FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HEALTH SERVICE EXECUTIVE - AND - MS CAROLINE DALY (REPRESENTED BY IRISH NURSES AND MIDWIVES ORGANISATION,) DIVISION : Chairman: Ms O'Donnell Employer Member: Mr Marie Worker Member: Mr Hall |
1. An Appeal of an Adjudication Officer's Decision No(s).ADJ-00017272 CA-00022324-001
BACKGROUND:
2. This matter was referred to an Adjudication Officer for investigation and Recommendation.
On 28 May 2019 the Adjudication Officer issued his Recommendation.
The Employee appealed the Adjudication Officer’s Recommendation to the Labour Court on 2 July 2019 in accordance with Section 13(9) of the Industrial Relations Act, 1969.
The Company appealed the Adjudication Officer’s Recommendation to the Labour Court on 5 July 2019 in accordance with Section 13(9) of the Industrial Relations Act, 1969.
A Labour Court hearing took place on 21 August 2019
DECISION:
Recommendation
The issue between the parties is a claim by the Worker relating to the manner in which her Employer handled a complaint made against her and the impact that this has had on her. The Worker’s role involved direct contact with clients and on occasions their families. The father of a service user made a complaint that on a given date in 2017 the Worker had refused to provide treatment to his daughter. The complaint was brought under the “Your service Your say” policy. The Employer accepted from the outset that the Worker had followed proper procedure and had done no wrong. The Worker had three specific issues in relation to the handling of the complaint by the Employer and had raised these through the internal grievance procedure, where one of the issues she raised was upheld. The first issue relates to the delay between the complaint being received and the Employer notifying her of the complaint. She was only advised about the complaint two weeks after it was received. The Worker submitted that in that intervening period she could have had contact with the family without realising a complaint had been made. The Employer did not dispute the delay but submitted that it was a holiday period and that the Worker was told as soon as all the relevant parties were back at work.
The second issue raised by the Worker relates to a report that was drawn up relating to the complaint. The Worker was given a draft of the report for her comments. In returning the report and confirming that the Worker had no issue with the draft the Worker’s Union advised management that if there was to be any changes to the report prior to it being issued they wanted to be advised of same. This element of the Unions letter was never responded to and an amended version of the report issued. The Worker was unhappy with the version of the report that issued as a line in the draft report which she believed confirmed she had acted properly was removed. She only discovered this when she received a copy of the report shortly after it had issued to the service user. It is the Employer’s submission that the line was removed as it dealt with a clinical issue which was not appropriate in a report under the “Your service Your say” policy. The Employer did not dispute that they had not advised the Worker or her Union of the change or the reason for the change. It was their position that they had no obligation to do so. They submitted that attached to the report were minutes of a meeting where it was clearly stated that the Worker had followed procedure.
The third issue raised by the Worker related to a media report of the incident and the failure of management to inform her of same when they had been aware of the possibility for some time. The Employer did not dispute that they had been aware of the possibility of the issue appearing in the print media for a period of time before they informed the Worker. However, they had hoped that by engaging with the family of the service user the family would not go ahead with the story in the media. It was their intention to inform the Worker if it became clear that the story was going ahead. The Worker was only informed about the possibility of an article the day it was published.
Discussion and recommendation
While best practise would suggest that a Worker be informed as soon as possible about a complaint made against them, the delay in this case arose from various people including the Worker being on holiday. The Court does not believe that there was undue delay in informing the Worker of the Complaint. In relation to the second issue, while the Court appreciates the Employer’s submission in relation to why the particular line was removed from the report no credible explanation was given as to why the Employer did not engage with the Worker and her Union prior to the issuing of the report to explain why the line was removed. It is the view of the Court that had this happened and had the Employer at that stage re-affirmed their view that the Worker had followed fair procedure the issue could have been resolved amicably. Instead the Worker was left with no explanation because the Employer felt that the procedure did not require them to tell her. While the Employer may have followed the procedure laid out this does not outweigh their duty of care to the Worker as an employee. It appears to the Court that the Employer in this instance failed to balance the rights of the Worker with their obligation to the service user.
In relation to the third issue it is the view of the Court that once the Employer was aware that there was a possibility of something relating to the complaint appearing in the print media, they should have informed the Worker.
Taking into account, all of the above the Court recommends that the Employer confirm in writing to the Worker that her clinical judgement in relation to that complaint was never in question and that a sum of €10,000 be paid to the Worker as compensation for what occurred. The Worker should accept this as resolving all issues relating to this matter. The Employer should engage in a return to work process with the Worker without delay with a view to returning her to the workplace as soon as is practical.
The decision of the Adjudication Officer is varied accordingly.
The Court so recommends.
Signed on behalf of the Labour Court
DC______________________
2nd September 2019Louise O'Donnell
Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to David Campbell, Court Secretary.