Complainant

Respondent

Anonymised Parties

An Employee

A Health Care Provider

Representatives

SIPTU

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00010721-001

10/04/2017

The Complainant commenced employment with the Respondent as a Care Assistant in February 2013.

The Respondent received a complaint in relation to the Complainant’s use of a hoist, on his own, when attending to a patient. It was alleged that the Complainant’s action, in this regard, was in contravention of the Respondent’s Manual Handling Policy and of the HIQUA Safety Alert 002/2012. The facts of the complaint are not in dispute.

The Respondent conducted an investigation into the complaint. Following the investigation it was determined that disciplinary action was warranted. The Complainant was then taken through a disciplinary process and was issued with a sanction of Final Written Warning on 9 February 2017.

The Complainant appealed this decision on 10 February 2017, on the basis that the sanction was disproportionate to the offence.

The Complainant submitted his complaint to the WRC on 10 April 2017.

The Complainant’s Appeal was heard on 29 June 2017. The Appeal upheld the original sanction of Final Written Warning.

Representation was made on behalf of the Complainant on two grounds. The first of these related to mitigating circumstances. The Complainant accepted, from the outset, that he had not followed the appropriate protocol in relation to the required manual handling techniques in assisting the service user on the date in question. However, he contended that there were mitigating circumstances which underpinned his decision.

On the occasion in question the Complainant looked for assistance before using the hoist but none was available. The Complainant contends that, as a result of their being no assistance available, he was faced with a moral dilemma – to leave the service user in distress or operate the hoist on his own. The Complainant stated that he chose the latter course of action and believes that this decision should not have resulted in the sanction of Final Written Warning.

The second issue raised by and on behalf of the Complainant related to the investigation and disciplinary process, which it is contended contained serious and fundamental flaws. The following were identified as the flaws in the process:

a) The Complainant was not advised of his right to representation at the initial engagement.

b) The Complainant, or his representative, was not allowed to interview the parties who made the complaint to management.

c) The investigation into the allegations determined that the Complainant should be subjected to disciplinary action. This meant that the decision to impose a disciplinary sanction was pre-determined in advance of the disciplinary process.

d) The delay in conducting the Appeal Hearing.

Based on the above submission, the Complainant requested a favourable recommendation.

The Respondent contended that, due to the very serious nature of the incident in question, they had no option but to issue a Final Written Warning. The Respondent stated that the Complainant was fully aware of the risks, both to himself and the service user.

It was also contended that the Respondent completely disregarded management instruction by the unassisted hoisting of the service user.

The Respondent further stated that the Complainant, by his action in this regard, placed the facility and its reputation at risk by not following these clear instructions, which are underpinned by the regulatory body for the sector.

Secondly, the Respondent contended that fair procedure was followed at all times during both the investigation and subsequent disciplinary process. In support of this view, the Respondent presented the following:

a) The Complainant was put on notice when the complaints were received.

b) The complaints were investigated and the Complainant was afforded union representation at the investigation hearing.

c) Following the investigation it was decided that disciplinary action was warranted.

d) The disciplinary panel consisted of two experienced, independent Directors of Nursing.

e) The Complainant was represented at the disciplinary meeting.

f) The Complainant was provided with the right of appeal of the disciplinary sanction and, when he exercised this right, his appeal was heard by two experienced Senior Managers.

On the basis of the above, the Respondent contends that they dealt fairly with the Complainant.

In summary, the Respondent requested that the disciplinary sanction be upheld.

I carefully considered all the evidence presented by and on behalf of both parties.

While I can empathise with the Complainant’s dilemma when he was unable to source assistance in the instance, his action in proceeding to use the hoist unassisted was clearly in breach of well established protocols, which the Complainant himself was clearly aware of.

I am satisfied that the Complainant’s action attracted considerable risks on a number of levels. Consequently, I am fully satisfied that the Respondent’s decision to treat this as a disciplinary matter was correct.

With regard to the conducting of the investigation and the disciplinary process, I find that the issues raised on behalf of the Complainant have significant validity. There is clear evidence of pre-judgement and the delays in conducting the appeal hearing were unreasonable.

However, not withstanding the above, I do not consider that these procedural flaws, significant though they are, should result in a complete expunging of the disciplinary sanction. The acknowledged contravention of policy and instruction carried a level of seriousness and exposure to risk which clearly require some sanction to be applied.

Based on the evidence presented, the representations made on behalf of the parties and, in line with the findings/conclusion set out in the previous section, I recommend that the original disciplinary sanction of a Final Written Warning be reduced to a First Written Warning which should remain in effect until 30 September 2017.

Disciplinary sanction

Final Written Warning

First Written Warning