ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00003770
Dispute for Resolution:
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
Date of Adjudication Hearing: 14/10/2016
Workplace Relations Commission Adjudication Officer: Pat Brady
In accordance with Section 41(4) of the Workplace Relations Act, 2015 following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
Attendance at Hearing:
A Health Care Assistant
The complainant has been employed as a Health Care Assistant (HCA) by the respondent since 2000. Until this incident she had not been involved in any disciplinary process nor criticism of her conduct.
On August 9, 2015 the daughter of an elderly patient informed a staff nurse that her mother had alleged that she had been assaulted on the previous night by a HCA and that the assault was both verbal and physical in nature.
This included an allegation that the patient had been punched in the abdomen and lower back. An adverse incident report form was completed by the nurse in question (A Copy was submitted in evidence).
On the same day the patient’s son, an employee of the Hospital, met with the Site Nurse Manager and made a separate report of the alleged assault on his mother. (Copy of Site Nurse Manager report as also submitted in evidence).
The complainant was off duty the following week but on her return to work she was moved to another ward. On August 19, 2015 she was called to a meeting and suspended on full pay pending the outcome of an investigation of the allegations made against her.
Following an investigation, disciplinary process and appeal, it was decided that the complainant be issued with a first written warning and moved to day shift work for the duration of the warning to facilitate better supervision of her work.
In addition the investigation team recommended that certain courses must be completed by the claimant to upgrade her skills. On appeal the sanction was varied to the extent that she would continue to enjoy the night duty premium for now.
Complainant’s Submission and Presentation:
The facts above were not in dispute.
However the complainant did criticise the length of time taken to complete the process. The respondent procedures recommend that a process should be completed in six weeks but in this case it took approximately seven months.
However, it was accepted that apart from the issue of delay the complainant’s rights to fair process were respected throughout the process, even though she felt her case had not been properly assessed or her submissions given proper consideration on their merits.
The complainant submitted that the sanction in the case was excessive and had given rise to serious difficulties with her domestic arrangements.
Respondent’s Submission and Presentation:
The allegations made by the patient were deemed to be extremely serious by the Hospital. The Patient Safety Committee met on August 19, 2015 to review the case including the preliminary statements submitted by the staff involved. A decision was taken to suspend the claimant on full pay and proceed with a full investigation into the allegations.
An investigation team comprising of the Deputy Director of HR and the Assistant Director of Nursing, investigated the allegations against the claimant.
The claimant was made aware of the allegations against her and afforded trade union representation.
The investigators met with the patient concerned to get full details of the allegations being made.
The investigators also met with all of the staff who had any contact with the patient involved. They also received a written report from the Consultant treating the patient, the Night Superintendent and the Site Nurse Manager.
Agreed minutes of meetings with any person spoken to were collected and these were all copied to the complainant.
The investigators met with the complainant and her union representative and she was given every chance to dispute the allegations made against her.
The investigation team concluded that the bruising on the patient’s back was due to an ‘inappropriate’ interaction with the complainant.
Whilst nobody witnessed any incident that led to the bruising its conclusion was based on the evidence available collected from relevant employees, the patient and the claimant.
The patient was consistent in her recollection of the events on the night in question. She remained deeply upset by the incident and still had trouble sleeping at the time of the investigation. It concluded that the patient was fearful of meeting the complainant again. The care to the patient provided by the complainant was deemed to be well short of the standards expected of a Health Care Assistant.
The investigation team reached its conclusions on the basis of the balance of probability and recommended that the matter be referred to a Disciplinary Panel to decide what, if any, action should be taken against the complainant.
It also recommended that she undergo a number of training courses i.e. a Customer Care Course, a FETAC/QQI Level 5 – Health Care Skills Programme and a Dementia Care Course.
The complainant was written to on February 12, 2016 inviting her to a disciplinary hearing. She was advised of the range of possible sanctions and of her right to have a trade union official or colleague present at the meeting scheduled for February 26, 2016.
On February 26th, 2016 the claimant and her representative were met by the Director of Nursing and the Director of HR.
The complainant was given the opportunity to comment on the findings of the investigation team. However, she simply denied the allegations made against her.
The members of the Disciplinary Panel expressed great concern on the standard of care provided by the complainant to the patient in question. The investigators were very clear on the reasons for their findings. Furthermore, the complainant was observed knitting on the Ward when the patient was clearly in a distressed state and the claimant made no effort to deal with the patient herself or to seek assistance from another colleague. Concern was also raised that the claimant spent a lot of time at work knitting when she was supposed to be on duty.
Following the meeting it decided that she be issued with a first written warning and moved to day shift work for the duration of the warning. In addition the courses that the investigation team recommended must be completed by the complainant.
This outcome was confirmed in writing to the claimant on February 21, 2016.
The complainant appealed this decision to the CEO of the Hospital who varied the sanction by allowing her to continue to draw night duty premium for the immediate future even though rostered to day duty.
Conclusions and Findings
Looking first at the procedures carried out by the respondent I can find fault only with the length of time taken to complete the process, which the respondent attributed to the difficulty in getting to meet the complainant. This is not entirely borne out by the report itself which shows that the complainant was met on September 19th and October 28th.
The complained of events took place in August 2015, the investigation appears to have commenced in late September but did not report until February 4th 2016, having conducted its final interview on November 23rd 2015. This is far from satisfactory in what was a relatively straightforward issue and is not explained by the complainant’s availability.
Nonetheless the investigation report, which runs to some sixteen pages, is thorough and professional and the next step to disciplinary action was taken within a few days (February 12th) and the disciplinary meeting was held on February 26th with the outcome being transmitted on that same day.
He appeal was heard on March 18th.
At the appeal stage the complainant argued (according to the respondent’s submission) that ‘there were no findings of fact to support the findings made by the investigation team’, and thus the sanction was not justified.
I do not accept this. The investigation team comprised the Deputy Director of HR and an Assistant Director of Nursing and made a finding on the balance of probability which I have no grounds to ‘second guess’. Their investigation was rigorous and was undertaken against the important backdrop of a patient safety and welfare issue. It concluded that an ‘inappropriate interaction’ had taken place.
More importantly, the package of measures decided on was primarily aimed at improving the complainant’s practise. Her union submitted at the hearing that ‘a reasonable employer must ascertain the possibility of correcting an employee’s behaviour’.
In my view this is exactly what happened and the respondent, in addition to the sanction of a written warning took very positive steps towards that very end. The element of ‘pure’ sanction was at the lower end of the spectrum in the form of a first written warning.
Accordingly, I conclude that the respondent acted reasonably and with some restraint and with positive measures to enable the complainant to improve her practise.
Therefore I find no fault with the outcome, while again drawing attention to the delay in completing the investigation.
I recommend that the complainant embrace the outcome as a positive opportunity to refresh her skills and if she does so I have no doubt that she will be able to return to her previous rota, although this will be a matter for the review proposed by the respondent.
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the dispute in accordance with the relevant redress provisions under Schedule 6 of that Act.
For the reasons set out above I dismiss complaint CA-00005559-001.
Dated: 9th December 2016