INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969
MEDICAL RECRUITMENT SPECIALISTS
- AND -
Chairman: Mr Duffy
Employer Member: Mr Carberry
Worker Member: Ms Ni Mhurchu
1. Alleged unfair dismissal.
2. The worker was employed by the Company on the 15th of March, 2004, and she was placed in a number of different hospitals. On the 11th of June, 2004, she was working in St Vincent's Hospital. The worker's case is as follows:-
The worker was assigned to look after an elderly patient. She was told that he could be agitated at times but was not violent. At 4.15 p.m. she was bringing him to the bathroom when he suddenly grabbed her by the neck and pulled her very close to his face/body. The worker was very frightened but managed to get free. She led the patient back to his room and then sought a nurse on duty to report a case of sexual harassment. She claims that nobody gave her any support. She was given a report to fill out and was told that the case would be put on her file.
The worker phoned her husband. She was asked to bring the same patient to CT - Scan. A male staff member accompanied her but then left her alone with the patient. At approximately 7.00 p.m. a nurse asked her to go to the A & E ward. The worker said she was suffering emotionally and was in shock. She believes that the Company and the Hospital neglected her. The Matron-on-Call claimed that she was too busy earlier to see her.
The worker was requested to visit the Company on the 14th of June, 2004, and did so. She claims that the manager she spoke to was rude and not sympathetic. She said it was the worker's own fault for not going to A&E. The worker phoned the Company on the 15th of June to enquire about her next duty. She was asked if she was happy with the way the Company had handled the issue. When the worker said she was not she was told that there was no point in giving her work. Since then she has not worked for the Company.
The Company denies the worker's claims. It maintains that the worker phoned a placement co-ordinator from the Company to report the incident but insisted she was not physically hurt. She did not want to go to casualty in the Hospital. The co-ordinator told the worker she did not have to stay on duty but the worker said she was happy to do so. The following day the worker's manager apologised for the incident and said that the Company would try to seek a resolution. At the meeting on the 14th of June, the worker was unresponsive to some questions put to her. She said that it was not until she spoke to her husband that she had admitted to feeling emotionally traumatised. The worker phoned the Company the following day and was very angry. When she was asked if she was prepared to deal with a confused patient again if the need arose, she would not answer. As a result, the Company could not offer her any work. On the 20th of June, the worker phoned the Company threatening legal action. On the 23rd of June, she phoned asking for her P45 and the Company sent it to her.
The worker referred her case to the Labour Court on the 25th of August, 2004, in accordance with Section 20(1) of the Industrial Relationa Act, 1969. A Labour Court hearing took place on the 17th of November, 2004. The worker agreed to be bound by the Court's recommendation.
3. 1.The worker believes that she got no support from the Company or the Hospital following the incident of the 11th of June, 2004, despite being traumatised.
2. The worker was asked to look after the patient a second time despite the incident that had happened only a short time before.
3. The worker believes that she had no choice but to resign her job as she was not given any work.
4. 1. Following the incident, the worker was asked on a number of occasions if she wanted to go to A&E or if she wanted to go home. She assured staff that she was not hurt.
2. The worker was asked if she was prepared to work with a confused patient again but she refused to answer. In the circumstances, the Company could not offer her further work.
3. The Company did not dismiss the worker. She asked for her P45. The Company did all it could to resolve the issue but got no co-operation from the worker.
Having considered the submissions of the parties, the Court does not accept that the circumstances in which the claimant's employment came to an end can be regarded as a constructive dismissal. It appears, however, that there was a failure to adequately communicate to the claimant the procedure to be followed where an incident such as that giving rise to the dispute occurs. In the Court's view, the employer must take some of the responsibility for this failure.
In all the circumstances of the case, the Court is of the view that a fair resolution of this dispute should be achieved on the following basis:
- The employer should set out in clear terms the procedure to be followed in the event of an incident involving inappropriate behaviour on the part of a patient towards a carer.
- The claimant should be invited to acknowledge that she accepts the procedure as outlined. In the event that she does so she should be offered re-employment on the same terms as applied to her previously.
- In the event of the claimant resuming employment with the employer, she should receive an ex-gratia payment of €300 in full and final settlement of all claims.
Signed on behalf of the Labour Court
30th November, 2004______________________
Enquiries concerning this Recommendation should be addressed to Ciaran O'Neill, Court Secretary.