INDUSTRIAL RELATIONS ACTS, 1946 TO 2001
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
MID-WESTERN HEALTH BOARD
- AND -
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
Chairman: Mr Flood
Employer Member: Mr Pierce
Worker Member: Ms Ni Mhurchu
1. Appeal against Rights Commissioner's Recommendations IR218/00/MR, IR219/00/MR, IR220/00/MR
2. The dispute concerns an incident which took place on the 13th of December, 1999, and involves 3 workers who are employed by the Board at Dooradoyle Ambulance Centre in Limerick. The 3 were originally employed as ambulance drivers and are currently graded as Emergency Medical Technicians (EMTs). The following is the Board's account of what happened: (there was conflicting evidence given at the 2 hearings as to what exactly happened.) At approximately 10.00 p.m. on the night in question, the 3 workers were requested by an ambulance controller to transport a patient to Dublin. (The 3 workers were on duty from 4.00 p.m. to 12.00 p.m.) Worker A replied that he could not go as he had to collect his wife at the end of his duty period. Worker B claimed that he had to sign mortgage papers the following morning and could not go, and worker C replied that he did not feel well enough for the journey. The workers were then requested by the Chief Ambulance Officer (CAO) to drive the patient to Dublin and, when they again gave their reasons for not going, they were informed that they were being suspended for refusing to carry out a legitimate instruction.
Following a number of meetings, the 3 workers were informed on the 20th of December, 1999, that they were suspended without pay for 2 weeks from the date of the incident. The workers were severely reprimanded and formally warned about their future conduct. Workers B and C were placed on a special probationary period of 12 months and given final written warnings. (The Union claims that this applied to all 3 workers.)
The Union contends that at no stage did the workers refuse to transport the patient to Dublin, and that the disciplinary procedures followed by the Board were not in keeping with the Code of Practice on Disciplinary Procedures, S.I. No. 117 of 1996. The dispute was referred to a Rights Commissioner and his recommendation is as follows:
"Accordingly, I now recommend that the Board should agree to amend the sanction imposed on each of the 3 claimants to a Written Warning in each case and that the Union and each of the 3 claimants should accept this amendment in full and final settlement of their claims. I also recommend that both parties should further commit themselves to taking all steps necessary that no further incident arises in the future and to working in a spirit of partnership for the benefit of the community at large."
The Board appealed the recommendation to the Labour Court on the 19th of April, 2001, in accordance with Section 13(9) of the Industrial Relations Act, 1969. Labour Court hearings took place on the 6th of June, and the 5th of December, 2001, in Limerick.
4. 1. Workers B and C were requested to go to the control centre where they were met by the CAO, a Supervisor and the Ambulance Controller. Worker B explained that he had just returned from 2 weeks' sick leave and did not feel it appropriate to take the trip to Dublin. A shouting match ensued. Worker B felt threatened by the CAO's behaviour. He was subsequently told "You go home, get off the premises" Worker C collapsed later that night.
2. Worker A explained to the Controller that he had to collect his wife at 12.10 a.m. and was told that this was OK.
3. There is nothing unusual in EMTs declining "out-of-Board" trips. It happens on a regular basis and is accepted practice. Alternatives were available on the night in question. A night crew started work at 10.00 p.m. prior to the incident and eventually transported the patient to Dublin. There was also an on-call crew available.
4. No disciplinary meeting took place following an investigative meeting on the 14th of December, 1999. The Union sought copies of the allegations sent by the CAO to the CEO but these were not furnished. As a result, the workers were denied natural justice.
4. 1. The Board views the incident in question as so serious as to have the potential to result in loss of life. It considers it a case of gross misconduct, and considers the imposition of 2 weeks' suspension to be the absolute minimum sanction appropriate.
2. The Board cannot accept the Rights Commissioner's findings that "The procedures followed by the Mid-Western Health Board contained minor flaws." The procedures were in accordance with the principles of natural justice and fairness.
3. The workers were made very well aware of the seriousness of their conduct and were interviewed by senior management. They were given every opportunity to deny or justify their behaviour.
The Court has considered carefully all the points made by the Board in support of its appeal against the leniency of the Rights Commissioner's recommendation, together with all the submissions made by the Union in support of its members.
The Court must take into account that the ambulance service is an emergency response service, whose members are committed to rapid response when the situation requires. In the case before the Court, a medical decision was made at about 9.30 p.m. that a seriously ill child needed to be transferred to the specialist facilities of Beaumount Hospital, in Dublin. One driver was due in at 10.00 p.m., a second having telephoned in sick for that evening. Of the six EMTs on duty, three had commenced at 8.00 am, the other three at 4.00 p.m. At approximately 10.00 p.m., three drivers, who had commenced work at 4.00 p.m., had in turn refused to take the call for Dublin for various personal reasons when requested to do so by the Ambulance Controller. None of these reasons appear to the Court to have been critical at the time they were submitted, although they developed later. When the Chief Ambulance Officer was called in to the hospital following these refusals, it is clear that poor interpersonal relationships and an aggressive confrontational approach distorted the situation, such that none of the three agreed that he should take the call. The final solution was that the driver starting at 10.00 p.m. along with another EMT due in at 12.00 p.m. who came in early, took the child from the hospital at about midnight, while two other drivers who started work at 8.00 a.m. that day were retained for a 24 hour shift in order to maintain local ambulance cover.
The net result was that a seriously ill child had to wait some two hours for an ambulance to take him to Dublin, and two drivers had to stay on for 24 hours to maintain emergency cover.
The Union maintains that it has a flexibility agreement that allows any EMT to decline any specific duty assigned to him, and that in this case the duty should have been passed to another of the EMTs due in at midnight, as eventually was done. It also maintains that such refusals are normal, and that 24 hour duties do occur anyway. It further maintains that this is still the position. The Board maintains that it has the right to instruct EMTs to take specific duties, and the flexibility arrangements simply allow EMTs to substitute for each other where this is suitable to both EMT and the service needs, which was not the position in this case.
The Court is concerned that, since all EMTs and their Union assert in Court that they have the right to refuse any duty, this hospital, in reality, does not have an emergency service which can always be relied on for rapid response to medical situations.
In this case referred to the Court, the Court cannot accept that an EMT has the right to refuse to take a serious medical patient when instructed, without an acceptable alternative being available to the hospital. The Court, therefore, accepts the gravity of the misconduct that night of all three EMTs.
The Court considers that the subsequent hearings carried out by the hospital management, whether or not agreed by the Union at the time, were nonetheless unsatisfactory. The individuals did not see the written reports from their hearings that were used by the CEO in deciding disciplinary action. Furthermore, there is no appeal system against the CEO's final decision.
In the light of all above, the Court considers that the written warnings should now be regarded as expired. Additionally, the Court does not accept that one week's loss of pay should have been retrospective, even if beneficial to the individuals, and directs that this should be repaid.
Finally, the Court is very concerned to be told by the Union that the introduction of a facilitator since has not resulted in clearing up the poor industrial relations existing in this area. It is essential to achieve a situation where all involved accept the over-riding priority of the patient's needs and work together in harmony to ensure this, whatever interpersonal relationships may exist at any time. The Court would exhort both parties to agree steps that will bring this about, and ensure that the situation before the Court cannot re-occur.
The Court amends the Rights Commissioners recommendations in line with the changes above.
The Court so decides.
Signed on behalf of the Labour Court
14th January, 2002______________________
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.