FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : SISTERS OF LA SAGESSE (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY IRISH NURSES ORGANISATION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Carberry Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's Recommendation IR9399/02/TB
BACKGROUND:
2. The worker trained as a Student Nurse at St. Raphael's, Cregg House from 1997 to 2000. He was made permanent as a Staff Nurse on the 1st of April, 2001. On the 27th of March, 2002, the Director of Nursing wrote to the worker asking him to attend a disciplinary hearing. The Director outlined the following as the issues to be discussed:-
1. The failure to administer medication on a named date.
2. The failure of the Claimant to confirm in writing his refusal to be involved in the training of Care Assistants undertaking the NCVA course.
3. The non-completion of Client Assessments on his ward.
Briefly, according to the Employer, the 3 events were as follows:-
(1) On the 4th of March, 2002, the worker had completed his shift at 8.30 p.m and had not administered medication to clients in group B of his unit. He informed a night duty staff nurse in another unit of the situation.
(2) The worker was requested to assist and supervise a care assistant in regard to a National Council of Vocational Awards (NCVA) course. The worker was reluctant to take part in the programme. It is optional for Staff Nurses to participate. However, he was asked to inform the employer in writing and refused to do so.
(3) The third item concerned the completion of nursing assessments for 3 clients in the worker's unit. The assessments are 28 page documents. They were issued in May 2001 and were to be completed by December, 2001. By the time of the disciplinary hearing on 25th April, 2002 the worker had not completed any of the 3 forms.
The claimant received a final written warning which would remain active on his file for a period of 12 months. The Union wrote to the employer in May, 2002, stating that, in the absence of an appeal mechanism in the Houses' disciplinary procedure, the matter would be referred to a Rights Commissioner.
On the 16th of June, 2002, the worker told a care assistant (who was due to go to another location) that he would change a client while she was absent for some time. When the care assistant returned she saw that the client was strapped in a hoist some distance above the bed. The client appeared very upset. The care assistant got help from a Staff Nurse. The worker returned approximately 10 minutes later, explaining that he had been talking on the phone with a distressed parent of another client.
An investigation was carried out by 2 Assistant Directors of Nursing. The worker was suspended with pay pending a full investigation. Following a disciplinary hearing on the 27th of June, 2002, the worker was suspended without pay for 2 weeks. Following his return, he was to be moved from his unit to activation day services, with a mentorship programme, for a period of 6 months. The Union claims that the worker was subsequently on certified stress related sick leave and was only paid for part of this leave. The Union is seeking that the worker should be compensated for the following:
- the loss of premium payments incurred as a result of his redeployment
- the full amount that he should have received in sick pay
- the sum of €15,000 as compensation for the hurt and personal stress endured
The dispute was referred to a Rights Commissioner and his recommendation was as follows:-
"Having carefully considered the submissions of both parties and having listened to the points of view put forward at the hearing, I have concluded that the management action in dealing with the matter was justified in the circumstances.
I do not recommend any change as requested by the claimants Union.".
The Union appealed the recommendation to the Labour Court on the 31st of January, 2003, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 25th of March, 2004, in Sligo, the earliest date suitable to the parties.
UNION'S ARGUMENTS:
3. 1. The Union believes that management targeted the worker as a troublemaker when he tried to address the issue of workloads at St. Raphael's. Management's response was to initiate disciplinary procedures against him.
2. No patients suffered as a result of the events of the 4th of March, 2002. The worker's colleagues complied with his request to complete the administration of medication.
3. In regard to the issue of the client being left alone, the worker admits that he made an error of judgement. However, the employer has failed to show that the client was unsafe at any time.
4. The worker has always done his utmost to ensure that all clients have received the best care possible. He has been unfairly treated because of his attempts to highlight resource deficiencies in his unit.
EMPLOYER'S ARGUMENTS:
4. 1. Cregg House believes that its disciplinary procedures are fair and equitable.
2. The worker failed to administer medication to clients under his care before finishing his shift on the 4th of March, 2002, something management considers as a serious incident. The House provided the worker with extra assistance ( as requested by him ) but he informed her that there was no work for her.
3.In regard to the client being left alone, the investigation team concluded that the worker's competence was called into question. The incident showed a serious breach of performance in standard care at Cregg House.
4. The worker was the only nurse who had not completed his client nursing assessments despite repeated request from management.
DECISION:
Many of the issues raised in this appeal concern the appropriate standard of professional conduct to which the claimant should be expected to conform in his treatment of those in his care. Such questions are outside the Court's field of competencies. Rather, the Court's approach has been to examine the events leading to the invocation of the disciplinary procedures against the claimant from an industrial relations prospective for the purpose of determining if those procedures were followed fairly and if the result was proportionate to misconduct found to have occurred.
In that context, the Court is satisfied that the employer was not unreasonable in treating the claimant's persistent failure to comply with the Client Assessment procedure as an act of insubordination constituting serious misconduct. In respect to the failure to administer medication to clients, there was a failure to follow proper procedures. However, the misconduct involved was mitigated by the fact that the claimant arranged with a colleague to discharge this duty and that client care was not, in fact compromised. With regard to the incident involving the use of a hoist, the Court notes that the claimant accepts that his actions involved a serious error of judgement. In the Court's view, this error of judgement, while clearly serious in itself, might have been treated somewhat more leniently had it not been for the earlier incidents giving rise to the issuance of a final written warning.
Having regard to all the circumstances of this case, the Court agrees with the Rights Commissioner's conclusion that the employer was entitled to invoke the disciplinary procedure against the claimant. Furthermore, the Court cannot conclude that the sanctions imposed were so excessive as to warrant concession of the claims made by the Union.
Based on the information placed before it in the course of this appeal, the Court is concerned that the events giving rise to this dispute have the potential to undermine the relationship of mutual trust and confidence which must exist between the claimant and the employer if their continued association is to remain viable. The Court accepts that both parties to this dispute have an overriding concern for the welfare of the clients in their care and wish to provide that care to the highest standards. The interests of those clients and of the claimant can best be served by restoring normal employer/employee relationships between the parties as quickly as possible.
With that in view, the Court believes that the parties should put the events giving rise to this appeal behind them and regard those matters as now closed. For his part, the claimant should undertake to discharge his duties in accordance with the lawful instructions of management and to process any future grievances which he may have through normal procedures. On this basis, the record of the imposition of the disciplinary sanctions at issue should be expunged and not referred to or relied upon again.
With the modifications contained in this determination, the recommendation of the Rights Commissioner is affirmed.
Signed on behalf of the Labour Court
Kevin Duffy
13th April, 2004______________________
CON/MB.Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.