ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00008000
Complaint:
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-00010598-001 | 03/04/2017 |
Date of Adjudication Hearing: 05/12/2017
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant was employed as a Maternity Care Assistant from 7th October 2004 to 21st February 2017. She was paid €36,880 per annum. She has claimed that she was unfairly dismissed and has sought re-instatement. |
Summary of Respondent’s Case:
On 15th June 2016 a patient who had undergone a hysteroscopy procedure experienced a collapse which required an IV cannulation and treatment with IV fluids. The fluids were later disconnected from the patient but the cannula was left in the patient’s arm as a precautionary measure. The Complainant was asked to remain with the patient and to contact the midwife or doctor if she had any concerns. However after 45 minutes the midwife was shocked to be informed that the Complainant had removed the cannula and allowed her to go home. The midwife was so concerned that she phoned the patient and urged her to return to the hospital. The midwife made a complaint about the Complainant’s conduct. The HR Officer and Assistant Director of Midwifery and Nursing were appointed to investigate the complaint. The Complainant was suspended on full pay pending the outcome of the investigation. The Complainant was invited to present a written response to the complaint, which she did. She did not deny having removed the cannula from the patient’s arm but she stated that it was loose. She stated that the midwife had confirmed that she was ‘good to go home’. She confirmed that a patient must be discharged by the doctor and this did not happen in this case. He stated that she “understood how serious it is”. Her actions resulted in the patient leaving the hospital without formally being discharged. The investigation panel upheld the allegations against the Complainant and found that her actions constituted a deviation from the claimant’s job description. The matter progressed to a disciplinary hearing, which was conducted by the HR manager. She was again represented by her union and she was afforded an opportunity to state her case. The outcome was the decision to dismiss her for gross misconduct with effect from 21st February 2017. She availed of her right to appeal the sanction of dismissal. The appeal hearing was conducted by the General Manager on 21st March 2017. She was again represented by her union official and she believed that the sanction was disproportionate and there were mitigating circumstances. The outcome of the appeal was that the decision to dismiss was upheld. The Respondent’s position is that the Complainant had a clearly defined job description. There is no ambiguity surrounding the scope of her role. She was fully aware she did not have the remit to either remove the IV cannula or discharge the patient. She was also aware of the appropriate member of staff to discharge a patient. Notwithstanding these facts she removed the cannula and allowed the patient to go home. Hospital procedure provides that a patient who wishes to leave the hospital prior to being formally discharged by an appropriate person must sign a declaration. Removal of a cannula is a task that can only be done by designated personnel. It has never been envisioned that this task would be conducted by a care assistant. She admitted to not receiving training in IV cannulation /removal. They cited Mullane v Honeywell Aerospace Ireland Ltd UD 111/2008 in support of their position which deals with reasonableness of an employer. They stated that they acted reasonably in this case. They also cited L Doyle v St Vincent’s Hospital UD1033/2012 in support. A full and fair investigation process took place at both investigation and disciplinary investigation stages. She was at all times afforded her rights of natural justice in accordance with SI 146/2000. She was aware of the allegations made against her. She was given the right of representation, the right to defend herself and the right of appeal. Before a decision was made the Respondent took full account of the representations made on her behalf. The dismissal was both substantively and procedurally fair. This complaint is dismissed. Summary of Complainant’s Case: The Complainant has never denied the circumstances of 15th June 2016. However, the ultimate sanction of dismissal was disproportionate. She admitted her actions and asked that the mitigating circumstances be taken under consideration. The investigation was not impartial and did not adhere to the terms of reference. She asserts that she asked the midwife “is she good to go” and the midwife responded “yes”. She did assist the patient with the removal of the cannula as it was falling out. The investigation interviewed a staff member who was not present on that day. The investigation also erred by asking about relationships in the past. Her statements were ignored and they listened to a person who was not present when the incident occurred. She offered mitigating circumstances that this was a new clinic, she was sorry for her part in removing the cannula , she had 13 years’ service and would never make that mistake again. She didn’t want to disturb the doctor and she had formed an empathy with the patient. The midwife, when told that the patient had left for home continued with her duties and did not decide to phone the patient until the end of her shift. None of the mitigating circumstances were taken into account and she as dismissed without notice. It is her position that the investigation is flawed and did not adhere to the terms of reference. She admitted her actions and apologised. The sanction was punitive and it was the ultimate sanction. Her willingness to accept that she was wrong was not given any weighting. She did not discharge the patient, the patient left of her own volition. She asked for leniency but it was denied. She did not deliberately breach any policy or her contract of employment. She is seeking re-instatement. Findings and Conclusions: Substantive matters I note that the main facts of this case are not in dispute. I find that the Complainant assisted with the removal of the cannula. I find that the Complainant was clearly aware that this was not her job to do so, nor was she trained to do so. I find that she acted incorrectly in assisting the patient to dress and leave the hospital. I note the conflict of evidence concerning whether the midwife had stated that she was good to go. I find that even if she had made that comment there is a clear procedure for the discharge of the patient. I note that the Complainant had 13 years’ unremarkable service with no disciplinary sanctions or investigations. I fail to understand why on this occasion she failed to follow procedure. Thankfully the patient had not suffered any adverse effects from this episode. The requirement to follow the correct procedure is to avoid the possibility of harm being caused. She failed to adhere to the procedures. I note the Complainant’s assertion that the midwife did not contact the patient until the end of the shift, which suggests that the matter was not deemed critical. However, I find that the matter was sufficiently serious enough to warrant dismissal. Therefore, I find that the dismissal was substantively fair, taking that incident in isolation. Procedural matters I note that she was told of the allegations made against her. I find that she was given the right of representation, the right to defend herself and the right of appeal. I note that she immediately accepted what had happened and admitted her wrongdoing. I note that it is alleged that the midwife did not contact the patient until much later that day which suggests that the midwife did not deem it critical. I am not convinced that alternatives to dismissal were properly considered, such as suspension without pay and/or final written warning. I note the 13 years unblemished record. I note the Complainant’s vocational interest in care work. I find the dismissal was procedurally unsound. I find that the Complainant has contributed substantially to the dismissal. I find that re-instatement is not appropriate and under the circumstances I find that compensation is the appropriate redress.
Decision: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. I have decided that the dismissal was procedurally unfair. I have decided that the Complainant has contributed substantially to her dismissal and this must be reflected in the quantum of the award. I have decided that the Respondent should pay the Complainant compensation of €5,000 within six weeks of the date below.
|
Dated: 10th April 2018
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Key Words:
Unfair Dismissal |