FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE DUBLIN MID-LEINSTER - AND - A WORKER (REPRESENTED BY JAMES A. CONNOLLY & COMPANY SOLICITORS) DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Mr Nash |
1. Appeal of written warning
BACKGROUND:
2. The worker is a Non-Consultant Hospital Doctor employed by the HSE since January, 2006, under a contract of indefinite duration. The case concerns a written warning received by the worker on 14th October, 2009, under the HSE's Disciplinary Procedure. The complaint was that the worker had reviewed an ECG report of one of a doctor's patient and had made no entry in the case notes indicating her judgement regarding further medical investigation, she had only written on the ECG that it should be reviewed by a team/and or a cardiologist. There was also reference to part of a note being removed from the report. The worker appealed the warning by letter on the 24th October, 2009, and an appeal hearing took place on the 12th February, 2010. The Local Health Manager, who was conducting the investigation, decided that the Stage 2 Disciplinary sanction against the worker should be upheld. On the 10th June, 2010, the worker's representatives to the Regional Director of Operations stating that the Disciplinary Procedure had been flawed (details supplied to the Court) and that the warning should be rescinded in its entirety. The Regional Director replied on 1st July, 2010, stating that the HSE had conducted the disciplinary hearing in the correct manner, including having told the worker that hearing was being activated under stages 1-3 of the Disciplinary Procedure.
The worker referred her case to the Labour Court on the 28th July, 2010, in accordance with Section 20(1) of the Industrial Relations act, 1969. A Labour Court hearing took place on the 15th December, 2010. The following is the Court's recommendation:
RECOMMENDATION:
The Court has carefully considered the submissions of both parties in this case.
The Court is satisfied that a decision by an employer to censurea medical doctor who fails to maintain a medical record in circumstances that could have very serious consequences for a patient would constitute appropriate action on the Hospital's part.
In this case the HSE has an agreed Disciplinary Procedure for determining such matters. The purpose of the procedure is to ensure that poor performance can be dealt with in a fair, supportive, effective and, if necessary, disciplinary manner. Having established such a procedure the HSE is required to comply with its terms when applying it in any particular case.
In this case the HSE has not satisfied the Court that it has complied with the terms of the Procedure and, accordingly, the Court recommends that the findings be set aside as procedurally unsafe and the sanctions that were based on those findings rescinded and eliminated from all records.
As the sanction that was imposed has now been overtaken by the efflux ion of time and as a further investigation into the incident would now be nugatory, the Court recommends that the matter be disposed of by way of a discussion, outside thedisciplinary procedure, between the Clinical Director and the Doctor involved in which the incident is examined in detail, any shortcomings are identified by the Director and the standards of performance expected of staff by the Hospital are clarified with certainty.
If the HSE has any other performance issues with the Doctor concerned these should also form part of that or a separate discussion and the required improvements set out in clear and certain terms.
Finally, the Court notes that there is considerable ambiguity around the meaning of the provisions of the Disciplinary Procedures. The parties to the Agreement might usefully meet and agree a standard interpretation of the provisions or a procedure for so doing where a dispute on such issues arises.
The Court so recommends.
Signed on behalf of the Labour Court
Brendan Hayes
10th February, 2011______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Ciaran O'Neill, Court Secretary.