ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference: ADJ-00014083

DISPUTE:

Date of Adjudication Hearing: 11/07/2018

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 13 of the Industrial Relations Acts 1969]following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.

BACKGROUND.

The Complainant was employed from 2nd March 2002 until the employment was terminated on 28th July 2017 and the Complainant was paid 8 weeks pay in lieu of notice. The Complainant was paid £17.00 an hour and she worked 54.6 hours a fortnight.

The Complainant referred a dispute to the Workplace Relations Commission on 16th April 2018 under the Industrial Relations Act, 1969 alleging she had been unfairly dismissed.The Complainant confirmed at the Hearing that she has been in receipt of Illness Benefit from the Department of Social Protection from July 2017 to date and this was confirmed in a statement from the Department.

SUMMARY OF RESPONDENT’S POSITION.

An issue came to the attention of the Respondent on 6th May 2016 when the Pharmacy Department of the Hospital was contacted by a named Specialist Registrar and previous employee of the Hospital. She informed the Respondent that a prescription had been queried with her by a named Community Pharmacist. Her name was on the prescription but it was not her signature or handwriting nor was the named patient known to this Registrar. Also the name of the patient and the address did not correspond with any patient on the Hospital Patient System. The prescription was for two types of drugs with addictive potential and street value. The prescription had been dispensed by two other pharmacies before the prescription was queried.

The incident was reported to the Chief Pharmacist/Medication Safety Officer in the Hospital. From her review of all the evidence it was found the prescription bore the serial numbers from prescription pads issued to a named Ward in the Hospital.

The Gardai were contacted and the person attempting to use the forged prescription was identified and arrested. This person was the Complainant’s sister. A search of this person and her mothers premises by the Gardai found further prescriptions from the Hospital plus a large quantity of medicines were discovered. Concerns were raised about the alleged removal of prescription sheets and pads from the Ward in the Hospital of the Respondent and the use of these to obtain medication from pharmacies outside of the Hospital.

A named Clinical Nurse Manager was approached by the Complainant on 30th June 2016. She informed the Nurse Manager that members of her family had been arrested and in their possession at the time were named Hospital prescription pads and that her sister had informed the Gardai that she the Complainant had supplied the prescriptions to her sister. The Complainant later stated that her sister had retracted this statement and the Complainant strongly denied the allegations.

The Complainant was informed that an investigation would be carried out into the theft of prescription pads and she was placed on administrative leave and she was informed she would be informed of the outcome of the investigation when it was concluded.

A named Manager met with the Complainant on 25th July 2016 in order to hear her response to the statements from the Chief Pharmacist and the Clinical Nurse Manager. The Complainant was provided with the Terms of Reference of the Investigation on 7th September 2016 and she was also advised of the services of the Occupational Health Department. A named external Investigator was appointed to chair the investigation along with the named Chief 11 Pharmacist and the named Medical Directorate Nurse Manager.

The Gardai, at their request, were also provided with information as required under the Data Protection Act, 1998, as amended.

Statements were provided by all 10 named employees, including the Complainant. The Complainant confirmed that she did request prescription pad previously and that she had requested a prescription from a named Clinical Nurse Manager 11 but was unsure of the date. The Complainant stated that while she accepted the prescription pads were initially delivered to a named Ward she did not accept they were taken from that Ward. She stated she had reported her sisters arrest and that none of her family had visited her on her ward. The Complainant also stated that her sister did name her as the person who had given her the prescriptions but she later retracted this. When asked why her sister had named her the Complainant stated that she the Complainant had suggested she make that statement to the Gardai to protect the identity of the person supplying them to her. She accepted that the writing on the prescriptions and her own handwriting were similar she stated she did not write the prescriptions.

There were detailed findings in relation to a number of the issues that arose during the investigation and the evidence provided by the named witnesses and the Gardai. They found as follows – On the balance of probability, the investigators concluded the Complainant is strongly associated with what appears to be the overall collection/link with the missing prescriptions from the named Ward and the prescriptions found in possession of the Complainant’s sister and her mother. They came to this conclusion on the basis of 13 findings as set out to the Hearing.

The Complainant was provided with the findings by letter dated 14th March 2017. The Complainant responded on 25th March 2017 strongly denying the accusations and that the evidence against her was circumstantial and she set out her reasons why. The Complainant was invited to a Disciplinary Hearing on 24th May 2017 in accordance with the Disciplinary Procedures of the Respondent. She was advised the issues were of a serious nature deemed to be gross misconduct and may lead to a disciplinary sanction up to and including dismissal. She was advised of her right to be represented. The Disciplinary Meeting took place on 31st May 2017 at the Complainant’s request. The Complainant raised a number of issues and the Hearing was rescheduled for 5th July 2017. This took place on 18th July 2017 and the Complainant attended with her Shop Steward. The Disciplinary Board decided the appropriate sanction, after considering all alternatives, was dismissal. The Complainant was afforded a right of appeal which she did on 3rd August 2017 to the Director of HR, named.

The Complainant set out her grounds of appeal and the Hearing took place on 19th October 2017. The decision was to uphold the decision to dismiss but the Respondent stated that due to an oversight this decision was never communicated to the Complainant.

The Respondent then set out their legal arguments in relation to the process conducted by the Respondent including legal precedents as provided to the Hearing.

The Respondent also noted that the Complainant is seeking reinstatement which is not open to the Adjudication Officer as the complaint was lodged under the Industrial Relations Act and not the Unfair Dismissals Act

SUMMARY OF COMPLAINANT’S POSITION.

The Complainant volunteered information to a named Clinical Nurse Manager on 30th June 2016 that her sister had been arrested for passing off false Hospital prescriptions. The Complainant was concerned how this would reflect on her as an employee of the Hospital as the Complainant’s sister had implicated her although this was later retracted by the Complainant’s sister.

The Respondent had been informed in May 2016 of the crime but it was not until July 2016 that a connection was made to the ward in which the Complainant worked. But the Complainant would not have access to these prescription pads and the Complainant is adamant that the charges against her are false and circumstantial. The Complainant had 15 years unblemished record and she was distraught when she lost her job.

She was invited to a Disciplinary Hearing on 31st May 2017 and the Complainant was represented. She was provided with the minutes – provided to the Hearing. She was placed on Administrative Leave on full pay effective from 28th July 2017. The Complainant was dismissed in July 2017 with a right of appeal. The Complainant appealed her dismissal on 3rd August 2017 and this was heard in October 2017 but she has never been informed of the outcome of this appeal.

SIPTU stated the Complainant has sought work and had a successful interview with a named Employer but when they requested a reference from the Respondent this was never provided and the offer of employment was withdrawn.

SIPTU argued – the Complainant lodged an appeal in August 2017 – there was no outcome to the appeal hearing of October 2017 – the Complainant was a loyal member of the team – the Respondent is outside of agreed procedures as the right of an outcome to an appeal hearing has never issued – this failure also prevented the Complainant from lodging a complaint under the Unfair Dismissals Act, 1977 due to the Time Limits.

The Complainant confirmed to the Hearing that she had been in receipt of Illness Benefit from the Department of Social Protection from July 2017 to the date of the Hearing at the WRC in July 2018 and this was confirmed by the Department.

Findings and Conclusions.

On the basis of the evidence and extensive submissions, including all statements from witnesses I find as follows –

The Respondent conducted a thorough Investigation, followed by a Disciplinary Hearing in line with their own agreed Disciplinary Procedures and S.I. 146/2000. The Complainant was provided with fair procedures and natural justice in relation to the Investigation and Disciplinary Process.

Following the decision of the Disciplinary Board to dismiss the Complainant the Complainant was afforded a right of appeal which she did. This appeal too place in October 2017 but the outcome was not communicated to the Complainant. This is in breach of procedures.

The Complainant asserts that because of this the Complainant could not lodge a complaint under the Unfair Dismissals Act, 1977 because of the Time Limits under that Act. However, Section 1(1) of the Unfair Dismissals Act, 1977 defines the date of dismissal as the date on which the Notice expires. The evidence from both Parties was that the notice expired on 27th September 2017. The date of dismissal is not the date of the outcome of an appeal hearing.

I note that in the Complainant’s submission it is stated the Complainant has been seeking work and had an offer of employment since her dismissal. However at the Hearing the Complainant stated she was in receipt of Illness Benefit from the Department of Social Protection from July 2017 to the date of the WRC Hearing in July 2018 and this was confirmed in a statement from the Department dated 18th July 2018.

RECOMMENDATION.:

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

On the basis of the evidence, my findings above and in accordance with Section 13 of the Industrial Relations Act, 1969 I do not find in favour of the Complainant that she was unfairly dismissed by the Respondent.

Dated:   3rd October 2018

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

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