ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00055998
Parties:
| Complainant | Respondent |
Parties | Helena O'Neill | South Infirmary - Victoria University Hospital Sivuh |
Representatives | Colleen Minihane SIPTU | Sophie Crosbie IBEC |
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-00068148-001 | 16/12/2024 |
Date of Adjudication Hearing: 02/10/2025
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or 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 contends that she was unfairly dismissed following a flawed process and the penalty was disproportionate in the extreme.
Summary of Respondent’s Case:
The Respondent initially argued that the Act does not apply due to the service of the Complainant. This argument was withdrawn on evidence that the Complainant had the requisite service to avail of the Act.
As part of the standard recruitment process the Complainant was required to fill in a medical questionnaire. A number of questions related to medical issues were contained in the questionnaire, including
“Have you had a medical condition or surgical procedure in the last 5 years?
Are you receiving treatment…
I am not aware of any health condition or disability that might affect my ability effectively to undertake the duties of the position I have been offered
I do not have a health condition or disability that might affect my ability to undertake effectively the duties of the position that I have been offered and that might require special adjustments to my work or to my place of work ”
No medical issues were identified to the Respondent’s Occupational Health Service via the Medical Questionnaire and the Complainant was found fit to work.
The Complainant had significant absence during the first 9 months of her employment and a number of falls which were dealt with in accordance with standard procedures. In the process of medical consultation in September 2024, the Medical Physician reported that the Complainant had a medical condition diagnosed when she was aged 40 and was on medical treatment since. She stated that Occupational Health were not made aware of this at pre placement health assessment in October 2023.
The Complainant had 4 return to work interviews in 2024 and at no stage did she disclose her medical condition.
Following a further medical assessment in October 2024, the Complainant disclosed that she had an ongoing medical condition which she had been receiving treatment for over a number of years.
The Complainant was invited to an investigatory meeting on 11 October 2024 where she was accompanied by her full time Union Official.
During this meeting, the Complainant confirmed that she had ticked ‘no’ to the question “Have you had a medical condition or surgical procedure in the last 5 years?
She confirmed she ticked ‘no’ to the following question Are you receiving treatment…
She confirmed that she had declared that I do not have a health condition or disability that might affect my ability to undertake effectively the duties of the position that I have been offered.
Her reasons were that she did not believe the questions related to new medical conditions, not ones that were in existence for more than 5 years.
Notes of the meeting were shared with the Complainant and her Union Representative on 25 October 2024 and no issue was raised. Subsequently an investigation report was issued in which it was found that the Complainant had a case to answer in that she had failed to provide material information in the PPHA form, which may constitute gross misconduct.
A disciplinary hearing was convened for 22 November 2024 and this was conducted by the HR Manager and the Administrative Services Manager. The Complainant was accompanied by her Union Official. Prior to the meeting, the Complainant was provided with the allegations against her and the seriousness of same which could result in dismissal. She was provided with the disciplinary procedures.
At the disciplinary hearing, the Complainant alleged that the decision to dismiss had been made, apologised profusely for the material non-disclosure and alleged that not everyone liked her outspoken nature. Following a half an hour recess, the meeting was re-convened and to communicate the decision which was dismissal, which was reached by the Respondent in view of the fact of the serious material non-disclosure in clear breach of the written undertaking set out in her PPHA form.
The letter of dismissal clearly outlined the examples of gross misconduct falsifying statements, records or reports, and covering up mistakes which may endanger self, others or the hospital.
On that basis the Respondent could no longer have trust and confidence in her as an employee and her employment was terminated with notice. She was informed of her right to appeal and elected to appeal through the WRC as is provided for in the procedures.
In accordance with the Unfair Dismissals Acts 1977-2015, the dismissal of an employee shall not be deemed to be an unfair dismissal, if it results wholly or mainly from the conduct of the employee. In this case, it is argued that the Complainant was the architect of her own dismissal by failing to make a material non-disclosure to her employer. In the absence of such disclosure, the Complainant acted in a deceptive manner and put herself and others at risk.
Case law was submitted in support of the Respondent’s position that a ‘reasonable employer’ in the same position and circumstances would reach the same determination.
Sworn evidence was given by the Investigation Manager and the Disciplinary Manager.
The Investigation Manager stated that the Complainant was invited to the investigation meeting to explain why she had not disclosed her medical condition on the PPHA form. The Investigation did not accept the Complainant’s explanation that because her condition was diagnosed more than 5 years ago she could answer no to the question “Have you had a medical condition or surgical procedure in the last 5 years?”, and “I do not have a health condition or disability that might affect my ability to undertake effectively the duties of the position that I have been offered and that might require special adjustments to my work or to my place of work ”
The Investigation found this unacceptable as over the years, many people fill out this form and know well what it means.
The Disciplinary Manager gave an account of the invitation to the Complainant to the disciplinary meeting and the fact that the Disciplinary panel did not find the Complainant’s explanations credible. It was decided to dismiss as the bond of trust and accountability was broken.
Summary of Complainant’s Case:
The Complainant commenced employment as a Grade III Clerical Assistant in November 2023.
She was promoted to Medical Secretary Grade IV on 14 August 2024.
She was issued with a permanent contract on 11 September 2024.
The Complainant left a permanent job she held for 13 years to be employed on a permanent and pensionable basis with the Respondent.
As part of the application process she completed a Pre-Placement Health Assessment (PPHA) form.
One of the questions was
“Have you had a medical condition or surgical procedure in the last 5 years?
The Complainant has had atrial fibrillation (abnormal heart rhythm) since her 40s. Therefore she did not include this on her declaration based on it being an existing condition well in excess of 5 years.
The Complainant wore a medical alert bracelet stating she is on a blood thinner and lanyard identifying her medical issue at all times during her employment.
The Complainant had two accidents at work and fainted once, and believes this is the reason for her dismissal.
These incidents (detail recounted) were not related to atrial fibrillation and this was confirmed by her doctor.
When the Complainant was asked by a locum Occupational Health doctor about pre-existing conditions, she willingly noted that she had atrial fibrillation.
Her medical condition did not affect her ability to do the job.
On 2nd September 2024, the Complainant was requested to come to a back to work meeting at which she was accused of dishonesty by failing to disclose her condition. This meeting was conducted without notice or offer of representation. The Complainant was shocked and mortified to be accused of lying.
The Complainant was subsequently invited to an investigation meeting and then a disciplinary hearing. AT the disciplinary hearing, she repeatedly apologised for her error and tried to explain her position. Following a twenty minute recess, the decision to dismiss the Complainant was confirmed and later provided in writing.
Section 6 (1) of the Unfair Dismissals Act 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 are substantial grounds justifying the dismissal”.
It is submitted that the Complainant never tried to hide her condition and wore a bracelet and lanyard in reference to same.
It is submitted that in Mullane v Honeywell and Aerospace Ireland Ltd, UD/11/20028, the EAT found set out the criteria for the burden which must be demonstrated by the Respondent. In that case the Tribunal found that they were not required to determine whether the Complainant did or did not carry out the alleged act but it was for the Tribunal to establish whether the Respondent has proven that the dismissal was not unfair having regard to the terms of the Act, in that a full and fair investigation was carried out, the conclusion was reasonable and the penalty proportionate.
It is argued that taking a decision to dismiss during a twenty minute recess, not affording the Complainant the right to appeal, not outlining any alternatives to dismissal all point to the dismissal of the Complainant to be unfair.
Findings and Conclusions:
Section 6 (1) of the Unfair Dismissals Act 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 are substantial grounds justifying the dismissal”.
Section 6 (4) of the Act provides:
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:
(b) the conduct of the employee,
The Complainant in this case was dismissed on grounds of gross misconduct for allegedly withholding information in a pre-employment form relation to an existing medical condition.
In deciding if the dismissal was unfair, it is not for me to establish the guilt or innocence of the Complainant, but rather consider whether the Respondent acted reasonably in the matter of the dismissal. The Employment Appeals Tribunal held, in Looney & Co v Looney UD843/1984 that “It is not for the Tribunal 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 the investigation, or concluded as he did..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 would have done in the same position..” In O’Riordan v Great Southern Hotels UD1469/2003, the EAT set out the appropriate test for determining claims relating to gross misconduct: “In cases of gross misconduct, the function of the Tribunal is not to determine the innocence or guilt of the person accused of wrongdoing. The test for the Tribunal in such cases is whether the respondent had a genuine belief based on reasonable grounds arising from a fair investigation that the employee was guilty of the alleged wrongdoing”. In assessing the proportionality of the sanction, Noonan J. in Bank of Ireland v Reilly IEHC 241 stated: “The question.. is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned”. In this instant case, I base my findings and conclusions on three key questions (1) Did the Respondent have a genuine belief based on reasonable grounds arising from a fair investigation?, (2) Was there a fair investigation? and (3) was the penalty proportionate?
The Respondent carried out an investigation and disciplinary and found that the Complainant had withheld information in her answers to the questions: “Have you had a medical condition or surgical procedure in the last 5 years? Are you receiving treatment… I am not aware of any health condition or disability that might affect my ability effectively to undertake the duties of the position I have been offered I do not have a health condition or disability that might affect my ability to undertake effectively the duties of the position that I have been offered and that might require special adjustments to my work or to my place of work ” |
Further the Complainant signed a declaration that “I declare that the information I have given is true and complete to the best of my knowledge and that I have not withheld any material facts”.
I find that the Respondent met the first tranche of the tests laid down, that of a reasonable belief and fair investigation. In relation to the third element of the test, was the decision to dismiss within the range of reasonable responses of a reasonable employer to the conduct concerned?, I find that in the circumstances, where the Complainant had apologised for her error in failing to disclose her condition, the response of a reasonable would be to impose a lesser sanction on the Complainant. I do however, find that the Complainant contributed substantially to the situation, in that some indication of her condition ought to have been disclosed by her and to try and blame ‘health and safety issues’ on her dismissal in the final meeting, was somewhat disingenuous. I find the Complainant was unfairly dismissed and I consider compensation to be the appropriate remedy. Given the contribution of the Complainant I set the compensation at €5,144.
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
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.
Based on the findings and reasons above, I have decided that the Complainant was unfairly dismissed and I award her compensation of €5,144.
Dated: 09/12/2025
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Key Words:
Unfair dismissal, tests of reasonableness, complaint well founded |