ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00017272
A Health Service Provider
David Miskell Irish Nurses and Midwives Organisation
Therese Cunningham/ Kevin Little
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: 30/04/2019
Workplace Relations Commission Adjudication Officer: Emile Daly
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 13 of the Industrial Relations Acts 1969following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
The Complainant is a public health nurse against whom a complaint was made. The Complainant feels that she was unsupported by her employer during the complaint process and that despite her employer accepting from the outset that there had been no fault in her behaviour she was not supported even when a newspaper article was published which criticised her conduct. This matter was referred to the WRC in circumstances where a stage 2 grievance hearing did not uphold her grievance. She accepts that her employer had no control over the publication of the newspaper article but she was not informed about it and was not supported. This resulted in the Complainant going on stress related sick leave.
Summary of Complainant’s Case:
The Complainant is a public health nurse. Following a complaint by a father of a service user over the refusal of the Complainant to provide treatment to the service user on 13 December 2017, the father brought a complaint against the Complainant on 19 December under the Respondent’s policy entitled “Your Service Your Say”. In his complaint he alleged that his daughter had been refused treatment by the Complainant and that it was unclear whether she was now entitled to treatment as she was disabled.
The Complainant initially was not told about the complaint against her until she returned to work after Christmas on 4 January. She was upset about this because she should have been told straightaway, given that her decision to refuse the treatment was clinically correct. Indeed to have treated would have been clinically incorrect. Furthermore at the time of her decision she checked with her line manager who agreed with her decision.
During the processing of the complaint against her, she felt that she was not adequately supported by her employer. She had refused to give the treatment because the service user needed to be assessed by a GP before the treatment was given. This was standard protocol. When she finished her shift that day she handed on the responsibility of the GP referral, to her line manager (the person who had agreed with her earlier clinical decision). The GP ultimately did not attend to the assessment as expected and consequently the service user did not receive the treatment that day and had to be brought to the hospital for the assessment. None of this was her doing however and yet the complaint placed her in the firing line for it. This was a classic case where because she was “the face of the refusal” she was criticised, even though everyone accepted that her decision had been the right call to make.
In any event the family of the service user were upset by what had happened and brought the complaint against the Complainant. Between the complaint was made on 19 December 2017 and the 1 February 2018 no action was taken by the Respondent in relation to complaint. On 1 February 2018 the father of the service user went to the press to complain about what had happened.
In the newspaper article that was published, the public health nurse was criticised, although not named. The Complainant felt that had the service user been given an explanation at the time (in late December or early January) then the matter would have been resolved and the article would not have been published. She accepts that telephone conversations did take place in December and January in which the Complainant’s supervisor attempted to explain to the father the basis upon which the treatment was refused and assuring him that his daughter would be treated however he clearly did not accept this explanation and went to the press. The article was based on the complaint that family of the service user had brought against the Complainant.
The Respondent met the family on the day the article was published, 1 February 2018. The Complainant was meant to attend but could not face going to the meeting.
Thereafter the process to towards a written report moved more quickly.
A draft report (as a response to the complaint) was prepared and circulated on 8 February and the Complainant was satisfied with the contents of the draft report. In respect of the clinical decisions taken by the Complainant the draft report set out why her clinical decision on the day was justified. In terms of the recommendations in the draft report her position was protected and her decisions were supported.
However, the Respondent issued a final report in March that failed to include findings that were in the draft report which had exonerated the Complainant from wrongdoing. She was not told that the final report would be different from the draft report in this respect. Indeed, when her trade union advisor asked the Respondent by letter dated 13 February if the contents of the final report would be the same as the draft report, he was not replied to. If the content of the final report was to differ in the material respect that it did, she or her trade union representative should have been told when they asked. Why was the draft report circulated to the Complainant and her trade union representative at all unless it was to represent what would go into the ultimate report?
The final report was issued on 5 March 2019. It was considerably different to the contents of the draft report and yet such changes were not discussed with the Complainant.
The final report was an apology to the service user. The explanation for the changes to the report were that the final report was merely a tidying up of that which was in the draft report and yet this is not the case. The final report was the published response to the complaint that had been made against the complainant the previous December therefore the apology as a response to a complaint against her implied wrong doing on her part.
In particular the discrepancies were as follows:
The explanation as to why the Complainant was correct in not treating the service user (without a GP assessment) was not in the final report. It was contained in minutes that were attached to the report but not in the actual report, as had been expressly set out in the draft version. The second aspect that was omitted was a record of the fact that when the Complainant finished her shift on 13 December she was assured that getting the GP to assess the patient was in hand . Given that the complaint was against her, this was again a glaring omission from the final report.
In the final report the Respondent apologised to the family of the service user and confirmed that the said service user was eligible for treatment. However eligibility for treatment was never at issue and the Complainant had no problem with this being communicated to them. However the report made other assurances which implied wrongdoing on her part.
The report’s conclusions were that the public health nurses would be reminded about the categories of patient that are eligible for treatment (which implied that the refusal was because of the Complainant didn’t know which patient should/ should not receive treatment, when the Complainant was fully aware of who should receive treatment.)
Secondly the Respondent apologised for a lack of clear communication between themselves and the service user on the 13 December 2018 (which again this implied wrongdoing by the Complainant.) She had left the matter in the hands of her line manager to deal with. It was not a communication issue. The fact that the doctor did not ultimately attend to assess the patient was not her fault, nor as it turned out any of the nursing staff fault and yet this fact was left uncommented upon in the report, which given the report was a response to a complaint against the Complainant primarily, implied culpability.
The recommended outcomes of the report was that the public health nurses would be told to communicate back to service users more quickly, which was not at issue, at least not as far as the Complainant was concerned. If there was a failure to communicate with the service user family that was not her doing but the final report implied that it was.
Therefore, the Complainant found herself in the situation where despite having done nothing wrong, an apology was given by her employer in response to a complaint made against her and in doing so it was not made sufficiently clear that she had done no wrong.
If the report had included a vindication of her actions but apologising for the actions of the service, she would not have had any difficulty with this but the report was silent on her conduct.
The reason he believes that the report it was so apologetic and unsupportive of the Complainant was due to the critical media coverage and the fact that no progress had been made between 19 December 2017 and 1 February 2018, when intervention would have been more effective.
In addition, the person who was appointed to draft the report was the Complainant’s line manager, who was more responsible for what happened on 13 December than she was because she was the hand over nurse. In circumstances where the line manager was in part responsible for what happened, she should not have (no more than the Complainant should have) been tasked with the drafting the report. For a potential wrong doer to have been appointed as the drafter of the report was inappropriate and undermines the manner in which “Your service, Your Say” accounts to the public.
In relation to the newspaper publication, the Complainant went on sick leave the morning the article was published. She later found out that a supervisor had known of the possibility of the article being published a week before it was and yet the Complainant was not informed of this until the paper was published. Yet again, she felt unprotected by her employer in a rain of criticism that was baseless. Her professional reputation was now undermined publicly.
At no stage did any manager sit her down and tell her “none of this is your doing, none of this is your fault.” That is what she required to hear from her employer but did not. If there had been an intervention at that stage, she would have welcomed it and in all likelihood would not have ended up before the WRC.
After the Complainant went on sick leave in February 2018 there was correspondence which ultimately led to a meeting with HR in May with her trade union representative. Her T.U. representative changed in September 2018 at which point a request for a grievance was formally made (although the fact that she felt scapegoated and had a grievance had been obvious for some time ) The Respondent agreed to a Stage 1 grievance meeting, which the trade union representative disagreed with given the seriousness of the matter.
At this meeting three grievance issues were raised.
Firstly that there was an unreasonable time delay (from 19 December 2017- 4 January 2018) in notifying the Complainant of the fact that a complaint had been made against her.
Secondly that the final version of the report issued in March 2018 prejudiced her and was materially different to the draft report as had been agreed.
Thirdly that there was an unreasonable delay in advising the Complainant of the possibility that an newspaper article in which her actions were criticised might be published.
At the stage one hearing the grievance was not upheld. This was published 7 December 2018
At the stage two hearing (15 January 2019) the first two grievances were not upheld but the third in relation to her not being forewarned of the newspaper article, was upheld (published 18 January 2019)
Unhappy with this outcome the Complainant then referred the matter to Adjudication by way of a WRC complaint
Summary of Respondent’s Case:
The delay between receiving the complaint on 19 December 2017 and informing the Complainant on 4 January 2018 was not significant, she was not prejudiced by it and it was done in good faith to allow the Complainant have a worry-free Christmas break. It was also felt that both the Complainant and her line manager should be informed at the same time therefore it was when they both returned from annual leave that they were informed, which was 4 January. The delay in informing the Complainant is not excessive given the time of year.
The Complainant was not informed about the newspaper article because while the query came in on 24 January 2018, the matter was then passed to the Communications Office who took control of the issue and told the Complainant’s supervisor that staff must not discuss the matter directly with the media. The publication was delayed and it was hoped would be prevented altogether without having to concern the Complainant. A meeting with the family of the service user was set up for 1 February 2018. It was hoped that this would deter the family from publishing. Only on the morning of the publication 1 February was the Complainant’s supervisor informed that the story was published that day. Up until then it was hoped that the efforts to deter publication would have been successful. In any event the Complainant is not named in the piece. The grievance hearing finding stage 2 is sought by the Respondent to be amended to reflect this information as the officer did not hear evidence from the Complainant’s supervisor before deciding to uphold this grievance.
The amendments to the draft report do not materially change what was published in the final report. The report is not for the benefit of the employee. It is a response to a complaint from service users. Your Service, Your Say was introduced in 2017 and is there to give transparency to service users about the clinical decisions that effect them. The amendments were a tidying up of the draft report. The Complainant’s professionalism and reputation are not undermined by the final report. Indeed her explanation for what occurred is recorded in the body of the report. Furthermore the minutes of the meeting of 1 February was appended to the final report and in this, it is made very clear that the clinical decisions taken by the Complainant on 13 December 2017 were correct and in line with good clinical practice. The apologies to the service user of poor communication on the 13 December and for the stress that was caused to them on the day were entirely appropriate and were not a concession that the Complainant had acted improperly. It is a corporate response to a public complaint and there must be accountability. This is the purpose of Your Service, Your say.
No explanation was provided as to why the Respondent included in the final report (which was not in the draft report) a recommendation that staff be reminded as to categories of patients that are eligible for public health nurse services. The minutes of the meeting don’t indicate that this was misunderstood by staff at any stage.
The other grievances are ancillary. There was no significant delay once the grievance was formally raised. It was not raised prior to then. The Respondent followed the established grievance procedure by holding a stage one grievance meeting. This was an informal meeting but there was no reason to by pass a stage one hearing.
The repayment of sick pay is not an appropriate remedy for the Complainant to seek. This is prevented by Article 10 of the Civil Service Sick Pay Scheme.
Being written about in a national newspaper is part and parcel of the life of a public servant. Front line workers attract praise and criticism alike, and this is part of the normal vicissitudes of public service. However the tipping point of the complaint lies with the newspapers decision to publish, not with the Respondent and a claim for loss of earnings since the publication cannot be laid at the Respondent’s door.
The complaint is resisted in its entirety. The Complainant had the support of management at all stages and continues to.
The Respondent urges the Complainant to return to work.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
While it would have been better for the Complainant to be informed as soon as the complaint against her was made on 19 December 2017, I do not find that the delay in informing her on 4 January 2018 when she returned back from the Christmas break to be excessive or unreasonable. I think that this was done in all likelihood to prevent the Complainant from worrying about the matter over the Christmas break.
I do not uphold this aspect of the complaint.
In respect of the Stage 2 grievance hearing (that she was not informed as soon as it became known that a newspaper article may be published) which was upheld, I do not interfere with this finding. If it becomes known that an employee may be about to be criticised in the media in relation to her job performance, the possible publication of it should be immediately communicated by the employer to the employee concerned. The risk of it occurring should have been imparted, not only when it is known that it would be published. I do not accept the explanation of the Respondent that they only knew on 29 February. They knew of the possibility on 24 February, at which stage she should have been advised.
I therefore agree with the finding of the stage 2 grievance outcome and I uphold this aspect of the complaint.
The most significant aspect of the grievance is the manner in which the complaint by the service user was dealt with by the Respondent, that is, the changes that were made to the final, Your Service Your Say, report from what had been agreed in the draft report.
The findings and recommendations in the final report are different to what was agreed in the draft report. This was not a tidying up exercise as described by the Respondent. The findings were different. The recommendations were different. In the draft report the facts were set out as established facts. In the draft report they were set out as to what the Complainant said happened (ie her version as to what occurred).
It is a challenge to understand why the draft report was circulated and the contents agreed with the Complainant if it was intended to alter it to the extent that it was.
The report was a response to a complaint made mainly against the Complainant personally and the service in general. Both aspects of the complaint should have been addressed in the findings.
In particular a finding should have been made as to whether the Complainant’s decision to refuse treatment was correct or incorrect, because by failing to deal with this, the Complainant’s reputation and ability to do the job thereafter was undermined.
Therefore, while the Respondent was entitled to have a corporate position which could have included an apology on behalf of the service as to lack of communication, it also need to respond to the complaint made against the Complainant personally.
The service user’s father had believed that she was the one at fault. Her actions (no-one else) were the ones he complained about and yet a response to the complaints against her were side stepped in the final report. Not so in the draft report in which (under recommendations) the issue of her clinical judgement is directly addressed and under the narrative section the detail as to why the patient was refused treatment was set out clearly, as objective facts, not as the Complainant’s version as to what happened.
Minutes of a meeting which were appended to the final report are not a substitute for the report or its findings.
The point is that the final report gave a different response to the allegations in respect of the Complainant’s actions than the draft report had done.
As the complaint was taken against her and against her refusal to treat and because the recommendation in the final report was that staff will be reminded as to which categories of patient are eligible to receive services, this implied (in the absence of express vindication of the Complainant’s actions) that the reason the problem arose was because she refused the treatment because she did not understand that the service user was eligible to get treatment, which was never the case.
This was grossly unfair, not only because it was the first time that this was mentioned but given the newspaper article published two weeks earlier, this was an opportunity to properly clarify what happened not compound the mistaken belief that somehow, she had been at fault.
Your service You say is a laudable plan to make the actions of the Respondent accountable to the public. Accountability requires candour. Sometimes there is fault, sometimes there is not. If there is fault, that should be acknowledged. Where there is none, that should be explained. Accountability does not require an apology when there has been good clinical decision. It requires an explanation of the basis for the decision. Otherwise the Your service Your say becomes a device to quell criticism rather than accounting to the public for what occurred. The Respondent is entitled to give a corporate apology for its failures as service but to do so without at the same time exonerating the actions of the Complainant gave the impression that the service user’s complaint against her personally had some merit, which it did not.
The only feasible explanation for the alteration to the final report is that the Respondent felt under pressure to placate the service user given that no progress had been made in relation to his complaint from 19 December 2017 until 1 February 2018 and then because the newspaper article was so negative, there was pressure on them to quell this criticism.
However, two strands of management obligation were activated when the complaint was lodged on 19 December 2017.
Firstly, there was a need to attend to the complaint as quickly as possible and to set out a truthful explanation for what happened.
Secondly, there was a need to attend to employee who is the subject of a serious complaint, of whom it is known, from the very outset, did nothing wrong and everything right, in the clinical decision she took.
In my opinion these obligations became conflated inappropriately. Front line employees require front line support, but especially when the employer knows from the outset that they have wrongly been identified as a guilty party.
The Complainant was afforded the least protection in this whole process and this was an oversight.
I uphold the complainant’s grievance that the final report failed to vindicate her actions on 13 December 2017 and I find that the final report is differed significantly from the draft report that had been agreed. The structure and findings in final report failed to make clear that the complaint against the Complainant personally, had no basis.
I am not however persuaded by the Complainant’s argument that loss of earnings (€21000.00) should be used as a guide to determine the level of compensation award. The Complainant left her position due to stress because of the newspapers article published on 1 February 2018, which was something that was not under the control of the Respondent.
However had a member of management had put themselves in the position of the and empathised with her, reassured her that she had been wrongly being singled out as the guilty party, if management had assured their full faith in her ability, that the complaint against her had no basis and that she had the support of her team, I am confident that this matter would not have escalated. The stress suffered by the Complainant due to the newspaper article could have been ameliorated with effective intervention, which did not occur.
I recommend that the sum of €10,000.00 be paid to the Complainant as compensation for what occurred.
In respect of the other grievances raised, that there was a delay in hearing the grievance in September 2018 and that it should have been dealt with as a stage one grievance, I do not uphold these complaints as they are ancillary to the main complaint, which is upheld.
Dated: 28th May 2019
Workplace Relations Commission Adjudication Officer: Emile Daly