Labour Court Database
File Number: CD93393
Case Number: AD9367
Section / Act: S13(9)
Parties: ST JOSEPH'S HOSPITAL (RAHENY) - and - IRISH NURSES ORGANISATION
Appeal by the Hospital against Rights Commissioner's Recommendation No. B.C. 113/93 concerning alleged unfair dismissal.
Division: Ms Owens Mr McHenry Mr Rorke
Text of Document__________________________________________________________________
CD93393 APPEAL DECISION NO. AD6793
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: ST JOSEPH'S HOSPITAL (RAHENY)
IRISH NURSES ORGANISATION
1. Appeal by the Hospital against Rights Commissioner's
Recommendation No. B.C. 113/93 concerning alleged unfair
2. The worker concerned was employed by the Hospital as a theatre
nurse in the period February, 1992 to January, 1993. On 16th
January, 1993, an incident occurred which involved the worker
concerned and a colleague. At the time of the incident the worker
was in the recovery room and her colleague was assisting in the
theatre which is separated from the recovery room by a window.
The worker claims that as a result of the incident on 16th
January, 1993, her employment was terminated on 19th January,
1993. The Hospital claims that the worker voluntarily terminated
her own employment.
The matter was referred to a Rights Commissioner for investigation
and recommendation. On 24th June, 1993, the Rights Commissioner
recommended as follows:
"In the light of the above I am satisfied that each party had
an erroneous impression as to whether a dismissal or
resignation had taken place.
Therefore equity would direct to make the following
Recommendation. Effective from the 1st Monday following
receipt of my Recommendation St. Joseph's Hospital to
reemploy the worker and the worker to be assigned to any area
in the hospital where the hospital management deem her
abilities and experience to be useful.
I make no Recommendation with regard to compensation for loss
of earnings since the worker's departure from the hospital
since I cannot assign total blame to the hospital nor acquit
the worker of total responsibility for this state of affairs
that gave rise to the problem".
The worker was named in the recommendation.
The Rights Commissioner's Recommendation was appealed by the
Hospital to the Labour Court on 2nd July, 1993. The Court heard
the appeal on 10th August, 1993.
4. 1. The incident of the 16th January, 1993 occurred because
the worker concerned was anxious to ensure the best possible
care for her patient following surgery.
2. It is of vital importance that all relevant documentation
is available when the patient enters the recovery room.
3. On the 19th January, 1993 the theatre manager told the
worker that her behaviour was unacceptable and that she would
have difficulty in trusting her in the future. The manager
advised her that it was best that they "call it a day" and
that she was sorry that "it had to end this way". The worker
took this to mean that her employment had been terminated.
4. While a theatre manager would not normally have the power
to terminate employment, it was understandable in the
circumstances that the worker thought otherwise, given that
she was employed by the theatre manager in the first instance.
5. At no time did the worker resign from her employment and
it was only on the advise of the Department of Social Welfare
that she sought her P45. She was not aware of the legal
significance in seeking her P45.
6. It was established at the Rights Commissioner's hearing
that the worker had an excellent work record during her
employment at the Hospital.
7. The prospects for the worker of obtaining work as a nurse
are not good. The worker has not worked during the past 6
months and her prospects of obtaining alternative employment
are not good.
7. The worker concerned did not leave her employment of her
own volition. One single incident in a highly tense area such
as a hospital theatre should not result in the termination of
a nurses employment. The Union considers that the Rights
Commissioner's Recommendation is fair and equitable.
4. 1. The incident which occurred on 16th January, 1993 was most
serious. The actions of the worker concerned in verbally
attacking a colleague created a most unwelcome atmosphere in
the theatre. The worker was advised that her outburst was
considered to be extreme, emotional and undesirable, causing a
colleague to be both upset and afraid. The Hospital felt that
a full investigation was merited and this was put in train.
2. During this investigation the worker resigned and
subsequently, re-asserted her position, stating categorically
that she did not want to return to work. The Union's request
for the worker to be reinstated came as a considerable
surprise to management.
3. At no stage did the worker state that she had a grievance
and was considering resigning. A grievance procedure which is
given to all members of the staff states that management is
committed to understanding the employee's views and to
resolving matters in a equitable way. There are clearly
defined steps in the procedure and in the worker's situation
there were four stages to go through before taking a grievance
to a third party. The worker did not go through any of these
4. The existence of a grievance or disputes' procedure is
something referred to frequently by third parties. The
Industrial Relations' Act itself states that, where procedures
exist, individuals must exhaust them.
5. Generally speaking, two conditions must exist before a
claim for unfair dismissal can be upheld; firstly that the
employer's action goes to the very core of the individual's
contract of employment, indicating that the employer no longer
wishes to be bound by it and, secondly, that prior to actually
resigning, the employee completely exhausts the grievance
procedure - including informing the Union representative.
6. The decision to conduct an investigation did not amount to
the hospital no longer wishing to be bound by its contract
with the worker. The Rights Commissioner, in his
Recommendation specifically refers to misunderstandings and
erroneous perceptions. It is the Hospital's contention, which
is supported by numerous Employment Appeals Tribunal
Determinations, that if the worker either misunderstood or
felt herself to be misunderstood, she had an obligation to
seek clarification of the situation. This, however, she did
not do and she avoided the grievance procedure, by which she
was bound, to such an extent that at no stage did anyone in
the Hospital know that she had a grievance.
7. No reference is made in the Rights Commissioner's
Recommendation to the team work essential in a surgical unit,
to the necessity for consistent and good working relations, to
the necessity of abiding by procedures and management must be
able to rely on its staff on every occasion.
8. The worker resigned her position and she cannot apportion
any of the blame to her superiors.
5. In all the circumstances of this case and in particular given
the conflict of evidence the Court is satisfied that the general
thrust of the Rights Commissioner's recommendation is fair and
should be upheld.
The Court notes that an investigation into the incident which
occurred on 16th January, 1993 had commenced. It is a matter for
the hospital to decide whether this investigation should be
pursued to conclusion.
The Court upholds the Rights Commissioner's Recommendation subject
to the date for re-employment being altered to the 1st September,
The appeal is accordingly rejected.
The Court so decides.
Signed on behalf of the Labour Court
20th August, 1993. Deputy Chairman.
Enquiries concerning this Recommendation should be addressed to
Mr. Fran Brennan, Court Secretary.