Complainant

Respondent

Parties

Jill  Wright

Saivikasdal Ltd t/a Greenhill Nursing Home

Representatives

Barbara Ryan, B.L.                           Michael O'Brien  Solicitor  

Gerard Hussey B.L.                          Martina Ryan Solicitor

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-00029609-001

11/07/2019

The Complainant contends that she was unfairly dismissed from her employment.

The Complainant was employed as a Nurse by the Respondent from in or around 2nd December 2010.  Her complaint pursuant to the Unfair Dismissals Act 1977 is that she was unfairly dismissed by the Respondent in or around 21st January 2019.  The Complainant was furnished with a Contract of Employment dated 25th May 2011.  The Contract provided for disciplinary procedure including the conduct of investigations and sanctions available to the Respondent in the event of established wrongdoing.  The Complainant performed well during the course of her employment with the Respondent and was never the subject of any disciplinary complaint investigation, finding or sanction and was held in high regard as to the standard of her performance.   She changed from full-time to part-time work in November 2018 due to her relationship breaking down and her childcare needs changing. 

On 10th January 2019 the Complainant was summoned to a meeting with the new Director of Nursing Ms S who had taken up her position in or around December 2018.  The Complainant attended the meeting on 11th January 2019, having been given no indication as to the purpose. Neither was she given any documentation or agenda or advised that she had a right of representation.   At the meeting on 11th January, the Complainant was informed that the nursing home had been contacted by HIQA pertaining to a complaint that the Complainant was alleged to have taken a blister pack of medication belonging to a patient home with her from work.  The Director of Nursing advised the Complainant that the complaint had been made to HIQA by her former partner and father of her children, a person who has no involvement with the nursing home or any of its current or former patients.  The Complainant sought to explain to the Director of Nursing that she had ongoing personal issues with her former partner and that she was quite satisfied that he was motivated to damage her professional reputation and that there was no basis to his allegations of wrongdoing against her.  The Complainant indicated to the Director of Nursing that she had acted in accordance with the directions of the former Director of Nursing and emphatically denied all allegations of wrongdoing against her.  The Complainant was suspended and given no opportunity to address the issue of suspension.  The Director of Nursing also indicated to the Complainant that the owners of the nursing home who were abroad in India at the time, with whom she had been in discussion, would return the following week and contact the Complainant and the outcome would be that the Complainant would either have to resign or would be dismissed.    The Director of Nursing also made it clear that the involvement of HIQA was deeply problematic and had they not been involved the matter could have been handled in a different way.  It was made very clear to the Complainant that the termination of her employment was entirely predetermined and the only option.  At that meeting a letter was typed and handed to the Complainant by the Director of Nursing which stated:

“I (the Complainant) am writing this letter as it has been brought to my attention by (the Director of Nursing) that a concern has been raised with regard to my professional conduct.  I am currently going through a complex legal separation from my partner, Mr M, who has made this allegation.  My legal team are involved as this has been a volatile and difficult time for me.  I admit to the allegation made as regards the medication being brought to my home from the nursing home.  I was given pain relief, anti-inflammatory medication from the previous Director of Nursing due to my complaints of pain.  This medication has been in stock in the nursing home at the time.  I understand that an investigation will ensue following this.  I will engage with Dr V, Dr D, (the DoN), HIQA and any other parties throughout this investigation.” 

On 17th January 2019 the Complainant attended a second meeting where both the Director of Nursing and owner of the nursing home were present.  The Complainant was told that if she resigned her employment this would conclude HIQA’s investigation and this was the only way the Complainant would not be investigated by the Nursing & Midwifery Board and thus could retain her nursing pin.  The Complainant told the attendees at the meeting the reason she had medication in her possession.   Following the birth of her daughter in 2015 she had experienced ongoing back pain and painkillers were sourced from a cabinet in the room of the Director of Nursing at the time who sanctioned the use of the pain medication by staff.   The Complainant understood from that meeting that she was being fired and that in cooperating with the Respondents they would not make a complaint about her to the Nursing & Midwifery Board who would take away her pin.  The Complainant at that stage was a single mother to two children, one with special needs and she was extremely concerned that her ability to provide for her children which was a huge factor in determining the outcome of the Respondent’s request.  On the same day the 17th January 2019 the Complainant received a letter from the Respondents informing her that their solicitor had been nominated to carry out an independent investigation.  On 20th January 2019 the Complainant wrote a letter of resignation.  On 23rd January 2019 Director of the nursing home Dr J wrote to HIQA indicating that the Director of Nursing had telephoned them on 10th January 2019, that the Complainant had been suspended from duty immediately and that a third party had been appointed to investigate the matter.  The letter stated that as soon as it was notified to them the Investigator contacted the Complainant and recovered all the medications.   The letter also stated that the concerned nurse had resigned her duties.                                                                                                          On 24/25th January 2019 emails were exchanged between An Bord Altranais Fitness to Practice, indicating that the nursing home was making a complaint against the Complainant and the Fitness to Practice solicitor response included the fact that “a complaint must be made by an individual and not a Nursing Home”.  In a letter to the Fitness to Practice Solicitor, Dr J stated that one of the medications recovered was ‘probably Tab Ixprim’.  The medicine Ixprim was not mentioned in the HIQA report and the Director of Nursing did not discuss the inclusion of Ixprim with the Complainant.  Neither did the Complainant sign documentation relating to this.

The information regarding the medication contained in an Investigation Report was relayed to the family of a patient.  This information identified the Complainant, in contravention of the Data Protection Acts.

Legal Submissions

Section 6(6) of the Unfair Dismissals Act 1977 reads as follows:

“In determining for the purposes of this Act whether or not the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.”

Regarding the obligation on the Respondent to act “reasonably” if dismissal to be justified on the basis of the employee’s “conduct”:

It is submitted that the Respondent asked the Complainant to resign or she would be dismissed and the Complainant did not want to do so.  She had considerable domestic responsibilities and was the sole supporter of her two young children, one with a disability.  It is submitted that the Complainant understood she was being dismissed and she understood that if she complied with the dismissal and wrote a letter of resignation, the Respondent would not report her to the Nursing & Midwifery Board whom the Respondent told her would remove her nursing pin and she would be unable to work into the future.  On that basis she wrote a letter of resignation dated 20th January 2019.             It is submitted that this letter of resignation cannot be relied upon as it was brought about by the Respondents indicating that the Complainant was being dismissed.  In O’Reilly v The Minister for Industry and Commerce Ireland and the Attorney General [1991 No. 14613p], Carroll J. stated:

“Mr Drogan was, in my opinion bound to act fairly, as well, in the circumstances that Mr O’Reilly believed he had no option but to go.  The failure to correct this misapprehension which must have been obvious, was effectively a misstatement and therefore, the defendant cannot rely on this letter of resignation which resulted from the interview.”

Other case law and relevant texts were cited in support of the Complainant’s arguments regarding obligation on the Respondent to afford fair procedures, failure to pursue alternative lines of enquiry and proportionality of sanction/consideration of lesser sanctions.  

If the Complainant states she was dismissed at the meeting on 11th January then the complaint is out of time.

In the alternative, the Complainant was not dismissed.  She resigned by letter dated 20th January 2019. 

Without prejudice to these two matters, the Respondent denies the factual assertions contained in the submission from the Complainant regarding the meeting on 11th January 2019.  The Complainant has misrepresented the true facts of the matters leading to the resignation.  Specifically:

The Complainant was not summonsed to a meeting with the Director of Nursing on 10th January 2019 as asserted.  She was invited to a meeting to discuss a concern which had been communicated to the Respondent by the Health Information and Quality Authority (HIQA);

There was no requirement that the Complainant should have representation – the purpose of the meeting was to inform the Complainant of the nature and contents of the HIQA communication;

The Director of Nursing did not identify the third party who made the complaint to HIQA.  The Complainant it was who identified him;

The Director of Nursing, at the meeting on 11th January 2019, made no further allegations of wrongdoing about taking medications or otherwise;

The Complainant admitted to the Director of Nursing at the meeting that she had taken medication which had been prescribed for patients and signed a letter to that effect and agreed to cooperate with any investigations.  She admitted verbally to the Director of Nursing at the meeting that she was aware that her conduct in taking such medication was wrong.

The suspension of the Complainant was reasonable in the circumstances and in accordance with the Employee Handbook [Disciplinary Rules and Procedures A.4.(e) – page 31].  It was a decision made in good faith, which did not imply wrongdoing and made in circumstances which the Respondent’s primary responsibility was to secure the safety and well being of residents.  A failure to suspend the Complainant, on foot of the issue raised by HIQA would have been unacceptable to that authority.  Moreover the Complainant’s suspension was on full pay and the Complainant suffered no financial loss. 

The Director of Nursing did not indicate to the Complainant that the outcome of any investigation would be that the Complainant would have to resign or be dismissed.

The Director of Nursing did not make it clear to the Complainant that the involvement of HIQA was problematic, as alleged.  The sole mention of HIQA was that the Authority had raised a concern in relation to the removal of medication.  Termination of employment was not predetermined. 

The Complainant has entirely misrepresented the discussion which occurred on 17th January 2019.  The Respondent did not tell the Complainant that her resignation would conclude the HIQA investigation or that her resignation would preclude an investigation by the Nursing and Midwifery Board.  HIQA did not have an investigation – rather HIQA raised a query or concern which was passed to the Respondent and required the Respondent to deal with it.

The Respondent was required to complain the Complainant to the Nursing and Midwifery Board.  The permission of the previous Director of Nursing to the taking of a patient’s medication by the Complainant did not justify such taking.

The Complainant was at all times given fair procedures.

The Complainant has misrepresented the factual position with respect to the recovery of the medication.  The medication was recovered by the Investigator from the initiator (and not from the Complainant) of the complaint to HIQA.  All medication was recovered before the Respondent submitted its response to HIQA on 23rd January 2019.

Under no circumstances was there any written policy to keep or retain unused medication for use in emergencies as asserted by the Complainant.  The Respondent has a comprehensive Policy, well known to the Complainant to deal with all aspects of all residents’ medications.  Any discontinued medication on the Premises under lock and key was awaiting return and destruction in accordance with the Policy.

Insofar as the Complainant makes a point in relation to the medication Ixprim it was the Complainant herself who firstly identified this medicine to the Director of nursing when the parties met on 11th January 2019.

Insofar as the Complainant alleges a breach of the Data Protection Rules, the family of the patient in question were not told of the identity of the Complainant.  The sole breach of data protection rules was by the Complainant herself with the result that the Respondent had to notify the Data Commissioner of this breach.

The Respondent denies that there was any representation or inducement made or given to the Complainant to the effect that if she wrote a letter of resignation that the Respondent would not report her to the Nursing and Midwifery Board.  The Respondent could have no control over the actions of that Board.  The Respondent was required by HIQA to report the Complainant to the Board.    Moreover, a Garda Siochana investigation is ongoing in relation to the unauthorised removal of a resident’s medication.  The complaint to an Garda Siochana was insisted upon by the resident’s family members. 

It is submitted that the legal authorities (case law) have no application to the circumstances to this case.    

Evidence given

Complainant’s evidence

The Complainant stated that she qualified as a Nurse in 2008.  She commenced employment with the Respondent on 2nd December 2010.  Prior to the incident which led to her dismissal, she had no issue or problems in the employment.  After the breakdown of her relationship she had to work reduced hours to look after her children.   The Complainant stated that she received a phone call from the Director of Nursing on 10th January 2019 to come in to the nursing home immediately.  As she was not in a position to come in that day, she came in the following day 11th January 2019.  She had not been told what the meeting was to be about.  When she got there, the DoN read out a complaint to her mentioning that Melfen (Ibruprofen) and Difene tablets had been take from the nursing home.  The Complainant told the DoN that the previous DoN Ms F told the nurses that they could take medicines from the cabinet in an emergency.  The cabinet was locked and the key on the Nurses’ bunch of keys.  Following the birth of her daughter in 2015 the Complainant had back pain and the Ms F told her she could take the pain killer in the press.  At the meeting on 11th January 2019, the Director of Nursing said she would type out the letter for the Complainant to sign, she worded it and the Complainant signed it.  At that meeting, the Director of Nursing told the Complainant not to come in the following day, that she (the DoN) had spoken to the Doctors who owned the nursing home and they had indicated that if the Complainant did not resign, her employment would be terminated and she would be dismissed.  The DoN did not use the term ‘suspended’, she said that the Complainant was not to come into work until the Doctors were back and decided what would happen.   On 17th January 2019 the Complainant met with Dr W and the Director of Nursing.  The Complainant stated that she was told at this meeting that if she resigned that there would be no HIQA involvement and The Nursing and Midwifery Board would not be contacted.  She was brought into the canteen by Dr W and told to go home and think about resigning.                                                                                                                                                                               The Complainant was cross examined by the Respondent’s representative.  He put it to her that there had been a breach of trust and confidence in her from both the employer and the residents of the nursing home and that the theft of the medications by the Complainant had resulted in enquiries by the authorities such as HIQA, An Garda Siochana and the Nursing and Midwifery Board into the Complainant’s malpractice.  In reply to a question from the representative regarding the origin and practice of removing medication, the Complainant stated that the previous DoN had given her permission as she was coming off night duty and rather than have to attend a G.P. she could take some of the pain killers in the cabinet.  The complainant believed this medication was ‘discontinued’.

Evidence of Director of Nursing  

The Director of Nursing stated that she took up her post on 2nd January 2019.  The first encounter she had with the Complainant was on 10th January 2019 when she had to ask her to come in to discuss a matter which required immediate attention.  She had received a phone call from one of the owners of the nursing home and email from HIQA.  She told the Complainant that there had been a complaint, but she did not tell the Complainant what the subject of the meeting was as she found the matter to be obviously difficult.  She did not consider the matter was a disciplinary one at that stage.  She asked the Complainant to sign the document agreeing to an investigation as there were no witnesses in the room on 11th January 2019.  The Director of Nursing did not tell the Complainant she would have to resign or be sacked.

Evidence of Dr V

One of the owners of the nursing home gave evidence.  She stated that the nursing home is a sizable one with some 65 residents and 10 or 12 Nurses.  The home has been very successful, with excellent staff and no Covid cases.  This is attributable to good policies and practices in the home.                             The witness stated that she had known the Complainant for 10 years, that she had a senior position in the nursing home in terms of trust and confidence.  When the witness received a phone call from HIQA on 10th January 2019 she was shocked and knew that immediate action was required.  She contacted the Director of Nursing and asked her to take action.  It was not a disciplinary matter at that stage.  It was an allegation so it was important to get the Complainant’s side of the story.    She met with the Complainant on 17th January 2019 with the Director of Nursing.  The Complainant told her she was sorry and at the conclusion of the meeting, she was very distressed and said she was going to end it all.  The witness asked her to come to the canteen to have a cup of tea.  She said to the Complainant don’t do anything silly, and to go home.  The Complainant then sent in the letter of resignation the following Monday.  The witness stated that she never said to the Complainant that she should resign.  

There is no doubt that the matter of removing medication was a most serious one and despite whether the Complainant had permission from the previous Director of Nursing or not, the repercussions of so doing were enormous for the Complainant.

In reaching findings and conclusions in this matter, I am cognisant of the provisions of the Act, the principles of natural justice and the appropriateness of the sanction.

Statutory Instrument S.I. 146 of 2000 provides a code of practice on grievance and disciplinary procedures which lays down the basic tenets of fair procedures when an employee is being subject to disciplinary action.      The general principles of natural justice which must be complied with in any such situation as outlined in the Statutory Instrument are: that details of any allegations or complaints are put to the employee, that the employee be given the opportunity to respond fully and that the employee is given the opportunity to avail of the right to be represented and is given a fair and impartial determination of the issues concerned.

In this instant case, I note that the Director of Nursing called the Complainant in for an immediate meeting without giving her any notice or agenda of what was to be discussed.  Given the seriousness of the complaint against her, it would have been essential that the Respondent offer the Complainant the right to be represented from the very beginning of the procedure.  This did not occur.

The lack of notice of meetings on 11th January and 17th January 2019, lack of right to representation  and the absence of minutes of same render the proceedings of both meetings contrary to the principles of natural justice and fair procedures for the Complainant.

There was a conflict of evidence as to whether the Respondent asked the Complainant to resign or she would be dismissed from her employment.   I accept the Complainant’s evidence that she was told by the Director of Nursing at the meeting of 11th January 2019 that the owners of the nursing home had indicated that if she did not resign, her employment might be terminated.  I note the evidence of the Complainant in relation to the conclusion of the meeting on 17th January 2019 and I conclude that the Complainant resigned under duress.

I find that the case law cited by the Complainant’s representative - O’Reilly v The Minister for Industry and Commerce Ireland and the Attorney General [1991 No. 14613], where Carroll J. stated that the circumstances were such that Mr O’Reilly believed he had no option but to go, and the failure to correct this misapprehension was effectively a misstatement is relevant to this instant case.   In this case, had the Complainant remained in the employment the disciplinary procedure may well have resulted in her dismissal.  However, the fair procedures were not afforded her.                                                                                                            The Employment Appeals Tribunal has found that for a resignation to be valid it must be voluntary and not brought about under duress otherwise it will be construed as a dismissal by the employer.  In Flood v Regency Fair Ltd UD1036/1988 the Tribunal stated:

The Tribunal is satisfied that the resignation of the claimant was not voluntary and was induced directly by the respondent…We determine that she was dismissed from her employment with the respondent.”

For the reasons cited, that the Complainant was not afforded fair procedures and was under duress to resign, I find that the Complainant was unfairly dismissed from her employment and her claim succeeds.

Complaint of unfair dismissal upheld.  Contribution by Complainant.