This recent case of A Nurse v A Hospital concerned the dismissal of a nurse who was employed in a specialist long term unit. It was alleged that an elderly vulnerable resident was left unsupervised in an unsuitable chair and restrained there and that this was a breach of the respondent’s (employer’s) policies on both restraint and use of chairs. It was also alleged that there was a failure to apply an alarm to the chair. The respondent also believed that the resident was physically restrained by means of a bed sheet but the complainant nurse disputed this.
It was reported that the alleged incident was fully investigated by an experienced independent investigation team and that the complainant’s actions constituted ‘neglect’ and that she had restrained the resident. Findings of neglect and restraint amount to ‘abuse’ within the meaning of the respondent’s policies. A disciplinary hearing took place subject to all requirements of fair procedure and the complainant was dismissed for serious misconduct. She appealed unsuccessfully. The employer noted that whilst termination of a nurse’s employment was rare, in this case a resident was put in danger, and this was in breach of the respondent ‘s policies. It provided that the risk of harm brought the decision to dismiss within the band of reasonable responses.
It was the complainant’s case that no restraint was used in respect of the elderly resident and that the respondent decided to ‘make an example’ of the complainant (and others) in order to appease HIQA and to cover up its own shortcomings. The complainant stated she had an unblemished record of twenty-three years’ service as a nurse and was honest, forthright and cooperative about her role in the events of the evening.
Workplace Relations Commission Decision
In respect of the alleged use of the bedsheet in this case as a restraint, the Adjudicator noted
“In the overall scheme of things this issue related to the use of the sheet may only be a detail, but the first reason this is of concern is that despite the fact that the investigation team reached no finding on the matter in relation to the complainant, the respondent persisted at the hearing with the suggestion that ‘the bed sheet was used as a restraint’. This was despite the absence of any evidence to support that assertion and the complainant’s consistent denial that it happened.…”
He further noted:
“While the Investigation Team reached no finding on the use of the sheet as a restraint one of the few other references to it is at para 9.2.3 is the following; The disclosures/complaints that were initially communicated to the family [of the resident] were those that they learned ‘third hand’ from a relative of another resident approached by [the nurse making the report] which they understood as ‘something about being tied up in sheets in a wheelchair and being rocked backwards and forwards’ One would not need to have great expertise in the law of evidence to see the dangers in reaching any conclusions of the basis of this, highly unreliable statement and there is no basis for any conclusion on the balance of probability”
The Adjudicator then makes several important statements in respect of procedural fairness in this case
“…..Of much greater concern, and especially given the high standard of procedural fairness that must apply in this case there is not the slightest evidence of the ‘consideration’ referred to having been undertaken. It is equally a requirement of fair procedure that a decision maker be fair and transparent in the conduct of the process and this is most easily demonstrated by stating reasons for the conclusions reached. This requirement is necessary to show that the decision maker did in fact ‘hear’ the parties, in the specific sense required by that core principle of fair procedure; audi alteram partem. In other words, ‘hearing’ is not simply a synonym for ‘listening’ to what they have to say; the obligation falling on a decision maker goes further and requires a fair and objective evaluation of the case before him or her. The report of an investigator is no more than evidence before the hearing and the decision maker or adjudicator must decide on the basis of all the evidence and argument adduced on the day of the hearing, including arguments on mitigation etc. In keeping with the ‘reasonable employer’ and ‘objective standard’ principles set out above an adjudicator will generally, and in so far as it is reasonable defer to the judgment of an employer, especially in an employment context such as this. However, this is only possible where it is very clear from the record that that judgement has in fact been exercised….”.
“…..What actually appears to have happened is that the respondent ignored any aspect of the Investigation report that did not suit its purpose, either because of a pre-determined decision to terminate the complainant’s employment, or to spare itself the embarrassment of its own culpability for the events”.
Workplace Relations Commission Decision
The Adjudicator found that the sanction of dismissal “lay outside the range of reasonable responses and is also unfair on that basis, as well as on the basis of the substantial procedural deficits outlined above”.
An order for reinstatement was made in this case meaning the complainant was entitled to return to the role she held prior to her dismissal and was also entitled to be paid her back pay in respect of this period.