ADJ-00029366

Complainant

Respondent

Anonymised Parties

Patient Service Representative

An Oxygen/Gas supply company

Representatives

Marie O Connor SIPTU

Aleksandra Tiilikainen 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-00039323-001

24/08/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00039323-002

24/08/2020

The Complainant appealed his dismissal on the grounds it was too severe an action for the breach of procedure regarding the issue of a medical device to the Son In law of a Patient. The Complainant agreed he made an error of procedure but maintained it was due to a human error and the error did not result in any damage to the Patent involved or the Respondent. The Parties made initial submissions at a Hearing on February 9th 2021.A substantial number of issues were contested by the Parties at the initial Hearing and the Parties requested further time to consider these issues and make Final Submissions on the information presented at the initial Hearing. A final Hearing was held on March 18th, 2021. All matters in this Complaint had very divergent perspectives from the Complainant and the Respondents versions of the issues involved. The acts of the substance justifying the dismissal, mitigating circumstances, the business processes involved, the investigation process, the disciplinary process, issues on appeal and consideration of appropriate sanction for the events involved were the subject of detailed scrutiny during the Hearings.

The Complainant is a Patient Service Representative (PSR) with 22 years’ service. He was involved in the issue and installation of medical devices in Patients homes. The patient involved is referred to as Patient X hereafter.

On the morning of the 23 January 2020, the Complainant's day consisted of nine calls. He loaded his van accordingly but was short some essential equipment for his day's work (two Portable Oxygen Devices (POC hereafter). The Complainant received two ETAs in the morning from the office for two installs. The effect of this was that he had to reverse his day's work i.e., the last calls were now to be carried out first. This meant that his first call was now to Patient X instead of being this last. The Complainant made contact with Patient Xs family who were glad that he was en route as they were waiting for the Patient to be discharged from hospital. The Complainant met Patient X’s wife who was stressed and anxious about the oxygen install and delivery. She requested the Complainant to wait for her son-in-law, who was a Paramedic, to arrive before he went through the oxygen demonstration. The Patients wife requested that her son-in-law be fully briefed as he as to be the point of contact in respect of the oxygen, due to his profession.

The Complainant installed the prescribed equipment, consumables and portable oxygen bottles. This was an old farmhouse, and a "Dynamic Risk Assessment" was completed for the installation of tubing, which was deemed to be hazardous on the staircase. To overcome this, the Complainant suggested as a safer option, a second concentrator to the family with approval from a Third Party. While at the property the Son in law received a call from his wife (Patients X’s daughter, who is a hospital nurse) questioning the installation and also the supply of a portable unit. The Complainant did not have this item as part of his day's stock. The Patients family were adamant that the Patient was to get a POC for use when down the farmyard. On completing the installation, the son in law again referred to the POC and that both he and his wife were adamant that this piece of equipment was to be supplied for the Patients use. Arising from this the Complainant was erroneously of the view it was part of the prescribed installation. The Complainant had an old POC in the van and showed both the Patients wife and Son in law how compact it was and also how to operate it. The Complainant was in doubt about the POC and reviewing the DENZQ (the online data for the Patient equipment) while still conversing with the Son in law. The Complainant saw a POC on the DENZO. The Complainant then realised that he could have ticked off the POC on the DENZO. As the Complainant was trying to amend the DENZO he was unsure, so he called a work colleague for advice on how to rectify the matter. He spoke to another PSR and explained what he was trying to do i.e., it now looked from the DENZO that the POC was delivered. The Complainant and a work colleague agreed that the best thing was to debrief the office at the end of workday. The Complainant debriefed his Line Manager by text at 16.01 pm as follows “2 poc to follow 2 install as not on stock can they be rescheduled these are Ac nos (X and Y) and 1 update office with same'. No reply was received from the Line Manager notwithstanding the fact that he read the email at 16.13 pm. Over the next few days, the Complainant texted the Central office on a number of occasions and no alert was raised about his request for a POC.

On Tuesday 28 January 2020 a colleague of the Complainant was at the Patients household to install the second concentrator for upstairs. The Patients family again requested a POC from the PSR present who advised them that he knew nothing about this. The other PSR and the Complainant then discussed the Patients case and the other PSR advised the Complainant that the Patients family were looking for the POC. This contributed to the Complaints view a POC was required.  The Son in law picked up the POC at a Collection Point of the Respondents sister company at 3.15pm on 28 January 2020. The Son in law rang and thanked the Complainant for his help and the care given to his father-in-law.

On January 29th The Complainant phoned the Office at 1.29 pm to ascertain the position and was advised that the POC was not for Patient X. The Complainant enquired as to why he had not been notified when he debriefed the office and his Line Manager on the 23 January 2020. The Complainant phoned the Patients Son-in-law immediately and explained what had occurred and apologised for his human error, which was only now notified to him by the office. The Complainant requested that the Son in law return the POC to the Collection Point and he agreed he would. The POC was returned to the office on 30 January 2020 at 4.25 pm stating that the Patient never received the POC or never even saw it.  On February 6th the Complainant received a call from his Line Manager advising him that there would be an investigation straight away into the POC delivery. On the 6 February 2020 the Complainant received an email from his Line Manager stating, “l would like you to attend the below please', which was “an investigation of a fact-finding nature in reference to an Inogen being given to a patient without a prescription”. The investigation was conducted by Ms Y, Clinical Lead Homecare. At the Investigation meeting there were 29 questions put to the Complainant. The Complainant's responses were given by way of handwritten notes. The Complainant was not informed that this Investigation was serious and could lead to a finding of disciplinary action. He understood it to be a SIRI investigation (Serious Incident Requiring Investigation).  The Collection Point Depot Manager was also interviewed. On the 1 0th February 2020 the Investigator called out to the Patient and interviewed him in relation to the incident. On the 1 1 February 2020 the Shop Steward emailed Line Management in relation to the notes from the meeting. Line Management asked if the SIRI was completed regarding this incident. The SIRI has never been received by the Complainant. On the 18th of February 2020 Line Management sent a letter to the Complainant inviting him to a disciplinary hearing. The letter stated, 'l can now confirm that the factfinding investigation has been concluded 'and went on to invite the Complainant to a disciplinary meeting. The final paragraph of this letter stated, 'Given the serious allegations which the investigation has highlighted, you are being temporarily assigned to non-patient facing duties pending the outcome of the disciplinary hearing'. The Disciplinary Hearing was conducted by the HR Business Partner and, Homecare Team Leader.

A letter of dismissal was issued on the 4th of March 2020 and the Complainant was summarily dismissed citing 'gross misconduct’ as the reason for the dismissal. On the 5 th March 2020 the Complainant appealed the decision on the grounds of severity. An appeal hearing took place on the 21 July 2020 conducted by the Director of Area Sales Ireland. The Complainants appeal was rejected by letter on the 5 August 2020. The matter was referred for adjudication by the Workplace Relations Commission on the 24 August 2020.

The EAT in Morales v Carton Brothers UD835/201 1 stated that “In all cases of dismissal for conduct, an investigation by the employer is required. The precise requirements of each investigation will be determined by the facts of the case, but the onus will be on the employer to show that it was fair' in the sense of being open-minded and 'full' in the sense that no issue which might reasonably have a bearing on the decision was left unexplored. The employer will be expected to show that the investigation fulfilled the following general conditions:   

that the employee was aware of all allegations and complaints that formed the basis of the proposed dismissal.

that the employee had an adequate opportunity to deny the allegations or to explain the circumstances of the incident before the decision to dismiss was taken. This includes a right to representation in appropriate circumstances.

that the evidence of witnesses or other involved parties was sought where the allegations were denied, or the facts were in dispute and the right to be represented by a trade union official or a fellow employee.”

In the email from Line Management inviting the Complainant to the investigation there is no mention of the incident being treated as gross misconduct or that it could lead to disciplinary action up to and including dismissal. The Complainant was led to believe that this was going to a SIRI not an investigation. He was not given sight of these questions in advance of the meeting. The Complainant felt “ambushed” at the investigation with the pre-prepared questions.  It was inappropriate to interview Patient X, an elderly man who had never in fact even met with the Complainant and it would have made more sense to interview his son-in-law, with whom the Complainant has dealt with directly in relation to the device.

The Complainant stated that it is a regular occurrence that when loading the van for the day that all of the stock is not to hand, specifically the POCs. This puts the PSR in a difficult position from the outset as they have to 'fob off' patients. Another factor on the day is that the Complainant 'flipped' his calls to accommodate the Patient as he was being discharged on the day. Had he not been so accommodating; he would have arrived at Patient X last as per his calls list and he would have never made the presumption that Patient X was down for a POC. The Complainant stated that no Investigation Report was given to the Complainant following this investigation. The Shop Steward raised the fact that he found himself in a similar situation 2 years and was not disciplined. The Company Disciplinary Procedure states 'To ensure consistency of treatment of individuals, it is Company Policy that similar offences receive similar treatment based on the following procedure.' It is clear that the Respondent are in breach of their own Disciplinary Procedure. The Complainant was at a complete loss to understand how one employee can receive absolutely no sanction for an incident and the other is summarily dismissed and is livelihood taken away after 22 years’ service.

The Line Manager advised the Complainant following the incident that a SIRI was being raised. The Complainant had no idea of the gravity of the situation at this time. The SIRI Form was requested by the Shop Steward at the investigation of 10 February 2020. The Investigator referred to this in her email of the 11th of February 2020. 'The Shop Steward asked if the SIRI was completed regarding the incident. I informed him that there was a SIRI raised but not completed.’

At the Appeal Hearing of the 21 July 2020 SIPTU again requested sight of the SIRI, which was still not to hand. In the outcome of the Appeal letter dated the 5th of August 2020 the Area Sales Manager states that 'SIRI 3444009 dated the 29 January 2020 was raised for this incident but has yet to be communicated to the PSR team as normal mechanism for cascading this information — team meetings — were suspended due to the Covid 19 crisis.’ This situation was not accepted by the Complainant Representative. The Representative maintained that the SIRI conclusions could have been emailed out to the PSR representatives in the same manner as the PSR representatives are getting email updates weekly in relation to Covid.

The Complainant's livelihood was taken away from him after 22 years, yet the issue of the SIRI was not deemed important enough by the Respondent to be brought to the attention of the PSR representatives to make them aware of the outcome of same. The SIRI form at page 1 refers to a Home Oxygen Service Risk Matrix sets out a domain and consequences to Patient. It states that 'Incorrect disputed HOOF (home oxygen order form) (patient data or prescription error by Healthcare professional/ where it 'identified non-conformance prior to commencement of service (no consequence to patient) is deemed as Number 1 — Negligible on the Matrix.

On foot of the above the Complainant argued it was clear that the incident would not amount to gross misconduct. At the hearing the SIPTU Representative asked which Senior Manager was involved in the decision to dismiss. This Respondent stated the Company confirms the senior manager involved as Mr Y, Head of Service Delivery, Homecare.  It is clear that it was the Homecare Team Leader, who is not a Senior Manager, who made the decision and delivered the outcome. In this regard we refer to paragraph (c) Further Disciplinary Action of the Disciplinary Procedure 'In no case will a decision to suspend without pay, transfer or dismiss an employee be taken by a Manager or Supervisor, without reference to a Senior Manager'. This is in breach of the Disciplinary Procedure.

In relation to Training, the Complainant stated that some Training related to the issues involved were only completed after the incident concerned and the 'About Pharmacovigilance' document states 'The document must be completed following attendance at a face-to-face Pharmacovigilience training session. It must be completed every two years. There is no standardized training given despite this having been discussed on a number of occasions. Folders are added in and take out of the PSR's Training Profile and the onus is on the PSR to identify what is relevant to his job and highlight to his line manager if it does not apply. The Pharmacoviligence Folder was only completed as stated by the Complainant on the 20 February 2020 eight years after he commenced work in the Homecare operations.

It was common practice within the Respondent that equipment was given out for years (conserving devices) to assist patients to achieve extra time from their portable oxygen.

Reference was made in the Complainants dismissal letter that 'You were issued with a final written warning on 9th September 2009” This was incorrect. The Complainant was issued with a written warning. The Complainant did not appeal this sanction at the time as he gave his version of events on three occasions to the investigation and his Line Manager but felt that same was not taken on board at all. There were no witnesses to the incident, and it was one person's word against another.

On 14 January 2019 a Manager from the Respondents UK team carried out an assessment which stated 'PODD information is inadequate with no information available on patient's holdings, no evidence that any patient holding checks are completed. Special instructions are out of date, very little information available to inform PSR about patient's script. There does not appear to be any co-operation between employees and management with a break down in trust with the managers in place. I found there was a willingness of those I spent time with to deliver a top-class service and to work beyond 8 hours a day and all appear to have patients’ best interests at heart, but we have no given them the tools to achieve this, the way scheduling appears to have been brought in or switched on has compounded the already factious relationship between management and employees. What state is TRACCESS completion? ' This clearly indicates that there is a body of work to be done by the Respondent to improve conditions for the PSRs and confirms the challenges they are up against, and how a mistake can be made. The Complainant stated there was no follow up to these issues by Line Management. On the 3rd of October 2019 the Complainants Line Manager carried out a Field Assessment Report with the Complainant and he was assessed at 90%.

The Complainants Representative contended that the office staff and Line Manager contributed to the incident, in that not one of them followed up on the debriefing by the Complainant. Had they done so they would have seen there was no prescription for Patient X for a POC. The Representative argued that this was unfortunate in that it had grave consequences for the Complainant.   

Representative maintained that the Respondent did not have 'substantial grounds' justifying the dismissal of the Complainant. This incident started out as a 'SIRI', a fact- finding exercise, which is used for preventing an incident like this from recurring and for employees to learn from. To this date notwithstanding the fact that the 'SIRI' was requested at the Investigation of the 1 0th February 2020 and again by Ms O'Connor at the Appeal Hearing on the 21 July 2020, nothing was furnished in this regard prior to the Initial Hearing.

It is noteworthy that no training or advice was sent to the other PSRs following the Complainant's dismissal. One would be of the opinion that something which was deemed to be of such importance by the Respondent as to warrant the dismissal of the Complainant, would have been communicated to other staff to ensure this did not recur.

Section 6(2) of the Act states that: “Without prejudice to the generality of subsection (7) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal.”

The combined effect of the above sections of the Act requires the Adjudication Officer to consider whether the Respondent company's decision to dismiss the complainant, on the grounds stated, was reasonable in the circumstances. It is the function of the Adjudication Officer to assess what a reasonable employer in the employer's position and circumstances might have done. The High Court in Bank of Ireland v Reilly [201 5] IEHC 241 held that 'the question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned'.

If the matter was to be regarded as one of gross misconduct, the Complainant cited the decision in the Labour Court in the case of Kilsaran Concrete & Vet UDD161 1 (June 2016) that Summary Dismissal is the nuclear weapon in the employer's arsenal of disciplinary sanctions. Section 8 of the Minimum Notice and Terms of Employment Act 7973 saves an employer from liability (under that Act) for statutory minimum notice where the dismissal is for certain forms of very serious misconduct. Commenting on section 8, the Employment Appeals Tribunal in Lennon v Bredin M 160/7978 stated 'We have always held that this exemption applies only to cases of very bad behaviour of such a kind that no Reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe the legislature had in mind such things as violent assault or larceny or behaviour in the same serious category. The Complainant Representative contended that the use of the employer's “nuclear weapon” against the Complainant was obviously disproportionate and therefore unreasonable within the meaning of the 1977 Act.

If the matter was to be regarded as one of gross misconduct the Complainant cited the decision of the Labour Court in the case of DHL Express (Ireland) Ltd and Michael Coughlan UDD1783 2017UDD7783 the Labour Court cited an earlier Employment Appeals Tribunal case in which it was stated that gross misconduct ... applies only to cases of very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer, and which cited examples of such behaviour as violent assault or theft. The Labour Court felt that in that case the grounds here, failure to protect and safeguard company property, did not come within that definition.

Equally the Labour Court noted that the company had waited for two weeks before suspending Mr. Coughlan meaning he was free to drive for the company, and which would indicate that his conduct was not viewed as very bad behaviour that could not be tolerated a minute longer. This is consistent with the EAT case of Duffy -v- Hugh McAvoy Talk to Me (UD7048/2009) where it was stated that a failure to suspend an employee in gross misconduct situations may undermine the gross nature of the employee's behaviour as it brings into question whether it was something that warranted dismissal in the first place. This applies to the Complainant's case also. He was not suspended after the incident. Indeed, he continued to work overtime having worked 22 hours overtime between the 25th of February 2020 to the 25 March 2020 and contended that the Complainant's dismissal was not warranted given he continued in work during the Investigation. There is no evidence that the Respondent made any consideration of a lesser sanction alternative to dismissal to deal what it described as “a breach of trust” on a single occasion. Notwithstanding the fact that the Complainant was dismissed on foot of the allegation, he had 22 years' service with the company and was a good and loyal employee. Moreover, there was no evidence of any harm having been caused by the incident. There was no financial loss to the company.

In relation to a lesser sanction, the Disciplinary Procedure states “In the event of a further failure after a written warning (as is the case here) or for extremely grave offences, the case will be referred to a more senior manager' (which it was not). Disciplinary action at this stage can take the form of a final warning, suspension without pay...' and the Complainants Representative contended would have been proportionate in the circumstances.

The Complainant seeks redress for breach of the 1977 Act in the form of Reinstatement.

Section 4(2) of the Minimum Notice & Terms of Employment Act 1973 provides:

The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(d) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks.

Section 8 of the 1973 Act provides that:

Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party

 If the Adjudicator finds that the Complainant was unfairly dismissed, it follows that the employer's right to terminate without notice because of misconduct saved by section 8 of the 1973 Act would not apply and, therefore, that he would have been entitled to €10,594.74 in respect of unpaid pay in lieu of notice. The Complainant sought a decision for compensation in that amount.

The Respondent provides a holistic, patient-focused service to the Respiratory Therapies Homecare market in the Republic of Ireland through the supply of a variety of Homecare products and services including home oxygen, sleep apnoea and ventilation equipment. All of these products are supplied under contract or service-level-agreement to a Third Party in Ireland with private patients also availing of therapies as appropriate. The Home Oxygen Service provides oxygen therapy products and full support for patients with a wide variety of breathing conditions. The Company have a team of Patient Service Representatives who provide this home oxygen service for the Respondents Homecare Division to patients throughout the Republic of Ireland.

The Complainant commenced his employment in 1997 and joined the Homecare Department in 2012 as a Patient Services Representative where he was employed until the date of his dismissal on the grounds of gross misconduct on the 4th of March 2020.

On the 23rd of January 2020 the Complainant, as part of his delivery schedule, called to a new patient’s home to deliver an order for a standard home oxygen concentrator and oxygen cylinders as prescribed on his Zebra (handheld device) and his delivery load sheet. It is critically important that, because oxygen is a medicinal drug and has to be prescribed by a qualified nurse or doctor, that Patient Service Representatives only install what has been prescribed for each individual patient. At no point in time should they deviate from what has been prescribed for a patient as to do so could endanger the patient with incorrect oxygen supply.

On the date in question, the prescription was for a standard oxygen concentrator and portable oxygen cylinders. Note: there was no prescription for a “portable oxygen concentrator machine”, known by its brand name “Inogen”. These devices cannot be used by all patients as they deliver oxygen in pulses only (when the patient inspires) and a patient has to be tested on these devices before they are prescribed to ensure that, 1) they deliver the correct amount of oxygen that the patient needs and, 2) that the patient can “trigger” the device to deliver a pulse of oxygen as they breathe in. If a patient cannot trigger the device, then it will not deliver oxygen and the patient could suffer serious ill-effects.

During his visit, the Patient’s family asked the Complainant if he had a portable concentrator (an Inogen unit) for them. The Complainant said that he hadn’t but could show them an old one that he had in his van and that he would leave a new one in the local depot for them to collect. The Complainant subsequently secured an Inogen unit and left it in the local depot where a member of the patient’s family collected it.

Notwithstanding the training and instruction, he had received, the Complainant did this without informing the office or his Line Manager; without any proper paperwork being completed; without a medical prescription being in place and no formal operating instructions given to the family as to how to correctly use the device.

In Homecare it is a mandatory requirement for all Patient Services Representatives that no equipment can be issued to any patient without a valid prescription and the Complainant failed to check with the office or his Line Manager to see was there a prescription issued for the Inogen device or how he should proceed. As per the Complainant’s training, he should not have issued this piece of equipment for the Patient as the following procedure should have been completed in advance.

The Patient is assessed by a consultant or their team in Hospital. This verifies if the patient can use the “Inogen” device and at what flow setting.

A Consultant writes a prescription and sends it to the Third Party for approval. A specific flow rate would be detailed on this prescription.

The Third Party then send the request into the Homecare Patient Service Centre. The Patient Service Centre then put the order on the system as per the prescription. 

PSRs then install the equipment as per their delivery instructions on their paperwork and on their Zebra handheld device.

It was stated that not all patients are suitable for this particular device which could cause harm or even death if used incorrectly. In this particular case, if the patient had used this piece of medical equipment it could have caused him serious health issues or at worst, his death. This is because the patient would not have been receiving oxygen whilst he needed it. 

At the Complainants appeal hearing following his dismissal, his Representatives alleged that the Complainant ‘had not received any training on the limitations of the Inogen device and the consequences if used incorrectly’.  During the course of his employment with Homecare, the Complainant had completed Patient Carer Training and Inogen device training on Traccess (in-house Respondent online training platform) in May 2017. He also attended a Respondent Patient/Carer training on policy, and the risks of not following this policy were discussed at a Homecare Group Meeting in October 2013. The Complainant also participated in full training days given in June 2014, February 2015, October 2015 and August 2016 to all PSRs & Clinical staff with same arranged and given by the Head of Healthcare Ireland and a Senior Patient Services Representative and other members of the Respondents Clinical Team. This training was both classroom-based and via workstations, one of which was specifically focused on portable concentrators (Inogens). In addition, full equipment training, (which included all aspects on the proper use of an Inogen device and assessment) was conducted in February 2018 by the Clinical Lead Ireland and Homecare Team Lead. Company records confirm that the Complainant attended this training programme.

 Once this incident came to management’s attention, a full fact-finding investigation was undertaken and on the 10th of February 2020, the Complainant and his SIPTU union representative, attended a meeting to discuss the investigation findings and to solicit his responses to the allegations. The meeting was conducted by the Respondents Clinical Lead Ireland for Homecare and the notetaker was the Business Development Manager, Homecare. The Complainant was copied with the signed minutes of this meeting and all supporting documentation. 

Following this meeting, it was decided that there were sufficient grounds to refer his case for a disciplinary hearing in line with the company’s disciplinary procedures.  

On the 25th of February 2020, a disciplinary hearing was held, prior to which, the Complainant had received all supporting documentation relating to his case and a copy of the company’s disciplinary procedures. The Complainant was accompanied at this meeting by his SIPTU trade union representative. The meeting was conducted by the HR Business Partner and Homecare Team Lead. The notetaker was a Patient Support Nurse, Homecare. Full notes were signed by all parties on the day of the meeting. During the course of the hearing the Complainant did not dispute the events that were under investigation and both himself and his Representative argued that it was a case of human error. Following a careful review of all the evidence, it was the decision of the disciplinary panel that the Complainant’s behaviour constituted gross misconduct and he was dismissed on the 4th of March 2020.

The Complainant, under company procedures, formally appealed the decision to dismiss him by email on 5th March on the grounds of severity and an appeal hearing was held on the 21st of July 2020. The delay in arranging this hearing was due to COVID 19 travel restrictions and the Complainant’s earlier request for a face-to-face meeting with his Union representative and the Company. The Complainant was accompanied at this meeting by Ms Marie O Connor of the SIPTU Workers Rights Centre and his SIPTU shop steward. The appeal panel was chaired by the Director of Area Sales with a Regional Operations Manager.

The Complainant and his representatives put forward the grounds for his appeal and argued that his misconduct was not serious enough to warrant dismissal. However, during the course of the hearing the Complainant offered no explanation as why he didn’t simply wait for clarification from either the office or his Line Manager prior to him issuing an Inogen device to the patient. Following careful consideration of all the arguments made on his behalf, the appeal panel upheld the decision to dismiss him.

On the 23rd of January 2020, there was no Inogen unit listed on the Complainant’s daily delivery/work sheet for the patient in question. While he has argued that he became confused as to whether the patient was to receive the device or not, it was incumbent on him, as an experienced and trained PSR, to check this out in advance of issuing the device to the patient, with either the Homecare Patient Service Centre or his line manager and to confirm that all the necessary paperwork had been completed. He failed to do so.

The Complainant personally arranged for an Inogen unit to be collected by one of the patient’s family members without instruction to do so, without any prior authorisation or approval, or without checking to confirm if there was a valid prescription in place. Notwithstanding the fact that he should never have issued the Inogen in the first instance, he failed to provide any advice or training to the patient or the patient’s family as to how the Inogen device should be used. Had the patient attempted to use the device, it could have had very serious or fatal consequences for them.

The Complainant had visited the home of the patient on 23rd January 2020 and the Inogen device was collected by a member of the patient’s family on 28th January 2020 from the Respondent depot in Limerick. The company believes that this would have provided ample time to the Complainant to check if the device had been properly approved for the patient.

It has been argued that the Complainant did not receive any training on the Inogen device or the consequences of using one incorrectly. However, company training records and management testimony confirm that he did receive general and ongoing training over an extended period of time on all relevant aspects of this device.

At the time of his dismissal, the Complainant was on a formal written warning, issued to him on the 9th of September 2019, and still live on his personnel record. The warning clearly stated that ‘any further offence may result in disciplinary action up to and including dismissal’. This warning was not appealed by the Complainant. The Respondent Homecare Department places trust in all our PSR’s to carry out their duties in accordance with the training provided by the company. As a business that deals with high-risk patients, it is crucial that this trust in maintained throughout the PSR’s employment. This was not the case for the Complainant as his actions caused a breach of the bond of trust the Respondent had placed in him.

The Complainant was dismissed by reason of his own actions which were not denied or explained adequately and were considered as serious gross misconduct.

It was the company’s position that the Complainant knowingly and intentionally breached company procedures, placing the Patient’s life at risk and the company’s reputation in jeopardy. His behaviour not only resulted in the breakdown of trust and confidence in him as an employee of the Respondent, but also constituted gross misconduct warranting his dismissal and therefore the terms of the Minimum Notice and terms of Employment Act were not applicable.

In line with the Minimum Notice and Terms of Employment Act 1973: 

Right to terminate contract of employment without notice.

Section 8. — Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party.

The Respondent Disciplinary Procedure also outlines the warranting of summary dismissal. The Company Union Agreement – Section 1.2 (d) states the following.

It was the Respondents belief that the Complainant was afforded all benefits of fair procedure, in line with the company’s policy, the WRC Code of Practice on Grievance and Disciplinary Procedures (SI 146/2000) and the universal principles of natural justice. Namely, the Complainant was informed in advance as to the nature of the allegation against him. He was afforded the right to representation. He was provided with a number of fair and impartial hearings, at which he was given every opportunity to respond to the allegations against him. All the evidence in its entirety was considered, including the Complainants representations before any decision was made or action taken. In light of all of the above, the Company believes that the dismissal of the Complainant was procedurally fair in all respects.

It was the Respondents position that these claims under Section 8 of the Unfair Dismissals Act 1977 and under Section 12 of the Minimum Notice & Terms of Employment Act 1973 are not well founded.

Section 6(1) of the Unfair Dismissal Act 1977 states that “Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless having regard to the circumstances, there were substantial grounds justifying the dismissal.”

In relation to a dismissal sanction imposed by a Company, the principles to be applied in cases of gross misconduct have been clearly established over time, and the test as set out in Looney & Co. Ltd v Looney, UD 843/1984 is as follows “It is not for the Tribunal to seek to establish the guilt or innocence of the claimant, nor is it for the Tribunal to indicate or consider whether we, in the employer’s position, would have acted as he did in his investigation, or concluded as he did or decided as he did, as to do so would substitute our mind and decision for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in the same position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s action and decision be judged.”

Secondly, in Bunyan v United Dominions Trust (1982) ILRM 404the EAT adopted and applied the following principle enunciated by the UK EAT in NC Watling Co Ltd v Richardson [1978] IRLR 225 “The fairness or unfairness of dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business, would have behaved. The tribunal therefore does not decide the question whether or not, on the evidence before it, the employee should be dismissed. The decision to dismiss has been taken, and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded.

Also, relevant to consider is whether the decision to dismiss is proportionate to the gravity of the complaint and indeed as Flood J observed in Frizelle V New Ross Credit Union (1997) IEHC 137 “the decision must also be proportionate to the gravity and effect of dismissal on the employee”. In Pacelli v Irish Distillers Ltd (2004) ELR25 the EAT stated that any investigation should have regard to all the facts, issues and circumstances.

The termination of the Complainant’s employment did not arise by mutual consent and the fact of dismissal is not in dispute, therefore, the Respondent carries the onus of showing that having regard to all the circumstances there were substantial grounds justifying the dismissal. The Respondent contends that the dismissal was justified on grounds of the Complainant’s gross misconduct. The Adjudicator is satisfied that the actions by the Complainant could be regarded as having the potential to be grave and for the Respondent to consider a disciplinary action. However, while the Adjudicator accepts that such conduct goes to the heart of the relationship, the question is whether or not it was reasonable to dismiss the Complainant in such circumstances. This issue is whether a reasonable employer would have dismissed the employee in the same circumstances and were there sufficient points in dispute or procedural or disciplinary/investigation breaches in the case to justify a lesser sanction. This was further explained by Donaldson LJ in Union of Construction Allied Trades and Technicians v Brane [1981] IRLR 224(Court of Appel for England and Wales) in the following terms: -

It is a very sensible approach for Tribunals to put themselves into the position of the employer, informing themselves of what the employer knew at the moment, imagining themselves in that position and then asking the question, ‘Would a reasonable employer in those circumstances dismiss?’ However, Tribunals must not fall into the error of asking themselves the question; ‘Would we dismiss?’ because there is sometimes a situation in which one reasonable employer would and one would not. It is sufficient that a reasonable employer would regard the circumstances as sufficient reason for dismissing. The statute does not require the employer to satisfy the Tribunal of the rather more difficult consideration that all reasonable employers would dismiss in those circumstances”

In Derryquin Hotels Ltd v Savage [1981] IRLR 91, Lord Denning MR stated the position thus “It must be remembered that in all these cases there is a band of reasonableness within which one employer might reasonably take one view: another quite reasonably take a different view. One would quite reasonably dismiss the man. The other would quite reasonably keep him on. Both views may be quite reasonable. If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair: even if other employers may not have dismissed him”.

This case involved substantial and detailed evidence from both parties, much of which related to events surrounding the provision of unprescribed medical equipment, the Respondents own SIRI process and definitions, the Investigation and Disciplinary processes and issues on Appeal. At the Final Hearing the submissions and sequence of events which lead up to this dismissal were examined by the Parties and the Adjudicator in considerable detail. The Complainant admitted that when he visited the house of Patient X on January 23rd, 2019 he mistakenly understood, based on “pressure” from the Patients son in law, a Paramedic and the Patients Daughter, a Nurse, that a POC was required for the Patient. On examining the Respondents Installation Electronic Notebook on leaving the House the Complainant mistook the patient’s installation equipment requirements for a different patient he was due to visit that day, who was prescribed a POC. The Complainant later that day sought to requisition a POC from central stock for Patient X and none was available. The Complainant admitted this requisition was a mistake on reading the wrong Patients instructions and put it down to human error and pressure for the family of Patient X. The Complainant went to some length in the appeal process and his submission to show how difficult the electronic system can be to operate, and the Respondent acknowledged this and stated in its submission that the system was due for an update in July 2021. In the days between January 23rd and 28th the Complainant attempted to make contact with Central Office and communicated with his Line Manager regarding the need to requisition the POC. The evidence showed multiple attempts by the Complainant to follow up the requisition of the POC.

The Respondent telephone system encountered a break down for a day and the calls to Central office largely, remained unanswered. However, the Complainant, mistakenly, remained of the belief that the POC was required for Patient X. On January 28th when the POC had arrived from Central Stores to the Complainants work location the Complainant took the POC, as normal from stock, and gave it to a sister company nearby and arranged for collection by Patients X son in law. The Complainant stated this was normal practice and not an unusual event. The Complainant notified Central Office to place the POC on Patient Xs record of stock issued to patient X. Seven minutes after the call the Complainant was notified by Central office that no POC was prescribed for patient X and the Complainant immediately rang the Patients Son in law, advised hm of the error and the Son in law returned the POC to the Depot. The Complainant strongly argued that if his texts had been picked up on the day of the incident or before the POC was collected by Patients Xs Son in law that this human error would have been found and the POC would not have been issued to the Patients Son in law. While the error may have been uncovered earlier it is not appropriate to apportion a serious contribution of the office staff or Line Manager to the error, which was made by the Complainant and he has to take more “ownership” of the error.

The Complainants Representative stated that if the action of the Complainant was so serious and warranting gross misconduct/summary dismissal why did it take from Jan 28 to Feb 6th to initiate an investigation and why was he allowed continue to work and complete overtime. This can be looked at two ways. The Respondent was reasonably not taking any action prior to the investigation being completed or the Respondent did not think the action of the Complainant was serious enough to merit immediate suspension pending investigation. I find that this issue is not central to this case but, if anything, errors on the side of the Complainant that the issue, upon discovery, was not serious enough to merit suspension pending an investigation.

The Respondent initiated an Investigation process into the events, and this was conducted by a Clinical Lead Nurse. The Nurse met with several people in the process including the Complainant but not the Patients son in law or Daughter. The Investigator was an employee of the Respondent and therefore impartiality becomes an issue. The Investigator did not produce any terms of Reference for the Investigation and critically did not produce any formal report or written findings after the Investigation was complete. Nor were any findings provided to the Complainant.  This is a fundamental flaw in the Investigation process and especially so as the Investigator appears to have recommended disciplinary action be pursued against the Complainant arising from her Investigation, resulting in the Complainants dismissal. Serious errors of due diligence were evident in the investigation process which renders its results questionable although the fundamental issue of the POC not being prescribed was correct. At the Hearing, on questioning of the process by the Complainant Representative, it was confirmed that this was the first investigation carried out by the Investigator. The Investigation was “to gather facts and ask questions”.  The finding that the issue warranted disciplinary action is also open to question procedurally and was contested as a finding in the Hearings. Most Investigations are just fact finding and leave the issue of deciding whether disciplinary action is required up to the Line Management on review of the Outcome of the Investigation. It can be the case that an Investigator can make Findings which recommend disciplinary action, but this is normally included in written Terms of Reference and the person being investigated is made aware of this possible outcome in advance of the Investigation. This did not happen in this case. Also, the Respondent seems to have been well prepared in advance of the Investigation meeting, but the Complainant had no sight of these questions in advance and had to respond, “on the cuff” and his answers recorded. This again introduces a question of Impartiality in the Investigation process. He was also of the view it was a SIRI Investigation, and no mention of possible disciplinary action was mentioned in the Invitation to the Investigation or the seriousness of how the Respondent viewed the matter.

The Respondent has a Serious Incident Requiring Investigation process (SIRI). This process was initiated by the Respondent after the events of January 23rd. However, it appears the process was not competed until a date between the first and second Hearings in this case. Either way the Respondent argued the SIRI process was more for evaluating an incident, taking corrective actions and updating other PSRS about being aware of the issues involved so as not to repeat them and not for disciplinary purposes. The Complainant understood he was entering into a SIRI Investigation.  However, on examination the SIRI process had a Risk Matrix which only covered “PATIENT INJURY OT DEATH”. It had 5 possible level of outcomes in ascending order of severity.

                                                              Negligible

                                           Minor (No consequence to the Patient)

                                                Moderate (ill Health of the Patient)

                                               Major (Hospitalisation of the Patient)

                                                   Catastrophic (Death of the Patient°

Therefore, one could conjecture the reverse argument applies from the Respondents own categorisation of serious incidents that where NO PATIENT INJURY OR DEATH OCCURRED it is not classified as Serious. Even using the Respondents own Matrix of Outcomes, the events involved in this case only fall into the category of Negligible or Minor, in that it is an “Identified non-conformance prior to commencement of Service”.  Therefore, the Complainant was dismissed for what the Respondent, at best, classifies in its own Risk Matrix as a Minor or Negligible non- conformance.  This was confirmed at Level 2 Risk in the Final SIRI Report, dated March 5th, 2021.  Why the SIRI Report took so long to complete was never really resolved and its completion between the first and second again leaves questions open.

The Incident Report focused solely on the Complainants actions and no evidence was produced to show the more generic corrective actions required from the events, including operational changes to improve the Respondents own processes to ensure such a potentially serious piece of equipment if misused was not given out to a Third party in one of its sister locations by an untrained Manager in Healthcare, with no paperwork or sign off by the person collecting the equipment to verification or the PSR concerned that all necessary steps had been completed prior to its issue to a Third party, including verification it was prescribed for a patient in the first place. Even if the Adjudicator accepted the Respondents argument that the SIRI had no impact on the dismissal of the Complainant the fact the SIRI was not completed for more than 12 months and no evidence of written communication (the Respondent stated it had communicated verbally with the other PSRs) with other PSR staff was provided shows an apparent lack of diligence by the Respondent in the process.

The Respondents Company Union agreement states in Section C, Further Disciplinary Action that “In the event of further failure after a written warning or for extremely grave offences, the case will be referred to a more Senior Manager”.  In this case the Complainant was on a Written Warning at the time of the incident. This warning, unrelated to the issue of equipment or safety, was issued by the Operations Manager for the UK and Ireland. The Dismissal letter was issued by the Complainants Line Manager (one or two levels below at the time) and the decision to dismiss was made by the Complainants Line Manager, albeit based on his evidence after consultation with HR and a more Senior Manager. The issue of why a written warning was issued by such a senior Manager and the dismissal letter was issued by the Complainants Line Manager was explored at the Hearing arising from the submissions. The Respondent stated their company union agreement was around 20 years old and needed updating and that the Senior manager had been consulted on the decision to dismiss. No evidence was available to substantiate this. The Line Manager advised he was relatively new to the role and had been promoted through the ranks of the company over 20 or so years. The Respondent stated that dismissing a person for gross misconduct was a rare occurrence in the Organisation and therefore the dismissal process was not constantly used by the Respondent. However, the Union Shop Steward countered this argument by stating that 3 staff had been dismissed by the Respondent in the previous 18 months for gross misconduct. This was not contested by the Respondent. The finding here is that the Respondent failed to follow its own disciplinary procedure in this case as the natural course of a disciplinary process, and as per its own stated disciplinary procedures, would lead to the legitimate expectation that the dismissal would have been handled by a Manager more senior to the person who issued the written warning.  Therefore, the dealing with/decision to dismiss “for extremely grave offences, the case will be referred to a more Senior Manager” was not taken by the appropriate Manager according to the Company Union agreement.

Regarding the Appeal Hearing conclusions the Respondent stated in its letter rejecting the appeal that the Complainant was on a Final Written Warning at the time of the Appeal. This was incorrect and was explained at the Hearing by the Appeal Manager as a typing error and that it did not influence the appeal outcome. The Complainant Representative questioned the Appeal Managers recollection related to this issue and argued that it was also a “human error” and the incorrect interpretation of the status of the Complainants warning may have significantly influenced the outcome in this case to not reverse the decision to dismiss.

The Company Union Agreement states similar offences will be treated the same. The Complainant argued that another employee, who was the Shop Steward, had made a similar error a number of years go and that he had received a lesser sanction and thus the Complainant was not treated equally. The Respondent argued that the situations were very different, and the Complainants breach of procedure was more of a risk that the previous breach and thus warranted a different disciplinary sanction. In reality, the outcome of this case did not rest in any keyway on this point, but again raises the question of procedural fairness.

It is important to point out that the Complainant had nothing to gain from his actions and no malfeance or improper intentions were attributed to the Complainants actions in this case. The Complainant had over 20 years’ service with the Respondent and liked his job and had a high regard for the Respondent. He had suffered a substantial income loss as a result of his dismissal and loss of earning and attempts to mitigate his loss information was provided at the Hearing and expanded upon in detail subsequent to the Hearing.

I have examined the range of issues included in the Company/Union agreement justifying “Summary Dismissal”. The only possible offence that the Complainants actions come within is number 7 “Wilful neglect in the care of the Companys property and deliberate disregard of instructions and safety precautions”. But even if this justification were applied to the instant case (and I completely understand that the list justifying summary dismissal may not be exhaustive, but the Agreement does not state that it includes other non-specified grounds) the words “wilful” and “deliberate” do not apply in this case. Therefore, the question of the dismissal being justified under the Company/Union agreement comes into play and again points to some questions of what the Respondent had in mind when it agreed the Company/Union Agreement, albeit for summary dismissal and not gross misconduct.

In conclusion, the question of whether Dismissal was within the range of reasonable responses from the Respondent has to consider both the substance of the events involved and the Respondents actions to investigate the incidents thoroughly and professionally and the compliance of the Respondent with its own disciplinary procedures. In summary, the decision and processes leading to the Dismissal decision by the Respondent do not meet the requirements set out in Looney of “what a reasonable employer in the same position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s action and decision be judged.”   A “Reasonable employer” would have taken more consideration of the following:

Not dismissed for a Minor or Negligible Non-Conformance

Taken more account of the fact this was a human error

That the medical equipment never reached or was able to be used by the patient

That even if it had it would have been administered by people medically trained

That the Investigation process which lead to the dismissal had no Terms of Reference, no Report and crucially no written findings and was not impartial

That the Complainant was not notified in advance that the Investigation could lead to dismissal

That the Respondents own Risk Matrix for Incidents did not include the Complainants actions as Serious and even if the Matrix was used the outcome was “minor”. The Respondent would have a more appropriate Risk Assessment Form if it were to hold employees to a different disciplinary standard than its own Risk Assessment measures

That the Investigator was conducting their first Investigation and may have been inexperienced in the process which was evidenced in a number of ways but particularly in interviewing the Patient who was unaware of the issues involved and never received the medical equipment and then failed to interview the Paramedic and Nurse who were centrally involved or examine the business processes failures which contributed to these events

The fact that the error would have been rectified much earlier by the Respondent if the frequent messages from the Complainant had been responded to appropriately between January 23 and 28

The fact that immediately upon realising his human error the Complainant rectified the Situation immediately

That there was no personal gain or malfeance involved by the Complainant

Taken more account of the Complainants long service

Taken more account of the Business process failure that allowed the medical equipment to be given out by a “Third Party” Manager to a “Third Party” person without any check back that the equipment had been prescribed

Taken more account at the Appeal stage of the operational difficulties of the electronic system which was due to be upgraded soon

Followed its own disciplinary procedures correctly by escalating the decision and communication of the decision to dismiss to a higher-level Manager and recognising that, as admitted at the Hearing, that this was the first dismissal by the Line Manager involved and he had little experience of handling similar situations (End)

The fact of life is Human Error occurs. Even the Respondents own letter on giving the decision on appeal, contained as it maintained, a typographical error, also a human error. However, human error in the workplace prior to making a decision to dismiss has to be examined in the “round” and not treated in isolation. In addition to the error itself it has to be considered by an Employer in the context of any prior serious errors, the past service of an employee, issues of mitigating factors, operational issues that may have contributed to the error occurring, the Employers own processes (or failings in such processes), the impartiality and completeness of the Investigation process and the disciplinary and appeal processes (and any failings in these processes) and giving detailed consideration to other alternative disciplinary actions. These are the actions which will give the range of options to Reasonable Employer to consider. I thus conclude that had all these issues been more fully considered and evaluated by the Respondent prior to the dismissal of the Complainant, the Respondent would not have included dismissal as a reasonable response open to them in this case. It is not for the Adjudicator to establish whether the Complainant’s behaviour constituted gross misconduct warranting dismissal but rather was it sufficient for the Respondent to believe on reasonable grounds that it was. Based on the evidence given, the Adjudicator is satisfied that there were valid grounds for the suspension of the Complainant following the events of January 23 to 28 but not dismissal. Having regard to all the circumstances in the instant case, the Adjudicator has come to the conclusion that the decision to dismiss the Complainant was tainted with operational, investigation, disciplinary and procedural unfairness.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 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. The Respondent certainly had grounds to consider disciplinary actions in this case but taking the events, the sequence of events between January 23 and 28, the fact the equipment never reached the Patient, the flaws in both the Investigation and Disciplinary processes, the question at the Appeal stage regarding the written warning, that the Complainant had long service and immediately rectified his error when he became aware of it, the failure to follow the agreed Disciplinary process, the business process failings of the Respondent, the issues with the electronic equipment and that the Complainant had no personal gain to make by his human error leads me to conclude that the Respondent did not have substantial grounds to fairly dismiss the Complainant.

 I find that the Complainant was unfairly dismissed (CA-00039323-001).

With regard to Redress the Complainant Representative sought Reinstatement as the appropriate redress in the event of the Complainant being found unfairly dismissed. Section 7 of the Act states the following” Redress for unfair dismissal”

7.— (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances

a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations undersection 17of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid”

 The Complainants lack of diligence in correctly analysing what was prescribed for the patient was the reason for the dismissal action been taken against him. He was also on a written warning at the time of dismissal, albeit for an unrelated issue. For these reasons the Complainant has to share the responsibility for the situation he found himself in by being dismissed. I have decided the appropriate redress in this case is Re-engagement of the Complainant in the Position he previously held, from two weeks after the date of this Decision. While the Complainant may feel that Reinstatement is appropriate, from the date of dismissal, given the finding of Unfair Dismissal, I deem Reengagement to be more appropriate considering all the circumstances of the case. For the breach of procedures, which was the substance of this case, the Complainant should be considered to have been on unpaid suspension until the complete Appeal process was concluded, until he returns to work. This period of Suspension is supported by the Labour Court Decision MND198 in Michael Caplis and Transdev Ireland Ltd, where the Court provided for an unpaid suspension for even a longer period of time.  It is also noteworthy that the Respondent did not argue at the Hearings that Re-Instatement/Re-engagement would been impractical a Remedy. However, the Adjudicator feels duty bound to point out that the potential of Patient Risk of the Complainants human error has to be recognised and the Complainant needs to be aware, from a Patient safety viewpoint, that any future serious lack of diligence in providing any unprescribed equipment to a patient (or other equally serious misconduct) might find a different outcome on Appeal, irrespective of procedural or investigation issues. The period of service from the date of dismissal to the Re-engagement date will count for service for all relevant matters, except annual leave and public holidays. On return to work, it is imperative upon the Complainant to rebuild the bond of trust with the Respondent and more particularly to be diligent and rigorous in ensuring the delivery of what is only prescribed to patients in the future.  Future serious errors in delivering unprescribed equipment to a Patient must be avoided by the Complainant rigorously with less reliance on system issues and more reliance on self-diligence.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act. As the Complainants Unfair Dismissal was upheld and Re-engagement ordered as the particular Remedy, the Complainant is not entitled to Notice Pay under the Minimum Notice and Terms of Employment Act 1973, as his employment is now not deemed to have terminated and as such the issue of Notice pay is a moot point and no notice is applicable in these circumstances and I find the Act was not contravened by the Respondent. (CA-00039323-002).

Unfair Dismissal