FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : ST VINCENT'S PRIVATE HOSPITAL (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Mr O'Neill |
1. Appeal of Recommendation of a Rights Commissioner R-083506-Ir-09/DI.
BACKGROUND:
2. The worker commenced employment with the Hospital in May, 2000, and her grade is a permanent part-time Health Care Assistant. The core function of her role is to support nurses in their work. The Hospital's case is as follows: following the receipt of a risk-incident report regarding the issue of patient mishandling which allegedly occurred on 20th September, 2008, the worker was notified that she should not engage in direct patient contact, pending review. A number of review meetings took place and the Hospital decided that rather than taking disciplinary action it would deal with the situation by way of informal counselling. It was decided to revise the worker's job description; areas which involved patient contact were removed and her role was focused on ward maintenance and task. (The Hospital also referred to a number of previous incidents involving complaints against the worker in 2007/2008.)
The worker denies any wrongdoing in the incident of 20th September, 2008, which involved assisting a nurse in the handling an elderly patient (she supplied details of the incident to the Court). She referred her case to a Rights Commissioner and his recommendation was as follows:
"I fully concur with the respondent's position that in arriving at a resolution to the incident that occurred on 20th September 2008 and other matters, it had as a primary obligation its duty of care to patients. Having carefully considered the submissions made by the parties I am satisfied that the informal approach taking by the claimant in seeking to resolve the incident on 20th September 2008 and other matters was motivated by the respondent's genuine attempt to balance its obligation to patient care with a desire to avoid recourse to dealing with the matter through formal disciplinary procedures. I am of the view that the approach, albeit in the best interests of those concerned, has left the claimant feeling aggrieved with the outcome and with a feeling that she has been unfairly treated.
As a resolution to this matter I recommend the following-
- The respondent is to write to the claimant to confirm that her employment record is currently clear of any disciplinary warnings.
3. The claimant continues to work in accordance with her revised job description dated 21st November, 2008.
This recommendation is put to the parties as being in full and final settlement. The parties should now put these matters behind them and move forward".
The worker appealed the Rights Commissioner's recommendation to the Labour Court on the 19th August, 2010, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 7th December, 2010.
WORKER'S ARGUMENTS:
3. 1.The worker was very surprised to hear that there was a complaint against her in regard to the incident of 20th September, 2008, and thought that a mistake had been made. She was always careful in dealing with patients. She told the Staff Nurse on duty what had happened.
2. The "litany of complaints" against the worker to which the Hospital refers were false complaints made by certain members of staff. The Hospital removed these complaints from her file in 2005.
3.Following what the worker regards as a disciplinary sanction her work consisted mainly of cleaning duties. She was very upset by the sanction and was ill due to distress and the strain of the events.The worker feels thatHospital did not carry out a proper investigation into the incident.
HOSPITAL'S ARGUMENTS:
4.1.The Hospital's first care has to be to its patients. In the period 2007/2008 there were seven patient complaints and risk-incident reports relating to the worker. The Hospital met with the worker on at least five occasions during this period to inform her of these issues and attempt to counsel her to facilitate improvement.
2.The Hospital decided that although the incident of 20th September, 2008, was serious it did not necessitate disciplinary actionand wouldinstead deal with it by way of continued informal counselling. A number of review meetings took place which included the worker's union representative.
3. The Hospital referred the worker to the occupational health service to assist her but she cancelled these appointments. The Hospital believes that it treated the worker fairly and compassionately at all times.
DECISION:
In considering this case it is not the function of the Court to form any view on matters relating to appropriate standards of patient care, which are properly in the exclusive domain of the Hospital Management.
In the context of the present case the Court's function is to consider if proper and appropriate standards were observed by the employer in any investigation in which the Claimant was on hazard of a finding of misconduct. It is clear from the facts of the case that the Claimant was not subjected to any disciplinary sanction nor was she found to have engaged in any form of misconduct. The Claimant's duties were altered on foot of a bona fide belief that it was necessary to do so for reasons of patient care. It was not intended as a disciplinary sanction nor should it be construed as such. The Court is satisfied that the Hospital acted appropriately and fairly in the process leading to that decision.
In all the circumstances of this case the Court is of the view that the recommendation of the Rights Commissioner is reasonable and appropriate. Accordingly, the recommendation of the Rights Commissioner is affirmed and the appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
16th December, 2010.______________________
CON.Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.