing to gain by this action and the Tribunal accepts that there was a blurring of authority.

On balance the Tribunal finds the dismissal of the claimant was harsh in circumstances where the claimant had had no formal training and guidance and had been left to her own devices. The claimant may have over-stepped her role but the claimant’s role was a fluid thing in this one-man practice and the Tribunal took into account the specialised and solitary nature of this workplace.

The Tribunal is satisfied that little or no effort has been made to find alternative work in order to mitigate loss; accordingly, the Tribunal measures the award under the Unfair Dismissals Acts, 1977 to 2007 at €10,000-00.

The evidence having shown that the claimant received her statutory entitlement to notice the claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 must fail.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)