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-00009228-001

23/01/2017

The   Complainant works as a Staff Nurse in a Co. Dublin based voluntary   organisation that provides health and social care services, including age   related services, in partnership with the HSE.

On   the 3^rd March 2016, the Complainant received a phone call from the   Assistant Director of Nursing (ADON) informing her that a complaint had been   made in relation to the care of a patient while the Complainant was on duty   the previous evening (the night of 2^nd and 3^rd March   2016). The complaint, set out in a written   statement and report form, was made by the daughter of an elderly patient,   who claimed that her Mother had been treated badly and neglected during the   night.

The   Complainant alleges that she was asked by the ADON to submit a statement,   summarising the events while she was on duty on the 2^nd/3^rd   March, and to do so immediately. The   Complainant attended work the following day and stated that she handed her   statement to the ADON, who then handed her a copy of the actual complaint.

On   the 7^th March 2016, the Complainant received correspondence from   the HR Department informing her that in accordance with the Trust in Care   Policy (“copy enclosed for your reference”), a full investigation was   required to establish the facts of the alleged incident. The complainant was to be suspended with   pay, with immediate effect, until the investigation concluded. The letter also notified the Complainant   that the appointed investigation team would want to meet with her to   establish next steps, including agreeing the terms of reference for the   investigation.

The   Trust in Care Policy is an agreed policy for HSE employers on “Upholding the   Dignity and Welfare of Patient/Client and the Procedure for Managing   Allegations of Abuse against Staff Members.”   Its stated aims are two-fold; “to outline the importance of the proper   operation of human resource policies in communicating and maintaining high   standards of care amongst health service staff” and “to ensure proper   procedures for reporting suspicions or complaints of abuse and for managing   allegations of abuse against health car staff in accordance with natural   justice.”

The   document states that when allegations of abuse of patients are made against a   staff member, the welfare and safety of the patient is of paramount   importance. However, it also   acknowledges that “staff members may be subjected to erroneous or vexatious   allegations which can have a devastating effect on the individual’s health,   career and reputation”.

The   policy states that in cases of alleged abuse the ‘Manager’ must immediately   notify the staff member against whom the complaint is made of the details of   the allegation and advise that a preliminary screening process (to establish   if a full investigation is warranted), will be undertaken. The staff member must be advised in advance   of his/her right to be accompanied at this meeting by a Union representative   or work colleague.

The   policy includes a section (5.2) on Protective Measures. It is made clear that these are protective   and not disciplinary measures and may include putting the staff member off   duty with pay pending the outcome of an investigation. In this section, it is also stated that “putting the staff member off duty pending   the outcome of an investigation should be reserved for only the most exceptional   of circumstances”.

In   this case the period of administrative leave (suspension) continued for   approximately 12 weeks. The original   complaint and the issues arising from it have been the subject of a   preliminary screening, investigation, meetings between the parties and their   representatives and the extended use of the hospital’s grievance procedures,   without resolution, practically up to the date of this hearing (30^th   March 2017).

The   Complainant, represented by INMO, stated that she suffered stress, anxiety   and reputational damage due to the failure of management to adhere to proper   procedure and the procedures outlined Trust in Care policy that is in place   in the HSE since 2005.

In   correspondence to the HR Department on the 4^th April 2016, the   Union representative expressed his concern as to management’s handling of the   issue. He claimed that the Complainant   was asked to provide a detailed statement of the events of the night of the 2^nd/3^rd   March, without being informed of the details of the actual complaint.   Accordingly, he advised that the Complainant’s statement cannot be relied   upon by management as she was denied her right to fair procedure (that is, to   be informed of the detail of the complaint against her prior to providing   management with her statement).

This   correspondence also stated that the Complainant was not invited to a meeting   in relation to a preliminary screening under the Trust in Care Policy (at   which she would have been entitled to be represented). It also stated that under the Trust in Care   policy an investigation team must be agreed between the parties, rather than   management having the authority to appoint its own.

A   meeting took place on the 14^th April 2016 attended by the HR   Manager, a colleague from the HR Department, the Complainant and her   Representative. In a letter of the 18^th   April 2016, the Union Representative contends that during the meeting the HR   Manager agreed to the following:

1. That the Complainant was not given   sight of the complaint against her before she submitted her statement and was   only handed a copy of the complaint after she had presented her statement.

2. The Complainant was not made aware   that a preliminary screening process had commenced, was not asked to submit a   statement as part of this process and was not invited to a meeting as part of   the process. The HR Manager also   agreed that the safety Committee, in reaching a decision to place the   Complainant on administrative leave, would have used and relied on the   Complainant’s statement, which was submitted without her having sight of the   actual complaint.

3. It was agreed that the Complainant   would re-submit a new statement, to be reviewed as part of a new preliminary screening   process.

The   Representative also expressed his concern that the complainant was suspended   in the first instance, in relation to an allegation that was at the “lower   end of the spectrum”, given the typical nature of matters often investigated   under the Trust in Care policy.

This   correspondence concluded by stating that at the meeting if the 14^th   April management was informed that due to the serious breaches of procedure   redress would be sought for the Complainant, a position they allege was   agreed. In this letter the Union   Representative specified a claim for 4 weeks’ annual leave and €10,000 in   compensation for the “potential reputational damage, unnecessary stress and   anxiety and a breakdown of trust in the employer/employee relationship”.

The   Respondent stated that they operate two policies dealing with allegations of   abuse or neglect of patients or service users. These are the Protection of Vulnerable   Adults Policy and the Trust in Care policy.   They contend that when a complaint is received concerning an   allegation of abuse or neglect, the normal practice is that the complaints   are addressed at first instance under the Company’s policy on the Protection   of Vulnerable Adults.

The   first step in this process is that a preliminary screening is undertaken by   the Hospital’s Safeguarding Committee and if it believes that an abusive   interaction may have occurred, and the allegation is against a staff member,   the matter is referred to the Trust in Care policy.

The   Respondent stated that on the 4^th March 2016 the Complainant   submitted a statement of her version of the events of the night of the 2^nd/3^rd   March. At this stage the preliminary   screening process under the Protection of Vulnerable Adults policy had   commenced. The Safeguarding Committee   subsequently decided that abuse or neglect may have occurred, and the matter   was progressed under the Trust in Care policy.

The   Respondent acknowledged that a dispute exists as to if the Complainant was   asked to submit her statement without having sight of the complaint against   her, but stated that it was clear from the details in the statement that the   Complainant was aware of the detail of the allegation against her.

The   Respondent refutes the claim made in the INMO letter of the 14^th   April, that the HR Manager agreed to redress for any alleged breach in   procedures, as the purpose of the meeting was to seek clarity on the concerns   raised by the INMO only.

Outlining   their position in their submission the Respondent states that allegations of   abuse or neglect are in the first instance subject to the application of the   Protection of Vulnerable Adults policy, and that the Complainant is familiar   with this approach having received training in its operation.

They   also referred to a recent Labour Court decision (Pinnacle Security V An   employee), that held that although the claimant had not received a written   copy of the complaint against him (as per the Company’s procedures), as the Company   had put the substance of the complaint to him, and he was aware of its   details, “the flaw was not fatal to the   procedures deployed”.

The   Respondent stated that whatever about the initial investigation, it is   accepted that the Respondent had received a copy of the complaint against her   when the matter was subsequently dealt with under the Trust in Care policy   and “therefore any alleged procedural flaw in this regard was nonetheless   rectified”.

The   Respondent informed the hearing that following the second preliminary   screening (under Trust in Care), it was decided that no further investigation   was warranted and the Complainant was reinstated in her position (having   suffered no financial loss). They   contend that the Complainant did not suffer any reputational damage, as   placing her on administrative leave did not infer any wrongdoing (but was a   safeguarding measure) and the process was confidential. Also, they stress that the Trust in Care   policy allows for a staff member to be placed on administrative leave at any   point in the process, including prior to preliminary screening and that in   the circumstances it was fair and reasonable and in line with Company policy.

The   written submissions and the evidence heard at the Hearing present radically   different versions of what was discussed at the meeting of the 14^th   April 2016. The Union Representative   offered his recollection, supported by the Complainant, while the Company’s   version was articulated by their Representative, supported by various   correspondence, including a letter dated the 29th April, from the HR Manager   to the INMO (the HR Manager is no longer employed by the Respondent and did   not attend the Hearing).

In   a file note titled ‘Summary of Events on 4/3/2016’, completed by the ADON and   included in the appendices by the Respondent, the ADON states that when she   telephoned the Complainant on the 3^rd March, she informed her of   the complaint, the name of the patient involved and “I asked her to reflect   on her interactions” with the patient and that she asked the Complainant to   meet with her the next morning and she would give her the complaint report   form. She adds that she was “happy to   do this”. She states that it was only   when they met the following day that she informed the Complainant that they would   require a statement in writing from her in response to the complaint. She concludes that the Complainant then   handed her a single sheet of paper and said it was her statement.

The   Complainant stated that during the phone call with the ADON on the 3^rd   of March, she was asked to prepare and submit a statement and to do so   immediately and when she passed it to the ADON the following day, she was   still unaware of the detail of the written complaint made against her.

The   Company’s correspondence to the INMO dated the 29^th April 2016   states that the Complainant was provided with a copy of the complaint by the   ADON on the 3^rd March 2016 and subsequently the Complainant   provided a written statement. This   does not accord with the file note referred to above, while in a strongly   worded reply, the Union stated that at the clarification meeting of the 14^th   April management had accepted the Complainant’s version of the events of the   3^rd and 4^th March.

Based   on the evidence I am satisfied that during the phone call of the 3^rd   March, the Complainant was asked to prepare a statement summarising the   events of the previous night and requested that she bring it with her to the   meeting arranged for the following day.   I am also satisfied that it was at this meeting that she was provided   with a copy of the complaint made against her.

The   Respondent relies on its Protection of Vulnerable Adults policy for the   substantive part of its defence of this claim. The INMO representative told the Hearing   that this policy has not been agreed by the Union and is the subject to   ongoing discussions involving the WRC, and that matters of this nature,   leading to the suspension of one of its members, should be dealt with under   the procedures outlined in the Trust in Care Policy only, which has been in   place since 2005.

In   this case, following a preliminary screening under the Protection of   Vulnerable Adults policy, the Safeguarding Committee recommended that the   Complainant be suspended on full pay, subject to the matter proceeding to an   investigation under the Trust in Care Policy.   The preliminary screening under Trust in Care was completed about   three months later.

Following   the preliminary screening meeting under the Trust in Care policy the hospital   wrote to the Complainant on the 7^th June 2016 to inform her that   no further action would be necessary in relation to the complaint against her   and it was being recommended that she be removed from suspension with   immediate effect (reference was made to how the patient perceived that she   had received her medicine inappropriately and that there was also a failure   to reassess the patient’s level of pain).

Later   that month the INMO contacted the respondent referring to its claim lodged in   previous correspondence and seeking that it be addressed. On the 29^th of June, the HR   Department advised the INMO that if the Complainant was unhappy with the   outcome of the preliminary screening process, she could have her concerns   addressed under the Hospital’s grievance procedure.

A   meeting took place on the 22^nd September 2016 and in a detailed   letter dated the 21^st November 2016 the hospital informed the   Complainant that after assessing the available evidence the Company believed   it had acted reasonably and in line with policy, procedures and natural   justice. She was informed of her right   to appeal against the outcome (as per the Grievance Procedure) to the Interim   CEO. The INMO representative issued a   detailed response rejecting the outcome of the grievance investigation.

The   appeal, heard by the recently appointed CEO, following further correspondence   between the parties concerning the claim and the time that had elapsed, took   place on the 21^st March 2017.   In correspondence dated the 29^th March 2017, the CEO   confirms the Company’s position that the claim for compensation is not   warranted and advised that the next stage in the grievance process is to   refer the matter to an independent third party.

The   haste in which the Respondent completed the preliminary screening process   under its Protection of Vulnerable Adults policy, resulting in the Respondent   being placed on administrative leave within days of the alleged incident,   stands in stark contrast to the duration of the subsequent   screening/investigation under Trust in Care and the grievance hearings that followed.

I   find that the Respondent’s explanation that it relied on its Protection of   Vulnerable Adults policy and its procedures to arrive at a decision to place   the Complainant on administrative leave to be inconsistent; and that their   actions, in the hours and days following the patients’ complaint, were hasty   and ill-founded.

In   correspondence and in its submission, the Respondent states that the   Complainant’s suspension was with pay and she suffered no financial loss,   that she was cleared of any wrongdoing and reinstated in her original   position. However, given that she was   a Staff Nurse with ten years’ service with the organisation and based on the   details of the allegation made against her, I find that the Complainant was   entitled to more protection than she was afforded and that the Company’s   decision to place her on administrative leave did not afford her the right to   natural justice.

Finally,   I find that there are substantial differences between this case and the   Pinnacle Security Case. In the latter,   the Complainant admitted the substantive elements of the complaint and given   the serious nature of the incident and other factors, the Company’s failure   to follow its procedures was not found to be fatal to its decision to dismiss   the employee.   However, I find that   in this case, the incident, as alleged in the patients’ report, was not of a   level of seriousness that might excuse the Respondent where a procedural flaw   took place.

I find that   the complaint is well founded and is upheld. Having regard to all of the circumstances I   award the Complainant compensation in the sum of €6,000 and one weeks’ annual   leave, to be taken by agreement. The   award of €6,000 is exempt from tax as per the provisions of Section 192A   Taxes Consolidation Act 1997 (TCA 1997).

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