EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD896/2013
RP619/2013
MN434/2013
WT155/2013
CLAIM(S) OF:
Anna Maria O'Donoghue - claimant
against
South West Doctors on Call Limited T/A Southdoc Call Centre - respondent
Under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
ORGANISATION OF WORKING TIME ACT, 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. K.T. O'Mahony BL
Members: Mr. D. Hegarty
Mr. D. McEvoy
heard this case in Cork on 8 October 2014, 27 January 2015 and 28 January 2015
Representation:
Claimant(s): Mr. Liam Ryan, Sheehan Ryan & Co, 61/62 New Street, Killarney, Co Kerry
Respondent(s): Ms. Muireann McEnery, IBEC, Mid West Regional Offices, Gardner House, Bank Place, Charlotte Quay, Limerick
The determination of the Tribunal was as follows:
Summary of Evidence
The respondent was established in 2001 and has twenty-six treatment centres providing out-of-hours GP cover in Cork and Kerry. It has its head office and a call centre in Killarney, the latter being the hub of the business. When a patient contacts the centre a patient record is generated and this with the doctor’s findings is kept in a sealed envelope under lock and key.
The claimant commenced employment with the respondent in October 2006 in its Killarney call centre on a part-time basis. As a result of an organisational restructure in 2008 her position in Killarney was made redundant and she opted to transfer to the Macroom treatment centre as a part-time receptionist rather than take redundancy. She received training in manual handling, basic first aid and needle disposal. Any other training she received was on the job and the drivers at the centre trained her on the recording systems. She had a good working relationship with her line manage and when he left in 2009 the respondent’s operations manager (OM), who was based in Killarney took on the management of the Macroom staff. At the relevant time the claimant was working bank holidays, public holidays and alternate weekends.
The claimant’s position was that over the period from 2009 she had a number of issues with OM which caused her distress and she felt she was being bullied. A meeting was arranged for 15 August 2012 and the claimant was hoping that her issues would be thrashed out and resolved at that meeting. When the claimant began to outline her issues at that meeting, OM left the meeting and the minutes show that he left because he felt the claimant’s statements were defamatory. HRM, who was present at the meeting, advised the claimant to put her grievances in writing, which she did in her letter dated 3 September 2012 to HRM and stated therein that these were now affecting her health and work. On 19 October 2012 OM sent his reply to HRM, refuting the claimant’s allegations and the claimant made a further response on 19 November 2012. OM’s position was that the allegations of bullying and harassment including excessive monitoring by him were totally unfounded.
One of the claimant’s complaints was about the non-payment for a late emergency call she had dealt with on 23 June 2012 and had not finished work until 23:24. When the overtime payment had not come through by 14 July 2012 she queried with OM, who is responsible for checking claims for overtime payment, and he gave her different reasons at different times for the non-payment including that she was not involved in the late call, that a driver had dealt with the late call, that it related to a home visit and that the call number related to a call made earlier in the day on 23 June 2012. The claimant was concerned that her honesty and integrity were being called into question.
The claimant’s position was that had she been able to print her TMS record she could show that she had been involved in the late call but from April 2012 on the TMS employee records could not be printed and despite several reminders from her the problem had not been rectified by this time. She could see her details on the screen but could not print them. A photograph of the TMS screen with the late call number 20402 was opened to the Tribunal. The IT Performance Manager (ITPM) accepted that the TMS had a printing problem. The claimant made the further point that all calls are recorded and management could have listened to the recording.
HRM invited the claimant and OM to a meeting on 29 November 2012 to discuss her grievances. ITPM was also present on behalf of the respondent and the claimant was accompanied by her trade union official (TU). At this meeting the claimant presented a confidential patient record with the patient’s identification details (patient’s name, date of birth, address and case origin) redacted in order to prove she had been involved in the late call on 23 June. The claimant explained that she had printed it as it was the only way she could prove that she had been involved in the late call case. TU made the point that the document had not been seen by anybody else. The meeting was later adjourned. Having subsequently been informed about the production of a patient’s confidential record the general manager (GM) informed HRM to suspend the claimant on pay and she appointed ITPM and HRM to conduct a disciplinary meeting and provided them with terms of reference. Thereafter the claimant’s grievance was no investigated further.
A disciplinary meeting, which was arranged for 19 December 2012, was conducted by HRM and ITPM and the claimant was accompanied by another trade union official (DTU). The claimant maintained that the document produced by the respondent was not the copy she had made. The latter issue as well as DTU’s request to see the document, which was refused, took up much of the disciplinary meeting. The claimant explained that she printed one copy and photocopied that (having tippexed over the patient identification details) she made one copy of it and kept it in a folder at home; nobody had seen it. At the end of the meeting HRM gave the claimant the opportunity to furnish ‘amendments’. Availing of this opportunity the claimant wrote to HRM on even date and again stressed that only senior management (HRM and ITPM) had access to the document, that she had only produced the document to show she had a valid reason for clocking out late on 23 June 2012, her concern was not about the €4 (approx.) payment but she felt that her honesty, integrity and good name were being called into question by OM’s constant denial that she was not entitled to the payment and she identified several documents which would corroborate her position. Further, in this letter the claimant admitted that on reflection, having a copy of the document may not have been the best way to proceed but that given the level of stress she was under she had acted out of desperation. On 19 December the claimant notified OM by e-mail that she was certified sick until 2 January 2013 and would forward the certificate.
HRM’s and ITPM’s findings, which were sent to GM on 3 January 2013 were to the effect that: the claimant had removed a confidential patient document from the treatment centre in November 2012 and failed to advise who, if anyone, had authorised the removal of the record, she had photocopied the document; tippex was used to block out the patient’s identification details; she made one copy of the patient record; the document was retained outside the respondent’s premises; that only HRM and ITPM had sight of the document but that this could not be substantiated. There was also a finding that the claimant maintained that the document produced by the respondent at the meeting on 19 December 2012 was not the document that the claimant had produced at the meeting on 29 November. HRM’s and ITPM’ concluded on the balance of probability that the incident did occur. GM provided a copy of the findings to the claimant. In her letter of response dated 8 January 2013, the claimant stated inter alia that she had “done nothing which would endanger … patients, doctors or bring discredit on the organisation” which would be contrary to para 6.2.4 (Grounds for Disciplinary Action) of the company handbook.
Having deliberated on the findings of fact and the claimant’s responses GM considered the claimant’s “behaviour to be gross misconduct leading to a complete and irrevocable breach of trust and confidence with the organisation” and summarily dismissed the claimant by way of letter dated 14 January 2013.
The claimant’s appeal was heard by the respondent’s Chairman and by its Medical Director on 27 February 2013. In her appeal submission, which she read at the appeal hearing the claimant set out her work history, her difficulties with OM in some detail and the chronology of events leading to her dismissal. In particular she explained the details surrounding the taking and storing of the patient’s record in that she wanted to show the details of the time and date of the call on 23 June 2012 to prove she had been working; she could not print her own employment record showing that she had been working and the patient record would show this; she had printed the case report and erased the patient details on the printout and then photocopied the amended report and took both copies home to bring to the upcoming meeting as it would show the details of the receptionist involved in the late call on 23 June 2012. In her statement she acknowledged that printing off the report was a mistake which she had made under duress, out of desperation and the frustration of not being believed, she unreservedly apologised for her error of judgement and was confident that the patient’s details had been fully protected. Her appeal failed on all grounds.
The respondent’s position was that it was possible to read the patient record if one held the document up to the light.
Determination
The respondent’s disciplinary policy provides that breach of confidentiality constitutes gross misconduct.
The claimant also signed a Confidentiality Agreement with the respondent on 7 November 2006, the first paragraph of which states:
The employee shall keep confidential and shall not, except as authorised or required to do by his/her duties, use or disclose or attempt to use or disclose to any person any of the secrets or confidential information of South West Doctors on Call Limited (south Doc) All Patients and their Families, All Doctors and their Patients. Families which come to his/ her Knowledge during his/her employment.
Having considered the evidence the Tribunal by majority, Mr. Hegarty dissenting, finds that in using the patient record for her stated purpose without authority and keeping it outside the premises the claimant committed a technical breach of the Confidentiality Agreement. The majority finds that there was no intention to breach or no breach of the spirit of the Confidentiality Agreement. Tippex was used to conceal the identification details of the patient and this fact combined with the salient fact that the patient record was only produced to two members of senior management leads the majority to this conclusion. The majority cannot find that this constitutes gross misconduct. The majority believes that the term gross misconduct implies a deliberate wrongdoing. It is clear from the claimant’s evidence that she did not know that she was doing anything wrong at the time she printed the patient record.
The majority is satisfied that the claimant was a credible witness and from seeing her and hearing her give evidence the majority is further satisfied that she was under duress.
The majority is not satisfied that the disciplinary process was fully fair. The claimant’s reasons for copying and storing the patient record were not mentioned in the findings sent to GM who took the decision to dismiss the claimant, even though the claimant had repeatedly recited these throughout the whole process. Furthermore the facts that the claimant was under duress and desperate and was ‘obsessed’ with proving that she was not dishonest or a liar although relevant were ignored at all three stages in the disciplinary process including the appeal by the personnel involved at those stages.
The majority finds that the dismissal was unfair. The claim under the Unfair Dismissals Acts, 1977 to 2007 succeeds and the Tribunal awards the claimant compensation in the sum of €7,500.00 under the Acts.
The claimant is further awarded compensation in the amount of €1,226.12 (being the equivalent of four weeks’ minimum notice) under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.
The claim under the Organisation of Working Time Act, 1997 is dismissed as no evidence was adduced at the hearing.
As the claimant was dismissed for alleged gross misconduct the claim under the Redundancy Payments Acts, 1967 to 2007 is dismissed.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)