ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001289

Complaint for Resolution:

Venue: Ashdown Park Hotel, Gorey Co Wexford

Date of Adjudication Hearing: 16/05/2016

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 under section 13 of the Industrial Relations Act, 1946 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background

The Complainant is employed as a Health Care Assistant. She works full time and is paid €527.76 plus allowances. She has appealed a Written Warning.

Complainant’s Submission and Presentation:

On 12^th July 2015 she administered the evening dose of medication to a patient. She returned all the items including the blister pack back to the medicine cabinet. She repeated this dispensation four hours later. On 13^th July she repeated this with a new unopened blister pack. Three colleagues were in attendance at 2.30pm that day. One of them put this in her statement and the appeal hearing Chair considered this information. Following a change over another colleague reported a medication error discovery report stating that she had found a blister pack on the resident’s locker. On her return to work on 15^th July she was called to the Chief Executive Officer’s (CEO) office without representation and she was suspended. This was confirmed in writing later that day. She was called to a disciplinary hearing on 24^th August. On 2^nd September 2015 she was issued with a written warning to remain on her file for 12 months. She appealed this sanction and it was heard by an external HR Consultant on 21^st October 2015. The appeal outcome was issued on 4^th December 2015 upholding the sanction. It found that “on the balance of probability” the blister pack was on the patient’s locker.

She is adamant that she did not leave the blister pack on the patient’s locker. She returned all medication to the medicine cabinet. Other staff have made errors. To place someone on a Stage 3 warning based on the “balance of probability” and not on fact is leaving that person vulnerable and exposed in the event of further disciplinary action. She is seeking to reduce the warning to a Stage 1 warning, which is a Verbal Warning or remove it all together.

Respondent’s Submission and Presentation

On Monday 13^th July 2015 following a shift changeover a colleague of the Complainant filled out a medication Error Discovery Report, which stated that a blister pack of medication was found on the patient’s locker. Upon her return to work on 15^th she was called to the CEO office and the error report was discussed. She replied that it was “just a mistake” and “not deliberate”, others make mistakes as well. She was reminded of previous errors and conversations that they had with her. She was placed on paid suspension pending the outcome of an investigation into the error report. The suspension was confirmed in writing dated 15^th July 2015. She was called to a disciplinary hearing on 24^th August 2015. It was confirmed in writing the allegation, and all relevant documents were attached including the company’s Medication Management Policy and the Disciplinary Procedures Policy. She was given the right to representation. She was represented by SIPTU Official. Following on from this meeting she was written to advise that further investigation was required. The outcome was that she was issued with a Written Warning on 2^nd September 2015 to last on her file for 12 months. She was given the righto appeal. An external HR Consultant was appointed to hear the appeal on 21^st October 2015. She was represented by her SIPTU Official. The appeal outcome was issued on 4^th December 2015 upholding the sanction. It was found “on the balance of probability” that the blister pack was found on the patient’s locker.

The Respondent carried out a very thorough investigation into this allegation. Witnesses were interviewed and attendance logs were checked. They are satisfied that there was nobody else on duty at the time in question. They are satisfied that she accepted that mistakes occur. They accept that she retracted this but later said “these things happen” which is an identical statement to “it was a mistake”. They are satisfied that the written warning was warranted. The appeal of the sanction was upheld by an independent external person. They have applied fair procedure to this matter and request that the written warning is upheld.

Findings

I find that it is not my responsibility to re-investigate the whole matter. I have to adjudicate on whether the allegation was thoroughly investigated and that fair procedures and natural justice was applied, that she was given the right to properly defend herself and given the right of appeal.

I am satisfied that following the receipt of an error discovery report signed by three witnesses the Respondent was obliged to investigate the matter.

I find that the Respondent carried out a thorough investigation and arrived at a conclusion that the Complainant had left the blister pack on a patient’s locker. They were satisfied that she was the only person on duty at that time.

I note that one witness placed themselves on the premises at 3.30 but the attendance record shows that that colleague was not on the premises. I find that this evidence in fact strengthens the Respondent’s case that nobody could have been responsible.

I note that the Complainant had been spoken to on other occasions about errors in performance.

I find that the issuing of a written warning was reasonable and warranted under the circumstances.

I note that this is a Stage 3 level warning and that the next stage is a Stage 4 Final Written Warning.

I note that this warning will expire in July 2016.

I note that she was offered the right of appeal and that it was carried out by an independent third party.

I note that following a thorough examination of the evidence over a period of time it was found that on the balance of probability that the Complainant had left the blister pack on the patient’s locker and the sanction was upheld.

I find that the Respondent applied fair procedure and natural justice throughout this matter.

The Respondent carried out a very thorough and comprehensive investigation into this allegation.

I note that the Complainant allegedly said it was just a mistake” and “not deliberate. She later denied making that statement and said “these things happen”. Either way I find that it is an admission.

I also note that she is seeking that the sanction be reduced to a Verbal Warning. This suggests a degree of culpability or else she would be seeking the sanction’s removal in total. I note that when questioned on this she requested that the sanction be removed.

I note the appeal investigation upheld the sanction and found on the “balance of probability” that she had left the blister pack on the patient’s locker.

“Balance of probability” is the civil standard of proof required in these matters as distinct from the criminal standard of “beyond reasonable doubt”. Findings based on the balance of probability as distinct to “of fact” are fully accepted in the industrial relations environment and in no way diminishes such findings.

I find that the issuing of the written warning was reasonable and warranted.

Decision:

Section 41(4) of the Workplace Relations Act 2015 and under section 13 of the Industrial Relations Act, 1946 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I recommend that for the above stated reasons the claim is not well founded and fails.

Dated: 26^th July 2016