Complainant

Respondent

Anonymised Parties

A Nurse

A Hospital

Representatives

Kamal Vaid BL instructed by Michelle Cronin & Co Solicitors

Peter Flood IBEC

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-00013911-001

13/9/2017

The complainant is a nurse and he was employed by the respondent from the 17th of September 2001 until 12th December 2017 when he was dismissed. He is claiming that he was unfairly dismissed.   The respondent submitted that the complaint was referred outside the statutory 6 month time frame.

Jurisdiction Time Limits

The complainant said that his complaint was referred outside the statutory time frame because he was not aware of the time limit. He said that he attended his solicitor shortly after his dismissal and he understood that they were filing a case on his behalf with the WRC. He said that he called the office seeking an update on his case but received no response. He then attended the Citizen Advice Office and they recommended that he should write to the WRC. He was also informed of the time limits for referring the complaint. He said that he filled out the form immediately and sent it in. He said that the delay was also caused by the fact that he was depressed following his dismissal. The complainant’s barrister requested an extension of the time limit.

Substantial Complaint

The complainant, a staff nurse, said that he had worked for the respondent for 16 years. He said that he did not get on with the ward manager as she was bullying him. He asked to be moved to another ward and he was told that he did not have the skills to work in another ward. There were 28 patients in the wards in the unit, 4 nurses and I nursing assistant.

On June 29, 2016, he was called to the manager office by clinical nurse manager of the ward, and he was met by the Assistant Director of Nursing and a representative from HR.

He said that they handed him a letter informing that he was suspended from his job which was effective immediately. The reason for the suspension concerned discrepancies the taking and recording of blood sugar of the patients as the results did not match. He said that after he read the suspension letter he was advised to leave the hospital immediately. He said that he was shocked at the content of the letter and he was never warned about any problems in relation to recording blood sugar readings.

He contacted his union and a meeting was arranged with the hospital July 2016. He attended the meeting with his union representative the Assistant Director of Nursing (ASDON) and the Deputy Director of HR conducted the meeting.   The meeting was an investigation into the taking and recording of blood sugar levels. He said that the meeting only lasted 5 minutes as the hospital did not have all the information they were looking for.   He received further details of the complaints and the meeting reconvened on the 19th of October 2016.   During the meeting, they discussed the blood sugar readings they had from the laboratory and the ASDON asked him if he had any comments. The complainant said that he did not know what to say and he took a break to talk to his union official. He said that the union official advised him to admit to the mistakes and to say he was sorry.

He said the union representative assured him that nothing would happen to his job and that maybe he would be just reprimand and required to attend training or re- education about taking and

recording blood sugars. When the meeting resumed, he said that he admitted to mistakes because he was under pressure at work and apologised. He said that he never admitted to deliberately falsifying the recording of the blood sugar readings. On 28November2016, he said he received a copy of the results of investigations, and it was only that time he learned of the numbers

of the discrepancies he made in recording of blood sugars. He said that he also learned that other nurses had made mistakes recording blood sugar readings and he believes they were not suspended.

He was called to a disciplinary hearing on the 7th of December 2016 which was conducted by the Director of Nursing and the Director of HR and he was represented by his union.

The DON was summarised the investigations. The complainant said that he did not make any comment as he was advised by his union not to say anything.   On 12th December 2016, he received a letter informing that he was dismissed and advised of his right to appeal. The complainant appealed the dismissal and a hearing was held on the 19th of December 2016. He was informed by letter dated the 6th of January 2017 that the sanction of dismissal was upheld.

It was submitted by the complainant’s representative that the respondent dismissed the complainant on the 29th of June 2016 and therefore failed to follow their procedures. They had made up their minds to dismiss him before the investigative procedures were commenced. It was submitted that the respondent has provided no justification for the dismissal as there was no direct evidence connecting the complainant to any wrong doing.

Jurisdictional Issue Time Limits

The respondent submitted that the complainant did not refer the complaint within the statutory 6 month time limit. His employment was terminated on the 12th of December 2016 and he appealed that decision and on the 6th of January 2017, he was informed his appeal was unsuccessful. The complainant referred his complaint to the WRC on the 13th of September 2017. In response to the complainant’s request to extend the time limit for referring the case because he was not aware of the statutory time limits, that this is not a justification for extending the time limit. It was submitted that the Labour Court case in Cementation Skanska v Carroll DWT 0338 is relevant in deciding time limit issues. The respondent’s representative submitted that the complainant had access to legal advice prior to the expiration of the six month time limit and they do not accept that he was not aware of the time limits.

I was also referred to the case of Avery Weight-Tronix v Tom Kinsley DWT1244 the where the Labour Court stated:

“It is clear that the Complainant was not aware of his legal right to pursue a claim for annual leave and public holidays for the period from September 2007 until March 2010 prior to February 2011, by which time he was out of time to pursue his claim. Ignorance of one’s legal rights, as opposed to the underlying facts giving rise to a complaint, cannot provide a justifiable excuse for a failure to bring a claim in time. This was the clear import of the High Court decision in Minister for Finance v Civil and Public Services Union and Others.”

It was submitted that the complainant’s statement that he was not aware of the statutory time limits is not a justification for extending the 6 month time limit for processing a complaint.

Substantive Case

The complainant is a nurse and he was employed by the respondent from the 17th of September 2001 until the 12th of December 2016. It was submitted that the complainant’s employment was terminated because of gross misconduct following a full and fair investigation.

In April 2016, the complainant’s Clinical Nurse Manager (CNM2) reported to her manager CNM3 that she had concerns about the complainant’s performance particularly in relation to performing vital signs on patients. She asked CNM to review the history record in the blood glucose meters for the unit when the complainant was rostered for night duty.   This turned up a number of discrepancies for 2 patients. CNM3 carried further investigations and crosschecked the readings from the blood glucose meters stored on the Point of Care data base with the readings recorded on the diabetes charts for patients in the unit for a particular week and 22 of the 25 discrepancies found were signed and recorded on the patients charts by the complainant. Further audits were carried out for other weeks and further discrepancies were found in the complainant’s recording on the charts and the readings on the blood glucose meters.

The matter was referred to HR. The complainant was called to a meeting on the 29th of June 2016, and he was informed that an alleged malpractice allegation had been made against him in relation to the taking and recording of blood glucose readings.   Due to the seriousness of the allegations the complainant was put off duty with pay pending a full investigation and he was given a letter outlining the process.

The complainant was provided with details of the allegations. He attended an investigation meeting represented by his union on the 22nd of July 2016, it was adjourned to provide the complainant with further information. The investigation meeting was resumed on the 19th of October 2016 after further statements were provided. The complainant admitted to falsifying the glucose readings and he apologised. It was recommended that the matter should be referred to a disciplinary hearing under the Policy. A disciplinary hearing took place on the 7th of December 2016 and the complainant was represented by his union. He again admitted to falsifying the readings and said he would accept any sanction other than dismissal. It was decided to dismiss the complainant for the following reasons: for falsifying 32 blood glucose readings over a period of 3 months; insulin was administered to one patient based on 8 false readings and furthermore the complainant adjusted the insulin dose based on the false readings he recorded; the potential clinical implications and protection welfare of patients.

The complainant appealed the decision and following a further hearing the dismissal was upheld.

It was submitted that that the respondent was entitled to dismiss the complainant for serious professional misconduct. Under Section 6 of the Act it is not an unfair dismissal if it results wholly or mainly from the conduct of the employee. The conduct of the complainant which he admitted had serious implications for the patients and the reputation of the hospital. The respondent referred the matter to An Bord Altranais who informed the HSE that it had obtained a High Court Order prohibiting the complainant from practising as a nurse.

The first matter I must consider is whether the time limit for referring the complaint to the WRC should be extended in accordance with Section 8(2) of the UD Act 1977 – 2015.

“(2) A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under subsection (17) of section 41 of the Act of 2015) to the Director General—

(a) within the period of 6 months beginning on the date of the relevant dismissal, or

(b) within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause,

The complainant was dismissed on the 12th of December 2016 and he referred his case to the WRC on the 13th of September 2017. He sought an extension of the 6 month time limit for referring his complaint on the basis that he was not aware of the WRC and the statutory time limits. He said that he had sought legal advice and understood that his solicitor was making a claim on his behalf in respect of the dismissal, but he got no response when he contacted the office and had to seek advice from the Citizen Information Service. They advised him about the time limits and he immediately lodged the case. He also said that he suffered from depression following the dismissal and this also contributed to the delay in referring the complaint.

Thetest for deciding if an extension should be granted for reasonable cause has been set out by the Labour Court in Determination No. WTC0338 Cementation Skanska (Formerly Kvaerner Cementation) v Carroll. The relevant passage is: “It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.

The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. The Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.”

This reasoning was followed by the Labour Court in the case of Kepak Group v Valsomiro Augusto Arantes UDD1625, the Court stated in relation to an application for the extension of time limits:

“In that case, and in subsequent cases in which this question arose, the Court adopted an approach analogous to that taken by the Superior Courts in considering whether time should be enlarged for ‘good reason’ in judicial review proceedings pursuant to Order 84, Rule 21 of the Rules of the Superior Courts 1986. That approach was held to be correct by the High Court in Minister for Finance v CPSU & Ors [2007] 18 ELR 36.”

The Labour Court went on to say:

“It is for the Complainant to establish that there is reasonable cause for the delay. It is well settled that an application for an extension of time must both explain the delay and provide a justifiable excuse for the delay.”

In relation to the allegation put forward by the complainant that the solicitor delayed the referral, I am satisfied from the solicitor’s letter to the WRC dated the 15th of February 2018, that he did not consult or instruct the solicitor to refer an unfair dismissal complaint on his behalf. The complainant submission that he suffered from depression after his dismissal and this prevented him from referring the complaint within time does not accord with the medical report submitted in evidence. I note that the complainant consulted the doctor about feeling depressed on the 10th of August 2017 some 2 months after the expiry of the 6 month time limit on the 11th of June 2017.

In relation to the complainants claim that he was not aware of the legislation, I was referred to the case of Avery Weight-Tronix v Tom Kinsley DWT1244 the where the Labour Court stated:

“It is clear that the Complainant was not aware of his legal right to pursue a claim for annual leave and public holidays for the period from September 2007 until March 2010 prior to February 2011, by which time he was out of time to pursue his claim. Ignorance of one’s legal rights, as opposed to the underlying facts giving rise to a complaint, cannot provide a justifiable excuse for a failure to bring a claim in time. This was the clear import of the High Court decision in Minister for Finance v Civil and Public Services Union and Others.”

In applying the jurisprudence of the above cited case, I am not satisfied that the complainant’s lack of knowledge about his legal right to pursue a claim in relation to his dismissal constitutes “reasonable cause” for extending the time limit.

Having regard to all the circumstances of this case, I am not satisfied that the complainant has given either a satisfactory explanation for the delay in initiating his claim nor has he put forward a justifiable basis upon which an extension of time could be granted in this case.

For these reasons, I find that the complainant is not entitled to an extension of the 6 month time limit for referring a complaint and I have no jurisdiction in the matter.

I find that I have no jurisdiction to hear the complaint as it was referred outside the statutory 6 month time limit and the complainant has failed to establish a reasonable for the delay.

Unfair Dismissal, jurisdiction, time-limits for referring complaint, failure to establish reasonable cause