ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00004010
Parties:
| Complainant | Respondent |
Anonymised Parties | Health Care Assistant | A Hospital |
Representatives | Hugh Hegarty SIPTU | Peter Flood and Sheila Treacy IBEC |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00005853-001 | 14/07/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00005853-002 | 14/07/2016 |
Date of Adjudication Hearing: 24/04/2017
Workplace Relations Commission Adjudication Officer: Emile Daly
Location of Hearing: Room 4.02 Lansdowne House
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
Dismissal is not in dispute – Respondent seeks to justify the dismissal on grounds of gross misconduct, specifically the theft of cash from a patient. |
Summary of Complainant’s Case:
The procedures which led to the dismissal of the Complainant were unfair. The dismissal was based on the hearsay evidence of staff as opposed to the investigation team interviewing witnesses directly The evidence of the staff member who allegedly witnessed the theft from the patient was given disproportionate weight In the absence of the evidence of the staff member who allegedly witnessed the theft, it was just as likely that the money, if it was taken, was taken by someone else who visited or tended to the patient. There is no evidence to support the explanation given by the Respondent that the money left in the envelope was precisely what remained after the alleged theft. The dismissal was supported by evidence which was not corroborative of anything that is; the fact that he became upset when he was first accused or the fact that he offered to replace the money with his own money when he was accused. Both of which are reasonable responses from a long time employee who is faced with an allegation of a dismissible offence Adverse judgments of the Complainant’s credibility were made on the basis of inconsistencies in his evidence that was not borne out. Despite the time period, from incident to dismissal, being six months, the actual decision to dismiss was taken very early on in the process and the procedure that led up to it was customized to suit the result. The Claimant’s evidence was as follows: He was working on 28 December 2015 He and a staff nurse were tasked with washing a patient and the staff nurse left the patient’s bed side to get barrier cream. During her absence the Complainant looked in the patient’s bag to retrieve shaving gel in order to shave the patient. The staff nurse had already disagreed with the patient being shaved before she left the bedside and did so again on her return. In the end the Complainant did not shave the patient and got on with his other jobs. He did not meet with or have a conversation in the canteen with the staff nurse. He was called into a meeting with the Clinical Site Manager (CSM) at which the Clinical Nurse Manager (CNM) was also present. He was accused of taking money from a patient and the following day he received a letter of suspension. He got very upset at both the allegation and the fact that he was being suspended. He offered to replace the money with his own money. He was suffering from anxiety around this time and the meeting exacerbated that anxiety. He was assured by the CSM that he would not lose his job over this. He denied taking any money and in 15 years of work, was never accused of such a thing before. He had no explanation why the staff nurse made up such an allegation. He did not know her well only working directly with her, on a small number of occasions, more frequently working on the same ward as her. He accepts that he attended the investigation meeting and that he ultimately received a draft report of the investigation on 28 April 2015. He attempted to make contact with his then SIPTU representative but was unable to do so. He telephoned the BDM and told her that he accepted the findings of fact as set out in the draft report. He attended a disciplinary meeting on 6 May with the interim director of Human Resources (DHR) and the contents of the investigation report were discussed. He was accompanied by another SIPTU representative at that meeting. The meeting was adjourned until the following day, at which stage some amendments were made to the minutes. The Complainant made a plea to remain in his job on the basis of a long trouble free work history. He was then informed that he would be dismissed for gross misconduct on the basis of theft from a patient. |
Summary of Respondent’s Case:
The procedure was fair and the Complainant was given an opportunity to be represented, although it is accepted that the union representative was not allowed speak during the investigation or disciplinary meetings in accordance with the agreed disciplinary procedures. The evidence of the Respondent was as follows: The investigation panel was chaired by a staff member, the business development manager (BDM) who gave evidence as to how the investigation was conducted on Day 1 of the hearing. The investigation process was as follows: Incident on 28 December 2015 Suspension on 28 December 2015 Investigation commenced on 13 January 2016 Investigation report furnished to the Complainant in May 2016 Dismissal 18 May 2016 Appeal on 14 June 2016 The background of the case is that the Complainant has worked as a health care assistant with the Respondent for 15 years. On 28 December 2015 the Complainant was tending to a patient who had been admitted on 19 December 2015 having had a fall. His medical notes showed that in the period since his admission the patient’s health deteriorated over 7 days, such that he was unresponsive on 28 December 2015. On Day 2 of the hearing the staff nurse gave evidence as follows: The Complainant was working alongside the staff nurse on 28 December 2015 and they were in the process of washing the patient. The staff nurse left the patient’s bedside for a few moments in order to retrieve barrier cream and on her return she returned to the curtained area around the patient’s bedside. As she did she saw the Complainant leaning over the patient’s bag and he was taking from a brown envelope a €50 note, which he then placed in his trouser pocket. He then put the brown envelope back into the patient’s bag. At this point the staff nurse made a coughing sound to alert the Complainant to her presence. The Complainant immediately said that the patient had asked for a shave, which the staff nurse did not believe, given the unresponsive condition that the patient was in. They continued with the task and the staff nurse was shocked. Afterwards she went into the canteen area to consider what to do. She was unsure if she should raise the matter directly with the Complainant or to report it to her senior. At that point the Complainant came into the canteen and asked if the patient had next of kin visiting him and then asked about the patient’s level of independence. After this conversation partly because she was six months pregnant (and felt vulnerable) and partly because she believed it was the correct thing to do, she reported the incident to her senior, the clinical nurse manager (CNM) The CNM advised that they should both go to tell the Clinical Site Manager (CSM) The CSM advised the staff nurse and the CNM to go back to the patient and to check what was in the envelope, which they did. They informed the patient that they were keeping his money in the hospital security section even though he was in an unresponsive. They counted the money there was € 350 in the envelope. There was writing on the envelope which stated “19 December 2015 € 438.” The envelope was given to hospital security. The staff nurse drafted a statement based on what she had witnessed that afternoon and completed an investigation report that evening. The following day when the staff nurse was on duty she was attending to the patient, she met the patient’s neighbour. She knew from the admission notes that the neighbour had accompanied the patient on admission and had a responsibility towards his care and finances. She asked could the neighbour remember how much money the patient had on arrival to the hospital. The neighbour replied “€438.00.” The CNM gave evidence as follows: The staff nurse had come into her office and reported what she had seen and what the Complainant had said about the patient asking for a shave and what the Complainant had said in the canteen. The CNM was concerned about the staff nurse because she was pregnant and was very upset. She reassured her that she had done the correct thing in coming to her. They attended the office of the CSM and they followed her instructions to go to check the money and put it in security. She then went into the office of the CSM and to wait there as the CSM was calling in the Complainant for a meeting and needed her as a witness. When the Complainant came into the room the CSM described to him that he had been witnessed taking money from a patient’s bag. He became immediately upset and denied it. He then offered to put €50 in the man’s bag if it would end here. He said that he had not been stealing but was leaning to retrieve shaving cream from the bag because the patient had asked for a shave. He was suspended pending an investigation and he became very upset and said “Oh my God, I’m going to lose my job.” The CSM was not available to give evidence at the hearing. The Assistant Director of Nursing (ADN) then gave evidence as follows: The ADN returned to work on 29 December and met with the staff nurse and she described what she had seen. The ADN went to the patient’s bedside and his condition had improved. The ADN asked the patient how much money had he coming into the hospital and he said €400.00. I told him that it had been put into the security section for safe keeping. The ADN spoke to the patient’s daughter on 4 January and told her that €50 had been taken from her father’s bag. The daughter said “that would make sense because he had given his neighbour €38.” The ADN understood this to mean that the €38 plus the €50 (that was taken) plus the €350 that remained added up to €438.00 which was written the envelope. Interim Director of HR (DHR) then gave evidence He received the investigation report The Complainant had been invited to make comments to the report when he had been furnished with a draft version of the report on 28 April 2016. He did not seek to interfere with the findings of fact made in the report. Based on the contents of the investigation he notified the Complainant to attend a grade 4 disciplinary meeting (for which an outcome can result in dismissal). The meeting was on 17 May 2016. At the meeting the Complainant stated that he suffered from depression and was on medication for this . He was asked why he had offered to put the money back. The Complainant said that he never offered to put the money back but rather said he would replace the money with his own money. He accepted that at the first meeting he had said that the patient had asked for a shave but accepted at the investigation that instead it was he who has instigated the idea of giving the patient a shave. When asked why the staff nurse would invent such a story if it weren’t true , the Complainant did not reply. The meeting was adjourned until the next day at which stage the decision was made to dismiss. Based on the inconsistencies in the evidence of the Complainant between what he said at the suspension meeting and at the investigation meeting he found the Complainant to be not reliable a witness. The findings of fact in the investigation report were accepted by the Complainant prior to the disciplinary meeting. His lack of credibility together with the very cogent evidence of the staff nurse as to what she saw together with the sums of money and missing money adding up to what was written on the envelope gave the witness reasonable grounds to believe that the Complainant had committed theft against a patient of the hospital. Theft of a patient is a gross misconduct offence and no other penalty is appropriate, other than dismissal. His otherwise good work history with the Respondent did not change the gravity of the offence, therefore the decision to dismiss was justified.
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Decision:
A dismissal based on theft is assessed on whether, on the balance of probabilities, the Respondent’s belief that the Complainant had committed theft, was a reasonably held belief.
The Complainant’s representative submitted that the procedures of the investigation were flawed in that they were based on hearsay evidence. In the absence of the evidence of the staff nurse, I think there is some weight in this argument. However the hearsay evidence (what the daughter reported to the ADN and what the neighbour reported to the staff nurse) was corroborative evidence only. A corroboration of what the staff nurse saw directly. The dismissal decision was primarily based on the testimony of this staff nurse because her evidence was consistent and credible. Having heard her evidence, I too found her to be a truthful witness.
There was other corroborative evidence. This was that €50 which was allegedly stolen, is consistent with what was originally in the envelope and what remained in the envelope. There was discrepancy in relation to this. The neighbour said the patient had €438 on admittance and the patient himself said he had €400. The fact that the daughter said that her father had given the neighbour €38 did not clear up the discrepancy unless the neighbour was given €38 after the patient was admitted, then the neighbour could have understood the question to mean what was in the envelope, when the patient was admitted, i.e. prior to the €38 being given to him. However the neighbour was not asked this or indeed interviewed by the investigation team.
Therefore this explanation is conjecture on the part of the Respondent. All that was known factually was that €438 was written on the envelope when the patient was admitted and €350 remained in the envelope after the incident and therefore it is irrefutable that money went missing from the envelope during his period in hospital. The fact that money went missing is evidence of nothing, without the testimony of the staff nurse. Taken with the evidence of the staff nurse, it was reasonable to find that €50 of what was missing from the envelope was attributable to what she witnessed the Complainant doing.
To conclude, the findings of the DHR were as follows:
The Complainant did not disagree with the findings of fact in the investigation report.
The Complainant was inconsistent in relation to what he said at the suspension meeting and the investigation meeting.
The evidence of the staff nurse was clear and truthful in terms of what she saw, she had no axe to grind and at 6 months pregnant and, about to go on maternity leave, she had no reason to create a conflict situation, which involved her.
Therefore the question as to whether it was reasonable for the Respondent to believe that the Complainant took money from an unresponsive patient that amounted to theft, I accept that it was.
Theft is an act that breaks the fundamental relationship of trust between an employer and employee. In the circumstances that the person stolen from was in an unresponsive state and under the care of the Respondent this increases the gravity of the breach further.
Dismissal was not a disproportionate penalty to apply in this case.
This case for unfair dismissal fails.
In relation to the claim for minimum notice the case also fails as the payment of minimum notice is not mandatory if an employee is dismissed for gross misconduct.
Therefore the case for minimum notice also fails.
Dated: 18th May 2017
Workplace Relations Commission Adjudication Officer: Emile Daly
Key Words:
Dismissal – gross misconduct – reasonable belief of theft |