Labour Court Database __________________________________________________________________________________ File Number: CD87271 Case Number: AD8744 Section / Act: S13(9) Parties: OUR LADY'S HOSP.(CRUMLIN) - and - ITGWU |
Appeal against Rights Commissioners Recommendation Number CM/17448.
Recommendation:
5. The Court having considered the submissions from both parties
is of the view that the Rights Commissioner's recommendation
should be upheld. The Court accordingly rejects the appeal and so
decides.
The Court further urges the Management of the Hospital to expedite
the issue of a code of practice in order to reduce the possibility
of a recurrence of the type of incident involved in this appeal.
Division: Ms Owens Mr Heffernan Ms Ni Mhurchu
Text of Document__________________________________________________________________
CD87271 THE LABOUR COURT AD4487
SECTION 13(9) INDUSTRIAL RELATIONS ACT, 1969
APPEAL DECISION NO. 44 OF 1987
Parties: OUR LADY'S HOSPITAL FOR SICK CHILDREN
(REPRESENTED BY THE FEDERATED UNION OF EMPLOYERS)
AND
IRISH TRANSPORT AND GENERAL WORKERS' UNION
Subject:
1. Appeal against Rights Commissioners Recommendation Number
CM/17448.
Background:
2. The worker concerned who is employed on the household staff
of the Hospital, refused to enter a patient's cubicle to clean it
as she considered she would be at risk to infection. She was then
instructed by her supervisor to clean the cubicle. The worker
again refused and there followed discussion between the worker and
her supervisor as well as some medical staff, the result of which
the worker was suspended for four days with pay pending an
investigation of the incident by Management. Following the
investigation the worker was disciplined with a suspension of four
days without pay and issued with a final letter of warning. The
matter was referred to Rights Commissioner for investigation and
recommendation. Following an investigation on 17th February, 1987
the Rights Commissioner issued the following recommendation:-
" The job which the worker is employed to do requires her to
work in areas where there are sick people and she cannot
decide for herself the area in which she is willing to work.
And one must assume that the Hospital will not expose any
member of staff to needless health hazard. The worker may of
course remain convinced that if ever she considers a
particular duty within her grade to be a health risk she
would be entitled to refuse to carry it out. Were that to
occur again she would be giving the Hospital reasonable
grounds for considering if she was capable of performing work
of the kind which she was employed to do.
Consequently the final warning is necessary even for her own
sake and should stand. As the essential message for her from
the case is in that warning I recommend that the suspension
be reduced to two days."
The Union appealed this recommendation to the Labour Court under
Section 13(9) Industrial Relations Act, 1969 on 31st March, 1987.
A Court hearing was held on 30th April, 1987 to hear the appeal.
Union's arguments:
3. (a) On the afternoon of 20th November, 1986 the worker
while carrying out her duties noticed that in one of
the cubicles the nurses who were working there were
wearing face masks which is not normal. She later
learned that the patient had meningitis, which the
worker understands to be a contagious disease. On the
following morning, while working in the area she
noticed face masks hanging outside of the cubicle,
which, according to the understanding of the household
staff denotes an infected area. The worker carried out
her duties around the area and did not enter the
cubicle.
(b) When the worker was instructed to enter the cubicle by
her supervisor she refused as she considered her health
would be at risk. Neither the supervisor or the
medical staff were able to give her adequate assurance
that there was no risk.
(c) The case before the Court is not one of gross
insubordination. The worker has been employed by the
Hospital for 22 years and she is also a shop steward.
She has never been spoken to before by the Management
for her work performance. The case in question is that
she was apprehensive about going into an area where
there was a patient with an infectious disease. This
is quite understandable in view of a previous
experience she had as a patient in another Hospital
(details supplied to the Court).
Hospital's arguments:
4. (i) The worker failed to obey a legitimate instruction.
She was not requested to go into an infectious area
and she was assured by professional people on the ward
that there was no risk involved.
(ii) A full investigation was carried out by Management
(details supplied to the Court). Management firmly
believe that given the assurances given to the worker
she was unreasonable in refusing to clean out the
cubicle involved. Dismissal was merited in the
circumstances but a more lenient approach was taken,
in imposing a suspension period and issuing a final
warning. The warning states that the worker must obey
instructions.
DECISION:
5. The Court having considered the submissions from both parties
is of the view that the Rights Commissioner's recommendation
should be upheld. The Court accordingly rejects the appeal and so
decides.
The Court further urges the Management of the Hospital to expedite
the issue of a code of practice in order to reduce the possibility
of a recurrence of the type of incident involved in this appeal.
~
Signed on behalf of the Labour Court.
Evelyn Owens
___8th____June,____1987. ___________________
M. D. / M. F. Deputy Chairman