LCR23196

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No: ADJ-00049251 (CA-00060526-001)

BACKGROUND:

The Worker appealed the Adjudication Officer’s Recommendation to the Labour Court on 28 April 2025 in accordance with Section 13(9) of the Industrial Relations Act, 1969. On 26 March 2025 the Adjudication Officer issued the following Recommendation. “ I am making the following Recommendations:

1. The Respondent is to pay the Complainant’s legal fees in full.
2. The Respondent is to remove the final written warning from her file.
3. Cease permanently the new Stage 4 disciplinary process in relation to her not turning up to work on Monday 22nd April 2024.
4. Letter of apology acknowledging firstly the inordinate delay in reaching a conclusion in the disciplinary process and for the deficiencies in that process and secondly acknowledging the damage that was caused to the Complainant’s mental health and reputation as a result of the aforesaid delays and deficiencies and furnish the Complainant with same on or before the 30th March 2025
5. Pay to the Complainant the sum of €15,000.00 compensation for damage caused to her professional reputation as a result of the inordinate and inexcusable delay in the process,  for the unwarranted suspension and for the damage to her mental health. The payment is to be made on or before the15th April 2025..
6. Work in a meaningful and respectful way with the Complainant with a view to getting her back to work.’’ A Labour Court hearing took place on 09 October 2025.

DECISION:

This is an appeal by the Employer of Decision ADJ-00049251 CA-00060526-001 of an Adjudication Officer.  At the commencement of the hearing the Court reminded the parties that this case was being heard under the Industrial Relations Act 1969 and was in respect of a dispute as defined by that Act between a Worker and their Employer.

The Workers representative submitted that there was an inexcusable and inordinate delay from the date of the incidents the Employer sought to investigate and the issuing of a final written warning to the Worker. In terms of the procedures, the Employer did not follow their own procedures and the procedures they used were flawed. The Complainant was not furnished with relevant documentation in advance of the investigation and issues she raised to clarify the incident from her position were not considered.

The language of the report is concerning where it references the Worker having to defend herself. This is a clear indication of bias by the investigator.  The incident involving the Worker was considered under stage IV of the disciplinary procedure which is serious misconduct. The incident in respect of the Worker is not in the same category as list of things that are identified as serious misconducts in the procedure.   It was never put to the Worker that it was being considered as serious misconduct nor was any explanation given as to how the decision was arrived at, to categorise it at that level. The Worker was placed on suspension which lasted six and a half years and no process was applied prior to the suspension, no assessment of risk was carried out and she was not given an opportunity to give her version of events.

 The Worker to date has not been provided with an explanation for the delay. Representations that she made on her own behalf were not taken into account. The terms of reference for the investigation were made based on an unknown report about her. Investigations are supposed to be fact finding and it should not be a requirement that she has to defend herself in that process. The Worker was placed on a personal improvement plan (PIP) in January/February 2018 from one of the incidents and that incident was then included in the investigation despite the fact it had already been dealt with.  The witnesses that the Worker identified were not interviewed nor was her supervisor. The Complainant has been on suspension for 6.5 years and has been placed on a final written warning which is currently live. The Worker is currently on certified sick leave.

The Employer submitted that the Worker has been employed since Nov 2016. In April 2017 the Worker was placed on a PIP in respect of concerns that her line manager had in respect of her clinical practices. This PIP was agreed with the Worker, and she successfully completed same in July 2017. A second PIP was put in place in February 2018 arising from concerns in respect of escalation of care and other related areas.  While on that PIP other issues arose including a poor standard of clinical documentation and medication errors. The Worker initially denied the errors but later admitted them in writing to her manager. Following a meeting with the Worker in March 2018, the Director of Midwifery in GUH and the Director of Human Resources in GUH mase a decision to refer these issues for investigation. The issues referred related to incidents between November 2017 and February 2018.

The Employer submitted that the terms of reference for the investigation were agreed with the Worker and her representative at the time. Neither she nor her representative raised any issues with the terms of reference. The Worker was also afforded an opportunity to comment on the draft report although he accepted that she was not afforded an opportunity to comment on the witness statements.

The Complainant met twice with the investigation team and was provided with a draft report. She was invited to make any comments or observations she had on the report which were considered by the investigation team before the final report was issued in November 2021.  The report upheld two out of the three allegations. It was the decision of the Saolta Group Chief Operating Officer to convene a stage IV disciplinary hearing. A disciplinary hearing was held on 3 April 2023 and the outcome which was issued in July 2023 was a decision that a final written warning be placed on her file and that she would undertake the appropriate retraining and skills reassessment. Pending the retraining and skills assessment she would be assigned to a non-clinical role in the hospital.

Discussion

The timeline for the process based on the submissions to the Court was as follows.

Incidents November 2017 to February 2018.

Decision to investigate and suspend March 2018

Outcome of investigation November 2021

Disciplinary hearing April   2023

Disciplinary outcome July 2023.

The Worker appealed the outcome, but her appeal was not successful.

Other than a vague reference to COVID no explanation for the excessive delay was forthcoming from the Employer. The Court notes that the Employer had a full two years prior to COVID to carry out the investigation, no explanation was forthcoming as to why that did not happen. The Complainant was suspended since March 2018. the Court notes that there was engagement between the Worker and the HSE in respect of a planned return to work from September 2023. The Court notes that the Worker did not attend some of the scheduled meetings to discuss and plan her return to work.  A meeting was held on 18 January 2024. Following that meeting the Court notes that a letter was issued to the Worker advising that her request for two weeks annual leave had been approved and that she was to report to work on Monday 26th February 2024 where she was to attend the Bespoke Midwifery Retraining and Assessment programme.  The Worker then raised issues which she believed needed to be clarified before her return to work. It is the Court’s understanding that she did not attend work on 26 February 2024 and the HSE ceased paying her salary on 20 March 2024.  Having considered the submissions both oral and written of the parties the Court concludes that the Employer was entitled to investigate the issues and that the conclusion they came to and the sanctions arising from same were within the appropriate range. However, the delay in procedures and the fact that as a skilled practitioner she was kept out of work for five and a half years (March 2018 to September 2023) was and is unacceptable, and not capable of being justified in any circumstances.  The Court believes the appropriate remedy is compensation, and awards €7,500 for the failure of the Employer to carry out a risk assessment prior to imposing a suspension and failure to ensure the investigation and disciplinary processed were completed in a timely manner. The Court urges the party to re-engage on a route to return to work for the Worker as a matter of urgency once she is medically fit to do so. 

The Decision of the Adjudication officer is varied accordingly.

The Court so decides.

	Signed on behalf of the Labour Court
	Louise O'Donnell
AR	______________________
26 NOVEMBER 2025	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Mr Aidan Ralph, Court Secretary.