UD1033/2012

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                              CASE NO.

                                                                                                                        UD1033/2012

Lorraine Doyle            -           (claimant)

against

St. Vincents University Hospital          -           (respondent)

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms N. O'Carroll-Kelly BL

Members:     Mr. L. Tobin

                   Mr J. Flannery

heard this claim at Dublin on 11th October 2013 and 13th May 2014 and 14th May 2014

Representation:

_______________

Claimant(s) :                Mr David Hughes, Irish Nurses And Midwives Organisation,

                                  The Whitworth Building, North Brunswick Street, Dublin 7

Respondent(s) :           Ms. Claire Hellen, Ibec, Confederation House, 84/86 Lower

                                 Baggot Street, Dublin 2

The determination of the Tribunal was as follows:

The Tribunal make the following majority decision.

The Tribunal has considered all of the evidence adduced over the three day hearing, the documents submitted and the legal submission made.

The Claimant commenced her employment with the Respondent in 2005. She trained in the Respondent’s Hospital and remained on there until she was dismissed in September, 2011. She was based on the Cystic Fibrosis ward where she had worked for some time. On the 11^th August, 2011 the claimant allegedly failed in her duties as follows:

-          She recorded observations on the Patient Observations Chart for a patient (3) at 12.00 which were not accurate.

-          She did not use the Drager system to complete the observations for a patient (3)

-          She recorded observations on the Patient Observations Chart for a patient (4) at 17.00 which were not accurate.

-          She did not use the Drager system to complete the observations for a patient (4)

-          She failed to report that the entries outlined above were inaccurate.

-          She failed to report that she did not complete the patient observations for the two patients (3) and (4).

The matter was reported to the claimant’s superiors by a third party employee. The claimant was first asked about the matter of the 12^th August, 2011 during her day shift. Originally, the claimant stated that she had done the observations for the two patients in question. However, upon being shown the results from the Drager machine she stated that she must not have done them. On the 15^th August, 2011 the claimant was invited to an informal meeting with JH and AK. It was at that meeting that she first suggested that she had written the observations on her handover sheet. Following that meeting the claimant was invited, by letter dated the 16^th August, 2011, to attend a formal disciplinary meeting which was to be held on the 23^rd August, 2011. The letter set out the details of the meeting, the discrepancies concerned, the seriousness of the discrepancies and the fact that she could bring a work colleague or union representative with her to the meeting. She was furnished with the following documents:

-          Copy patients observation chart ( 3)

-          Copy print out of the observation chart from the Drager machine ( 3)

-          Copy patients observation chart ( 4)

-          Copy print out of the observation chart from the Drager machine ( 4)

-          Copy engineer’s report for Drager machine at bed 3 and 4

-          Copy report from AT, CNM1

-          Copy of the Disciplinary and Grievance Procedure for the Health Service.

The Claimant stated in evidence that whilst she accepted the failure to take and log observations correctly is a serious matter, she was not made aware and did not know that this was a matter that could amount to gross misconduct. Furthermore, she stated that she was not given and had never in the past been given a copy of the Disciplinary and Grievance procedure. The Tribunal heard evidence that the Claimant had been given a copy of the Disciplinary and Grievance procedure on three separate occasions in relation to three other disciplinary matters and again on this occasion. She stated that she did receive all of the other documentation forwarded to her. It is not credible that she did not have a copy of it. She may not have familiarised herself with its content but the Tribunal are satisfied that she did receive it on this occasion. In relation to the seriousness of the discrepancies, it is not logical to disconnect the seriousness of the discrepancies from that level of seriousness within the disciplinary procedure. The Tribunal do not accept that the claimant could have thought that the discrepancies within the disciplinary procedure were anything other than serious.

The disciplinary meeting was held on the 23^rd August, 2011. The claimant was in attendance, however she exercised her right not to have representation. The meeting was held by JK Head of Workforce Planning and SB Assistant Director of Nursing. They were appointed as the disciplinary panel to hear the matter pursuant to the disciplinary procedure. The jurisdiction of that panel to hear the matter was challenged. The tribunal are satisfied that once that panel was established under the disciplinary procedure it is implied that they do have jurisdiction to hear the matter.

At the meeting on the 23^rd August, 2011 the Claimant repeated that she believed the patient’s observations she had written down on her handover sheet where for patients 3 and 4. At the end of her shift she noticed that the observations had not been charted so she took the observations on her handover sheet and inserted them on the relevant charts. She stated that she firmly believed that the observations belonged to the two subject patients because the numbers looked like the type of numbers those patients would have. She did admit that she had made a mistake. She said it was human error. The Tribunal also note that whilst giving her evidence the claimant stated that she had taken observations for patients other than the four that were in her care that day. Nowhere in the disciplinary procedure did she put that proposition forward and it wasn’t until the last day of the hearing when questioned by the Chair that she suggested that that might be a possible explanation. In all of the circumstances the Tribunal prefer the Respondent’s evidence, that she simply had not done the observations and inserted inaccurate observations on the two charts.

It is vital that observations taken from patients are firstly done at the specified times and secondly recorded and recorded accurately. There has to be a zero tolerance for any breach of this procedure because the consequences could lead to fatalities.

Following that disciplinary meeting the claimant was called to a second meeting to be held on the 29^th August, 2011 wherein she was told that she would be dismissed. She was informed that she had the right of appeal. She wrote to the Respondent on the 7^th September, 2011 stating she wished to exercise her right of appeal.

The appeal was heard on the 27^th October, 2011. The two individuals appointed to hear the appeal were JmcP and KC. In the disciplinary procedure it states as follows:

“The Appeals hearing will normally be held within 10 days of the appeal being lodged. The Chief Executive Officer (or equivalent) will hear all appeals and his/her decision shall be final”

The jurisdiction of appeals board was also put in issue. The Tribunal are satisfied that once that appeals panel was established under the disciplinary procedure it is implied that they do have jurisdiction to hear the matter.

The claimant stated that the disciplinary process was fundamentally flawed due to the fact that no investigation was carried out. The Respondent stated that once the complaint had been made against the claimant the Respondent immediately investigated the matter and checked the Drager system to establish if the allegation made against the claimant was well founded. They then questioned the claimant on the matter. The claimant upon viewing the Drager system results admitted that she had not done the observations. On that basis the Tribunal are satisfied that the Respondent had established the relevant facts pertaining to the issue.

The Tribunal are satisfied that the claimant was given ample opportunity to state her case. She was informed that she could have a representative with her at all the formal disciplinary meetings. She was informed of the discrepancies being alleged against her. She was informed that the discrepancies were serious and she was given a copy of all of the supporting documentation used during the process.

In all the circumstances and on the balance of probabilities, the Tribunal find that the claimant’s claim under the Unfair Dismissal Act fails.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)