FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : ST VINCENTS UNIVERSITY HOSPITAL - AND - A WORKER (REPRESENTED BY IRISH MEDICAL ORGANISATION) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Mr Shanahan |
1. Appeal of disciplinary sanctions up to and including dismissal
BACKGROUND:
2. The case concerns a claim by a Worker against the decision of the Employer to dismiss him on grounds of gross misconduct.
The Employer's position is that a full and thorough investigation of the incidents took place in accordance with natural justice and on the basis of the evidence and balance of probability the Worker had engaged in inappropriate conduct and practice.
On the 21st May, 2012 the Irish Medical Organisation referred the dispute to the Labour Court in accordance with Section 20(1) of the Industrial Relations Act, 1969 and agreed to be bound by the Court's Recommendation.
A Labour Court hearing took place on the 4thSeptember, 2012.
WORKER'S ARGUMENTS:
3. 1. During the time of the incidents the Worker had a very heavy workload and worked in excess of the European Working Time Directive.
2. A far more proportionate and equitable sanction having regard to all of the circumstances would have been a written warning.
3. The Worker never sought to deny or minimise his actions which were at all time motivated solely by patient care
EMPLOYER'S ARGUMENTS:
4. 1. A number of inappropriate incidents took place between January and April 2011.
2. The Worker was informed in writing of the investigation and was given the terms of reference.
3. The Worker showed a lack of responsibility and accountability in relation to policies and procedures.
RECOMMENDATION:
The Court notes that the occurrences giving rise to the dismissal of the Claimant are admitted. While some of the incidents referred to in the investigation report relied upon are minor in nature the seriousness of the later incidents cannot be questioned.
What is in issue is this case is not the appropriateness of a disciplinary sanction but rather the appropriateness of the sanction decided upon by the Hospital.From an industrial relations perspective the appropriateness of a disciplinary sanction, including dismissal, must be judged by the gravity of the misconduct giving rise to the sanction chosen.
In this case the conduct complained of is to be the subject of an investigation by the Medical Council.Through that process an independent view will emerge from a competent body on the gravity of the occurrences in issue and the culpability of the Claimant for those occurrences. In these circumstances it would be inappropriate for this Court to express a concluded view on questions that are to be separately considered by that body.
The Court recommends that when the Medical Council makes its findings on the complaint now before it, the parties should meet with a view to reviewing the appropriateness of the sanction imposed in light of those findings. Should either party so wish the matter can then be referred back to the Court.
Signed on behalf of the Labour Court
Kevin Duffy
CR______________________
19th October 2012Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Ciaran Roche, Court Secretary.