ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00012655
A Clinical Nurse Manager
A Provider of Community Services
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: 13/08/2018
Workplace Relations Commission Adjudication Officer: Orla Jones
In accordance with Section 41 of the Workplace Relations Act, 2015, and Section 13 of the Industrial Relations Acts 1969 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.
The complainant submitted a complaint to the WRC on the 5th of January 2018. The complainant submits that he was unfairly given a sanction of a Verbal Caution under the respondent’s disciplinary procedure following an incident where he as the Person in Charge made a decision in respect of the provision of chiropody services for three service users for whom chiropody services were overdue. The chiropody services were paid for out of the individual service users funds at the time and repaid within four days as there were no other funds available at the time to pay for the service.
The respondent provided a submission in the matter but did not attend the hearing they did not object to the matter being dealt with by an Adjudication officer but advised the WRC a few days prior to the hearing that they would not be attending the hearing.
Summary of Complainant’s Case:
The complainant submits that
He was unfairly given a sanction of a Verbal Caution under the respondent’s disciplinary procedure,
The respondent had no authority to give him a verbal caution as its not part of the disciplinary procedure,
As a verbal caution does not form part of its disciplinary procedure the complainant had no avenue of appeal,
The disciplinary process was invoked after the complainant in his role as the Person in Charge on the 18th of March 2017 made a decision to pay an amount of money out of service users funds for a chiropody service for three service users for whom chiropody services were overdue and one of whom was in significant pain due to an ingrown toe nail,
The complainant paid the chiropodist €65 for each of the three service users this money was paid out of the service users own funds and recorded in the residents ledger to be refunded, it was refunded within 4 days,
The respondent following this invoked the disciplinary process against the complainant on the ground that he had inappropriately used the funds of service users to provide them with the chiropody service.
Summary of Respondent’s Case:
The respondent submits that
The complainant was given a verbal caution/counselling (below the disciplinary threshold of a formal verbal warning) as per their policy. This caution is not appealable under the disciplinary procedures,
The complainant subsequently brought this issue through the respondent s grievance procedure but his grievance was not upheld,
This incident was dealt with by the respondent over one year ago and they see no reason to attend an Adjudication Hearing in circumstances where they adopted a lenient outlook in regard to the issue at the time and are not about to change their minds.
Findings and Conclusions:
It is clear that the respondent in this case made a decision to invoke the disciplinary process due to its concluding that the complainant had acted outside of his responsibility by paying for Chiropody services for three service users out of those service users money.
The complainant advised the hearing that he made this decision due to the fact that there was no petty cash available on the day in question to pay the chiropodist and due to the fact that the chiropodist who arrived to provide the service required payment on provision of the service. The complainant told the hearing that he made the decision as the Person In Charge on the premises on the evening in question. The complainant stated that the Chiropodist Dr. C had refused to provide the service to the service users without payment there and then as he stated that he had previously invoiced the respondent for services provided and he had not received payment.
The complainant stated that the three service users in question were in need of chiropody services which were overdue. He stated that one of them had a particularly painful ingrown toenail and had been waiting three weeks for an appointment and had also in the interim completed a course of antibiotics to deal with this infection. He was also on pain relief for this condition.
The complainant stated that chiropody services were provided by an outside agent and that the usual chiropodist had been out on sick leave which had caused the delay in treatment for these service users. An alternative chiropodist Dr. C had been engaged instead and an appointment booked for him to come to the respondent’s premises to provide the service to the three service users.
The complainant told the hearing that Dr. C arrived at the respondent’s premises on the date in question and that he indicated that he would not proceed with any treatments unless payment was forthcoming as he had previously had issues with getting paid by the respondent after issuing invoices.
The complainant told the hearing that he has been employed by the respondent for 26 years and is a CNM3 and is recognised by HIQA as being a registered Person In Charge which means that HIQA may hold him personally responsible for the provision of care within his service. The complainant told the hearing that the three service users were in need of the treatment and that he had to make a call as to how to pay Dr. C for the treatment. The complainant told the hearing that at that time there was no petty cash available to pay the chiropodist and that the Accounts Department was closed as it was a Saturday evening.
The complainant went on to state that he made a decision to pay for the treatment out of the service users funds and that it would be refunded to them by the service provider. The complainant told the hearing that he had paid the chiropodist €65 for each of the three service users, this money was paid out of the service users own funds and recorded in the residents’ ledger to be refunded to them and that it was refunded within 4 days.
The complainant in his submission acknowledges that the process of using service users funds to pay for such matters used to be the practice but that this had recently been changed following an intervention from HIQA and submits that it was now the service provider who was obliged to pay for this service.
The complainant told the hearing that he was following this disciplined for using service users’ funds to pay for the chiropody treatment and he was following this disciplinary process issued with a Verbal Caution. The complainant appealed this outcome but was advised that a verbal caution was not within the range of sanctions which could be appealed. The complaint stated that a verbal caution is not within the range of sanctions provide by the respondent and that it is due to the fact that it is outside of the range of sanctions that it cannot be appealed. The complainant subsequently pursued the matter through the respondent s grievance procedure but his grievance was not upheld.
The respondent did not attend the hearing but submitted a copy of the complainant’s grievance outcome letter in defense of this dispute.
It is clear from the evidence adduced by the complainant that the sanction which he received was a verbal caution and that a verbal caution is not a sanction which falls within the range of sanctions outlined in the respondent’s disciplinary procedures. I am also satisfied from the evidence adduced that the complainant was not permitted to appeal the sanction of a verbal caution as such sanction is not provided for in the respondent’s appeal procedures.
I am thus satisfied that the respondent in the present case by issuing the complainant with a verbal caution has departed from its own disciplinary procedures and the sanctions allowed therein and in doing so has prevented the complainant from having access to an appeal of the sanction imposed.
Accordingly having regard to all of the circumstances of this dispute I find in favour of the complainant and I recommend that the verbal caution be expunged from his record.
I am satisfied that an award of compensation is not appropriate or necessary in the circumstances.
Section 41 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.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I make a recommendation in favour of the complainant that the verbal caution be expunged from his record.
Dated: 30th October 2018
Workplace Relations Commission Adjudication Officer: Orla Jones