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 – 00006381

15/01/2021

The Worker has worked for the Employer since July 2016. She works approximately 37.5 hours per week and earns approximately €3,500 net per month. 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. 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. The Worker submits that during this time, she experienced financial loss and suffered stress.

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 referred to the incident which occurred on 9 / 10 May 2020 during which a patient who had been allocated a “double special” observation level, was left unattended in the emergency department of a nearby hospital. The Worker referred in detail to both the Employer’s “Trust in CarePolicy” and the Employer’s “ObservationPolicy”. She outlined that the Employer found that the incident on 9 / 10 May 2020 could have been an “abusive interaction” and that the matter was left “mid-air” without being closed off. She stated that the patient was not informed.

The Worker outlined that, as regards the preliminary screening, the Line Manager went too far and that she had a conflict of interest. The Worker stated that there was a failure to seek a statement from a particular witness until the appeals procedure stage. She also stated that an employee should only be reported to the Professional Regulator following a formal investigation. She said that there was no investigation in this matter.

The Worker outlined that she was not believed, but that the paramedics were believed. She said that she was denied entry to the ambulance due to Covid 19 restrictions. She said that the ambulance was in a hurry to get to the hospital as the patient’s health was deteriorating.

The Worker outlined that it is not in dispute that the patient was under special observation, however she said that the reason why we are here is due to Covid 19. She said that when she returned to the medical facility, she was not told to return to the patient in the emergency department in the hospital. She stated that she “continually” called the hospital to check that the patient was ok. She said that she did understand that the patient was allocated a “double special” observation level and that the patient had been left alone.

The Worker outlined that she wanted the disciplinary meeting to proceed even though she was unaccompanied. She said that she was offered a disciplinary meeting postponement, but declined it. She said that she read out a letter from her solicitor at the meeting. She said that her arguments were “mocked” and that she was “bullied”. She said that the (former) Area Manager’s comments that she should be careful about what she does next, felt like a threat. She said that she was continuously asked questions. She said that the meeting was difficult for her. She said that she felt “threatened”, “intimidated” and “stripped of her dignity and confidence”. The Worker also took issue with being taken off nighttime duties for 12 months, as a sanction. She stated that she has been too afraid to return to nighttime duties since. She said that she subsequently sent a grievance letter dated July 2020, concerning her managers.

The Worker took issue with how the evidence had been collated. She said that it felt that the preliminary screening was “predetermined”. She said that the process was neither fair nor impartial. She referred to the transcript of the Professional Regulator’s hearing. She took issue with the (former) Area Manager’s comments that there was some confusion during Covid 19 and that he had also referred the matter to the Professional Regulator due to the Worker’s “lack of acceptance of accountability for the decisions made that night”. She said that she is happy that she was exonerated. However, she said that the fitness to practise referral had put her under a lot of stress and “broke” her. She said that it had gone on for a very long period of time and that she understood that this aspect was not the Employer’s fault.

She said that all staff were not treated equally and that a more senior member of staff, who did not tell them to return to the patient, was never subjected to a disciplinary procedure. She referred to another staff member who was not disciplined for their actions the following day. She said that the Employer’s actions against her were “personal”.

The Worker stated that, in the circumstances, she is looking for the Employer to understand the “basic rights” of employees.

The Employer provided written and oral submissions.

The HR Staff Member:

The HR staff member stated that he wants it on record that he has never laughed at or made fun of anyone during a disciplinary hearing, in his thirty-year career.

The HR staff member stated that 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. He stated that the patient was left without any intervention or nurse, for five hours, in the emergency department of the nearby hospital. He stated that there was no need for an investigation as it was a “Stage 3” matter and the facts were not in dispute as the Worker had admitted to what had happened.

The HR staff member stated that there is nothing “personal” against the Worker. He stated that the Worker should not have left the patient. He said that thankfully, while nothing happened to the patient, something could have happened and this was a very serious matter. He stated that this is why the Worker received a disciplinary sanction. He said that this approach, in such serious circumstances, was not unusual.

The HR staff member stated that he and the (former) Area Manager discussed whether, in the circumstances, a disciplinary sanction was merited. He stated that the (former) Area Manager was very concerned that a mentally-ill patient had no aid. He stated that the (former) Area Manager was also concerned that the Worker appeared to have no cognisance of what this actually meant.

The HR staff member stated that there was an appeal, in line with the policy. He stated that the person who heard the appeal addressed all issues and upheld the sanction.

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. He stated that the Professional Regulator has to make its own decision.

The HR staff member stated that he is satisfied that the disciplinary meeting and the appeal meeting were “appropriate” and completed by 2021. He stated that the written warning was expunged from the Worker’s record and that the curtailment of her nighttime duties ended after 12 months.

The Interim Area Director:

The Interim Area Director outlined that the referral of the matter to the Professional Regulator was at the discretion of the (former) Area Manager. He understood that this referral was made as the Worker did not appreciate the gravity of the situation and that this resulted in her clinical judgment being called into question. He stated that at nighttime, there are less staff on duty and therefore there is greater risk to patients.

Finally, the Interim Area Director stated that special observation measures are for patient safety and service users’ safety.

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 provided a statement dated 11 May 2020 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.

In a letter dated 15 May 2020, 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, and “may result in a disciplinary sanction up to and including Stage 3” of the disciplinary policy. The disciplinary meeting was held on 29 July 2020. 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 outlined that she was offered a disciplinary meeting postponement, which she declined. She was unaccompanied at the disciplinary meeting and confirmed that she was satisfied to proceed.

By way of a letter dated 4 August 2020, the Worker was informed that following the disciplinary meeting, the Employer concluded that the Worker’s 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 and that her nighttime duties would be curtailed for 12 months. The Worker’s subsequent appeal was addressed by 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 a formal investigation. I note that a “Stage 4” matter, involving allegations of “serious misconduct” necessitate an investigation. However, I note that, as per the letter dated 15 July 2020, the Worker’s conduct 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; 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. On the information before, me, the (former) Area Manager made the referral due to the Worker’s “lack of acceptance of accountability for the decisions made that night”. I also note that the Professional Regulator’s Preliminary Proceedings Committee formed the initial view that “there was a prima facie case to warrant further action being taken” and 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. It concerned a fitness to practise inquiry, which was heard over the course of approximately six days and to which the higher criminal standard of proof, beyond reasonable doubt, applied. 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.

Worker’s Grievance and Alleged GDPR Breach:

The Worker submitted that she lodged a formal complaint in July 2020 against her managers concerning their individual roles in the disciplinary procedure, however 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.