Intro
In the recent decision of Workplace Relations Commission (WRC) in the case of a Patient Service Representative v An Oxygen/Gas supply company, ADJ-00029366, the unusual remedy of re-engagement was ordered with the period from the dismissal to the re-engagement being deemed to be unpaid suspension. The WRC took into account the Complainant’s actions that resulted in his dismissal.
Background:
The Complainant is a Patient Service Representative (PSR) with 22 years’ service. He was involved in the issue and installation of medical devices in patients’ homes. In January 2020 a fact-finding investigation took place in reference to an Inogen Unit being given to a patient without prescription. The Complainant was dismissed on the grounds of gross misconduct in March 2020 despite never being warned that disciplinary sanction, if any, may be up to and including dismissal.
Facts:
The Complainant was subject to a disciplinary procedure following an incident in which an Inogen Unit was given to a patient by the Complainant without prescription. The Complainant agreed he made an error of procedure but maintained it was due to a human error and the error did not result in any damage to the patient involved or to the Respondent. Both the Complainant and Respondent had very divergent perspectives of the issue involved. Both the procedures followed and the proportionality of the sanction were subject to detailed scrutiny during the Hearings.
Decision:
The Adjudicator concluded that the Respondent certainly had grounds to consider disciplinary sanction in this case. However, having considered the sequence of events between January 23 and 28, the fact the equipment never reached the Patient as the Complainant immediately rectified the error upon becoming aware of it, the flaws in the Respondent’s procedures followed together with the Complainant’s long service and that he had no personal gain in making the error led to the conclusion that the Respondent did not have substantial grounds to justify the summary dismissal of the Complainant.
However, when considering the remedy, the Adjudicator took into consideration the contribution of the Complainant to his dismissal. The Complainant’s lack of diligence in correctly analysing what was prescribed for the patient was the reason for the dismissal
action to be taken against him. The Complainant also had a written warning at the time of dismissal for an unrelated issue. It was for these reasons that the Adjudicator concluded that the Complainant had to “share in the responsibility for the situation he found himself in..”.
The Adjudicator concluded that re-engagement was the appropriate redress in this case and the Complainant is to be considered to have been on unpaid suspension until he returns to work. Reference was made to the Labour Court decision in Michael Caplis v Transdev Ireland Ltd (MND198), where the Court provided for an unpaid suspension for an even longer period of time. Although the Complainant argued that re-instatement was a more appropriate remedy, the Adjudicator disagreed and felt that the risk to patient safety had to be considered in assessing the appropriate remedy which he concluded was re-engagement.
Takeaway for the Employers:
This decision demonstrates the growing trend of the WRC and Labour Court of taking employees contribution to their sanction or dismissal. Despite this trend, employers should be mindful that the sanction needs to be proportionate to the employee’s conduct after having considered any mitigating factors. This decision illustrates that suspension without pay may be an accepted alternative short of dismissal. The decision also is a reminder to employers to follow their own written procedures when disciplining employees.
Link – https://www.workplacerelations.ie/en/cases/2021/may/adj-00029366.html
Authors – Eva Lindsay and Anne O’Connell
1st June 2021
Anne O’Connell Solicitors
19-22 Lower Baggot Street, Dublin 2
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