ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002845

Complaint/Dispute for Resolution:

Date of Adjudication Hearing: 14/12/2016

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

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

Complainant’s Submission and Presentation:

The complainant commenced work with the respondent on October 1^st 2015 or thereabouts. There were a number of incidents which the respondent regarded as representing poor performance by the complainant but she says that there had been no discussions with her after the incidents in question.

Also she had not been told in the course of her induction about the use of a bell to summon assistance or the correct way to carry out one of the procedures allegedly carried out incorrectly. The induction involved ‘shadowing’ an experienced staff member for a couple of weeks

She also says that she did not get a statement of her statutory terms of Employment as required by the Act.

Respondent’s Submission and Presentation:

The respondent says that there were three incidents which raised serious potential issues about patient safety and welfare, Health and Safety, infection control and failure to follow the respondent standard operating procedures.

The complainant was on probation at the time.

In her direct evidence the Nursing Director outlined that all three incidents were serious and that she had spoken to the complainant on a number of occasions following them.

In one, the complainant took a resident out of bed without following the requirement to wash her first, in another a resident was left suspended on a hoist when the complainant went to seek assistance and in another the complainant left a resident in an undignified position on her own in her room.

The Director praised the complainant’s ‘kindness and caring attitude’ but said she showed a reluctance to follow the procedures in force in the Nursing Home.

Findings and Conclusions

On the facts of this case and in the context of the particular workplace an adjudicator must show considerable deference to the professional judgement of the Nurse in charge of the respondent facility.

Where elderly, frail patients are involved, the tolerance which might be permitted to someone on a learning curve in another environment; manufacturing or retail services for example, is substantially less for obvious reasons. Any mistake could be very costly in terms of resident welfare.

Accordingly, I find the respondent acted reasonably on the basis of the repeated incidents in bringing the probationary period to an end and no unfairness attached to the decision.

I find that the complainant was not provided with a statement of her Terms of Employment, although this seems to have been prepared and placed on a file. This does not conform with the provisions of the Act which require it to be given to the employee. For good measure a record of receipt should be sought and retained on file.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

I uphold complaint CA-00004051-001 under the Terms of Employment (Information) Act 1994 and award the complainant one weeks pay.

I do not uphold complaint CA-00004051-002 under the Industrial Relations Acts and that complaint is dismissed.

Date 08/03/2017