Worker

Employer

Anonymised Parties

Worker

Employer

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC – 00006380

15/01/2021

The Worker has worked for the Employer since December 2000. She works approximately 20 hours per week and earns approximately €40,000 per annum. This dispute concerns an incident which occurred on 9 / 10 May 2020 when an acutely-ill patient, deemed at high clinical risk and allocated a “double special” observation level, was left unattended following an ambulance transfer to a nearby hospital. A disciplinary and appeals procedure ensued. The Worker received a written warning and her nighttime duties were curtailed for 12 months while her management duties were curtailed for three months. The Worker submits, inter alia, that the Employer failed to adhere to fair procedures when conducting the disciplinary procedure. The matter was also referred to the Worker’s professional regulator (the “Professional Regulator”) by way of a fitness to practise referral. The Worker submits that this referral was unwarranted and that the Professional Regulator exonerated her approximately four years later. She submits that during this time, she experienced financial loss and suffered stress and anxiety.

The Employer denies the allegations in full, stating that the Worker was seeking to re-run a disciplinary matter which had concluded approximately five years ago. The Employer stated that internal procedures were followed and that it cannot be held responsible for the Professional Regulator’s actions.

The Worker provided detailed written and oral submissions.

The Worker outlined that on the night of 9 / 10 May 2020, during the Covid 19 pandemic, she and a colleague were caring for a patient in a medical facility. The patient was allocated a “double special” observation level which means that the patient was acutely ill, deemed at high clinical risk and required two nurses. The patient required an urgent ambulance transfer due to a medical emergency. The Worker outlined that both she and her colleague were denied entry to the ambulance due to Covid 19 restrictions in place at the time. The patient was taken to the nearby hospital where the patient remained in the emergency department and without the “double special” observation level, “for a period of time”. The Worker outlined that there were no clear policies or procedures in place at the time. The Worker said that she complied with her duty of care. She said that she sought guidance from the Night Manager, but received no support. She outlined that she and her colleague later walked to the nearby hospital to ensure that the patient was “comfortable” in the emergency department. She said that she was advised by a nurse in the emergency department, that she and her colleague could leave.

The Worker outlined that the following day, a preliminary screening commenced, which led to a disciplinary procedure and an appeals procedure. The Worker outlined a number of concerns regarding the Employer’s adherence to fair procedures. The Worker alleged that: the Employer failed to collate all relevant evidence; there was a lack of decision-maker independence; and there was an apparent bias. The Worker outlined that there was no formal investigation. She took issue with her and a colleague being singled out. The Worker outlined that she received a final written warning and that her access to nighttime duties was removed for 12 months, resulting in financial loss. She also took issue with another member of staff receiving only a written warning. The Worker stated that this matter was also incorrectly referred to the Professional Regulator, by way of a fitness to practise referral. The Professional Regulator provided a decision some four years later, in February 2025, in which the Worker was exonerated. The Worker stated that the Professional Regulator found that there were no clear policies in place at the time. The Worker also took issue with the Employer’s alleged failure to engage with the grievance procedure and with a potential GDPR breach.

The Worker outlined that while waiting for the Professional Regulator’s decision, she felt “overlooked” by the Employer, as well as “intimidated and bullied”. She felt that she was singled out and that she was made feel as if she had committed a crime. She said that she felt that she was not being listened to. She said that her career prospects were damaged. She was worried about losing her job and her home. As a result, she attended her own doctor for stress, anxiety and panic attacks. She is also attending Occupational Health.

The Worker outlined that she wants everyone to know the truth of what happened and that she wants the wrong that was done to her, put right. She also wants an overhaul of teaching and management so that this does not happen again.

The Employer provided oral submissions.

The HR Staff Member:

The HR staff member outlined that the incident took place in May 2020, the disciplinary procedure concluded in July 2020 and the appeal procedure concluded in December 2020. The HR staff member outlined that the Worker then brought a complaint to the WRC in January 2021.

The HR staff member stated that a preliminary screening was conducted and a disciplinary procedure followed. He stated that the matter was deemed “Stage 3” and so it was handled “locally”. He stated that when a matter is deemed “Stage 4”, it means that dismissal or measures short of dismissal are under consideration and these matters are therefore not handled “locally”. He stated that there was no investigation required as it was a “Stage 3” matter, and as the Worker had admitted that she did not accompany the patient. He said that the patient was acutely ill and had been left alone for approximately five hours, in a hospital that was a seven-minute walk away.

The HR staff member outlined that the Worker sought to attend the disciplinary meeting with her legal representative. This request was refused but she was told that she could attend the disciplinary meeting with a union representative or a work colleague. The Worker was offered a disciplinary meeting postponement, which she declined. The meeting therefore proceeded as planned and one of the Woker’s colleagues accompanied her for most of it. He stated that the subsequent appeal procedure was held in line with the applicable policy. He said that it was conducted by a manager at a higher level.

The HR staff member stated that the Employer is wholly separate from the Professional Regulator and that it cannot be held responsible for the Professional Regulator’s actions.

The HR staff member stated that the (former) Area Director was satisfied that it was appropriate, by way of a sanction, to take the Worker off nighttime duties for 12 months and off management duties for three months. The HR staff member stated that the written warning was expunged from the Worker’s record after one year. He stated that there was nothing to prevent the Worker from seeking promotion. He stated that he was not aware of the Worker applying for other positions and that if she did not do so, that was of her own volition.

The HR staff member stated that this dispute seeks to “rehash” the disciplinary procedure. He further stated that the issues raised regarding the Professional Regulator are outside the parameters of the WRC dispute as they occurred after the WRC complaint form was filed in January 2021.

The HR staff member said that it was a matter for the (former) Area Manager to decide if a matter should be referred to the Professional Regulator. The HR staff member stated that internal disciplinary and appeal procedures apply the civil standard of proof, namely the balance of probabilities; whereas the Professional Regulator applies the higher, criminal standard of proof, namely that of beyond reasonable doubt.

The Interim Area Director:

The Interim Area Director stated that the allocation of a “double special” observation level is based on a patient’s clinical risk. He said that it is very rare and that in the past 12 months, he cannot recall the allocation of a “double special” observation level within the system.

The Interim Area Director stated that as a consequence of the Worker failing to maintain the “double special” observation levelthat night, he agreed with the sanctions imposed by his predecessor at the time. He said that the appeals procedure upheld the same sanctions.

The Interim Area Director stated that any grievance must be directed to a person’s Line Manager and not to the Clinical Director.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the Parties.

The Worker outlined that her “issues are”:

1.Not all staff involved were treated equally (unfair treatment); 

2. A [p]reliminary screening was conducted, and no investigation took place, thus not allowing justice to be served;

3. That at this time a complaint was sent to the fitness to practi[s]e committee and had the issue been investigated correctly as per the policy this would not have taken place;

4. The non-compliance with the grievance procedure, when [she] lodged a grievance; and 

5. A potential GDPR breach that was ignored by management.”

The Disciplinary Procedure:

The Worker confirmed that shortly after the events on 9 / 10 May 2020, she provided a statement in which she confirmed that a patient, who was allocated a rare “double-special” observation level, was left alone for a period of five hours on the night of 9 / 10 May 2020. The Worker maintained that this arose due to, inter alia, confusion in policy during the Covid 19 pandemic regarding travel restrictions on ambulances.

The Worker was invited to attend a meeting to discuss the events on 9 / 10 May 2020 to ascertain if an “abusive” interaction could have occurred. Following the meeting, the Worker was informed by letter dated 28 May 2020, that the matter was “capable of being dealt with at local level without going to a formal investigation”.

In a letter dated 15 July 2020, the Worker was informed that the matter would proceed to a disciplinary meeting on 29 July 2020, and “may result in a disciplinary sanction up to and including Stage 3” of the disciplinary policy. In advance of the disciplinary meeting, the Worker was provided with the relevant documentation, including the Employer’s “Observation Policy” and “Disciplinary Policy” and the various written witness statements collated by the Employer regarding the events on 9 / 10 May 2020. The Worker was also advised of available support by way of the Employee Assistance Programme and the Occupational Health Department.

The Worker was in receipt of her own legal advice. Her legal adviser was not permitted to attend the disciplinary meeting and so the Worker was offered a postponement, which she declined. She was then accompanied by a colleague for most of the disciplinary meeting.

Following the disciplinary meeting, the Worker was informed that the Employer had concluded that her actions fell below the required standard for her role. She was also informed that she would be sanctioned by way of a written warning which would remain on her file for 12 months; that her nighttime duties would be curtailed for 12 months; and that her management duties would be curtailed for three months. The Worker’s subsequent appeal – constituting 17 points – was addressed in full by way of a nine-page letter from the Employer. On the information before me, the entire disciplinary and appeals procedure took approximately seven months.  

I have considered the Employer’s Disciplinary Procedure. I note that since 28 May 2020, the Worker was informed that the matter would be dealt with at local level, without going to an investigation. I note that a “Stage 4” matter, involving allegations of “serious misconduct” necessitates an investigation. However, I note that as per the letter dated 15 July 2020, this matter was addressed as a “Stage 3” matter.

I am also mindful of S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000. It appears from the information before me that the Employer adhered to fair procedures in its conduct of the disciplinary procedure, for instance, the Worker was provided with all documentation; she was offered a disciplinary meeting postponement which she declined; she was accompanied by a colleague at the disciplinary meeting; and she engaged the appeals procedure. In the circumstances, the Worker has not shown that the Employer breached its Disciplinary Procedure and / or failed to follow fair procedures.

The Referral to the Professional Regulator:

I note that it was a matter for the (former) Area Manager to decide whether to refer the matter to the Professional Regulator. I also note that the Professional Regulator’s Preliminary Proceedings Committee referred the matter to the Fitness to Practise Committee.

While I note that the Worker was ultimately exonerated following a full investigation by the Fitness to Practise Committee, I also recognise that this was a distinctly different process from the Employer’s Disciplinary Procedure. The Professional Regulator addressed a fitness to practise inquiry, which was heard over approximately six days and determined according to the higher, criminal standard of proof. In the circumstances, the two processes are not capable of meaningful comparison. Finally, I note that any complaints that the Worker has concerning the length of time that it took for a decision to be issued by the Professional Regulator, is a matter which is between the Worker and the Professional Regulator.

The Worker’s Grievance and Alleged GDPR Breach:

The Worker submits that she lodged a formal complaint in August 2020, via her solicitor, against her managers and HR concerning their individual roles in the disciplinary procedure. However, she stated that it was not properly addressed. On the information before me, it did not appear that the Worker followed up on this grievance. It is well established that, before submitting a grievance about any matter to the WRC, an employee must exhaust the internal procedures at their workplace. In Gregory Geoghegan t/a TAPS v. A Worker, INT1014, the Labour Court held:

“The Court is not prepared to insert itself into the procedural process in a situation where the dispute procedures have been bypassed.”

In the circumstances, this element of the dispute regarding the Worker’s grievance, is unfounded.

Finally and for completeness, it should be noted that GDPR complaints do not fall within the scope of the WRC’s jurisdiction.

Conclusion:

In conclusion, I consider the Worker’s dispute to be without merit. I recommend that the Employer take no further steps in relation to this dispute and that both Parties focus on re‑establishing a positive working relationship.

Industrial Relations Act, section 13.