ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000055

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 23/02/2016

Workplace Relations Commission Adjudication Officer: Aideen Collard

Procedure:

In accordance with the provisions of the Workplace Relations Act 2015 as relate to the aforementioned complaints/disputes, following the referral of the aforementioned complaints/disputes to me by the Director General, I inquired into the complaints/disputes and gave the parties and their witnesses an opportunity to be heard by me and to present to me any evidence relevant to the complaints/disputes.

1. Complainant’s Submission and Presentation:

1.1. Counsel for the Complainant confirmed a change in legal representation and formally withdrew the complaint under Section 7 of the Terms of Employment (Information) Act 1994. He confirmed that she was only proceeding with a dispute under Section 13 of the Industrial Relations Act 1969, received by the Workplace Relations Commission (hereinafter ‘WRC’) on 6^th October 2015. I note that there was consent from the Respondent to the investigation of this dispute by an Adjudication Officer. This matter had originally been listed for hearing on 16^th December 2015 but had been adjourned.

1.2. Counsel for the Complainant outlined the background to this dispute as follows: The Complainant is employed by the Respondent as a Clinical Nutritionist with the Respondent for the past 10 years. This role requires the assessment of the nutritional needs of patients in varying conditions and with different needs, and the administration of feeding via various means in consultation with the patients’ teams and/or consultants. The Complainant is answerable to the Dietitian Manager Ms X, in respect of whom there is a history of interpersonal differences comprising of Ms X making complaints about her work and counter-complaints from the Complainant against Ms X of bullying and harassment. It appears that none of these complaints have progressed very far in terms of internal investigation.

1.3. A patient (hereinafter ‘Patient A’) was transferred from a regional Hospital in early June 2015 to the Hospital in question. Apart from several short periods of leave, the Complainant was responsible for his nutritional care. Patient A was being treated on a palliative basis, and with the limited information to hand it seems that his medical needs were extremely complicated. Patient A passed away during the second period of the Complainant’s leave and there is no suggestion that this was as a result of his nutritional care. Nor is there any evidence that his family has raised any issue with his care, or indeed are aware of the current situation that pertains to the Complainant in relation to Patient A.

1.4. In or around August 2015, the Complainant was summonsed to Ms X’s Office who handed her an envelope containing an anonymous report entitled ‘Case review 17.08.2015’ (hereinafter ‘clinical review’) and containing a reference number, and was told to respond to its contents. It is agreed by both Parties that this clinical review refers to Patient A and his nutritional care by the Complainant. Aside from that, nothing further is known by the Complainant as to its origins apart from her suspicion that it was generated by or on behalf of Ms X. In particular, there is no confirmation of under what internal or other policy it was conducted, who instigated and/or directed the review, what the terms of reference were, who the investigators were, and/or in what capacity they conducted the review and who was interviewed. The review does not contain any names of anyone involved or the basis for same. It comprises of six typed pages and under six headings, makes numerous findings of fact.

1.5. Upon receipt of the clinical review, the Complainant availed of legal advice and when she did not respond to follow-up demands from Ms X to respond to the contents of the clinical review she found herself subject to the Hospital’s disciplinary process. Notwithstanding various requests for information from her Solicitors, to date no further information pertaining to the origins of the clinical review have been furnished by the Respondent. Instead, the Hospital management pursued its disciplinary process against the Complainant. The clinical review findings were summarised as allegations against the Complainant in a letter dated 13^th October 2015 from the Employee Relations Manager, Mr Y, confirming that the Complainant was subject to an investigation under the Hospital’s Grievance and Disciplinary Procedure (also referred to as ‘disciplinary process’) and enclosing a copy of same along with the terms of reference. A more detailed letter dated 25^th November 2015 was furnished to the Complainant. Counsel submits that the current investigation process gives the false guise of a neutral investigation and cannot retrospectively remedy a fundamentally flawed process. The investigation team comprises of three existing members of staff. The Complainant has been forced to partake in the investigation process and has attended a number of meetings with the investigating team.

Complainant’s Evidence

1.6. The Complainant gave evidence that a member of the investigation team told her that they would make up their minds regardless of her participation in the process and that it was her last chance to defend herself. She was not permitted to have a Solicitor attend at the various meetings attended to date despite requests for same and the seriousness of the allegations. The specifics of the allegations have not been forthcoming. However it has been stated that the team will gather more evidence. Various copies of the minutes of the meetings were furnished to demonstrate serious discrepancies between what was recorded as being said at the meetings by the Complainant and by members of the investigation team. The Complainant has no confidence whatsoever in the disciplinary process which it is submitted is fundamentally flawed and in breach of any fair procedures and due process.

1.7. Additionally, by letter dated 15^th October 2015, Mr Y directed the Complainant not to undertake the same feeding procedure as that undertaken in relation to Patient A for the duration of the investigation under the Hospital Grievance and Disciplinary Procedure. She was requested to defer any patients requiring such feeding to another Manager who would reallocate any such patients to another staff member and assign her another patient instead. The letter also noted that this was for the purposes of delivering safe patient care while protecting both the patient and care provider. The Complainant gave evidence that in practice and owing to a lack of clarity regarding such arrangements, she has had to defer to more junior staff who are becoming aware of the situation as a result and confidentiality is therefore compromised. It is also submitted that this amounts to a sanction in circumstances where the investigation team has made no findings of wrongdoing against the Complainant.

1.8. In the meantime, Ms X has filed another complaint against the Complainant. The Complainant is extremely distressed by the current situation as outlined above and her ongoing issues with Ms X. Counsel for the Complainant seeks to have the disciplinary process set aside as being a sham.

2. Respondent’s Submission and Presentation:

2.1. The IBEC representative for the Respondent read through his submissions which outlined details of the Complainant’s contract and background to this dispute from the Respondent’s perspective. He submitted that on 13^th August 2015 it was decided to review the dietetic treatment of Patient A. Initially there was a scoping meeting with the Complainant on 11^th August 2015 to discuss her approach to Patient A. Further to this, a clinical review was conducted to provide a professional opinion on Patient A’s dietetic management. This was an independent process (carried out by a health specialist) and was not conducted under the Hospital’s Grievance and Disciplinary Procedure. The Complainant was furnished with a copy of the findings of the clinical review and given ample opportunity to contribute and respond to the points raised within. Indeed she had almost two months to put forward any comments in relation to the outcome of this clinical review, and the deadline for submission of a response was extended on at least four occasions to enable her to speak to an advisor of her choice. Further to the clinical review outcome, it was decided that an investigation under the Hospital’s Disciplinary Procedures should be instigated. This was communicated to the Complainant by letter dated 13^th October 2015 outlining the Terms of Reference for the investigation. Further to this notification, the Complainant lodged the claims herein. During this process the Complainant has had an opportunity to respond to the allegations and put forward her version of events before any decisions are made. In accordance with procedural fairness, any evidence relied upon by the Respondent has been and will continue to be provided to the Complainant for her consideration.

Evidence & Examination/Cross-examination of Mr Y, Employee Relations Manager

2.2. Mr Y, the same Employee Relations Manager as referred to above, attended the hearing to confirm the Respondent’s position. He has responsibility for coordinating the current investigation process under the Hospital’s Grievance and Disciplinary Procedure. When I sought further clarification, he confirmed that this was a disciplinary process. He was unable to confirm the origins of the clinical review referred to above, stating that it had taken place before he was employed to deal with the matter. He said that such clinical reviews are only carried out very rarely if there is concern for the patient. He said that it had not been a disciplinary process and the Complainant had been invited to comment and attend meetings but had refused. He was unable to point to any Hospital or other policy under which it had been instigated or drawn up. He was not aware of any terms of reference for the review or the identities of the person/s who conducted the review. He does not know how the review came about or who raised an issue as to Patient A’s treatment. He said that as the clinical review was written in technical language, it had to be rewritten in more accessible language for the terms of reference that formed the disciplinary process, and confirmed that Ms X had been responsible for organising same. In relation to the direction that the Complainant not undertake the same feeding method as was conducted with Patient A with any other patients, he said that this was just a precautionary measure. He could not point to any protocol for dealing with such matters. He was unable to confirm whether there was any underlying documentation or statements relating to the clinical review. He refutes the assertions that the procedures adopted to date are anything other than fair. He confirmed that it was 99% complete with just a few matters to confirm before the investigation team could issue their findings in less than two weeks. He confirmed that if there were no findings of wrong-doing, then there would be nothing on the Complainant’s file that could affect her current and future career progression.

2.3. Under cross-examination from Counsel for the Complainant, Mr Y was unable to confirm who the accuser is, replying that it was Hospital management but he does not know the individual involved. When asked who the investigator is, he replied that it was a clinical specialist in the respondent hospital. He was unable to confirm who he spoke to in this regard but confirmed that Ms X organised for the terms of reference to be rewritten. He said that any underlying notes would be with the review team. He was unable to confirm the terms of reference, whether anyone was interviewed, whether Patient A’s family had knowledge of or had requested the clinical review or made a complaint, whether any of the other staff responsible for the care of Patient A are being investigated, whether there was any statement from the accuser, how the clinical review arose and whether Ms X is the accuser or had any input into the clinical review. It was put to Mr Y that as it is alleged that Ms X had orchestrated the complaint, it was inappropriate for her to be involved in the disciplinary process. It was also put to Mr Y that the disciplinary proceedings were based on the findings of fact made in the clinical review and therefore, how could any disciplinary process embarked on by the Hospital thereafter be fair?

2.4. The Respondent is seeking time to complete the investigation process under the Hospital’s Grievance and Disciplinary Procedure which should only take a few more weeks without the need for any direction from the WRC. However an undertaking was given not to progress the process any further for a period of two weeks pending this determination. The Respondent’s representative also confirmed that it would cooperate with any recommendations of the WRC or on appeal, from the Labour Court.

3. Decision:

3.1. In defining the parameters of my remit in relation to disputes regarding internal disciplinary investigations such as the instant dispute brought under Section 13 of the Industrial Relations Act 1969, I am guided by the Labour Court in Bord Gais Eireann -v- A Worker AD1377 which stated: “It is not the function of the Court to form a view on the merits of complaints giving rise to those investigations nor can it substitute its views for those of the investigators appointed in either case. Rather, the role of the Court is to establish if the procedures used by the Company conformed to the generally accepted standard of fairness and objectivity that would normally be used in cases such as these.” I am also guided by the requirement in S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) which requires that the procedures for dealing with such issues reflecting the varying circumstances of enterprises/organisations, must comply with the general principles of natural justice and fair procedures. It is well established that an employee has a contractual and constitutional right to fair procedures (In Re Haughey [1971] IR 217), the extent of which will depend on the particular circumstances. I therefore do not propose trespassing upon the merits of the complaints giving rise to the current investigation of the Complainant under its Hospital Grievance and Disciplinary Procedure, and will confine my considerations to the procedures adopted.

3.2. This matter involves extremely serious allegations of misconduct against the Complainant where both her career and reputation are at stake. There are a number of extremely troubling elements to the disciplinary process instigated against her by the Respondent under the Hospital Grievance and Disciplinary Procedure and in particular the anonymity of the underlying clinical review. No reason has been proffered on behalf of the Respondent as to why it is and has to remain anonymous. I have had the benefit of examining the clinical review in question. I note that it has no official heading and is not numbered, signed or dated. It does not identify the accuser, investigator/s, experts, witnesses, author or anyone else involved in the clinical review. It does not refer to any Hospital or other policy underlying same. There are no terms of reference. It makes numerous findings of fact. In particular, it outlines numerous shortcomings which appear to be based solely on the author’s views of the patient notes with some references to standard protocols and procedures. Although couched in medical terminology, it is apparent to the layperson that it contains a critique of the Complainant’s care of Patient A. In the absence of any confirmation that any other staff responsible for Patient A’s nutritional care for the periods when she was on leave have been investigated, it appears to be directed solely at the Complainant. The Complainant was not invited to partake in the clinical review which was compiled without her knowledge. Unfortunately and incredibly, despite his involvement in the disciplinary process, Mr Y was unable to shed any further light on the origins of the review. Ms X did not attend to give evidence. However, from her typed up minutes, it appears that she had a meeting with the Complainant in the presence of another colleague on 11^th August 2015 in relation to her management of Patient A’s care arising from “a patient safety concern” that had been brought to her attention. The meeting closes with Ms X stating that she would be “asking a person with expertise in the area to review the patient’s dietetic management” and she would get back to the Complainant. Ms X provides no basis for her authority to avail of such a review or sets out the protocol for same. Additionally, the resulting clinical review appears to include no consideration whatsoever of the Complainant’s recorded replies to Ms X at that meeting in relation to her care of Patient A. Basic fair procedures would have required a transparent process that should have allowed the Complainant’s input and opportunity to provide any explanations at the clinical review stage. For the aforesaid reasons, I consider that the clinical review was obtained in fundamental breach of fair procedures.

3.3. The following issues with the disciplinary process result from the defectively obtained clinical review:

• It is a fundamental breach of fair procedures that the Complainant should not be able to confront and question her accuser i.e. the author of the clinical review including any underlying motivations for making the allegations in question in the absence of any good reasons for its anonymity.

• It is also a fundamental breach of fair procedures that the Complainant not be provided with any underlying notes, witnesses statements and any other documentation used to prepare the clinical review, so that she can properly defend herself and/or cross-examine any witnesses in relation to the current disciplinary process. Alternatively there is no confirmation that none exists.

• There is no dispute that the findings of fact from the clinical review were summarised and reproduced as allegations in relation to the current disciplinary process against the Complainant. Although the terms of reference for the disciplinary process give the appearance of being neutral and of not prejudging the Complainant, in reality the process to date has required the Complainant to provide a detailed step-by-step account of her treatment of Patient A and to effectively disprove and dispel the allegations which emanate from the findings of fact as contained in the clinical review. Again, I would consider such prejudgment to be a fundamental breach of fair procedures.

• The manner in which this disciplinary process arose has also resulted in issues with transparency. Given the Complainant’s history of interpersonal difficulties with Ms X and her concerns already raised in relation to her involvement in the clinical review, I find that it was inappropriate to involve Ms X in rewriting the factual findings as allegations for the purposes of the disciplinary process.

• Coupled with this, I am concerned at the manner in which the requirement that the Complainant not undertake the same feeding method as was conducted with Patient A has been handled. Although patient safety has to be paramount and such precautions may well be justified, I accept the Complainant’s evidence that the lack of clear procedures for arranging same has resulted in other staff becoming aware that she is being subject to a disciplinary process and as a result, has threatened the confidentiality and integrity of the process along with her good name.

• Also arising from the clinical review forming the basis for the disciplinary process, it is clear that the Complainant has no confidence in the process as a result. In particular, the investigators are all existing members of staff and in circumstances where the motivation behind the action is in question, an external investigation would have been more appropriate. This lack of confidence in the process is borne out by the significant discrepancies between the Complainant’s minutes and those of the investigators and her concerns at some of the comments made to her by them.

• Although not the norm or indeed an automatic entitlement, consideration should have been afforded to the Complainant’s request to have a Solicitor present, not only because of the seriousness of the allegations but also owing to the legal issues arising in this matter.

Recommendations:

Arising from the aforesaid, I recommend that the Respondent takes the following course of action:

(1)    That the Respondent ceases the current disciplinary process against the Complainant with immediate effect including any current restrictions in relation to her ongoing care of patients.

(2)    That any notes or other documentation generated in relation to the disciplinary process be removed from the Complainant’s file and not used against her in any way in relation to career progression including promotion, transfer or for the purposes of providing work related references.

(3)    Only if senior management (excluding Ms X) have a genuine concern as to the care of Patient A or the safety of any patients under the Complainant’s care, that an external and independent investigation be conducted in accordance with the principles of natural justice and fair procedures. This should also include an investigation into the circumstances in which the clinical review arose.

(4)    That within 42 days hereof, an agreed independent mediator should be appointed to address the ongoing difficult working relationship between the Complainant and Ms X with a view to finding a satisfactory resolution including if necessary, transfer without any loss of terms and conditions. I am of the view that this step is absolutely essential not only for the welfare of those involved, other staff and patients alike but also for the purposes of avoiding a repeat of the existing situation.

(5)    In the event of an appeal to the Labour Court, that the Respondent will continue its undertaking not to pursue the current disciplinary process pending a determination from the Labour Court.

Dated: 23^rd March 2016