Complainant

Respondent

Anonymised Parties

A Catering Assistant

A Hospital

Representatives

Shonagh Byrne SIPTU

Peter Flood, IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00046346-001

22/09/2021

The Complainant commenced employment with the Respondent as a Catering Assistant. She worked 39 hours per week and earned €635 per week. She was dismissed on the grounds of gross misconduct, effective on 15 September 2021.

Following an incident on 9th March 2021 in the hospital where the Complainant was unwell and unfit for work, she was suspended and was called to attend an investigation meeting into the incident. She was extremely unwell on the day in question and was brought to the Emergency Department by her colleagues. She had been experiencing personal health issues including mental health problems around the time of the incident and had been attending counselling outside of work at that time.

Following the investigation, the matter progressed to a disciplinary hearing which took place on 28th July 2021 and was chaired by the HR Manager. The Complainant was represented by SIPTU during the process. The disciplinary outcome letter was issued on 6 August 2021 and the Complainant was dismissed from her position. She appealed the dismissal on the grounds of the severity of the sanction, the importance of her job to her and her length of service with the Respondent. Following the appeal hearing which took place on 13th September 2021, the appeal outcome upheld the dismissal, and the date of dismissal was 15th September 2021.

The Complainant was employed as a Catering Assistant in the Hospital in a role where she had access to patients many of whom are seriously ill with various diseases, including diabetes and food allergies.

Further to the Complainant’s arrival at work at 09:30 on 9 March 2021, the Assistant Director of Nursing (ADON), was approached at 11.00am by a member of the agency catering staff, stating that there was an issue with the Complainant. When the ADON and a Staff Nurse went to the kitchen to investigate the situation, they observed the Complainant on her hands and knees on the floor in front of the fridge picking up packets of butter. Her speech was slurred, and she appeared incoherent and disorientated when answering.  At one point she asked if ‘M’, an employee who had retired some months previously was working that day.

The ADON asked the Complainant to accompany her and the Staff Nurse to the Nursing Office.  When they arrived, the Complainant stood against the wall and was asked on two occasions if had she drink taken.  The Complainant replied on each occasion that she had and was then informed that she was unfit for duty. The ADON left the office to get advice, leaving the Staff Nurse and the Complainant in the office. Whilst in the office with the Staff Nurse, the Complainant took a scissors from her pocket and gestured in a cutting motion.  When asked to put the scissors away she did so.  However, she then stated she was going home and left the office. 

When the ADON returned to the office, both she and the Staff Nurse went to see if they could find the Complainant.  They found her sitting on a couch on the main corridor and asked her to accompany them back to the Nurse Office.  On the way, she ran up a back stair.  They later found her in a pantry.  Again, she was asked to accompany them to the Nurse’s Office.  The ADON informed her that given the seriousness of what had happened, the matter would have to be investigated and informed the Complainant that she was being sent home. 

At 18:30 that day, the Complainant came to the ADON’s office and handed in a medical certificate.  She stated she would be back at work on the following Sunday (March 14).  The ADON informed her that she was now on time off with pay pending an investigation into the events that had taken place earlier.  The Complainant was informed by the Director of Nursing, who was in the office at that time, that the matter was very serious.

On March 15, 2021, the Complainant was sent the terms of reference to investigate her alleged incapacity to perform her duties on March 9, 2021. On March 23, 2021, the HR Business Partner at the Hospital, sent a letter to the Complainant informing her of administrative leave. The letter stated that the administrative leave was a protective measure pending the outcome of an investigation of the allegation of her incapacity to work on March 9, 2021.  The letter also informed the Complainant that the allegation was of a serious nature and could be deemed gross misconduct. 

On April 9, 2021, the HR Business Partner sent a letter to the Complainant with three witness statements attached and the Complainant was requested to furnish in writing her own version of events on what happened on March 9, 2021. She was also advised that the Hospital Occupational Health Department was available to her if she wished to avail of its support.

On April 9, 2021, the HR Business Partner also sent the Complainant a letter inviting her to an investigation meeting on April 22, 2021.  She was informed that she was entitled to bring a representative, including a trade union representative, to the meeting is she so wished. The Complainant submitted her statement of events on April 19, 2021. In this statement the Complainant said that she was unsteady on her feet on March 9, 2021 and felt confused.  She claimed that this arose because she had been awake since 04:00 that morning.

The investigation meeting took place on April 21, 2021 and was conducted by the HR Business Partner and the Director of Nursing. The Complainant attended with the SIPTU shop steward.  At the meeting the Complainant denied thatshe was under the influence of alcohol at work on March 9 or that she had taken a scissors out of her pocket, making a cutting gesture with it, in front of the ADON’s colleague.  However, at the meeting she also stated “the cutting – I was driven to it!  I just want to be left alone to do your work.”

Given the largely consistent evidence from the witnesses the investigators concluded that (1) the Complainant’s speech was incoherent on March 9, (2) she was unsteady on her feet, (3) she was confused at work (4) the Complainant made a cutting motion with scissors in front of another staff member (4) she had gone missing on two occasions from managers (5) she was shouting while being assisted to the Emergency Department in a wheelchair.

The conclusion was that the Complainant was unfit to carry out her duties on March 9. It further emerged during the investigation that the ADON had received unwelcome and threatening phone calls from the Complainant since 9 March 2021 and this was noted in the investigation report.

Following the conclusion of the Investigators, the matter was referred to a disciplinary hearing. The Human Resources Manager, wrote to the Complainant on July 23, 2021 and informed her that the scope of the charges was

·       Gross negligence or dereliction of duties

·       Gross insubordination

·       Incapacity to perform duties due to being under the influence of alcohol

·       Serious breach of health and safety rules

The disciplinary meeting, which took place on July 28, 2021, was conducted by the HR Manager who was accompanied by a HR Officer, who took notes at the meeting. The Complainant attended with her SIPTU representative. At the meeting, a discussion took place on the inconsistencies in the Complainant’s evidence on the consumption of alcohol.  The Complainant stated that when she visited the Emergency Department on 9 March, a test for alcohol consumption was taken and the test was negative.  The Complainant also stated that a copy of this test was given to the Assistant Director of Nursing. The Complainant undertook to provide a copy of the alcohol test to the HR Manager.  However, none was provided. The HR Manager also raised the issue of provision of the negative alcohol test with the ADON.  No such test was provided to the ADON. As a result, the HR Manager concluded that no such test report existed. The Complainant also stated that shortly after arriving at work on March 9 she slipped and further alleged that this was reported/recorded on an accident report form.  The HR Manager reviewed all accident report forms for that day and found that no such form had been submitted by the Complainant.

The HR Manager also highlighted at the disciplinary hearing that after 9 March the Complainant made several threatening phone calls to the ADON.  These messages included comments such as ‘you have a lot to answer for’, “I will be coming back, and you better watch out” and “I have a surprise for you sweetheart”.

The HR Manager issued his decision on August 6, 2021 and concluded

·       He did not accept that the Complainant did not understand the seriousness of the situation that occurred on March 9.

·       The Complainant’s behaviour on the day demonstrated a total disregard for safety rules, policies and procedures.

·       The Complainant put at risk the safety of patients, work colleagues and herself when presenting herself for work in an unfit state.

·        On the balance of probabilities, it was concluded that the Complainant was not in a fit state to undertake her normal duties.  Also, no negative alcohol test for that day existed and the Complainant did not submit an accident report form for the day in question

·       The attempt to intimidate a witness by unwelcome and threatening phone calls and messages in its own right, constituted a disciplinary offence.

·       That taking out a scissors while in the nursing office in a hospital that looks after sick and unwell children was unacceptable

Given the above conclusions the HR Manager concluded thar dismissal was justified in this case because what happened on March 9 amounted to ‘serious misconduct’.  The HR Manager stated that he considered the Complainant’s length of service and previous employment record when deciding what level of sanction to impose.

The Complainant appealed the HR Manager’s conclusions and the sanction imposed.Her appeal was heard by the Clinical Director at the Hospital and the Head of HR Business Partnering on September 13, 2021. The Complainant attended with her SIPTU representative Ms Shona Byrne.

The appeal was on the basis that the sanction of dismissal was disproportionate in the circumstances.  It was accepted by SIPTU that the process had been conducted in line with the Hospital policies and procedures. The SIPTU official accepted that the findings were of a very serious nature but that a lesser sanction should have been considered i.e. Final written warning and a support programme.

However, the Complainant had attended the Hospital Occupational Health Physician on several occasions during the investigation process, but she had been deemed fit to work and no underlying health condition was identified.

THE LAW:

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

Section 6(4) of the Unfair Dismissals Act, 1977 provides as follows:

4)     Without prejudice to the generality of subsection (1) of this section 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:

(a)   the capability, competence or qualification of the employee for performing work of the kind which he was employed by the employer to do,

(b)   the conduct of the employee,

(c)    the redundancy of the employee, and

(d)   the employee being unable to work or continue to work in the position he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

Section 6(6) of the Act states as follows:

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

Section 7 of the Act, in relevant part, makes provision as follows:

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had….

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

ANALYSIS

The combined effect of the above sections of the Act requires me to consider if the Respondent’s decision to dismiss the Complainant was reasonable in the circumstances and if it was both substantively and procedurally fair. 

In terms of the substantive aspect, it is well established case law that it is the role of the Adjudication Officer to consider the reasonableness of the Respondent’s decision in the circumstances and not to establish the guilt or innocence of the Complainant in relation to the allegations presented. This is set out by the Employment Appeals Tribunal (EAT) in the case of Looney and Co Ltd v Looney UD 843/1984:

“It is not for the EAT to seek to establish the guilt or innocence of the claimant nor is it for the EAT to indicate or consider whether we in the employer’s position would have acted as it did in its investigation or concluded as it did in its investigation or concluded as it did or decided as it did, as to do so would be to substitute our own mind and decisions for that of the employer.  Our responsibility is to consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decisions are to be judged.”

The function of the Adjudication Officer is therefore to assess what a reasonable employer in the Respondent’s position and circumstances might have done and this is the standard by which the Respondent’s actions must be judged against.

In the instant case, it was asserted that the Complainant was dismissed as a result of her incapacity to perform her normal duties on 9 March 2021 because she was under the influence of alcohol, which endangered the health and safety of the Respondent’s patients. In addition, she was found to have engaged in inappropriate behaviour, which she displayed by taking out a scissors and gesturing in a cutting motion as well as subsequently making intimidating phone calls to the ADON. Crucially, and commendably in my view, I also note that the Respondent referred the Complainant to Occupational Health after 9 March 2021 but that no underlying health or medical condition was identified which could have explained her conduct on the day.

In light of all of the foregoing, I find that the dismissal was both reasonable as well as substantively fair and must now examine if it was procedurally fair prior to making a decision on whether the Complainant was unfairly dismissed.

I note firstly that the Complainant’s union raised no issue with the procedures used by the Respondent at the time of the investigation, disciplinary or appeal processes and the Complainant’s representative confirmed at the hearing that SIPTU had no difficulties with the procedures afforded to their member. Notwithstanding this however, I noted that, while reference was made in the investigation report to the Complainant having made threatening phone calls to the ADON after 9 March 2021, and these calls were also highlighted in the disciplinary outcome letter of 6 August 2021, the allegation that she made these calls was not presented to her during the investigation or outlined in the disciplinary invitation letter issued on 23 July 2021. While I recognise that the allegation around the threatening calls was raised during the disciplinary meeting on 28 July 2021, it would have been preferable if these were addressed in the context of the investigation given that they were referred to in both the investigation report. This is in line with the suggestion of Mr Desmond Ryan BL at para 13.72 of Redmond on Dismssal Law (3rdEd., Bloomsbury Professional, 2017) where it was stated that:

“Heavy emphasis has been laid in recent case law on the duty on an employer to set out clearly allegations made against an employee from the outset, with the employer not being permitted to augment the allegations as the investigation progresses. This is because an employee is entitled to be informed at the outset of the complaint(s) being made against him or her in order to ensure he or she has a meaningful opportunity to prepare and present his or her defence.”

In deciding if the dismissal was rendered procedurally unfair by the failure to present the allegation to the Complainant, during the investigatory process, that she made threatening phone calls to the ADON, I note that in the case of Shortt v Royal Liver Assurance Ltd [2008] IEHC 332, Laffoy, J held that a central consideration to fair procedures is whether or not any purported breach of natural justice was ‘likely to imperil a fair hearing or fair result’. Having regard both to that decision, and my view that the HR Manager’s decision to dismiss the Complainant was substantively fair as a result of her conduct on 9 March 2021, without having regard to the subsequent threatening phone calls, I am satisfied that the procedural flaw which I have identified was insufficient to render the dismissal procedurally unfair.

Given that the dismissal was both substantively and procedurally fair, I find that the Complainant was not unfairly dismissed.

I find that the Complainant was not unfairly dismissed for the reasons set out above.