ADJUDICATION OFFICER RECOMMENDATION
Adjudication Decision Reference: ADJ-00000739
Complaint for Resolution:
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Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 |
CA-00001121-001 | 26/11/2015 |
Venue: Ardboyne Hotel, Navan, Co. Meath
Dates of Adjudication Hearing: 13/4/2016 and 25/5/16
Workplace Relations Commission Adjudication Officer: John Walsh
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and under Section 8 of the Unfair Dismissals Act, 1977 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 was employed as a social worker with the Respondent from the 17th of April 2001 to the 26th of February 2015. The Complainant was dismissed from her employment following an investigation and disciplinary hearing under Stage 4 of the Respondent’s Disciplinary procedure. The Complainant alleges that she was unfairly dismissed contrary to the terms of Section 7 of the Unfair Dismissals Act, 1977. She filed her complaint with the Workplace Relations Commission on 26th of November 2015.
Respondent’s Submission and Presentation:
The following is the submission of the Respondent in relation to the complaint taken under the Unfair Dismissals Act, 1977.
The Complainant was advised by the Respondent by letter dated the 26th of February 2015 that she was dismissed from her position as a Social Worker.
The Complainant filed her complaint with the Workplace Relations Commission on the 26th of November 2015. The Complainant has not brought her complaint within 6 months from the date of her dismissal being the date on which the letter was sent to her confirming she was dismissed from her position as Social Worker. The Complainant filed her complaint outside the applicable statutory time limit, the Adjudication Officer has no jurisdiction to hear this complaint.
MATTERS NOT BEFORE THE ADJUDICATION OFFICER:
Without prejudice to the contention that the complaint was filed outside the applicable time limits, a number of matters advanced by the Complainant on her complaint form concern matters and investigations which did not form any part of the Disciplinary Process which resulted in the decision to terminate her employment and the complaints the Complainant has articulated are in respect of her employment generally, the early investigations embarked upon by the Respondent into her work performance and her suspension.
The Complainant was dismissed from her position with the Respondent as a Social Worker following an investigation and a Disciplinary Hearing under stage 4 of the Respondent’s Disciplinary Procedure. It should be noted that the matters referenced above were not matters that were before the investigators or the decision maker in the Stage 4 process that led to her dismissal. Further, in July 2014, the Complainant issued High Court proceedings against the Respondent claiming, inter alia, damages for breach of contract, negligence and breach of duty arising from these matters and these proceedings remain extant. The Complainant also complained to the High Court to restrain the Investigation under Stage 4 of the Respondent Disciplinary Procedure and to lift her suspension. Her application was heard by Mr. Justice Gilligan on the 22nd of July 2014 and the court did not grant her application or any relief.
It is submitted that the complaints the Complainant has articulated in respect of her employment generally, the early investigations embarked upon by the Respondent into her work performance and her suspension are matters which should not be considered by the Adjudication Officer as these matters did not form part of the process which led to the Complainant’s dismissal and/or matters which are before the High Court. It is submitted that the Adjudication Officer’s consideration should be confined to the disciplinary process which resulted in the decision to terminate the Complainant’s employment, being the investigation and Disciplinary Hearing under stage 4 of the Respondent’s Disciplinary Procedure, and subsequent appeals.
The disciplinary procedure was invoked by the Respondent in light of the following conclusions which were contained in a written report produced by an independent expert practice review group who were appointed to carry out a review of the Complainant’s Social Work practice on foot of concerns about her work performance. The conclusions are as follows;
The expert panel that carried out the review was comprised of Mr. C.L., a professionally qualified social worker with a Masters Degree in social work. He has significant operational experience (Practice and Management) in Children’s and Family Services, Adult Services and Organisational/ Staff Development Services. For the last ten years, he is a consultant on social work matters in Ireland and in the U.K. with a particular focus on protection and risk (within Children and Adult Services).
Stage 4 of the Respondent’s Disciplinary Procedure entails a disciplinary investigation and a separate disciplinary hearing in December 2010, when external investigators had been sourced. The Complainant was provided with Terms of Reference for the Disciplinary Investigation. There followed a very significant body of correspondence between the Complainant’s solicitor and the Respondent and subsequently the Respondent’s solicitor in relation to the investigation.
The Complainant, through her solicitors, raised a number of objections in relation to the Stage 4 investigation, which resulted in a significant delay in commencing the investigation. A period of almost two years was taken up seeking to address various issues raised by the Complainant to include the terms of reference for the investigation, the identity of the investigators, the nature of the material the investigators should have signed off, and the nature and detail of the charges being levied against her.
The Complainant’s concerns in relation to the process undertaken by the Respondent were ventilated exhaustively in correspondence and ultimately the Respondent made a number of significant concessions in attempt to start the investigation. The Respondent agreed to stand down one of the investigators and to replace him with someone acceptable to the Complainant. The Respondent agreed that the investigators would not be provided with a practice review report and that accordingly, there could be no issue of any specific allegation being levied against her. Given that the practice review report was not being provided, it was proposed that the investigation would be into the following allegation;
“That the Complainant’s practice competence is not of the required standard to deliver an effective and safe social work service in a hospital setting.” The Respondent agreed that the Complainant could nominate a number of case records to be reviewed by the investigators with a further number to be randomly selected by the investigation team.
By letter dated the 16th of August 2013, the Respondent wrote to the Complainant’s Solicitors, informing her that Ms. M.D. and Ms. L.O. had been appointed to conduct the Stage 4 investigation and that the investigation would proceed. These investigators were external and independent with over 40 years combined experience, practising as a social worker and had experience in carrying out reviews and investigations.
When it was clear that the investigation was going to commence, the Complainant made a complaint to the Rights Commissioner Service, pursuant to the Industrial Relations Acts and asked the Respondent to stay the investigation in the interim. Before the Rights Commissioner, the Complainant raised the majority of the issues she raises in her grounds in this case (to include her issues regarding the previous processes/reviews/ delay/suspension/particulars of the allegation/ relevant standard/not a staged process, etc.) The Rights Commissioner did not find in the Complainant’s favour. The Complainant appealed to the Labour Court. The Labour Court did not find in favour of the Complainant. Both concluded that the Complainant should continue with the investigation and let the process conclude.
The Complainant then instituted proceedings before the High Court seeking to restrain the investigation in June 2014. This application was heard by Mr. Justice Gilligan on the 22nd of July 2014, again the Complainant raised the majority of the issues she raises in her grounds in this case (to include her issues regarding the previous processes/reviews/ delay/suspension/particulars of the allegation/ relevant standard/not a staged process, etc.) and the Court refused to restrain the investigation or to grant the relief sought by the Complainant.
Ultimately the Complainant participated in the Stage 4 process and in doing so she had the benefit of extensive legal advice from solicitors.
In July 2014, a draft report was furnished by the investigators to the Complainant and having had the benefit of extensive submissions furnished by the Complainant, the investigators produced a final report on the 11th of September 2014.
The investigators concluded that the Complainant’s practice competence was not of the required professional standard to deliver an effective and safe social work service in a hospital setting.
On the foot of this report, a disciplinary hearing was convened by Ms. S to consider whether a sanction was appropriate and if so, what that sanction should be. The Complainant was afforded the right to legal representation and chose to bring her sister a doctor, to the hearing. The hearing took place on the 13th of January 2015. Ms. M.S. communicated her decision to dismiss Ms. L by letter dated 16th of February 2015.
The Complainant was afforded an appeal to an external appeal panel. The Complainant was afforded legal representation before the appeal panel. This appeal was heard over two days by an independent external panel comprised of Mr. S O’N, Mr. S.K. and Mr. J.D... The Complainant furnished extensive written submissions and made extensive oral submissions to the appeal panel. All of the matters that had been raised by the Complainant in this case were raised by her before the appeal panel. The appeal panel upheld the decision of Ms.S. to dismiss the Complainant. The appeal panel communicated its decision to the Complainant by letter dated 28th of May 2015 and the Complainant’s pay ceased from that date.
The Complainant was afforded an ad Misericordiam appeal by letter dated 9th of July 2015; she was advised that this appeal was unsuccessful.
GROUNDS ADVANCED BY THE COMPLAINANT WHICH CONCERN STAGE 4 OF THE PROCESS
The Complainant alleges that she was not informed of the allegations made against her and that the Terms of Reference failed to set out the alleged misconduct that was to be investigated.
The key criticism here was that the Complainant was not made aware of the charges made against her. This is an entirely disingenuous complaint. This point is best illustrated by reference to the correspondence between the parties and by reference to the comments made by Gilligan J at the hearing of her High Court application, wherein he put it to the Complainant that she was fully aware of the nature and concerns the Respondent had against her and which were the subject matter of the investigation under Stage 4. This was a comment the Complainant could not dispute.
By letter dated 28th July 2010, Ms. M.S. informed the Complainant that she had given consideration to the report produced by the Practice Review Group and that the findings of the report were of a serious concern to her and that they appeared to indicate that the Complainant may not be competent to practice as a professional Social Care Worker. Ms. S. stated the following;
“Having given due consideration to the appropriate next steps, I am writing to let you know that I have taken the decision to commission a Stage 4 Disciplinary investigation into your competence. Pending the Outcome of this disciplinary investigation, you will remain on administrative leave.”
By letter dated the 10th of December 2010, the Complainant was issued with a letter setting out the Terms of Reference for the commissioning of a Stage 4 investigation. This letter was ultimately responded to in substance by the Complainant’s solicitors on the 13th of January 2011. In this letter the solicitors objected to the Respondent commissioning a Stage 4 investigation. The letter states
“We fail to see how the Respondent can move to Stage 4 of the Disciplinary Procedure in circumstances where the allegations against our client do not constitute serious misconduct. Please explain the basis on which Stage 4 is being invoked, and stages 1, 2 and 3 of the Procedures bypassed.”
This letter was responded to by letter dated 26th of January 2011 by HR who refuted the content of the solicitor’s letter. This resulted in a significant body of correspondence being exchanged between the parties which centred on the issue of precisely what the Complainant was being charged with.
The Complainant’s solicitors consistently objected to the report of the Practice Review group being provided to the investigators. By letter dated the 28th of October 2011, the Respondent’s solicitor suggested that the Respondent, with a view to moving the matter on, stand down the new investigation and refer the report directly to a decision maker under stage 4 of the Disciplinary procedures and confirmed that the Complainant would be provided with the opportunity to cross examine in respect of the findings contained in the report and to present any new evidence in the course of such disciplinary hearing.
By letter dated 18th November 2011, the Complainant’s solicitor objected to this process. They continued to assert that the report of the Practice Review Group should not be provided to the Investigators. By letter date the 19th of June 2012, with a view to moving matters on, the Respondent agreed that this report would not be made available to the investigation team. Not withstanding this concession, the Complainant’s solicitors by letter dated the 4th of July 2012, continued to object to the process and demanded that specific allegations be put to the Complainant. This demand was reiterated in a letter dated the 30th of November 2012 and by letter dated the 21st of December 2012. The Respondent set out in detailed terms its concerns in relation to the Complainant’s practice. Not withstanding the contents of this letter, by letter dated the 6th of March 2013, the Complainant’s solicitors continued to complain that the investigation process could not commence and that the investigation could only proceed if the Complainant agreed to the identity of the investigators. A series of additional correspondence was issued between he parties and by letter dated 11th March 2013, the Complainant threatened an injunctive application to the High Court seeking to restrain the Respondent from embarking on its Disciplinary investigation and seeking to lift her suspension.
By letter of 22nd March 2013, the Respondent confirmed that the allegation, the subject matter of Stage 4 Disciplinary Procedure was “that the Complainant’s practice competence is not of the professional practice standards to deliver an effective and safe social work service in a hospital setting.” The letter reiterated the position that it was not possible to set out the precise terms of the incident of alleged serious misconduct in circumstances where the Respondent had agreed to concede, on the Complainant’s demand that the investigators would not be furnished with the report and the cases renewed therein would not necessarily be the ones reviews by the investigators. The letter explained that it was only if the investigators were to review the same 59 cases that were reviewed by the practice review group which produced the report that such details could be furnished.
The letter states “For the avoidance of doubt, the practice review report has not been set aside and will not be set aside. A sample of cases will be reviewed by the investigators. We understood that you accepted this in circumstances where we have already acceded to your request that ten test case files which were reviewed for the purposes of practice review will be included in the sample to be reviewed by the investigators. Your client will be judged by a standard of practice determined by the investigators which will be communicated to your client when the second investigator has been appointed…” Despite the clear terms of this letter, the Complainant’s solicitors continued to write seeking more detailed allegations of the charges against her and threatening high court application if her demands were not met. By letter dated the 22nd of April 2013, the Respondent restated its position and reminded the Complainant’s solicitors that they had stated that the Complainant was willing to engage in the process but “it is absolutely necessary that the 10 cases originally investigated must be included in this investigation” and that by letter dated 22nd of March 2012, the Respondent had confirmed that these 10 cases would be reviewed by the investigation team.
By letter dated 29th May 2013, the Complainant’s solicitors continued to object to the process and on the basis inter alia that the Respondent must set forth all the allegations in specific terms together with the basis for those allegations. By letter dated 28th of June 2013, the Respondent stated its position in relation to the allegations against the Complainant and the reasons why the allegations could not be more specific. The Complainant applied to the High Court to restrain the investigation (and lift her suspension) and her application was heard by Mr. Justice Gilligan on the 22nd of July. One of the main criticisms made by the Complainant was that she had not been made aware of the charges laid against her. The Court did not agree and did not accept that the nature of the allegation was a basis for restraining the investigation.
While it certainly is the position that the Complainant objected to a general allegation of incompetence being levied against her, it is clear from the correspondence in relation to this matter that a period of almost 2 years, was taken up seeking to address this issue (together with other issues raised by the Complainant to include objections to one of the investigators originally appointed to the investigation panel. The replacement and sourcing of new investigators gave rise to further delay during which time the Complainant made applications to the High Court and to the Labour Relations Commission). At all times, the Complainant had the full assistance of her lawyer. The Complainant was well aware that the reason for the investigation was the concern of the Respondent with regard to her practice competency arising from the findings of the report and the Respondent had set out very cogent reasons as to why it had not been more specific in relation to the allegation against the complainant in light of the fact that the Complainant objected to the report being provided to any investigator. It is important to point out that the Complainant ultimately cooperated with the investigation process on the basis of this allegation.
The Complainant contends that the Respondent delayed the investigation by refusing to step down one of the investigators and by refusing to carry out the investigation.
The delay in carrying out the investigation arose, in the main, due to the demands made by the Complainant’s lawyers to include in regard to specifying the allegation in more detail (which has already been addressed above) and also the request to stand down one of the investigators. No reasonable basis was given for this request. The basis for the request was that one of the investigators had previously worked in the same hospital as the Respondent’s manager, who commissioned the investigation. This evidently could not raise any perception of bias. Given that there was no reasonable basis for the request, the Respondent refused to stand down this investigator in circumstances where it is difficult to source investigators and standing down one investigator was likely to give rise to further delay. With a view to trying to move the investigation on, the Respondent did agree to stand down this investigator and this did give rise to further delay in circumstances where the other investigator then became unavailable and ultimately the Respondent had to source two new investigators.
The Complainant contends that the Respondent failed to provide adequate background information of the investigators to her. There is no provision in the Respondent’s disciplinary procedure for the employee to be provided with comprehensive background information. Adequate details of the investigators were provided to the Complainant’s solicitors on the 16th of August 2013.
The Complainant takes issue with the standard by which her competence was judged in the investigation by the investigators.
The Respondent appointed two suitably qualified individuals to carry out the investigation- both were practising social workers. Ms. M.D. is a professionally qualified Social Worker with 20 years experience in statutory and voluntary settings. She worked as Principal Social Worker from 2004 – 2011 managing a team of over 60 social worker and social care staff. At the time of the investigation, she was working privately as a Guardian at Litem and an independent social consultant. Ms. E. O. is a professionally qualified social worker with a Masters in social work. She has in excess of 20 years experience and is a social work manager. At the time of the investigation she worked as an independent social work consultant as a Guardian at Litem.
The allegation that was to be investigated was that “The Complainant’s practice competence is not of the required professional standard to deliver an effective and safe social work service in a hospital setting.” The investigators were asked to review 40 of the Complainant’s case records, 30 to be randomly selected by the investigation team and 10 to be nominated by the Complainant by reference to the clinical competencies of a main grade social worker in a medical setting which are set out in a document titled “Social Worker in Medical Setting Competency Framework, April 2005.”
The standard by which the Complainant was to be judged was the standard necessary to deliver an effective and safe social work service in a hospital setting- this is the absolute minimum standard. The appointed investigators were suitably qualified to consider and judge the Complainant’s practice by reference to such standard.
The document with which the Complainant takes issue was used as a basis for clinical competencies to be considered by the investigation team, The investigators expressly stated in their report that they were satisfied that the competencies in this framework document were indicative of good practice at any time both prior to and post 2005 and that best practice exists whether or not it is itemised in an official document. It is submitted that is clearly the case. It is nonsense to suggest that any persons competency in a particular field cannot be measured unless best practise has been itemised in some form of official document. There are many, many examples of professionals where no such documents exist.
The standard by which the Complainant was judged was the standard required to deliver an effective and safe social work service in a hospital setting. This was an entirely reasonable standard by which to judge the Complainant.
The Complainant contends that the person who took notes of the interviews which took place between the investigators and the Complainant, did not have the requisite skills to record accurate notes and that the notes are inaccurate. There is no requirement that a stenographer be available in internal disciplinary processes. This would be to place an entirely disproportionate burden on the employer. A note taker was in attendance. While it is not accepted that the notes were not accurate, in any event, the Complainant was afforded the opportunity to offer comments on the notes of her interviews which were provided to her in advance of the investigators forming their own conclusions and she did provide comprehensive summaries highlighting any inaccuracies she saw.
The Complainant makes serious accusations of bias against the investigators without advancing any grounds on which to base this assertion.
Allegations of bias by the Complainant have been a common thread. It is not accepted that MS. O and Ms. D. were biased in anyway. They were entirely independent. It should be noted that on their appointment the Complainant never objected to Ms. O or Ms. D on the grounds of bias, not withstanding that she made numerous objections to other matters during the course of the stage 4 Disciplinary process and objected to another investigator on the grounds of bias.
It is accepted that the Complainant did not receive certain documentation during the investigation process. It is not accepted that this in any way vitiated the report produced by the investigation team. The Complainant was furnished with a draught report containing preliminary conclusions and had an opportunity to submit extensive submissions to the investigation team which she did prior to their finalising their report.
On a number of occasions, the Complainant has made comments that her voice is absent from the report. The investigators made clear that they had considered all that the Complainant put before them during the course of the investigation. The Complainant equates their failure to agree with her as their not having considered the matters advanced by her.
The Complainant contends that Ms. S. was not an impartial judge and did not provide reasons for her decision. Ms. S. invoked Stage 4 of the Disciplinary Process. This was in accordance with the Respondent’s procedures which are agreed with the unions. Ms. S. did not adjudicate on the allegations against the Complainant that was the role of the investigators. Ms. S. conducted the disciplinary hearing for the purpose of deciding whether the sanction was appropriate. Ms. S was, at that time, a senior employee of the Respondent with significant experience dealing with disciplinary processes. She took her responsibilities as decision maker extremely seriously and was not biased or unfair to the Complainant. This is evident from the notes of the hearing.
In O’ Callaghan V Disciplinary Tribunal [2002] 1IR 1 a complaint similar to that made by the Claimant under this heading was dismissed by the Supreme Court.
“In this court two grounds of attack have been put forward. The first relates to statutory procedures under which the Disciplinary Tribunal acts. Before there can be an inquiry the Tribunal has to make a determination as to whether there is a prima facia case for holding such an inquiry. Mr. Walter Beatty sat on the Tribunal which initially decided that there was a Prima Facia case for an enquiry and then sat on the division of the Tribunal which conducted the inquiry itself. It is argued on behalf of the applicant that this is an unfair and unlawful procedure in that not only will all the documentation have been before Mr. Beatty at the preliminary stage, but he will have formed a preliminary view of the matter or at least might have, and that in these circumstances, there was an apparent objective bias on the part of Mr. Beatty while he participated in the inquiry itself…”
On the first of these grounds the following was what was said by McCracken J in the High Court at page 17 of the unreported judgement:-
“I think this case is made under a misapprehension of the nature of preliminary procedure. It is not an inquiry and it does not in any way decide upon the validity of the complaint made against the applicant. It simply decided that there is a serious case put forward by the Complainant. At that stage the Tribunal is not aware of the attitude of the solicitor against whom the complaint is made, and all that it is doing is directing that inquiries should be made into the complaint. As I said earlier, this is very similar to the situation where a court gives leave to an applicant to bring judicial review proceedings.” The trial judge goes on to point out that there is no rule in the High Court that a judge who gives leave for a judicial review cannot hear the judicial review application itself or that a judge who grants an interim injunction, may not hear the later interlocutory injunction application. The nature of the decision to be made the second time round is quite different from the nature of the decision made on the first occasion. In so far as McCracken J in holding that a person who is involved in a decision as to whether there is a prima facia case for an inquiry cannot be precluded from participating in the inquiry given that the exercise of conducting the inquiry and making a final decision is totally different, I am in complete agreement with him. I cannot see that there was anything unfair or unlawful sitting on both divisions of the Tribunal. One of the cases relied upon by the applicant in this connection is Radio Limerick One Ltd. V Independent Radio and Television [1997] 2 IR 291. But the bias alleged in that case was of quite a different nature and had nothing to do with the question of whether a person deciding whether there was a preliminary issue to be investigated can himself partake in the investigation.”
This authority, it is submitted, plainly disposes of the Complainant’s complaint against Ms. S.
The matters raised by the Complainant under these grounds which concern Stage 4 process (being not knowing the allegation, correct questions not being asked by the investigators, and her voice being absent from the report) have all been addressed above.
Complainant’s Submission:
The following is the submission of the Complainant in relation to the complaint taken under the Unfair Dismissals Act, 1977.
Section 6(1) of the Unfair Dismissals Act, 1977 provides;
There must be substantial grounds for dismissal.
Section 6(2) of the Unfair Dismissals Act, 1977 provides;
A dismissal shall be unfair where it results from the making of a “protected disclosures”.
A process commenced on the 1st of the 12th 2006, which subsequently led to her dismissal in May 2015. This process was triggered by her making a protective disclosure complaint in June, 2006. The Unfair Dismissals Act, 1977 states;
“That a dismissal is unfair if it arises from making a protective disclosure.”
In March 2007, a nurse manager alleged that an elderly male patient with a cognitive impairment had behaved in a sexually inappropriate manner towards a female patient. The nurse was annoyed that a multi-disciplinary decision had been made and that the male patient should remain on the ward until a nursing home placement was available for him. She became aware from speaking to the female patient that the incident alleged by the nurse manager had not taken place and she reported this to her manager, to the hospital manager and to the nurse manager’s manager. This was a protected disclosure as per trust in care.
That she also made other protected disclosures. She expressed a concern to hospital management in 2003 when she became aware that a member of her department was in receipt of e-mails using inappropriate images of children.
In determining the fairness of a dismissal regard must be had to;
The reasonableness of the conduct of the employer and to the disciplinary procedure of the Respondent.
If an employer acts in a way that is procedurally unfair, then the dismissal shall be unfair. An employee has a right to Natural and Constitutional Justice.
In the case of serious misconduct, there is a need for warnings, namely setting out the details of concerns to be given to staff. An employee should be advised that their job is in jeopardy and they should be given time to improve. The disciplinary procedure sets out the process to be followed where a concern arises in relation to the conduct of the employee.
The Disciplinary Procedure of the Respondent
The disciplinary procedure of the Respondent normally operates on a progressive basis.
“The key objective of the disciplinary procedure is to assist the employee to maintain the required standard rather than impose penalties.” This is the responsibility of line management who are required to deal with issues promptly and fairly.
“Issues will be dealt with, generally, on an informal basis through discussion, counselling and appropriate assistance, rather than through the formal disciplinary procedure.”
If this fails, then the disciplinary procedure should be invoked. There is no evidence, no record to demonstrate that her line manager took any steps to address any issue in relation to her social work practice with her at any time, prior to making a complaint to the Group Manager in respect of her practice and of which she became aware of on the 1st of the 12th, 2006. In view of the seriousness of the outcome for her, as a result of the complaint to the Group Manager, it must be a requirement that there be substantial written elements of concerns and steps taken to address them before removing an employee from duty. Apart from the disciplinary procedure of the Respondent there was a supervision policy in the Respondent organisation which provided a frame work for her line manager in the management of practice issues. There is no evidence on her supervision notes of any steps taken to address any practice issue with her. Mr. T. stated in the Labour Court in March 2014, “that there was no procedure available to assess her competence except the disciplinary procedure.” This is not the case. The supervision policy is a competence led process.
The absence of evidence of a problem with her practice and steps taken to address it at this early stage cannot be ignored. This stage before the disciplinary procedure is invoked requires that the employee has precise details of what aspect of their work needs improving- measures will be taken to assist the employee to improve, an action plan will be put in place to achieve the required improvements. This will be documented and signed by both parties. This never happened in her case at any time before her line manager made a complaint about her practice to the group manager or afterwards.
Formal Procedure;
There are 4 stages to the Disciplinary procedure. Stages 1, 2, 3 were never invoked.
Immediate Aftermath of Complaints Being Made:
Her manager had made a complaint about her practice, of which she became aware of on the 1st of the 12th 2006. She received no additional support from him. Her case load was not reduced and she received no direction to do anything differently in her practice. She worked 11 hours over time during the months of Jan, Feb, and March, 2007. It was a very busy time in the hospital. In view of her subsequent suspension from work in July 2007 and her eventual dismissal, the period after the 1st of the 12th 2006, was a critical time for her manager to address any issues arising in respect of the Complainant’s practice. She should also have been provided with an opportunity to demonstrate her ability and willingness to be guided and directed by the manager in matters relating to her practice and most importantly, for him to document this process. This did not happen.
When AL alleged complaints about her practice in 2002, she received no direction or support in relation to her work subsequently. In the circumstances where she received no support or direction to do anything differently in her practice, it is reasonable to conclude that no problem existed.
Reviews into her Social Work Practice
The first review commenced on the 1st of December, 2006. The information gathering was completed in mid January 2007. There was no report from this review although the group manager had said on the 1st of the 12th 2006 that she would inform her of the outcome of the information gathering process. In February 2007, she was notified by way of anonymous correspondence the terms of reference of a further review. It contained no allegation against her. No information as to what case she had to answer. There was no information as to what procedure was being followed or possible outcome.
She wrote to the Group Manager on several occasions seeking to know the outcome of the review that she had commenced on the 1st of December, 2006. She was unwilling to take part in a second review without knowing the outcome of the first. RM was a former child care manager and was well placed to make a judgement in respect of her practise.
Fair Procedures
She is of the view that her employer did not act reasonably in proceeding to another review without advising her of the outcome of the first review. Fair procedures require;
-That she be made aware of the outcome of the first review
-That she be made aware of the reason for a further review
- That she would be advised of the allegation made against her
- That she would be advised of the case she had to answer
-That she would be made aware of the evidence to support the allegation
- That she would be made aware of the process being pursued by the Respondent
-That she would be made aware of the possible outcome of the review
Practice Concerns Arising in March 2007/ Duty of Care/ Trust in Care
Before the second review took place, a number of practice concerns arose between February and March 2007. In March, a nurse manager made an allegation against an elderly vulnerable patient of inappropriate sexual conduct towards a female patient. She had a duty of care to report this incident which she did to her manager and to the hospital Group Manager. She also was owed a duty of care- as per trust in care, Protected Disclosure etc. in making this disclosure.
(In March 2009, she saw a medical chart for the vulnerable patient and her extensive social work records were missing from the chart. This was reported to management.)
During February/March 2007, she expressed other concerns to her manager and management- concerns relating to care of the elderly. This was her duty that she owed to the patient and to the employer. She was also owed a duty of care as a consequence of expressing concerns.
Second Review/ Mr. WR
Fair procedures were breached when the Group Manager failed to investigate the original complaint made by her manager. The Respondent failed to complete the first process.
In June 2007, Mr. AW undertook a second review of her social work practice. She received no information as to what procedure was being followed, what allegation was made against her, what evidence was provided. She was not told that this review could result in her suspension and ultimate dismissal from work. She refers to Macken, J in O’Donoghue v South East Health Board (2005) 4 IR
‘An employee is entitled to be on full notice of the nature of the investigation and the allegation to be met’
She had a right to know that Mr. AW’s review could lead to her suspension because of the adverse consequence of such a decision for her.
‘An employee should only be suspended when they have been furnished with full information and been given an opportunity to be heard.’
To speak of risk causes alarm, especially to those who are not familiar with the social work profession or environment. Concerns of risk must be based on evidence. There was an incident some years back of fair haired Romanian children being taken into care when it was assumed they could not belong to their parents owing to contrasting hair colour. The minister referred to the importance of meeting thresholds in the terms of evidence to support and justify intervening in people’s lives at that time. Mr. AW’s review took place in June 2007 and the resulting report recommended her suspension from work pending another review. She responded in detail to the report but the response was given no consideration by management. Mr. AW based his findings on her social work patient records only. There was no requirement to keep records in her department at that time however, she did keep records. It appears that AW did not ask what the policy was in the department in relation to recording; He did not look at recording in general in the department to see if her standard was out of step with the rest of the Department. He did not adhere to the terms of reference for his review. He did not consider the submission she had made to the Group Manager’s ‘Information Gathering Process’. Arising from the complaint of the 1st of the 12th 2006, he did not examine her supervision notes to confirm whether or not her record keeping was a problem that had been addressed with her by her line manager which was part of the Terms of Reference.
She was not given the benefit of the Disciplinary Procedure or the Supervision Policy in that - there is no evidence in her supervision notes that there was a problem with her work. She was not advised that she was being investigated, nor given a warning as to the need to improve. She was not told of what improvements were required, she was not given access to counselling and she was not told that the situation was being monitored and reviewed regularly.
The Outcome of Mr. AW’s Review
Mr AW recommended her suspension from work, pending a further review. He expressed a lack of confidence in her to carry out her duty of care to vulnerable people on the basis of her record keeping. She does not agree with Mr. AW’s concerns. There had been no adverse outcomes to any of the patients. It was unreasonable to suspend her on the basis of her record keeping alone. She should have been given a warning and asked to keep more detailed records. She could have her work monitored for improvement. She believes the decision to suspend her was unreasonable and a disproportionate response to inadequate records on the part of the Respondent. Mr. AW’s report did not adhere to his Terms of Reference and her inputs were excluded. It was not a balanced report. Natural justice and fair procedures and her constitutional rights, require that she know the case against her and she is allowed to respond and that her response and evidence is weighed up in the decision making process.
(In July 2006, a child suffered a serious accident. 6 weeks before the accident the child was referred to her department. There was an omission on the part of her department. The department failed to follow up on the initial referral and assess risk for the child. The child subsequently suffered a serious injury. A second child in the family also sustained an accident at home. There were no records of this patient’s chart. There was no adverse outcome for the personnel that dealt with the above case.)
Nothing happened in her practice to warrant her suspension. There was not equality of treatment for all members of the department. Fair procedures require all staff to be treated equally.
Receiving e-mails with inappropriate images as ‘serious misconduct’ in the staff handbook, but was not responded to as such when she reported it in June 2003. To make a false allegation against a patient as happened in March 2007, is abuse and would surely merit disciplinary procedures on the basis of the procedures set out in Trust in Care.
There has been no untoward event, no adverse outcome in respect of her practice and yet, she finds a recommendation being made that she be suspended. In her report into the Lourdes Inquiry Judge Harding Clarke made the observation that in the situation she was investigating, no patient had died. This was intended as a positive statement. Death is one bar that is used to assess adverse outcome. She also looked at the practice of all the obstetricians in the hospital and not just one that gave rise to the inquiry. Comparators are important. In the Roscommon Case where two parents have received prison sentences for abuse and neglect of their children and a number of children are in care of the state, no social worker has been disciplined.
She believes that she was dismissed for making a Protected Disclosure.
Social work is a secondary service in a hospital where the Primary Service is medical care. The social worker was not solely responsible for the care and the risk to the patient. The social worker carried out their role mainly in response to concerns raised by others, especially the medical team and worked with them. Mr. AW stated that there was no standard he could use for benchmarking her standard of work. This is not the case. The most appropriate method for benchmarking her standard of recording was the standard of her colleagues in the department. He failed to do this.
Suspension and Disciplinary Procedure
That she was suspended from work in a procedural vacuum. The Respondent failed to invoke stages 1, 2, 3 of the disciplinary procedure. The disciplinary procedure was not invoked when she was suspended from work. There is no mention of the disciplinary procedure being invoked in any of the correspondence. The steps in the disciplinary procedure of the Respondent were not followed.
- The gathering of preliminary facts relating to the allegation- there was no allegation against her at this time.
- Formulating a precise allegation- no allegation was formulated.
- The employee, against whom the allegation is made, will be requested to attend a meeting to hear the precise details of the allegations at the earliest juncture and without delay- this did not happen in her case.
- Re: Protective Measures
The views of the employee will be taken into consideration when determining the appropriate protective measures to take…..-this did not happen in her case.
- Putting an employee off duty pending the outcome of the investigation will be reserved for only the most exceptional circumstances. - No such exceptional circumstances were identified.
The purpose of suspension within the Disciplinary Process is to facilitate a Stage 4 investigation. No Stage 4 investigation took place subsequent to her suspension. The process did not comply with recognised procedures as per the Disciplinary Process. Putting her off duty was a punitive measure. This is further confirmed by the fact that she remained off duty for 8 years before she was dismissed.
The Supreme Court held in Flynn v An Post (1987) IR that “prolonged suspension was unfair and that the power of suspension must be understood as allowing for suspension to last only for as is reasonable to hold an investigation.”
Again, in Deegan V Dunnes Stores Ltd. (1992) ELR the EAT held that ‘indefinite suspension amounted to dismissal and that the dismissal in the case was too severe.’
That she was suspended from work on pay in July of 2007. That she was in a procedural vacuum and remained suspended for 8 years. There is no reference in any correspondence to the Disciplinary Procedure being invoked. She was denied the benefits of the Disciplinary Procedure.
As already stated, suspending an employee from work, arises in the context of the Disciplinary Process- where there has been serious misconduct. There were no substantial grounds in the course of her social work practice to warrant suspension.
Natural Justice required that an employee should consider the effect of the decision to suspend her. It affects both her personal and professional life and reputation. She is qualified to MA level and has an impressive record of continuing professional development. She would have hoped to progress to a senior position in her profession. The decision to suspend her had an impact for both safe Social Work practice and the safety of the patient. She had a duty to report abuse/concerns as set out in Trust in Care and elsewhere. She had a duty to act to protect the patient and therefore the integrity of the work environment where the Respondent delivered a service to the public. She was also owed a duty of care.
Third Review
The first correspondence in relation to the third review was received in October 2007. It did not contain any allegation against her. There was no information of the case she had to answer.
60 cases would now be reviewed. There was no complaint in respect of any of these cases except the original three. By the time she was interviewed, in respect of her practice, some of these cases were 8 years old. They had been supervised when they were active cases. No issues had arisen; there had been no adverse outcome for any patients.
She sought to have her supervision records and the standard practice in her department included in the Terms of Reference but this was not allowed.
The final report from this investigation was produced in July 2010. No input from her was referred to/ included in the report.
There was no parity between her, the employee and her employer / investigators throughout this process in circumstances where her input could be ignored completely. Natural Justice, Fair Procedures, Constitutional Rights, require that she be made aware of the case made against her and that she is allowed to respond and that her response and evidence is weighed up in the decision making process. This did not happen.
Delays in Carrying Out the Third Review
When she was suspended in July 2007, she was advised that she would get access to social work and medical charts of cases to be reviewed. Her employer renaged on this and refused to give her access to the medical charts. It was in December 2008 before her agreed to her having access to medical charts.
She was interviewed in January 2009 by the investigators. No record was kept of her interviews.
It is unreasonable to believe that 4 different managers/supervisors had failed to identify problems with her work over the 5 years and 8 months up to the 1st of the 12th 2006.
She received the preliminary report in July 2009. It was unfavourable to her. She was invited to respond to the report which she did in detail. However, the report was incomplete- the appendices were missing, copies on the documents that were relied upon were missing, the code of the cases to enable her to identify them was not included, etc. it took her employer 6 months to furnish her with the outstanding information.
The final report of 2010 was unfavourable to her. No information that she had provided was included in the final report. The report claimed that the problem with her work was too great to address in the short term. (As already mentioned in 2006, she completed an MA. She was very committed to her continuing her professional development. It was not reasonable to conclude that she could not have addressed any issue in relation to her practice in circumstances where she was never told that there was a problem and given an opportunity to address it).
While she awaited the missing materials, her employer threatened to complete the review without her. Her employer should have done so as her input was not relevant to her Final Report, which she received in July, 2010. It too was unfavourable to her.
There was a duty on the investigators and her employer to ensure a balanced report where information not favourable to her employer’s position would be disclosed. In this instance she would like to point out the following;
-That she made a Protected Disclosures
-That the investigators had not looked at the standard of record keeping in the department in general.
-That they had failed to consider supervision notes.
-That they failed to include the most up-to-date information on the patient i.e. the medical records.
- That they failed to include any of the issues that they raised in relation to comments on individual cases.
Once again the investigators inferred risk and concerns in relation to cases they looked at based on her record keeping only, and in circumstances where they failed to look at the secondary sources e.g. at the medical charts for evidence to confirm their concerns and/ supervision records.
Indefinite Suspension
The Supreme Court has held that a prolonged suspension is unfair and that the power of suspension is to permit an investigation. The third review was wrongfully used by her employer to frustrate any legitimate possibility of her returning to work. The review was delayed and protracted for three years to aid this same purpose.
Professional Registration for Social Workers
In the years after her suspension, her employer started to refer to her being on Administrative Leave, although this was never communicated to her. This is significant in relation to her being able to register with the Social Work Registration Board (CORU). She would have been able to register if she was on administrative leave although there was no written evidence to support this position.
As with the other two reviews, to which her work was subjected, her employer had a duty to act fairly. To re-phrase Barrington, J in Mooney V An Post;
‘Office holders such as managers are not entitled to the protection of Natural and Constitutional Justice, but not the employee.’ He went on to state that;
‘The minimum an employee is entitled to, is to be informed as to the charge made against them and to allow them an opportunity to answer and make a submission.’ This implied that the submissions are also weighed up and given consideration in the making of decisions.
According to Cooke, J.;
‘Justice must be done and be seen to be done.’
It is acknowledged in law now that;
Fourth Process
Stage 4 of the Disciplinary Process was invoked in August 2010. This was the first time that the disciplinary procedure was mentioned by her employer in relation to the complaint about her practice that was first put to her on the 1/12/2006. Stages 1, 2, and 3 had not been invoked.
The context of skipping steps 1, 2 and 3 of the Disciplinary process is in cases of serious misconduct which allows an employer put an employee off work in order to carry out a stage 4 investigation.
She was now over three years suspended from work but in a procedural vacuum. The Disciplinary Procedure had not been invoked when she was put off duty. No stage 4 investigation took place following her suspension.
When the Group Manager Mr. M.S. advised her in August 2010 that she was invoking stage 4 of the disciplinary process she failed to state any allegation against her or provide evidence to support one.
In December 2010, the Terms of Reference for the Stage 4 investigation were sent to her. There was no allegation contained in the Terms of Reference, no information/details on the case that she had to answer.
As Barrington, J. stated in Mooney V An post (1998) 4IR;
‘The Minimum (he) is entitled to, is to be informed as to the charge against him and to be given an opportunity to answer it and to make submissions. This implies that the employee’s rebuttal will be given equal weight in subsequent reports.
Stage 4 Disciplinary Investigation
The following is the procedure to be followed by the Respondent at Stage 4 of the Disciplinary Procedure.
- Stage 4 of the Disciplinary Process commences with an investigation into allegations of serious misconduct,
She received no information from her employer in respect of any allegation of serious misconduct
- An investigation will be conducted by person(s) who are acceptable to both sides.
Firstly, her employer disputed the need for an investigation. She requested to have one of the investigators step down. Her employer refused to do this for over two years.
- An investigation will be conducted without inordinate delay.
The investigation was delayed by her employer for over two years, by refusing to tell her the allegation against her, refusing to carry out an investigation, and refusing to step down one of the investigators.
- The investigation will be carried out in strict accordance with the Terms of Reference… with respect for the right of the employee…to be treated in accordance with the Principals of Natural Justice.
This did not happen.
- The investigation team will have the necessary expertise to conduct an investigation impartially and expeditiously.
This was not the case with the investigators selected in circumstances where…
…they failed to ensure an accurate record was kept of her interviews..
…they failed to ensure her input was given consideration in the preliminary and final report.
- A written record will be kept of all meetings.
No accurate record was kept of her interviews. She received no copy of AL’s interview.
- The investigation will be conducted by person(s) nominated by senior management and acceptable to both parties.
She sought information on Ms. D and Ms. O’s backgrounds but did not receive it.
- The investigation will be determined by pre-determined terms of reference based on the alleged misconduct (which will be set out in writing)
There was no allegation of misconduct identified in the original terms of reference for the stage 4 investigation. Nor were there any details of the alleged misconduct set out in writing in any terms of reference or elsewhere by her employer subsequently.
- The employee will receive details of the alleged misconduct prior to the investigation.
She never received any details of alleged misconduct.
- The investigation team will form preliminary conclusions based on the evidence gathered…and invite the person adversely affected… to provide additional information or challenge any aspect of the evidence.
As with all other reports, these investigators ignored all her input. Her voice is totally absent from the report. No weight was given to any of the information that she provided. No explanation was provided as to why this was the case.
- The Terms of Reference will specify a timescale within which the investigation will be completed.
This did not happen. Stage 4 of the disciplinary process was invoked in 2010. It was finally concluded in January 2015, a month short of 5 years.
Following receipt of the Terms of Reference for the Stage 4 Investigation in December 2010, a protracted correspondence ensued between solicitors. Throughout this correspondence her solicitor sought to establish the following;
- The allegation made against her
- The stepping down of one of the proposed investigators
- The inclusion of supervision and standard of practice in her department in the Terms of Reference
- Biographies for the investigators
- The requirement to carry out an investigation
Her employer wished to use the 2010 report as the basis for the Stage 4 investigation although no record had been kept of her interviews of that report.
No information that she provided to the ‘Review’ was included in the 2010 report.
- That a particular document in respect of competence would not be relied on by the investigators as it had not been used in her department.
In March 2013, her employer formulated an allegation against her. This was nearly 6 years after her suspension and almost 3 years since invoking Stage 4 of the Disciplinary Process. Her employer stated that they could not provide her with any detail of the allegation in a letter of June 2013. The Disciplinary process states that there must be substantial grounds for suspending an employee from work. The above correspondence confirms that there were no grounds for suspending her from work- no allegation/substantial grounds existed in July 2007.
The allegation formulated in March 2013 stated
‘My practice competence is not of the required professional standard and safe social work service in a hospital setting.’
Stage 4 Investigation
The investigators were to review 40 cases but reviewed 46 cases. She identified 10 of these cases. Of those selected by the investigators, 80% were drawn from the period 2002-2003 when there was a shortage of staff in the Department. There were two social workers in the department for most of the time, where there had previously been 5. It was, as already stated, recognised in the Department that when there was a shortage of staff, record keeping suffered. A note to this effect was put on the social work charts by the manager of the department in 2001.
Most of the cases to be reviewed were supervised when they had been active and no issue had arisen in relation to her practice. Some of the cases were up to twelve years old. There was a complaint in respect of only three cases. There had been no complaint in respect of the other 43 cases.
She believes as with other reviews, that it was completely inappropriate to infer/allege incompetence in respect of her practise 12 years on in circumstances where there had been no adverse outcome, no untoward event and earlier, managers had found no problem with her work.
She was interviewed as part of Stage 4 investigation in January and March 2014. It was now 6 and a half years since she had been suspended from work. Case law has established that such a delay can render a dismissal unfair
(Marley Homecare Ltd. V Dutton (1981))
It is a requirement of the Stage 4 investigators that a record is kept of all interviews. This implies an accurate record. There is no accurate record of her interviews.
There was a duty on her employer and the investigators to ensure accurate records to support the integrity and impartiality of the process especially in circumstance where there was no input from her considered in any of the previous reports. They failed to do this.
Labour Court
In March 2014, her case came before the Labour Court (Industrial Relations Act 1969-2001) where it was stated that her employer had failed to investigate the complaint made against her on the 1st of the 12th 2006 in order to establish if there were grounds for a complaint. The Labour Court Stated;
- There was no complaint against her
- There was no charge against her
- There was no evidence against her
The process that her employer was pursuing at that point was not the disciplinary process.
High Court Injunction
She had been advised by her solicitor in early 2013 to make an application for an injunction. This was due to happen in September 2013 but some of the legal team pulled out two days beforehand.
She went to the High Court in 2013 to seek an injunction herself. She was unsuccessful. The judge stated that the balance of convenience favoured completing Stage 4 of the Disciplinary Process. However the Judge did say that it was the view of the Court that there was a case to be tried. He made the observation that it was unusual for a person’s competence to deteriorate in the course of their working life.
Her employer sought costs against her but was unsuccessful. The Judge directed her employer through their legal representative to ensure that there were accurate records of interviews and that the standard of practice in her department be considered by the investigators. Her employer did not re-run the earlier interviews.
Stage 4 Investigative Report
A preliminary report from the Stage 4 investigation was produced in September 2014. It was unfavourable to her. There is no accurate record in the report of her input into the interviews. The input she made was ignored or misinterpreted. Written information that she provided was ignored in the report. There is no balance in the report. This does not meet the requirement that
‘It is a pre-requisite to any dismissal to conduct an investigation and…have regard to all the facts, issues and circumstances surrounding a case…warranting serious reprimand…such as dismissal. (Pacelli V Irish Distillers Ltd).
She would describe it as crushing to be treated so abominably yet again in this fourth process in view of the duty and responsibility she had toward vulnerable people and the realisation that yet again the need to protect ‘the system’ took priority over the requirement and duty to protect the patient and the rights of the employee and the Respondent’s duty towards the employee.
The employees of the Respondent have been asked by the DG of the Respondent to be the eyes and ears of the patients/clients in order to ensure that abuse does not occur and ensure their safety and protection. She would have to say based on her experience that it is not safe for employees to take on this role if no one or no procedure protects them.
Social workers undertake a lot of report writing, especially in family work i.e. child protection, foster care. In the family court in the UK in 1994, Hollings, J. stated;
‘I cannot emphasise too much that applicants such as a local authority responsible for children in their care…should not act in a 100% adversarial way. They must present the case in a balanced way and not fail to refer…to factors which point in a direction opposite to that which is desired by the local authority.’
This applies in her circumstances as well. All the reports that had been written in respect of her Social Work Practice have lacked balance in order, she believes, to achieve an outcome desired by management. Nothing in the four processes that she contributed to referred to were referenced in any of the reports. She had a duty to protect service users and the integrity of the service that the service provides. No consideration was given in any report, over the years, to any of her inputs.
In all of the reports that were completed including the Stage 4 investigative report, the findings were based on a consideration of her social work records only. All the investigators Ms. D and Ms. O failed to ask the relevant question;
- They failed to seek the detail of any allegation against her
- There was no policy in relation to record keeping; indeed there was no requirement to keep records. She did keep records.
- It is normal procedure to consider the general standard of record keeping in the department when carrying out reviews/investigation. This did not happen.
- A review of the standard of recording in her department would have provided a valuable benchmark against which to compare her practice
- Investigators failed to ask how supervision was used to address problems. Supervision is integral to Social Work Practice.
- There was also a supervision policy in the north east since 2004. No investigators considered this policy and looked at the supervision notes to confirm if there had been a problem with her record keeping. There was no concern with her record keeping to be found in her supervision notes.
- Her manager, who had made the complaint about her practice, was not willing to be interviewed by the investigators.
- Over the 6 years and three months that she has worked with the Respondent, she received no direction from any of the 4 different supervisors that she had, to do anything differently in her practice.
- Throughout the reports, the investigators failed to include her input into their findings.
The EAT in Gearon V Dunnes Stores Ltd. UD 367-88 concluded;
‘the right to defend herself and have her arguments and submissions listened to and evaluated by the Respondent, in relation to the threat to her employment, is a right of the claimant….the right is a fundamental one under Natural and Constitutional Justice.’
Procedure in Relation to Disciplinary Hearing
Stage 4 of the Disciplinary Process moved to the Disciplinary Hearing on the recommendation of the investigators’ report of September 2014. The investigation should have offered her the opportunity to defend herself and to have this put to her employer in the report but this did not happen.
There is no evidence from her employer as to how they processed the information provided by the investigators. Whether, in the absence of any input from her in the investigators’ report, they looked at the information and material that she provided, independently themselves, and gave it any weight before deciding to proceed with the Disciplinary Hearing. Her employer has failed throughout the various processes since the 1st of the 12th 2006, to set out any detail as to the grounds for concern in relation to her social work practise.
The Disciplinary Hearing
The disciplinary procedure of the Respondent states as follows in respect of the Disciplinary Hearing;
‘The decision maker will be the relevant national director. The National Director…may delegate authority to the appropriate assistant National Director. The National Director, National Hospital’s Office may delegate authority to a Hospital Network Manager.’
This in her view implies that the person who will deal with the Disciplinary Hearing will be someone coming to the procedure without previous involvement. Someone who will have a fresh perspective. Someone who will be independent and impartial. Someone, other than the person who invoked Stage 4 of the Disciplinary procedure and accepted the Report of the Disciplinary Investigation. This did not happen in her case. Ms. M.S., who invoked Stage 4 of the Disciplinary Procedure, accepted the Report of the investigators and was also the sole decision maker at the Disciplinary Hearing.
No reasonable person would view this as fair process. Ms. S could not have come to the hearing stage with an unbiased perspective having made a judgement already in accepting the investigative report.
The Disciplinary Hearing took place on January the 16th. On the instruction of the High Court, a stenographer was present. Following the Disciplinary Hearing, Ms. S decided that she was to be dismissed. She produced no reports for coming to this decision. It was not clear how she processed the information available to her from both sides. It is not clear at the hearing and what weight she gave to the information she provided, in particular, as her input had not been referred to in any of the previous report.
She appealed the decision to dismiss her.
Dismissal Appeal:
The appeal against her dismissal was heard over two days in April 2015.
The supervision policy and disciplinary procedure require and provide for the recording of procedures put in place to address problems arising with an employees work. In the absence of any such evidence, her dismissal from work must be deemed unfair.
She would have to question whether the procedures of the Disciplinary Process and the Supervision policy which protect the employee had been ignored in this instance.
She subsequently made an Ad Misericordiam Appeal but this was unsuccessful.
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Preliminary Issue- Time Limits
The Complainant filed her complaint with the Workplace Relations Commission on the 26th of November, 2015. The Complainant’s employment was terminated on the 26th of February, 2016. The Complainant’s complaint is outside the 6 months time limit as is allowed for under Section 8(2) of the Unfair Dismissals Act, 1977. The Complainant sought an extension of the time limit on the following grounds;
- That is took her a significant period of time to prepare her submission in relation to this particular complaint as she had to prepare her case without the benefit of legal advice or assistance.
- That she has had a long-running dispute with the Complainant for over 8 years and as a result she had significant work to do to properly prepare material for her case.
Decision in relation to Time-Limits
Based on the evidence presented by the Complainant, I have decided to allow an extension of the time-limit in order for her to present her case.
Findings:
The Complainant was dismissed from her position as a Social Worker following an investigation and a disciplinary hearing under Stage 4 of the Respondent’s Disciplinary Procedure. My jurisdiction in relation to this compliant is confined to the Disciplinary Process which resulted in the decision to terminate the Complainant’s employment, namely the investigation and Disciplinary Hearing held under Stage 4 of the Respondent’s Disciplinary Procedures and subsequent appeals.
The Complainant raised a number of concerns in relation to the Stage 4 of the Disciplinary Procedure as carried out by the Respondent.
I find that the Respondent had no choice but to invoke Stage 4 of the Disciplinary Process based on the allegation made against the Complainant. The allegation, if it was substantiated could result in the Complainant’s dismissal, therefore the appropriate stage of the procedure to invoke, where an employee is at risk of a dismissal, is Stage 4.
I find that it was reasonable for the Complainant to be placed on suspension based on the allegation made against her.
I find that the Complainant was made aware of the allegations made against her, which were the subject matter of the investigation under Stage 4.
I find that the Complainant was issued with a letter, setting out the Terms of Reference for the commissioning of a Stage 4 Investigation.
I find that the delays were caused due to the demands made by the Complainant’s Solicitor in seeking to challenge the various Stages of the Disciplinary Procedure. In addition, the process was delayed further by the Complainant who filed complaints to the Rights Commissioner Service and to the Labour Court. In addition, she sought an interlocutory injunction in the High Court to stop the investigation proceeding.
I find that adequate details of the investigators were provided to the Complainant’s solicitor on the 16th of August, 2013.
7. That the Complainant takes issue with the standard by which her competence was judged in the investigation by the investigators. That their findings were based on a consideration of her Social Work records only.
The allegation that was being investigated was that;
“The Complainant’s practice competence is not of the required professional standard to deliver an effective and safe social work service in a hospital setting.”
The standard, by which the Complainant was to be judged, was the standard necessary to deliver and effective and safe social work service in a hospital setting. This is the absolute minimum standard. The appointed investigators were suitably qualified to consider and judge the Complainant’s practice, by reference to such standard. The standard by which the Complainant was judged was the standard required to deliver an effective and safe social work service in a hospital setting. I find that the investigators were two experienced, independent professional Social Workers.
I find that the Complainant was afforded the opportunity to offer comments on the notes of her interview which were provided in advance of the investigators forming their conclusions.
I find that the investigators were independent in the role that they carried out. The Complainant was furnished with a draft report containing preliminary conclusions and had an opportunity to submit extensive submissions to the investigation team which she did prior to the finalising of their report.
I find that the investigators made it clear that they had considered all that the Complainant had put before them during the course of the investigation.
11. That Ms. S. was not an impartial judge.
I find M.S. invoked Stage 4 of the Disciplinary Process. She did not adjudicate on the allegations against the Complainant, which was the role of the investigators. Ms. S. conducted the Disciplinary Hearing, for the purpose of deciding whether a sanction was appropriate. She acted in an independent and professional matter in carrying out her role. An appeal was made by the Complainant. An independent appeal body heard her appeal over two days and upheld the dismissal decision.
Recommendation:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act and under Section 8 of the Unfair Dismals Act, 1977.
Based on both written and oral evidence presented by both parties, I find that this Complaint is not well-founded and therefore fails. The Respondent carried out Stage 4 of the Disciplinary Procedure in line with Due Process and fair procedures. The Respondent ensured that the investigation was conducted by qualified, independent personnel. The Complainant availed of legal advice throughout most of the process. The Complainant appealed the dismissal decision and the appeal was conducted by an independent body who upheld the dismissal decision.
Dated: 29 November 2016
John Walsh
Adjudicating Officer