Complainant

Respondent

Anonymised Parties

A Nurse

A Nursing Home

Representatives

VivianCullenSIPTU-Trade Union

Gillian ConsidinePeninsula

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-00026154-001

08/02/2019

The complainant alleges she was unfair dismissed from her employment and that the sanction of dismissal was disproportionate in all the circumstances.

The complaint started work in the nursing home in July 2017, as a Clinical Nurse Manager, she was demoted to staff nurse and in 2018. The complaint was accused of gross misconduct regarding an issue involving data protection. The complaint was dismissed in November 2018. She is of the belief that her dismissal was unfair in relation to the allegation. The dismissal was a disproportionate sanction and the grounds of my dismissal were unreasonable.

The complainant was employed by the respondent (hereafter “the Respondent”) as a Clinical Nurse Manager between 19 July 2017 and 23 November 2018.

The Complainant has brought a claim against the Respondent pursuant to s.8 Unfair Dismissals Act 1977.

The Respondent denies the Complainant’s claim.

Facts

The Complainant’s main terms of employment were reduced to writing and provided to the Complainant on or about 19 July 2017. The Complainant completed her induction training on 28 August 2017. The Complainant was provided with a copy of all relevant policy documentation as part of the Staff Nurse Induction Log Book. Included in the Induction was:

a.       Incidents/complaint reporting;

b.       Epic Care Planning and Record Keeping;

c.       Communication with Team Members;

d.       ABA (NMBI formerly an Bord Altranais) Recording in Clinical Practice;

e.       ABA Code of Professional Conduct & Ethics;

f.        ABA Professional Guidance Working with Older People;

g.       La Touche Training Healthcare Records on Trial.

On or about 14 March 2018 Ms NM General Manager sent an email to the Complainant stating, inter alia:

I have just heard that you have a staff facebook/social media page discussing issues regarding care on your floor. This is a big concern from a data protection perspective and must be closed down immediately.

On or about 24 September 2018 a statement was made by Staff Nurse I.J. in relation to patient management issues and other issues experienced by Staff Nurse I.J. when interacting with the Complainant. The initial complaint was received by Staff Nurse I.J. from Healthcare Assistant C.D. Prior to the formal commencement of an investigation, Healthcare Assistance C.D. reaffirmed to the Director of Nursing the concerns which had been stated to Staff Nurse I.J.. Healthcare Assistant C.D. disclosed to the Director of Nursing the existence of a Facebook groups called “Freedom” which were created by the Complainant.

This was relevant to the investigation as it was through the Facebook groups that the Complainant was issuing instructions to employees of the Respondent.

Healthcare Assistant V.N. provided screen shots of the content of the social media group “Freedom” dating from the opening of that group on or about 14 March 2018. The Complainant is identifiable as the author of a message by the name “Nurse” and by photographs of the Complainant which were added to the group by the Complainant. The opening message of this group states:

Helooooo everyone hahahahahaha

We are here now

I will copy and paste what took place today which became the reason why our fb page was placed on hold…I did it anyway

There then follows the entirety of the email sent by MsMN on 14 March 2018.

Healthcare Assistant V.N. left the group on or about 21 July 2018. This is the last date on which the Respondent had access to the content of the facebook group.

On or about 29 September 2018, Ms CT Director of Nursing for the Respondent, met the Complainant and informed the Complainant verbally and in writing that the Complainant was to be suspended on full pay pending the outcome of an investigation into allegations of gross misconduct. The allegations were:

(a)    That the Complainant set up a Facebook group called “Freedom” and “Wisdom” which included other employees of ….. Nursing Home. Within this Facebook group you have;

a.       Allegedly posted unauthorised photographs of residents,

b.       Allegedly posted unauthorised photographs of a resident’s funeral,

c.       Allegedly made derogatory comments about; residents, your colleagues and members of the management team.

(b)    That the Complainant allegedly instructed staff to not ring the emergency bell when they discover a resident post-fall unless there is blood on the floor.

(c)     That the Complainant allegedly referred to the management team as “mga mangu” and ”bobos” to members of staff. These words translate in English to idiot/brainless.

Between 3 October 2018 and 11 October 2018, Ms CT conducted interviews with 16 members of staff who may have had direct knowledge of the matters which formed the subject of the investigation.

By letter of 19 October 2018, Ms CT invited the Complainant to an investigation meeting to be held on 24 October 2018. Due to issues regarding availability, the investigation meeting was held on 26 October 2018.

The Complainant attended the investigation meeting on 26 October 2018. The Complainant was aware of her entitlement to be accompanied at the meeting. The Complainant did not avail of her entitlement to be accompanied.

By email of 1 November 2018, the Complainant was provided with the minutes of the investigation. The Respondent requested that the Complainant read the minutes and agree that the minutes were a true representation of what occurred at the meeting.

Also on 1 November 2018, the Respondent renewed the prior instruction of 29 September 2018 that the Complainant refrain from contacting any potential witnesses.

On 2 November 2018, the Complainant made comments on and returned the memorandum of the meeting of 26 October 2018.

By email of 9 November 2018, Ms CT informed the Complainant that the investigation had concluded, and that the Respondent would contact the Complainant regarding next steps.

By emailed letter of 12 November 2018, Mr MN, Managing Director of the Respondent, invited the Complainant to attend a disciplinary hearing on 14 November 2018. The matters which formed the subject of the disciplinary hearing were as follows:

(a)    Allegedly posting unauthorised photographs of residents;

(b)    Allegedly posting unauthorised photographs of residents’ funerals;

(c)     Allegedly making derogatory comments about residents, colleagues and members of the management team

(d)    Allegedly instructing staff to not ring the emergency bell when they discover a resident post-fall unless there is blood on the floor;

(e)    Allegedly referring to the management team as “mga mangu” and “bobos”;

(f)      Allegedly contacting witnesses via text message and facebook;

(g)    Allegedly instructing staff to conduct manual handling exercises other than in accordance with manual handling procedures.

By email sent at 16.58 on 13 November 2018 the Complainant sought to adjourn the disciplinary hearing as her preferred companion was unavailable. It was not possible to adjourn the hearing at such short notice.

The Complainant attended the disciplinary hearing on 14 November 2018.

By email of 19 November 2018, the Complainant was provided with minutes of the meeting which she was afforded the opportunity to read and confirm.

By email of 20 November 2018, the Complainant returned the minutes of the meeting of 14 November 2018 with comments.

By email of 23 November 2018, the Complainant was provided with the outcome of the disciplinary hearing.

By letter of 26 November 2018 on behalf of the Complainant, Mr CN of SIPTU wrote to the Respondent indicating the intention of the Complainant to appeal the decision of Mr MN.

By letter of 3 December 2018, Mr MN wrote to Mr CN informing Mr CN that Mr HH had been appointed to hear the appeal. The appeal was to be by way of review of the original decision. The appeal was scheduled for 17 December 2018.

The grounds of appeal advanced by the Complainant were as follows:

(a)    Severity of sanction imposed

(b)    Breach of Natural Justice

(c)     Mitigating circumstances

(d)    Lack of Evidence to substantiate dismissal.

Mr CN was afforded an opportunity to raise questions about other aspects of the original decision.

By letter of 22 January 2019, Mr Hutch informed the Complainant of the outcome of the appeal. The dismissal of the Complainant was upheld.

The Complainant commenced the within claim on 8 February 2019.

Submissions

The Complainant has brought a claim pursuant to s.8 Unfair Dismissals Act 1977.

Per s.6(4) 1977 Act:

[…]the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following: […]

(b) the conduct of the employee[.]

The conduct of the Complainant which gave rise to the Complainant’s dismissal was:

(a)    The posting of unauthorised photographs of residents on social media;

(b)    The unauthorised photography of resident funerals;

(c)     The making of derogatory comments;

(d)    The issuing of instructions contrary to policy;

(e)    Verbal abuse;

(f)      Contacting witnesses while under a reasonable management instruction to not do so;

(g)    Failing to follow manual handling procedure.

The dismissal of the Complainant was procedurally fair and was a disciplinary sanction coming within the margin of proportional responses to the conduct of the Complainant.

It is denied that there process, including the investigation into the Complainant’s wrong-doing, the disciplinary process and the appeals process, were procedurally unfair. In the event that some procedural unfairness is identified it is denied that per s.6(1)(a) of the 1977 Act, “having regard to all the circumstances” the dismissal was unfair.

In Elstone v. CIE (High Court, 13 March 1987, unrep.) it was held:

That the mere fact of some failing in due or agreed procedures is not a final and decisive matter for the court on appeal is clear from the provision of s.6(1), that regard must be had ‘to all the circumstances’ and not to one circumstance to the exclusion of all others.

In Loftus and Healy v. An Bord Telecom (High Court, 13 February 1987, unrep.) it was held “regard must be had to all the circumstances” and that “[t]he primary consideration is to determine the ground for the dismissal.”

It follows that a flaw in a disciplinary process does render a dismissal unfair in and of itself.

In addition, should there be any procedural flaw, which is denied, it must be established that the flaw imperilled a fair result.

In Shortt -v- Royal Liver Assurance Ltd. [2008] IEHC 332, Laffoy J outlined that a central consideration to fair process is whether or not any purported breach of natural justice was “likely to imperil a fair hearing or a fair result”.

This decision followed on from that of Barron J in Loftus and Healy -v- An Bórd Telecom, cited above, where it was determined that the real question was “not whether the plaintiffs were deprived of hearings to which they were entitled but whether the denial to them of such procedures is such that the defendant must be deemed to have failed to establish the assault as the whole or the main reason for and justifying their dismissal.”

In RAS Medical Limited T/A Park West -v- The Royal College of Surgeons in Ireland[2017] IECA 228 it was held:

Fair procedures do not dictate the outcome of a process… There are of course no absolutes in law or in life and there are occasions when the rules of fair procedures have to give way because of pressing exigencies to less considered or reflective processes.

With respect to the question of proportionality, it was held in Kelly v. CIE (Circuit Court, 11 February 1985):

If, in all the circumstances, there are substantial grounds to justify the dismissal then the decision of management to that effect is not to be subjected to interference from the Tribunal nor from this Court on appeal. The policy of the [1977] Act is, as I read it, that if the dismissal is not an excessive or otherwise unjustifiable remedy on the part of the employer in all the circumstances, then it must stand.

In McGee v. Beaumont Hospital the EAT held:

The task of the Tribunal is not to consider what sanctions the Tribunal might impose, but rather whether the reaction of the respondent and the sanction imposed lay within the range of reasonable responses.

In the within claim, each of the allegations of wrongdoing were supported by substantial evidence. The wrongdoing of the Complainant imperilled the Respondent’s business and reputation. The Complainant failed to justify her actions or put forward any significant evidence in mitigation. The dismissal of the Complainant was a reasonable response in light of the evidence before the Respondent both at disciplinary and appeal.

It came to the respondent’s attention that the complainant had a Facebook page on which she disclosed information about the respondent nursing home. The General Manager, Ms NM e-mailed the complainant asking her to delete the account immediately. She did so. Following that Ms. TC held a meeting in June 2018. In that meeting she highlighted the importance of compliance with GDPR. Following that, a memo was sent to all of the staff again outlining the importance of GDPR.

In September, Ms CT received a report in relation to falls not being reported/ logged. The report came from a health care assistant. Staff were informed that they should not report falls until there was blood. She asked the staff how or from whom they got this instruction. That is when Ms CT became aware of the facebook page and a group set up in messenger, a Facebook private messaging app. The page was entitled ‘Freedom Board’ and the group was entitled ‘group’ Some of the images posted were of the resident’s buttocks and one of resident who was laid out in her bed in preparation for her funeral. 

On the 29^th September the complainant was suspended and was instructed to remove the Facebook page and posts and informed her that she was not to contact staff members during the process.  By letter dated the 19^th October 2018 the complainant was informed that an investigate meeting on the 24^th October, 2018. It took place on the 26^th October 2018. On the 29^th October, the complainant sent an e-mail to a colleague in direct breach of the instructions given not to contact staff.  

At the investigation meeting the complainant denied setting up the Facebook page. Originally it was set up so staff could communicate with each other in relation to schedules or for helpful tips about care management. She later admitted to posting on the site.

The minutes of the investigating meet were sent to the complainant. She made some suggested amendments to them and returned them to the respondent.

On the 9^th November 2018 the complainant was informed of the outcome of the investigation. The investigation found that there was a prima facia case to answer and informed the complainant that additional issues discovered in the investigation would be sent to Mr MN (owner) for his consideration. All of the documentation found/discovered/created during the investigation was forwarded to the complainant.

Ms CT forwarded all of the information back to the respondent so that the matter could be sent to the disciplinary officer.

The disciplinary officer was Mr MN, the owner and Managing Director of the nursing home. The complainant was invited to a disciplinary meeting by letter dated the 12^th November,2018. She was invited to bring a representative with her. The meeting took place on the 14^th November,2018. The minutes of the meeting were sent to the complainant for her to sign off. She made amendments to them also and those amendments were inserted into the notes.  The complainant was informed of the outcome by letter dated the 23^rd November,2018. The complainant was dismissed for reasons of gross misconduct. She was given a right to appeal the decision. She did appeal the decision and the respondent was notified of same on the 26^th November,2018.  

Mr HH was appointed as the appeals officer. The Mr. MN wrote to the complainant’s representative informing her of the appeal date and who the appeals offer would be. He had no further participation in the matter.  

The appeal took place on the 7^th December 2018. The appeals officer is not an employee of the respondent. He is an accountant who himself has nursing homes.  The meeting was recorded with the agreement of the complainant and her representative. The complainant argued that the sanction was disproportionate, that her right to fair procedures was breached and alleged that the respondent had gone on a fishing expedition to find reasons to dismiss her. On the 22^nd January 2019 the complainant was informed of the appeal officer’s findings. He upheld the decision to dismiss her and give reasons as to why.

The complainant made much of a demotion she received prior to the initiation of the investigation the subject matter of this claim. The complainant did not appeal the decision to demote her. I find that the decision to demote the complainant were for issues not relevant to this claim and did not form part of the information used by the respondent to dismiss the complainant. 

The complainant had been warned about her conduct in relation to Facebooks posts on the 18^th March. She was fully aware of the respondents’ policy in relation to same.

I find that the entire disciplinary process was fair, thorough and transparent and that the sanction of dismissal was well within the band of reasonableness in all of the circumstances.

Accordingly, the complaint fails.

The complaint fails.