ADJUDICATION OFFICER DECISION
A Hospital Employee
Complaint/Dispute Reference No.
Date of Receipt
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
The complaint has been brought under Section 8 of the Unfair Dismissal’s Act, 1977 and Section 11 of the Minimum Notice & Terms of Employment Act 1973.
The Complainant commenced employment with the respondent in December 2008 and complains that he was unfairly dismissed on 21st December 2018
Summary of Respondent’s Case:
The Complainant was dismissed from his employment with the respondent for gross misconduct, following a thorough and fair process.
This included an external investigation and an appeal to an external Appeals Officer to ensure maximum fairness and transparency in accordance with fair procedures and adherence to the rules of natural justice, as well as compliance with all relevant policies of the Respondent.
The Quality and Safety Department of the Respondent hospital received a call from a patient in August 2017, outlining concerns in relation to recent incidents involving the Complainant. The patient (Patient Y) subsequently put her concerns in writing and by email dated 2nd August 2017 to the Quality and Safety Department.
The complaints (from Patient Y) comprised four allegations, as follows:
(a) alleged display of offensive, obscene or indecent images, by the Respondent in his role as Hospital Porter to the Complainant between May 2017 and July 2017 (as outlined in the Complaint dated 2nd August 2017).
(b) alleged inappropriate behaviour and interaction by the Respondent as a Hospital Porter with the Complainant, in relation to the alleged circumstances and incident where the Complainant was in the Respondent's vehicle between May 2017 and July 2017 (as out lined in the Complaint dated 2nd August 2017)
(c) alleged inappropriate conduct, behaviour and interaction by the Respondent in his role as Hospital Porter with the Complainant, in relation to the alleged circumstances and incident where the Respondent entered the Complainant's room on two occasions on a specific date between May 2017 and July 2017 (as alleged in the Complaint dated 2nd August 2017.
(d) The patient had sent the Complainant a text message, asking him to stop ringing or texting her and asking that he delete both patients' numbers. The Complainant responded that he was sorry but was 'just feeling lonely'
The matter was referred to Patient Support Services at the Respondent hospital who, on 3rd August 2017, requested further details from the patient in question. Further details were furnished by the Complainant patient by way of email dated 9th August 2017.
The Complainant patient also supplied a copy of text messages referred to in her initial complaint of 2nd August 2017 to Patient Support Services
On receipt of these, the Respondent established a panel to investigate the complaints received, comprising an external consultant and a senior manager. Preliminary meetings had been held with all parties to agree Terms of Reference for the Investigation.
Complaints had also been received from a second patient (Patient X) on separate matters.
This patient had also been a witness to the one of the complaints furnished by Patient Y. Due to her health Patient X could only participate in the preliminary meetings held at the outset of the investigation to establish the Terms of Reference but her complaints were not included in the subsequent investigation or disciplinary process.
A full and comprehensive report was issued by the Investigator at the conclusion of the investigation and this was provided to the parties.
Terms of Reference were agreed with and signed by the Complainant prior to the investigation (on 17th August 2017).
Clarification of the methodology and scope of the Investigation was provided to the Complainant, which he signed on 29th September 2017, as did his Support Person.
The Investigation Report is comprehensive and details numerous meetings with all parties and the sharing of all documentation pertaining to the meetings held and the documentation and information, both in draft and engrossed form, with the agreement of all parties, compiled.
Following numerous meetings and detailed communications with all parties concerned, the findings of the Investigation report were issued in August 2018 as follows:
In relation to alleged display of offensive, obscene or indecent images, the Investigation Panel, on the balance of probability that this incident occurred, was more persuaded by the Complainant Patient's version of events.
Regarding alleged inappropriate behaviour and interaction by the Respondent in relation to the alleged circumstances and incident where the Complainant was in the Respondent's vehicle, the Panel found that it was inappropriate for the Respondent to have invited the Complainant patient into his vehicle or to have taken her for a short spin. This behaviour was found to constitute a breach of the Hospital Policies and Protocols, when interacting with patients.
The third allegation submitted was that of alleged inappropriate conduct, behaviour and interaction by the Respondent, in relation to the alleged circumstances and incident where the Respondent entered the Complainant patient's room on two occasions on a specific date between May 2017 and July 2017. In the Complainant's responses to this allegation in the course of the investigation, he had gone to the Complainant patient's room while collecting wheelchairs. The Investigation Panel interviewed [a supervisor] in this regard and found that the Complainant had no reason relating to his work, nor any authority to go to the Complainant's room at that time.
The issue of the text messages, the Complainant had acknowledged that this was a breach of the Hospital Policy and a grave error on his part.
The findings therefore were, on the balance of probability, that the Complainant had not in all cases conducted his duties in to the standard required of him under the Dignity at Work Policy and ethical codes of practice.
The Investigation Report was then passed to the HR Department of the Respondent hospital and a Disciplinary Committee, chaired by an external consultant met on 15th October 2018. Notes of the meeting were provided. The Complainant was represented by his Union Official, who raised a number of issues, as set out in the Chairman's notes of the Disciplinary Committee meeting on 15th October.
The union official had only a 'very short time available' to read the report but felt that it was not a thorough investigation with four allegations made and upheld. He sought clarification as to what policy the employee should proceed under and asked when the employee was 'told what was expected of him'
The questions and clarifications sought were provided to the Investigator and the signed responses from the Investigation Team are contained within the Disciplinary Documentation by letter dated 4th December 2019.:
· Jeep incident: the only other witness on this occasion was the other patient who was also in the Jeep on the night in question and while she had engaged with the Investigation at the preliminary stages, due to health reasons, it became necessary for her to withdraw her participation subsequently. Accordingly, it was not possible to interview her. The Complainant was made aware of this at his preliminary meeting.
· Incident when Complainant entered the room of the patient while she was having medical treatment - No report was received from the medical staff in the room at the time. Both the Complainant and the Complainant patient accepted that the Complainant had entered the room.
· Image shown to Complainant Patient by Complainant - Witnesses to this incident were not pursued to avoid causing further distress to the Complainant
In addition, although a draft summary had been provided to the Complainant in July 2018, neither he nor his Representative availed of the opportunity to respond, despite time being extended for a response.
In relation to the matter of cross-examination of the Complainant patient, the process and methodology for the conduct of the investigation had been agreed and signed off by the Parties. All submissions and responses were exchanged with and between the parties and every consideration was given to the submissions and responses from the parties prior to the Final Report being issued.
Following review of the responses from the Investigation Team on the points outlined by the Complainant's representative requiring clarification, the Disciplinary Committee, after two further meetings determined that the Complainant was in breach of the rules, policies and behaviours expected of an employee dealing with patients under all four allegations made against him.
It found, therefore, that the hospital could not continue to have trust and confidence in the Complainant, that he was guilty of gross misconduct which warranted dismissal with immediate effect.
The findings outlined above were communicated to the Complainant by letter dated December 21st, 2018. He appealed the decision to dismiss and this was heard by an independent, External Appeals Officer who did not uphold the appeal.
The Complainant’s actions amounted to gross misconduct.
When considering what sanction to apply the company had regard to the seriousness of the allegations and also the representations made by the Complainant within the process itself.
In relation to the sanction imposed by the Respondent, 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 complainant, 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.”
It is the Respondent’s position that a “reasonable employer in the same position and circumstances” would have reached the same determination in the circumstances of the case. As such the company’s decision to dismiss was reasonable and fair in the circumstances, and no unfair dismissal took place.
The actions of the Complainant destroyed the company’s trust and confidence in him and rendered the continuation of the employment relationship impossible, therefore justifying dismissal. This position has been upheld by the EAT on a number of occasions, including in Knox Hotel and Resort Ltd, UD 27/2004, where the Tribunal stated:
“[The complainant’s actions] destroyed the respondent’s trust and confidence in the complainant and rendered the continuation of the employment relationship impossible, thereby justifying her summary dismissal”
In relation to the procedures used to implement this dismissal, 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.
The Complainant was informed in advance as to the nature of the allegations against him and was afforded the right to representation.
He was further participated in a number of fair and impartial hearings, at which he was given every opportunity to respond to the allegations against him. All the evidence was considered, including the Complainant’s representations before any decision was made or action taken. In light of all of this, the Respondent believes that the dismissal of the Complainant was procedurally fair in all respects.
In addition, the Complainant had undergone training regarding, inter alia, the Trust in Care Policy in December 2008, the Dignity at Work Policy in December 2008, Patient Handling Refresher in December 2008 and again in 2013.
Finally, the Respondent submits that the actions of the Complainant contributed wholly to his dismissal. Accordingly, it is the Respondent’s position that the Complainant is not entitled to seek any redress under the Unfair Dismissals Acts, 1977-2015.
This is in accordance with the position taken by the Employment Appeals Tribunal on numerous occasions, including in Murray v Meath County Council, UD 43/1978, when the Tribunal saw appropriate not to award any redress to the Complainant in light of his inappropriate actions.
Summary of Complainant’s Case:
The complainant had been employed since 2008 and had a good record. He was considered a very good employee and was well regarded by co-workers and patients as a friendly person.
There was an incident in March 2017 where the complainant was instructed not to provide patients with food or to get involved with them. No disciplinary action was involved.
While the complainant followed this instruction, he remained on good terms with patients and was approachable and helpful.
He was very surprised when, in August 2017 two patients made a complaint against him, although one of these did not proceed.
The complaint which did had four elements and allegedly related to images shown by the complainant to patient Y, taking her for a short journey in his car, entering her room on two occasions and a text exchange where she asked him to stop contacting her and he replied ’I did not mean any harm. I was just lonely’.
Regarding the investigation, although it lasted for a full year the complainant says that it was not sufficiently thorough and that the investigators were more sympathetic to the patient complainant.
For example, in relation to the incident where the complainant allegedly showed images to the patient the investigation team was not able to establish the date when his occurred, and no witnesses were interviewed.
The investigation team had to content itself with concluding that the complainant (patient) was ‘more convincing’ and upheld her version of events.
He did not deny that the incident regarding taking the patient for a drive had taken place, but it happened outside his working hours.
Likewise, he does not deny approaching her room, but denied entering it or that he visited it again. This allegation appears to be no more than that he was in a part of the hospital he should not have been in.
Finally, the text message exchange also took place outside working hours.
These issues were raised at the investigation and disciplinary stages. In addition, the union raised on j=his behalf that he had not been put on any notice that this conduct might result in the termination of his employment.
Other issues raised by the union included whether an employee can or cannot be prohibited from talking to a patient in a casual way, and whether an employee is allowed to have a casual conversation with a patient?
Regarding the interviews during the investigation, the union referred to the absence of a statement from the Complainant, and further asserted that the second complaint was 'off the table' because the text message chronology did not line up in his view with regard to dates.
In relation to the incident when the Complainant patient was having an ECG, the union enquired who else was present in the room at that time and why interviews/statements were not taken from those witnesses.
Also, in relation to the picture shown to the patient by the Complainant that it should have been possible to establish who else was present at that time and they should have been interviewed.
Regarding the Jeep incident, it should have been possible to find other witnesses, to show that the two patients in the Jeep were distressed. The union also questioned the credibility of the Complainant patient and her allegations maintaining that 'details could be blurred over time and the timelines indicated that they happened on the 13th May.
The union viewed the investigation as being flawed and inconsistent in circumstances where no opportunity was given to cross-examine the patient or other witnesses.
The complainant says that the outcome was predetermined and there was a lack of consistency, reason and proportionality in the process. In particular the failure to be clear about what is expected from an employee when he is not on duty is a flaw in the respondent’s position.
Findings and Conclusions:
There are three ‘pillars’ which guide the adjudicator to a decision in a complaint of unfair dismissal.
The onus under the Act falls on the employer to justify the dismissal.
In order for a dismissal to be fair there must be some significant grounds to support disciplinary proceedings or other actions against the employee related to performance or conduct.
Secondly, in our employment rights system there are well established procedural obligations placed on an employer who is carrying out disciplinary action in all its aspects in order to protect the rights of the employee or other parties affected and ensure that justice is done.
Respecting these rights is not particularly onerous and they are generally well known. They are referred to by such terms as fair procedure and natural, or constitutional justice.
Many, if not most cases are argued on the basis of the facts not being in dispute and the outcome normally turns on alleged inadequacies in the procedures and/or the appropriateness of the sanction.
Finally, there is the matter of sanction which must fall within what is described as a range of reasonable responses by the employer.
It was on this latter point that the respondent relied on the EAT decision in Looney and Co v Looney UD843/1984 and the view of Dr Mary Redmond to the same effect which is referred to above in the respondent’s submission.
As will be clear from the text this does not entirely rule out intervention by an Adjudicator but sets the standard to be applied as the actions of;
‘what a reasonable employer in his position and circumstances at that time would have done…’
In the context of the respondent’s business activity a complaint from a patient about the conduct of one of its employees is a serious matter and it therefore had adequate grounds for concern and a sufficient basis to launch the disciplinary process.
Workplace investigations have come under a great deal of scrutiny in recent times, most significantly in the superior courts and the complainant and his union representative were critical of the conduct of the investigation in this case.
It took a very long time, almost a year, and in general the current methodology for the conduct of most workplace investigations tends to be much too slow to be effective. In this case the investigation team too was critical of the complainant (that is the complainant in this complaint to the WRC, not the patient) for his contribution to those delays by not being available for interview and not adhering to deadlines for the return of documentation.
The investigation was carried out by an experienced external practitioner and a very senior manager with the respondent.
It was asked to ‘determine whether or not these matters constitute serious misconduct’.
An investigation is a fact-finding exercise only and in general it is preferable that there should be very clear water between any findings in relation to those facts and a decision to lay (or not lay) a ‘charge’ of misconduct of any sort, which properly lies with the management of the respondent.
In fairness, the investigation team was circumspect and prudent about how it did so, noting that the interactions it established, or concluded to have happened on the balance of probability ‘are considered to be serious misconduct under the respondent’s policy’.
The complainant was critical of the investigation panel reaching conclusions on the balance of probability, and of failing to pursue witnesses. This really only arose in respect of one of the allegations; that related to the image on the mobile phone allegedly shown by the complainant to the patient, as the complainant had substantially agreed with the facts in relation to the other complaints.
The outcome of an investigation is no more than evidence for the purposes of the disciplinary process. It is certainly not possible for an external adjudicator to second guess the conclusions of an investigation team which has developed a close familiarity with the issues, the evidence and the parties and where it becomes necessary to make an assessment on the balance of probability it is best placed to do so.
Certainly, the simple fact of doing so does not impugn a conclusion, which in any event will become the subject of controversy again at the disciplinary stage, should a person aggrieved by the conclusion of the investigation choose to do so.
Thereafter, the matter moved to the disciplinary stage.
The complainant received a long letter from the HR department on September 24th, 2018 inviting him to a disciplinary hearing to determine;
‘whether you were involved in any misconduct in relation to the breach of these requirements and if so whether disciplinary action is warranted’
(The requirements had been set out in an earlier paragraph).
It continued with some other routine information and advised that if he was
’guilty of misconduct you may be subject to disciplinary action up to and including dismissal’.
The disciplinary committee adjourned the meeting to respond to questions raised by the complainant’s union representative and the decision eventually issues on December 21st.
Of some concern is the fact that the Investigation Team had been asked to reach conclusions about ‘serious misconduct’, but the letter of invitation to the disciplinary hearing referred to misconduct only in a general sense.
More surprisingly, by the time the decision from the Disciplinary Committee has issued it has become a finding of ‘gross’ misconduct, with which the complainant had not been charged.
While this sort of inconsistency is unacceptable it is saved by the fact that the complainant was on notice that his job was at risk even on the basis of the finding of misconduct as set out in the notice of the hearing.
In a situation where the framing of the charge had a direct bearing on the outcome it might be a different matter and it is hard to understand why the finding had to be one of gross misconduct in the circumstances, as it was not necessary to ground a decision to terminate the employment.
The matter then went on appeal and the decision to terminate the employment was upheld.
Another matter relevant to the conduct of the investigation and raised by the complainant’s union was dealt with by the appeal decision maker; that is whether the complainant should have been permitted to ‘cross examine’ the patient who complained.
He decided that as this possibility had been excluded by the Terms of Reference and Methodology and as this had been accepted by the complainant and that parties would be interviewed by the Investigation team only no grounds existed to challenge the report.
In any event, there is no general right to cross examine in an investigation and some regard must be had to the nature of the complaint.
The appeal decision maker concluded by asking himself a question which is a version of the Looney v Looney principle as set out above and this same principle also guides a WRC Adjudicator.
That question he asked was whether;
‘the investigation Committee dealt properly with the investigation, and if, in turn the disciplinary committee came to justified decisions based on their consideration of this case’
He concluded that they had.
Having carefully considered all the evidence in the case I agree with him and reach the same conclusion and therefore the complaint of unfair dismissal fails.
Likewise, I find that the complaint under the Minimum Notice and Terms of Employment Act also fails.
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 find that complaint CA-00028942-001 is not well founded.
I also find that complaint CA-00028942-002 is not well founded.
Dated: 28th November 2019
Workplace Relations Commission Adjudication Officer: