Complainant

Respondent

Anonymised Parties

Clinical Nurse Manager

Hospital

Representatives

Ms. Liz Curran, Irish Nurses and Midwives Organisation

Mr. Robin McKenna, IBEC

Act

Complaint Reference No.

Date of Receipt

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

CA-00047629-001

13/12/2021

The Complainant commenced employment with the Respondent on 23rd February 1993. At all relevat times the Complainant’s role was described as that of “Clinical Nurse Manager”.  The Complainant was a permanent, full-time employee and received an average weekly payment of €1,105.79. The Complainant’s employment was terminated by the Respondent on the grounds of alleged gross misconduct on 18th June 2021.

On 13th December 2021, the Complainant referred the present complaint to the Commission. Herein she alleged that she had been unfairly dismissed within the meaning of the impleaded Act. In particular, she alleged that her dismissal was outside the band of reasonable disciplinary sanctions available to the Respondent. In this regard, while the Complainant at all times admitted to the wrong-doing alleged, she offered various mitigating factors and suggested conditions in respect of her return to work during the internal disciplinary process. Her position was that the Respondent’s failure to properly consider the same rendered her dismissal unfair. In denying this allegation, the Respondent submitted that the Complainant’s admitted wrong-doing clearly constituted gross misconduct and that the sanction of dismissal was the only reasonable response to the same.

A hearing in relation to this matter was convened for, and finalised on, 5th December 2022. No issues as to my jurisdiction to hear the present complaint were raised at any stage of the proceedings.

At the outset of the hearing, the Complainant made an application to anonymise the names of the parties in the published decision. In grounding said application they submitted that the matter at hand concerns sensitive subject matter including matters relating to misuse of third-party data and certain allegations of fraudulent activity. On the date of the hearing these matters remain under investigation by third party bodies. Said submission was made with the consent and support of the Respondent. 

In this regard, Section 4(b) of the Workplace Relations (Miscellaneous Provisions) Act, 2021 provides that an Adjudication Officer may, following an application from a party to the proceedings or otherwise, due to the existence of ‘special circumstances’, direct that proceedings be conducted in private and that a decision be anonymized in its published form. Having considered the application made by the Complainant, it is apparent that the same constitutes special circumstances as envisioned by Section 4(b). In such circumstances I have elected to exercise my discretion to anonymise the names of the parties in the published decision. In so finding, I am mindful that the present matter involves a reference to the misuse patient data as well as matters sensitive to the Complainant. 

Both parties issued extensive submissions in advance of the hearing. These submissions were expanded upon and contested by the opposing side in the course of the hearing. The Complainant gave evidence in support of her complaint, while the Respondent called a Director of Nursing to evidence in defense of the issues raised. All evidence was given under affirmation and opened to cross examination by the opposing representative.

In circumstances whereby the Respondent accepted dismissal as a fact, they assumed the consequent burden of proof imposed by the Act and their evidence will be considered first.

The Complainant commenced employment with the Respondent in February 1993. In January 2008, the Complainant was promoted to the position of Clinical Nurse Manager.

On 21st January 2021, several irregularities concerning prescription medication were brought to the attention of the Respondent. On foot of the same, the Respondent commenced an internal fact-finding investigation. As part of this investigation process, the Complainant was interviewed and admitted to taking the medication in question. In addition to the foregoing, the Complainant admitted that she had taken a blank prescription form and completed the same for certain medications. The Complainant presented this script, containing a forged doctor’s signature, to her local pharmacy for the purposes of illegally obtaining prescribed medications. The Complainant further admitted to this misconduct on a previous occasion.

Following these admissions, the Complainant was suspended from duty and invited to a further investigatory meeting. During this meeting the Complainant stated that she was extremely remorseful for the transgressions. She stated that she was under the care of her general practitioner but did not have any addiction issues. On 11th February, the Complainant attended the Respondent’s occupational health physician. The subsequent report outlined that the Complainant would be unable to engage with internal meeting for some time. The Complainant was subsequently deemed fit to attend such meetings on 31st March 2021. At this point, the Complainant disclosed that she had experienced addiction issues and that she was seeking ongoing assistance in relation to the same. 

Following an internal investigation meeting the Complainant admitted to the following: taking two tablets of a prescribed medication from the hospital on 19th January 2021, removing a blank prescription from the ward on 9th January 2021, removing a blank prescription on 19th January 2021, forging a doctor’s signature on these scripts and using a patient’s personal data to assist with the attainment of prescription medication from a pharmacy. The Complainant further accepted that these were not isolated incidents, however she could not recall the exact dates and times of other transgressions. During a subsequent disciplinary meeting, the Complainant accepted that these matters constituted serious misconduct on her part.

By correspondence dated 17th June 2021, the Respondent stated that the Complainant’s admitted actions constituted gross misconduct. In circumstances whereby these actions had served to fundamentally breach the trust between employer and employee, the sanction of dismissal was to be applied. This correspondence also confirmed that the matter would be referred to an external regulatory body. Following an internal appeal of this matter, the sanction of dismissal was upheld, and the internal procedure finalised.

By submission, the Respondent stated that the conduct in question, and the wrong doing associated with the same, was admitted by the Complainant at all times. They submitted that these actions were in breach of the Respondent’s own internal policy on the storage and handling of medicines, the Misuse of Drugs Act, the hospital’s code of conduct, the code of professional conduct for registered nurses and the Respondent’s own internal disciplinary policy. In this regard, the Respondent submitted that they place a significant amount of trust in their employees to act in a responsible manner. One of the primary responsibilities in this regard it is the correct and lawful maintenance and distribution of controlled medications. The Complainant’s misconduct in this regard, in addition to the admitted misuse of the personal data of a patient and a colleague, served to irrevocably breach this bond of trust. Having regard to the same, the Respondent submitted that the dismissal of the Complainant was clearly within the band of reasonable responses open to them.

In evidence the Director of Clinical services outlined the above-mentioned narrative of events. She stated that she was the person that made the decision to dismiss the Complainant. In this regard, she stated that she took the Complainant’s mitigation into consideration, however the gravity of the Complainant’s misconduct was such that the bond of trust was irrevocably broken. The witness stated that the Respondent they are charged with the care of extremely vulnerable persons and naturally have an enormous duty of care in respect of their wellbeing. In this regard they Respondent must have an absolute level of trust in their employees. She stated that the Complainant’s actions served to breach this trust fundamentally and irrevocably. In such circumstances she stated that the sanction of dismissal was the only appropriate outcome in these circumstances.

By submission, the Complainant agreed with the Respondent’s narrative of events, including the admission of the wrong-doing alleged.

Notwithstanding the same, the Complainant submitted that following her initial suspension, she placed the Respondent on notice of her addition issues by means of correspondence from her care counsellor. The Complainant further submitted that in advance of the appeal hearing, she put forward the following mitigating factors; that she accepted responsibility for her actions, that she was attending a counsellor, that she completed a treatment programme for alcohol dependence, that she remained enrolled in a further two-year programme and that she continued to attend her GP in respect of ongoing care. In addition to the foregoing, the Complainant suggested the imposition of the following conditions on her return to work; the submission of ongoing evidence of her attendance at an alcohol dependency treatment centre, the submission of ongoing evidence of her attendance at AA meetings, the administration of random drug and alcohol testing and redeployment to a role where she would not be in contact with prescribed drugs. The Complainant submitted that no evidence of consideration of these mitigating circumstances and conditions was taken by the Respondent, with the matter simply being upheld on appeal.

By submission, the Complainant’s representative accepted that the Complainant’s misconduct would normally constitute gross misconduct. Nonetheless, she submitted that the mitigating factors provided by the Complainant in addition to the suggested conditions for her staged return to employment rendered the sanction of dismissal outside the band of reasonable responses in the circumstances.

In evidence, the Complainant briefly described her mindset at the time of the misconduct in question. She stated that she had sought help and endeavoured to work on the issues giving rise to the same in the intervening period. In this regard she stated that she was in the process of making amends in respect of these actions and that she sincerely wished to return to a nursing position in the future. The Complainant stated that she always held patient safety in the highest regard and that her actions did not serve to endanger the safety of any patients.

Section 6(1) of the Unfair Dismissals Acts provides that,

“Subject to the provisions of this section, the dismissal of an employee shall be deemed for the purpose 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)(B) provides that where a dismissal arises “wholly or mainly” as a consequence of “the conduct of the employee” such a dismissal “shall be deemed…not to be an unfair dismissal” for the purposes of the Acts.

Section 6(6) of the Unfair Dismissals Act provides that,

“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 or mainly from one or more of the matters specified in subsection [6](4)”

Section 6(7) provides that in determining whether a dismissal is unfair, 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, and

b) to the extent (if any) of the compliance or failure to comply…with the procedure…or with the provisions of any code of practice….”.

The matter of Noritake (Irl) Ltd v Kenna (UD 88/1983) sets out the following three criteria to determine “reasonableness” for the purposes of the Acts:

·       “Did the company believe that the employee misconducted himself as alleged?

·       If so, did the company have reasonable grounds to sustain that belief?

·       If so, was the penalty of dismissal proportionate to the alleged misconduct?”

In the present case the relevant factual matrix is not in dispute. It is agreed that the Complainant illegally removed prescribed medications, intended for patient use, for her own use. It is further agreed that the Complainant removed blank prescription scripts for the ward to which she was assigned and thereafter misused patient data and forged a consultant’s signature in order to obtain controlled medication. The Complainant further accepted that these were not isolated incidents. In addition to these facts not being in dispute, the Complainant accepted that these represented extremely serious misconduct on her part and that the same would, in the normal course, constitute gross misconduct.

The Complainant’s case in this regard is that the present mitigating circumstances, along with her suggested restrictive conditions on her return to employment placed the sanction of dismissal outside the band of reasonable responses available to the Respondent. She stated that the Respondent did not demonstrate evidence of taking these considerations into account in upholding the sanction of dismissal on appeal.

The test in respect of the proportionality of a dismissal as a sanction is well settled. In the matter of Bank of Ireland v Reilly [2015] IEHC 241, Noonan J. approved the following passage,

‘The correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. 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.’

In this regard the evidence of the Respondent is that they are charged with the well-being of persons who are at their most vulnerable state. They stated that as a consequence of the same, they must implicitly trust their employees, particularly medical professionals, to act with the greatest of care and responsibility. The Complainant’s misconduct in this regard was multifaceted, however the cumulation of the same was she fell far short of the standard expected of her as an employee or as a medical professional. In this regard, they submitted that the Complainant fundamentally and irrevocably breached the bond of trust necessary for her continued employment. On these grounds they submitted that her dismissal was fair for the purposes of the present Act.  

In the matter of Desmond Brennan -v- Institute of Technology Carlow UD281/2000, the Employment Appeals Tribunal held that,

“…“gross misconduct” must be something very serious indeed, perhaps criminal or quasi-criminal in nature.”

In the matter of Christopher Reddin v Irish Aviation Authority UD/16/127, the Labour Court held that,

“…generally speaking when dealing with an employee who has an alcohol dependency problem employers should give such employees an opportunity to seek professional treatment before considering dismissal. However, each case must be judged on its merits. Factors such as risk to safety, the level of responsibility the employee has and contact with the public are taken into account in deciding whether or not the penalty of dismissal was within the range of reasonable responses an employer might take.”

In the present case, it is evident that the Complainant’s admitted actions constitute gross misconduct. It is further evident that the Complainant immediately admitted to the same when questioned, apologised for the damage caused, sought to rectify the root cause of the issue that led to the misconduct and suggested various restrictive conditions on her possible return to work. In this regard, it can be said that the Complainant, with the assistance of her representative, did everything within her power to avoid the outcome of dismissal. Notwithstanding the foregoing, it is clear that none of these admissions or proposed conditions serve to reduce the gravity of the Complainant’s misconduct. In this regard, the Respondent as a provider of health services, is burdened with a substantial duty of care to its patients and the wider public. A fundamental aspect of this duty of care is the control of prescribed medicines and patient data. The Complainant, by her own admission, misused the trust placed in her in respect of these matters. The Respondent is naturally entitled, if not obliged, to view any breach of this trust in the most serious of terms. In this respect, the test imposed by the Act is to examine whether any reasonable employer would have dismissed the Complainant in these circumstances. Having consideration to the nature of the Complainant’s misconduct, coupled with the nature of her role and the Respondent’s duty of care, I find that the dismissal of the Complainant, even in contemplation of the mitigation factors presented, was within the bounds of reasonable responses available to the Respondent both in the first instance and on appeal.

As a consequence of the foregoing, I find that the dismissal of the Complainant was not unfair for the purposes of the present Act.

I find that the Complainant was not unfairly dismissed within the definition of the Act.

Gross Misconduct, Addiction, Dismissal