ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002833

Complaints for Resolution:

Venue: WRC, Tom Johnson House, Haddington Road, Dublin 4.

Date of Adjudication Hearing: 29/09/2016

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance Section 8(1B) of the Unfair Dismissals Act, 1977 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background

The Complainant was employed as an Advocate from 1^st January 2010 to 12^th January 2016. He was paid €577.00 per week. He has claimed that he was unfairly dismissed and that he did not receive his statutory minimum notice.

1) Unfair Dismissals Acts CA-00003916-001

Respondent’s Submission and Presentation:

On July 23^rd 2015 a written complaint was received that the Complainant told patients not to concord with medication. A disciplinary investigation took place on foot of a formal investigation into external allegations made against the Complainant from an outside organisation. An investigation was carried out and the matter was escalated into a disciplinary investigation. A formal disciplinary hearing took place on 15^th December 2015. It was found that the Complainant had discussed and advised a service user or users regarding the taking of medication. It was decided that this constituted gross misconduct and the sanction of summary dismissal was imposed. He was given the right to appeal. An appeal hearing took place on 18^th February 2016. The outcome was that it was viewed that his actions were of such a magnitude that they were at total variance with the purpose and ethos of the organisation and its Code of Practice. Consequently a breach of trust arose and the sanction of dismissal was upheld.

It is the Respondent’s position that they have applied fair procedure and natural justice at all times. They carried out an investigation and disciplinary investigation according to company policy and the terms of reference. The Respondent at all times ensured that the Complainant knew what he was accused of, given the right to defend himself, given the right of representation and the right of appeal. The investigation was carried out by a person unconnected with the disciplinary investigation and the appeal was heard by the Chief Executive and an external consultant who was unconnected to the disciplinary investigation.

This dismissal was both substantively and procedurally fair. This complaint is rejected.

Complainant’s Submission and Presentation:

The Complainant received a letter from the Respondent on 27^th July 2015 that an external organisation had received a complaint that he had advised a number of patients “not to concord with medication”. An investigation was carried out by a Regional Manager on foot of terms of reference. He was represented by his union official at a meeting on 10^th September 2015. The findings were that on the balance of probability the allegation is correct. The matter was escalated to a disciplinary investigation. A disciplinary hearing took place on 15^th December 2015. He was represented by his union official. He was dismissed on 12^th January 2016. He appealed the decision on 18^th January 2016. The Respondent asked him to return all company property despite the appeal having been lodged. He forwarded a detailed letter of appeal. An appeal was heard on 18^th February 2016 by an external HR Consultant and the Chief Executive Officer. The decision to dismiss was upheld.

It is his case that there are no substantial grounds to dismiss. The initial investigation by the Regional Manager was flawed. He has denied that he told users not to concord with medication. The decision was arrived at on the balance of probability which indicates a doubt. There were many inconsistencies, misinterpretations and mistakes in the investigations. He never has nor would advise a client not to take medication. He at all times adhered to protocol. There has been a misinterpretation between ‘advise’ and ‘discuss’. He was unaware until the disciplinary hearing that he could not discuss his own illness with clients. There has been confusion between the word ‘ward’ and ‘unit’. It is denied that he misled the investigation. The Respondent has relied upon, on the balance of probability, a statement from a user who had a psychiatric condition. This makes the evidence seriously unreliable.

He has denied and continues to deny that would advise any client to stop taking medication and he refutes the allegations made by a user.

He is seeking re-instatement. He has sought employment in the engineering field which was his background. He is still unemployed as the area that he lives in is an employment blackspot. He is now undertaking a health course.

Findings

In O’Riordan v Great Southern Hotels, UD 1469/2003 the Employment Appeals Tribunal (EAT) set out the appropriate test for determining on claims relating to gross misconduct, stating “In cases of gross misconduct the function of the Tribunal is not to determine the innocence or guilt of the person accused of wrongdoing. The test for the Tribunal in such cases is whether the respondent had a genuine belief based on reasonable grounds arising from a fair investigation that the employee was guilty of the alleged wrongdoing”.

In David Mullane v Honeywell UD/1112008 the EAT sated, “The Tribunal must decide whether the conclusion that the offending act had been perpetrated by the claimant was reasonable on the balance of probabilities and that dismissal was a proportionate response”.

Substantive Matter

I note the environment that the Complainant worked in.

I find that the allegations were very serious.

I find that the Respondent carried out an investigation and a disciplinary hearing that led to his dismissal.

I find that the Respondent based on a detailed investigation and disciplinary investigation accepted the evidence as presented and on the balance of probability accepted that this evidence was true.

The ‘balance of probability’ is the civil standard of proof required in employment matters. Beyond reasonable doubt is the criminal standard which is not applicable in these cases.

In find it acceptable that the Respondent should rely upon the balance of probability.

I note that the investigation refers to a final written warning issued to the Complainant in 2012 for a similar matter but that the warning had elapsed.

However I note that this warning had stipulated that he was not to do this again.

The Respondent believed on the balance of probability that he had done it again.

The witness who is Director of Nursing advised the hearing that three patients had refused to speak with him. He also advised that the patient who is a pharmacist was very clear that the Complainant had told her she didn’t need to take medication.  

I note the Respondent’s reliance upon the patient who was a qualified pharmacist and who was assessed by her Psychiatrist as being of sound mind when she made the complaint.

This patient who was a pharmacist would be in a position to make a judgement about the taking of medication.

However I note that there was no evidence that the patients refused medication.

I note the conflict of evidence regarding ‘discuss’ v ‘tell’ or ‘advice’ v ‘discuss’.

When conflict occurs then the investigation must look to determine the more believable evidence. In this case the Complainant was found to be unreliable by the Respondent.

I have found that the ‘ward’ v unit’ not critical to this investigation.

I note that there was a conflict whether the Complainant told the patients that he was bi-polar. On the balance of probability the Respondent found that he had told the patients that he was bi-polar.

I concur with the Respondent’s position.

The Respondent stated that they did not rely upon the final written warning that had expired to progress to a decision to dismiss.

While the warning had expired it was an historic fact that he had a previous final written warning for a similar alleged offence.

I accept the Respondent’s position that the decision to dismiss was solely based on the current complaint and not in conjunction with the 2012 incident.

I find that the defence offered by the Complainant was that he denied the charge of “advising” users not to take medication. However I found that there was a concentration on discrediting the investigation.

There was a conflict of evidence in this matter. Therefore on the balance of probability I conclude that the Complainant did tell patients not to concord with medication.

I find that the matters raised in his defence were not of sufficient substance as to alter my conclusions that he had told the patients not to concord with medication.

I accept the Respondent’s position that there cannot be any grey areas with this type of incident. There must be strict adherence to rules.

Therefore I find that this was a very serious matter.

Therefore I find that the dismissal was substantively fair.

Procedural matter

I find that the Respondent was obliged to investigate a complaint once it was received.

I note that the Respondent carried out an investigation that found that the Complainant had a case to answer.

I note following the investigation the matter was escalated to a disciplinary investigation.

I note that he was given the right of appeal which was availed of.

I note that he was made aware of the allegations made against him; he was given the right to defend himself and the right of representation.

I find that the Respondent did consider alternatives to dismissal and they were influenced by the final written warning that had been issued in 2012 but had expired.

I accept that they did not rely on it to take the actual decision to dismiss him. They believed that his actions in July 2015 stood alone.

I find that fair procedures were applied.

I find that the Respondent had a genuine belief based on reasonable grounds arising from a fair investigation that the Complainant was guilty of the alleged wrongdoing.

Therefore I find that the Respondent has met the standard as set out in the EAT case David Mullane v Honeywell UD/1112008.

I find that the Complainant had committed an act of gross misconduct.

I find that summary dismissal was warranted.

Decision:

Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I have decided, based on the above stated reasons, that this dismissal was not unfair and that this complaint fails.

2) Minimum Notice & Terms of Employment Act       CA-00003916-002

Complainant’s Submission and Presentation:

The Complainant stated that he was unfairly dismissed and did not get minimum notice.

He has claimed four week’s wages according to this Act.

Respondent’s Submission and Presentation:

The Respondent stated that following a thorough investigation they decided that the Complainant’s actions constituted gross misconduct.

Therefore minimum notice was not applicable. This complaint is rejected.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act

I refer to the decision in the Unfair Dismissal case.

I have found that the Complainant committed an act of gross misconduct warranting summary dismissal.

Therefore minimum notice does not apply.

I have decided that this complaint fails.

Eugene Hanly

Adjudication Officer

Dated:               29^th November 2016