A NURSE based in Derry who was sacked by the Western Trust over the use of a hospital inhaler during a suspected asthma attack has won her renewed legal battle against a tribunal’s finding of misconduct.
The Court of Appeal has quashed a second industrial tribunal’s decision that Caroline Connolly had been fairly dismissed by a 2-1 majority verdict of three senior judges.
They identified flaws in the disciplinary process surrounding her actions at Derry’s Altnagelvin Hospital.
Lord Justice Deeny insisted a ‘first offence’ must be particularly serious to warrant dismissal.
“Given the whole list of matters which the employer included under the heading of Gross Misconduct it is impossible, in my view, to regard the nurse’s actions as “particularly serious”.
“Any dismissed employee opting to go into a court of law and claim damages for breach of contract at common law against an employer who had summarily dismissed them for using a Ventolin inhaler while suffering from an asthmatic attack and delaying two days in reporting that, particularly when it was their ‘first offence’ could be tolerably confident of success before a judge, in my view.
“It seems to me therefore that this is one of those cases where the conclusion reached by the Tribunal was “plainly wrong” and one that no reasonable Tribunal ought to have arrived at.”
Ms Connolly, 34, was dismissed from her position as a staff nurse in Altnagelvin Hospital’s Acute Medical Unit in June 2013 for gross misconduct by unauthorised use or removal of property.
The Court of Appeal heard she claims to have felt the onset of an asthma attack while on duty the previous October.
Having left her own inhaler in the car, she lifted one from a medicine room and took about five puffs before leaving it sitting on a desk, according to her account.
On disclosing her actions to another senior nurse two days later the incident was reported to an emergency care and medicine coordinator.
Ms Connolly was suspended pending an investigation into concerns which also involved an alleged argument with a colleague.
She was summarily dismissed following a disciplinary hearing which focused on the charge of removing the inhaler from ward stock for her own use.
A letter informing her of the outcome stated that from her response to questions “it was clear that you were not suffering from a full-blown acute asthma attack”.
An appeal panel backed the finding that her conduct constituted gross misconduct.
Her case against the Western Health and Social Services Board was upheld by an initial Industrial Tribunal before being set aside by the Court of Appeal for the first time in February 2016.
The nurse renewed her legal challenge after a second tribunal upheld the misconduct finding.
In its latest ruling, the Court found that her terms of employment did not seem to prohibit taking puffs of the inhaler when undergoing an asthmatic attack without permission.
In a written judgement, Lord Justice Deeny said the Tribunal acknowledged that it must consider whether the decision to dismiss was proportionate in all the circumstances of the case but it was difficult to see how it did this, particularly as the Tribunal acknowledged that the penalty imposed was “at the extreme end”.
He concluded that the Tribunal erred in law and in its appreciation of the facts and quashed the Tribunal’s decision that the appellant was fairly dismissed.
He said that remitting the matter to another tribunal would be clearly inappropriate. The parties will be given time to consider the issue of remedy.
Lord Justice Weir agreed with the decision of Lord Justice Deeny.
But Lord Justice Gillen disagreed, saying that taking a prescription drug from a locked ward for the nurse’s own use was “clearly an extremely serious matter which no hospital could or should tolerate”.
He said the appellant was well aware that this was prohibited behaviour.
However, by a 2-1 decision, the Court of Appeal quashed the Industrial Tribunal’s decision that
the appellant was fairly dismissed.
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