FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : A HOSPITAL (REPRESENTED BY BYRNE WALLACE SOLICITORS) - AND - AN EMPLOYEE DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appeal of Adjudication Officer Decision No(s) ADJ-00000739.
BACKGROUND:
2. The Respondent and the Complainant appealed the Decision of the Adjudication Officer to the Labour Court on the 6th and 9th January 2017 respectively in accordance with Section 8(A) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on the 14 September 2017. The following is the Court's Determination:
DETERMINATION:
This is a joint appeal against the Decision of an Adjudication Officer under the Unfair Dismissals Act 1977 – 2015 (the Acts) in a claim made by an employee against her former employer, a Hospital, where she alleged that she was unfairly dismissed. By decision dated 29th November 2016, the Adjudication Officer held that the complaint was not well founded.
For ease of reference the parties are given the same designation as they had at first instance. Hence the employee will be referred to as “the Complainant” and the Hospital will be referred to as “the Respondent”.
The Complainant referred her case to the Workplace Relations Commission on 26th November 2015.
Background
The Complainant was employed by the Respondent as a Social Care Worker from 17th April 2001. By letter dated 26th February 2015 the Complainant was informed that she was dismissed from her employment following an investigation and disciplinary hearing under Stage 4 of the Respondent’s Disciplinary procedure. The Complainant alleged that she was unfairly dismissed contrary to the terms of Section 7 of the Acts. The Respondent denied the Complainant’s allegation and submitted that heremployment was terminated following a comprehensive process and investigation into allegations made against the Complainant.
The Complainant was a qualified teacher prior to undertaking studies in Social Work between 1992 - 1994 in Wales. Her first post as a social worker was with Oxfordshire County Council, later she worked with Sperrin Lakeland Trust in Northern Ireland before taking up her post with the Respondent. In 2006 she completed an MA, with her dissertation on “Cultural Competence within Social Work Assessments”.
Following complaints made by her line manager and two others on the 1st December 2006, an investigation was carried out, she was suspended with pay in July 2007 and remained suspended until she was dismissed in May 2015.
Outlined below is a brief chronology of events leading to the Complainant’s dismissal:-
Review of Social Work Cases - 2007
In 2007 Mr A, Group General Manager of the Hospital asked Mr Waters, Principal Social Worker, St Joseph’s Hospital, Trim to conduct a review of the Complainant’s Social Work Cases. The Complainant declined to participate in the review and instructed her Solicitor to communicate with the Respondent. This review concluded on 29th June 2007 that the Complainant was not competent to undertake the duties to which she was assigned. However, in the absence of her involvement in the review process Mr Waters recommended that a further independent panel review process should take place and should include the Complainant’s participation. He also recommended that the Complainant should be removed from any involvement in social work duties.
Practice Review February - 2007 – July 2010
The above recommended independent panel review took place. The review was carried out by Colm Lehane, Director of Clara Learning Limited (Chairperson); Anne Marie Jones, Head Medical Social Worker, Mater Hospital/Children's University Hospital, Temple Street, Dublin and Erna O'Connor, Lecturer in Social Work and Fieldwork Co-ordinator, School of Social Work and Social Policy, Trinity College, Dublin.
The panel reviewed approximately 60 of the Complainant’s case records of her work carried out in the period from 2001 to 2007, 10 of which were selected by the Complainant. The aim was to review the professional social work practice competence of the Complainant against specified competencies.
The panel gathered information from meeting the Acting Principal Social Workers, from documentation provided, supervision records supplied, a management report from the General Group Manager and meetings with the Complainant. By report dated 9th July 2010 the panel concluded that the Complainant’s practice did not demonstrate competence as reviewed against the competencies set out in the terms of reference. Her practice approach was not of the required standard for a professionally qualified social worker within a hospital setting. Her records demonstrate that she did not recognise clear and present danger and/or risk to vulnerable patients, which could have compromised the safety and well-being of patients. Her lack of core social work skills were such that they could not be addressed and resolved by short term training and development.
Stage 4 Disciplinary Investigation - August 2010 – September 2010
On 17thAugust 2010 the Group General Manager, Ms B, wrote to the Complainant and informed her that having considered the Practice Review Report and having noted the conclusion that there were significant concerns regarding her professional social work practice competence she decided to commission a Stage 4 Disciplinary Investigation into her competence.
This investigation into the Complainant’s professional practice was conducted by two investigators. The work commenced on 2nd September 2013 and the report was finalised on 11th September 2014. The terms of reference included :-
- “To investigate the following allegations of serious misconduct in accordance with Stage 4 of the HSE’s Disciplinary Procedure…..
[The Complainant’s] practice competence is not of the required professional standard to deliver an effective and safe work service in a hospital setting”.
This was conducted by Ms Maeve Drummey, Professionally Qualified Social Worker, Guardian ad Litem and Independent Social Work Consultant and by Ms Elizabeth Oakes, Professionally Qualified Social Worker, Guardian ad Litem and Independent Social Work Consultant. The investigation began in 2013. The investigators did not have access to the Practice Review Report. The Complainant participated in part of the process and then on the advice of her solicitor, she declined to attend for further interview on 23rd May 2014.
The investigation team issued its report (Drummey/Oakes Report) on 11th September 2014 and concluded that the Complainant was unable to demonstrate the required competencies as a Social Worker working in a Medical Setting; she was unwilling to accept that she had any responsibilities in these matters; she was unable to relate to her colleagues and managers in a positive and productive manner; and 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.
The Complainant responded to the Report.
Stage 4 Disciplinary Hearing - January 2015
A disciplinary hearing was held on 30 January 2015. The Complainant was
accompanied by her sister. It was chaired by Ms B, who at this point was the Chief Operations Officer of another Hospital Group. Ms B was the decision maker in this process. By letter dated 26 February 2015 Ms B informed the Complainant that she was being summarily dismissed. The dismissal took effect from 30 January 2015. She was given the right to appeal the decision.
Appeal of Decision to Dismiss - April 2015
The Complainant decided to appeal the Respondent’s decision to dismiss her. The appeal was heard by the HSE Dismissals Appeals Committee on 13th & 27th April 2015. The result of that appeal was made known to the Complainant on 28th May 2015 when she was told that her appeal was unsuccessful and that she would be removed from the payroll on that date.
Ad Misericordium Appeal – July 2015
The Complainant then submitted an ad misericordium appeal as provided for under the Respondent’s Disciplinary Procedure. The appeal was heard by Mr Tony O’Brien, Director General, HSE. On 15th July 2015 she received notice that her ad misericordium appeal was unsuccessful.
Preliminary Issue
Ms Máiréad McKenna, B.L., instructed Byrne Wallace Solicitors, on behalf of the Respondent raised a preliminary issue. Without prejudice to its position on the substantive case, Ms McKenna raised an objection to the Court’s jurisdiction to hear and determine this appeal on the basis that the Complainant had not lodged her complaint within the time limit prescribed by Section 8 of the Acts.
A Court hearing was held on 23rd May 2017 to hear from both parties on the preliminary issue.
By Determination UUD1731 issued on 16thJune 2017, the Court found that the Complainant had lodged her complaint within the time limit prescribed by Section 8 of the Acts. Therefore the Court dismissed the Respondent’s preliminary objection and proceeded to hear the substantive case on 14thSeptember 2017.
Summary of the Respondent’s Case
On the substantive case, Ms McKenna also provided an extensive written submission to the Court and referred to various authorities in support of the Respondent’s position. She submitted that there were substantial grounds justifying the termination of the Complainant's employment. She said that the Complainant’s employment was terminated following a protracted investigation/ disciplinary and appeal process which afforded her all of her rights and entitlements.
Ms McKenna stated that the disciplinary process which led to the Complainant’s dismissal commenced on the 17th August 2010, when the Complainant was informed by letter of that date that as a result of serious concerns in relation to her competency, an investigation would be carried out under Stage 4 of the HSE Disciplinary Procedure into her social work practice competency. The letter was written by Ms B, the then Group General Manager of the Respondent’s Hospital Group. This decision was made in light of serious conclusions contained in a written report that had been produced by an independent expert practice review group, chaired by Mr Lehane, who had been appointed to carry out a review of the Complainant's social work competence on foot of concerns about her work performance. The conclusions were as follows:-
- "We conclude that [the Complainant’s] practice does not demonstrate competence when reviewed against the competencies set out in the Terms of Reference.
The practice approach of [the Complainant], as evidenced through the case records reviewed, is not of the required standard for a professionally qualified social worker within a hospital setting.
In some case situations the evidence of practice in the case records did not recognise clear and present danger and/or risk to vulnerable patients (children, young people and adults).
We are concerned that the practice approach, as evidenced within the case recordings, failed to respond to opportunities to address risk and in some situations danger. This failure could have compromised the safety and wellbeing of patients.
In our judgement, the extent of the concerns highlighted in this review,
particularly the lack of evidence of core social work skill (in assessment, risk analysis and management, counselling and provision of psychosocial interventions), are such that they cannot be addressed and resolved by short term training and development input."
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 2 years was taken up seeking to address various issues raised, these included:-
- a)the terms of reference for the investigation;
b)the identity of the investigators;
c)the nature of the material that the investigators should have sight of;
d)the nature of the materials The Complainant should have sight of and
e)the nature and detail of the charges being levied against her.
Ultimately the Respondent made a number of significant concessions in an attempt to start the investigation. It agreed to stand down one of the investigators and to replace him with someone acceptable to the Complainant. At the Complainant’s insistence, it was agreed that the investigators would not be provided with the Practice Review Report and 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. The investigators appointed were external and independent with extensive experience practicing social work and had experience carrying out reviews and investigations. The two investigators appointed were Ms Maeve Drummey and Ms Elizabeth Oakes.
Ms Mc Kenna said that when it was clear that the investigation was going to commence, the Complainant made a complaint to the Rights Commissioner Service (as it was then known) pursuant to the Industrial Relations Acts and asked the Respondent to stay the investigation in the interim. Before the Rights Commissioner, the Complainant raised issues regarding the previous processes / reviews / delay / her suspension/ lack of particulars of the allegation/ relevant standard/process was 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 the Complainant’s favour. Ms Mc Kenna stated that both concluded that the Complainant should continue with the investigation and let the process conclude.
In June 2014 the Complainant then instituted proceedings before the High Court seeking to restrain the investigation. This application was heard by Justice Gilligan on the 22nd July 2014. Again the Complainant raised the same issues. The Court refused to restrain the investigation or to grant the relief sought. Ultimately the Complainant participated in the Stage 4 Process and in doing so she had the benefit of extensive legal advice from her 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 her, the investigators produced a final report on the 11th 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. In so doing they took into account the Complainant's submissions.
Ms McKenna gave details of the disciplinary hearing which followed the completion of the Stage 4 investigation. She said that on foot of the report, a disciplinary hearing was convened by Ms B 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 this hearing. The hearing took place on the 30thJanuary 2015. Ms B communicated her decision to dismiss the Complainant by letter dated 26th February 2015.
The Complainant appealed that decision and an appeal hearing was held over two days by an independent external appeal panel comprising Mr John Doherty who has extensive experience in employment matters, acting as Chair; Mr Brian Kirwan, HR Director HSE and Mr Stephen O'Neill, Assistant General Secretary IMPACT. The Complainant furnished extensive written submissions and made extensive oral submissions to the appeal panel. The appeal panel upheld the decision to dismiss. The Complainant followed this with anad misericordiumappeal to Mr Tony O'Brien, Director General, HSE. He upheld the decision to dismiss.
- Relevancy of Matters before Stage 4 Process
Counsel for the Respondent referred to the Complainant’s reliance on the events which arose in December 2006 when she says she became aware, through the Group Manager of the Hospital, that three complaints were made against her, one of which related to her social work practice. Ms McKenna stated that this position advanced by the Complainant must be contrasted with the position she adopted (with the benefit of legal advice) in the years following these events where the Complainant spent two years engaging in legal correspondence to ensure that the general background to the concerns regarding her were not communicated to Ms Drummey and Ms Oakes who were appointed to conduct the investigation into her competency levels.
Therefore, Ms McKenna submitted that these matters articulated by the Complainant (some of which date back to the commencement of her employment and the earlier processes embarked on by the Respondent into her practice) are not relevant in respect of the decision to terminate her employment. They were not matters which were before neither the investigators nor the decision-maker in the Stage 4 process that resulted in the Complainant's dismissal.
Witness Testimony – Ms B
Ms B gave evidence on behalf of the Respondent. She is currently Chief Executive Officer of another Hospital. Prior to that appointment she was the Respondent’s Group General Manager with the Respondent’s Hospital Group. Ms B told the Court that she was the decision maker who made the decision to terminate the Complainant’s employment.
Ms B said that when she took over the role as Group General Manager in May 2010 she proceeded to examine all ongoing staff issues. By letter dated 17th August 2010 she wrote to the Complainant referring to the review of her work which had been commissioned in 2007, and stated that the findings of that report were of serious concern to her in that they appeared to indicate that she may not be competent to practice as a professional social worker. Ms B told the Court that on that basis she made the decision to commission a Stage 4 Disciplinary Investigation into her competence.
Ms B said that following this decision, there was a long process of correspondence over a three year period between the Complainant’s Solicitors and the Respondent’s Solicitors concerning the Complainant’s objections to the investigating team and its investigative process. She said that as a result the Respondent made a number of concessions to the Complainant, including agreeing not to supply the investigation team with a copy of the Practice Review Report; asking one of the investigators to step down from the team; details of the allegations against the Complainant were set out on 31stMay 2011, yet they were constantly being sought by the Complainant’s Solicitors; and agreement on the social work cases to be included in the investigation. Further delays were caused by High Court proceedings which were initiated by the Complainant seekinginter alia, a stay on the investigation.
Ms B said that by the time these issues were concluded it was March 2014. At that point the two investigators, Ms Drummey and Ms Oakes commenced their investigation.
Ms B said that the first time she met the Complainant was at the Disciplinary Hearing which she called to discuss the outcome of the Drummey/Oakes report. She said that as the report found that there were serious concerns around the Complainant’s professional practice and her ability to work as a Social Worker in a Hospital setting, she made the decision to hold a Stage 4 Disciplinary Hearing. She said that as General Manager she had a duty to the hospital, patients and staff to hear what the Complainant had to say to these findings. In particular, Ms B said that she was anxious to hear the Complainant’s responses, to see was she aware of the problems identified by the investigators and whether she was willing to undertake training etc. to rectify the problems discovered. However, she found that the Complainant had no insight into the problems with her work, there was no willingness to see any fault in her work, and she simply blamed the system.
Ms B said that following the hearing she took some time to consider her options, however, as the Complainant was unwilling to accept that there were any problems with her work; she was of the opinion that there was no safe way back to work for the Complainant and therefore made the decision to dismiss her.
The witness was asked about the requirement on the Complainant to keep notes/records of her work. Ms B replied that it was an absolute requirement for all staff in the Hospital to keep records of their work, including the Complainant.
She said that in response to the Complainant saying that there were no incidents or adverse outcomes for any patient arising from her practice, Ms B said that she tried to explore what the Complainant meant by this comment and the Complainant’s response was that risk can be an emotive thing. Ms B stated that the Complainant was not being investigated for causing harm to patients but to asses her competence as a Social Worker. She said that to ensure it was a balanced report; the Complainant had, with the assistance of her legal advisor, an input into setting the Terms of Reference.
Under cross examination, the witness was asked why the Complainant was not made aware of the allegation made against her until 22nd March 2013. Ms B responded that the allegations against the Complainant related to her practice competence not being of the required professional standard to deliver an effective and safe social work service in a hospital setting and that she had been informed of this allegation on 17th August 2010. Ms B was asked why the decision to dismiss was not vested in an external person, as provided for in the Disciplinary Procedures. The witness said that in accordance with the procedures, the National Director had delegated those powers to her and that the Complainant was written to by letter dated 22nd January 2015 confirming this position.
The witness was questioned as to the reasons why the Complainant’s input was not included in the Drummey/Oakes report. Ms B disputed this assertion and stated that comments on the report made by the Complainant had been taken into account by the investigators and included as an appendix to the report. She was asked a question on what aspect of the Complainant’s work practice did the Complainant not have insights to. Ms B responded that every time the Complainant was asked whether she accepted blame for the problems discovered in her work practice, she was unwilling to accept that she had any responsibility. Ms B said that the Complainant had refused to engage in a mentoring process. On the basis of the foregoing, Ms B said that she came to the conclusion that there were serious concerns around the Complainant’s professional practice, as found in the Drummey/Oakes report.
When questioned by the Court on the possible options Ms B considered before deciding to dismiss the Complainant, the witness said that she did consider issuing a final written warning; a supervised return to work and/or dismissal. She said that having considered the options she decided against a return to work as the Complainant had not accepted any responsibility for her shortcomings; difficulties with her working with colleagues; her unwillingness to undertake any form of retraining/mentoring and due to consequential safety concerns if she returned to work.
Witness Testimony – Mr John Doherty
Mr John Doherty was nominated by the Respondent to Chair the Disciplinary Appeals Committee under the Disciplinary Policy. He chaired the Complainant’s appeal of her dismissal hearing. It was put to the witness that the Complainant accused him of not approaching the appeal with an open mind. Mr Doherty disputed this and said such a comment was unjustified. He explained that he had chaired the hearing along with the Respondent’s HR Director and an Assistant General Secretary of IMPACT. The hearing was held over two days and a decision was made by the Appeals Committee at a meeting which was held subsequently where the case was fully considered.
Mr Doherty was asked whether the Complainant had at any point accepted any responsibility, or with appropriate training, that she could be brought up to an acceptable competency level. He said that she had not.
Summary of the Complainant’s Case
The Complainant provided an extensive written submission to the Court and referred to various authorities in support of her position. She was unrepresented at the hearing, and told the Court that she had an unblemished career as both a teacher and a social worker until a complaint was made against her by her line manager to the Group Manager in the Hospital on 1st December 2006. She was suspended with pay from July 2007 and remained suspended until her dismissal in May 2015.
The Complainant said that there had been no incident or adverse outcome for any patient arising from her practice. She submitted that problems with her work were inferred on the bases of her social work records alone. Furthermore, there was no evidence that any of the four different supervisors she had during her time in the Hospital had a concern about her competence or record keeping.
In very extensive detail, the Complainant outlined her complaint before the Court. In essence she claimed that her dismissal was unfair because the disciplinary procedures were unfair from the start. She alleged that no allegations were established against her; no evidence was provided to her to support any allegation; her voice/input was absent from all the Reports that were written which led to her suspension and eventual dismissal.
First Review
On 1st December 2006 the Complainant said that she was advised that the Hospital’s General Manager was in receipt of three complaints against her- two by her line manager and one by a colleague. A review of the complaints commenced on that date and was completed by the middle of January 2007. She said that she was not informed of the outcome of that review.
One of the complaints made on 1st December 2006 related to her social work practice and was based on three of her cases. All of these cases had been supervised at the time by her line manager. She said that she had received no direction to do anything differently in her practice arising from these cases. The other two complaints related to her conductviz.(i) she had been uncooperative during a period when there had been a shortage of staff; and (ii) leaving the department without notifying the secretary, both of which she denied.
Second Review
In February 2007 the Complainant said that she was informed by way of an anonymous letter that there was to be a second review of her social work practice.The Complainant contended that throughout all the correspondence from her employer since the 1st December 2006, the Respondent had failed to state what the allegations against her were and had failed to provide her with supporting evidence.
She said that her input was missing from the subsequent Report. The investigator inferred problems on the basis of her social work records alone, yet there was no requirement to keep records in her department at the time.He failed to look at secondary sources to confirm problems i.e. her supervision records.
Third Review
A third review commenced in July 2007. It took three years to
complete. The Complainant contended that there were no allegations against her contained in the terms of reference. This report recommended her suspension from work and recommended a further review as she had not participated in the review.
Fourth Process/Stage 4 of the Disciplinary Procedure
This was invoked in August 2010 and took five years to bring it to conclusion.
The Complainant stated that by letter dated 22nd March 2013 the Respondent formulated an allegation against her for the first time. This was almost six years after her suspension from work and almost three years since invoking Stage 4 of the Disciplinary Process. The Complainant contended that the Respondent provided no evidence to support the allegations made against her.
By a further letter dated 22nd April 2013 the Complainant stated that the Respondent could not provide her with the particulars of the allegations made against her because she had requested that the 2010 Report be withheld from the Stage 4 Investigators.
The Complainant referred to the Respondent’s Disciplinary Procedure which allows it to suspend an employee from work, without invoking Stages 1, 2, and 3, in the context of ‘serious misconduct’ for the purpose of carrying out an investigation. However, she contended that such action is reserved for only the most exceptional circumstances. Therefore she questioned what exceptional circumstances arose in her practice to warrant suspending her in July 2007 if an allegation against her was not formulated by the Respondent until March 2013.
In summary the Complainant claimed that the Respondent failed to comply with its Disciplinary Procedures. She said that the terms of reference for the reviews/investigations contained no allegation against her. In respect of the second and third reviews no information was provided in relation to the procedure being followed or the possible outcome of the reviews. None of the investigators of the second, third or fourth reviews/investigations considered her supervision records. They failed to enquire as to what the policy was on record keeping. Nor did they consider the standard of record keeping in the department, generally, as a benchmark against which to
assess her work.
The First Review produced no Report. She said that she responded to all the reports but that none of her input was included in the final reports, and in the case of the Stage 4 Investigation, her input was misrepresented.
She contended that the Respondent had failed to act reasonably throughout; had denied her the benefit of its disciplinary procedures and had suspended her in a procedural vacuum.
Witness Testimony – The Complainant
As the Complainant was unrepresented at the hearing before the Court, the Court explained to her that her oral and written submissions to the Court could be regarded as her examination in chief upon which she would be cross-examined.
In cross-examination, she was asked if Ms Drummey and/or Ms Oakes were colleagues of hers. She said they were not and while she accepted that they were fully qualified Social Workers she questioned their professionalism as she was not satisfied with their report. She acknowledged that she had agreed the Terms of Reference for the investigation and that the report had investigated ten of her chosen case files and thirty case files chosen by the investigators.
She stated that her supervision notes were not reviewed as part of the process. However, it was pointed out to her that the Drummey/Oakes investigation report noted that her supervisor’s records made specific comments in relation to the Complainant’s shortcomings. In response the Complainant questioned the alleged shortcomings and said that no issues had been raised with her and she referred to missing records in the Hospital.
The Complainant was asked about references she made to the investigators that she had asserted that her work was of a higher standard than that of her colleagues in the Social Work Department. She replied that it would need to be looked at in comparison to others in the Social Work Department. When questioned about the report’s findings that she blamed others for her shortcomings, that there was considerable difficulty in her relationships with her social work colleagues, line managers, administration staff and medical staff. She suggested that the investigators were making this up. She was critical of the investigators for failing to incorporate her views in the report, for misrepresenting what she said and for failing to investigate all other Social Workers in the Department also.
In 2013 the Complainant referred a case to the Workplace Relations Commission and on appeal to the Labour Court under the Industrial Relations Acts to prevent the third investigation from proceeding. The Labour Court recommended that the investigation should proceed. In 2014 she sought an injunction from the High Court to restrain the Drummey/Oakes investigation; however, as her legal team came off record before the hearing she did not proceed with the matter. The Complainant said that she was pleased with the outcome of the Labour Court hearing.
When questioned about the first review of her work which was carried out by Mr Waters, she said that he had misrepresented her work. Similarly when questioned about the second review carried out by Mr Lehane, she said that he had misrepresented her. She said that she has an unblemished career, there was no record of any problems with her work, her work was supervised, and her good work was not acknowledged in the reviews/reports.
It was put to the witness that the delays encountered regarding the commencement of the Stage 4 process were caused by obstacles being put in the way by her solicitor and that in order to appease her the Respondent had made a number of concession to her through her Solicitor however, no concessions were made on her part. She did not agree.
The witness was asked about the Disciplinary Hearing and whether it occurred to her to say that she wanted to hold on to her job and that she would do whatever it took to retain it. She accepted that she had not done so on the basis that there was no problem with her work, her communication skills, her team working relations etc. she said that she was highly regarded as a Social Worker both inside and outside the Hospital. If there was a problem with her work then she needed to be told the specifics, she said that she had had four managers and it was their responsibility to direct her before a complaint was brought to management.
It was pointed out to her that the Drummey/Oakes report included a number of pages reviewing her supervisor’s records on her work practice which highlighted shortcomings in her work and that she was aware of the issues raised. The Complainant disputed the evidence.
In answer to questions from the Court the Complainant said that she did not accept any of the findings of the reviews/reports which found that she was unable to demonstrate the required competencies necessary for a Social Worker working in a medical setting. When faced with the prospect of dismissal she said that she did not accept that she did anything wrong and/or needed any assistance/direction in her work. She said during this long process she could not understand what was happening. When put to her that there were numerous allegations being put to her she replied that it was just a broad brush approach and that there are 80 skills in Social Work and none had been specifically mentioned to her as being a problem.
The Complainant stated that all findings made in the reviews/reports conducted into her work were fabricated, untrue and misrepresented her. She said that this was down to collegiality.
- Legal Argument
Ms McKenna submitted that the role of the Court is to assess whether, objectively viewed, the Respondent's decision to dismiss was within the band of reasonable responses. This test, the “band of reasonable responses” test can only be fulfilled if the Court confines itself to an assessment of the information the Respondent had in its possession at the time the decision was taken. This test was relied upon by the Court of Appeal for England and Wales inFoley v Post Office [2000]ICR1283. As stated by Mummery L.J. (at p. 1295):-
- "This case illustrates the dangers of encouraging an approachtounfair dismissal cases which leads an employment tribunal to substitute itself for the employer or toact as if it were conducting a rehearing of, oran appeal against, the merits of the employer's decisiontodismiss. The employer, not the tribunal, is the proper person to conduct the investigation into the alleged misconduct. The function of the tribunal is to decide whether that investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation, is a reasonable response. "
Ms McKenna also relied upon the decision of the Court of Appeal for England and Wales inAnglian Home Improvements Limited v Kelly[2005] ICR 242 where again Mummery L.J. held:-
- "The first criticism is that the employment tribunal did not correctly direct itself in law to the appropriate range of reasonable responses test. The test has been well established since the early days of unfair dismissal claims. It is still impossible to improve on the passage from the judgement of Lord Denning MR in British Leyland UK LtdvSwift[1981]IRLR91, 93para11cited by Mr. Laddie. The test laid down there was:
- "The correct test is: Was it reasonable for the employerstodismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view: another quite reasonably take a different view. One would quite reasonably dismiss the man. The other would quite reasonably keep him on. Both views may be quite reasonable. If it was quite reasonable todismiss him, then the dismissal must be upheld as fair: even though some other employers may not have dismissed him. "
The Law
Section 6 of the Unfair Dismissals Act 1977, as amended, states, in relevant part, as follows:
- 6.—(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.
(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:- (a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.
- 6.—(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.
Findings of the Court
The Court had the benefit of substantial written and oral submissions in this case.
The Respondent submitted to the Court that the Complainant’s work practice was below the standard required of the Hospital and consequently was regarded as of such a very serious nature as to be deemed gross misconduct under Stage 4 of its Disciplinary Procedures, as outlined in its letter to the Complainant’s Solicitor dated 26 January 2011. It consequently proceeded to carry out an investigation under Stage 4 of its disciplinary procedure into social work practice competency to determine if her work met the required standard.
The Drummey/Oakes investigation into the Complainant’s professional practice’s terms of reference included:-
- “To investigate the following allegations of serious misconduct in accordance with Stage 4 of the HSE’s Disciplinary Procedure…..
[The Complainant’s] practice competence is not of the required professional standard to deliver an effective and safe work service in a hospital setting”.
- “To investigate the following allegations of serious misconduct in accordance with Stage 4 of the HSE’s Disciplinary Procedure…..
The Court must decide not whether the Complainant was competent to carry out her role as Social Worker but to establish whether or not the Respondent was reasonable in that belief and were the grounds for this belief reasonable. Therefore the Court must examine the information the Respondent had in its possession at the time the decision was taken to dismiss the Complainant.
It is clear to the Court that since 2006 there were significant concerns raised by the Complainant’s colleagues and superiors regarding the Complainant’s professional social work practice competency. These were investigated however as the Complainant refused to participate in the process, no disciplinary action could be taken against the Complainant. Had the Complainant participated in the review and engaged in remedial action at this early stage less serious action may have been averted and an improvement in her work may have been forthcoming.
However, as the Complainant did not engage with the Respondent’s review process prior to the Stage 4 Disciplinary Process, the Court is of the view that it is reasonable to examine the events which occurred since that time. Accordingly, in coming to a conclusion in this case, the Court has examined events that occurred since 17th August 2010 when the disciplinary process which led to the Complainant’s dismissal commenced.
The Court accepts that due to the seriousness of the allegations made concerning the Complainant’s work practice competency and her refusal to engage with the process, it was reasonable of the Respondent to initiate a Stage 4 Disciplinary Procedure investigation into her fitness to practice. It is clear that the Complainant was aware since 2006 that there were concerns regarding her work practice and that her competency as a Social Worker was being called into question. It is equally clear to the Court that at no stage, even before the Court, has the Complainant accepted responsibility for the serious allegations made against her work practice competency and its implications for the Respondent. When questioned about the allegations which were put to her under the various investigations carried out, the Complainant told the Court that these findings were all fabricated, that she was misrepresented in the findings and that her work was of a very high standard.
The Court is of the view that to be suspended for a period of seven years is most unsatisfactory and from that perspective, the Respondent did not handle the situation in an efficient manner. The Court understands that a substantial element of the delay was due to the Complainant’s refusal to participate in earlier reviews of her work. This coupled with actions been taken by the Complainant to the High Court, to the WRC and to the Labour Court operated to accentuate those delays. Secondly, excessive delays arose due to the Complainant’s constant objections to aspects of the investigation which resulted in substantial correspondence between solicitors for both sides. These related to the investigators’ terms of reference/the chosen investigators/the methodology used in the investigation. While it is clear that the Respondent made strenuous efforts to accommodate the Complainant and made a number of concessions to her in that regard, the Court is of the view that when difficulties with her work practice were observed at the outset, they should have dealt with in a more expeditious manner.
The Respondent submitted that the Complainant’s dismissal arose out of the findings of the independent investigation which found that she was unable to demonstrate the required competencies as a Social Worker to deliver an effective and safe social work service in a hospital setting. Further, it found that the Complainant was clearly unwilling to accept that she had any responsibility in these matters, which impacted on her ability to practice safely and any supportive remedial intervention by her managers to address the identified problems was likely to have limited success. It found that she was unable to relate to her colleagues and managers in a positive and productive manner. It also found that there were serious concerns around her professional practice, lack of insight and ability to work in a multi-disciplinary team. It concluded that by her lack of record keeping and understanding around the need to use supervision to inform and improve her professional practice, there was a potential serious risk to vulnerable patients in an acute medical setting. In that regard the Court heard evidence from Ms B, who took the decision to dismiss the Complainant based on the findings in the report and her assessment of the Complainant at the disciplinary hearing.
Based on the submissions made, the evidence given and the documents furnished, including the investigators findings and report, the Court is satisfied that an in-depth investigation into the Complainant’s work performance was conducted without pre-judgement or bias which yielded serious concerns for the Respondent, which it was compelled to act upon. The Court is satisfied that having considered less forms of disciplinary action, due to the Complainant’s refusal to accept any shortcomings in her work and her refusal to engage in any form of retraining or mentoring, the Respondent had no alternative but to dismiss her. Having assessed the Respondent’s disciplinary actions and the Complainant’s reactions to the investigators findings, the Court is satisfied that the decision to dismiss was reasonable in all the circumstances.
The Court is therefore satisfied that there were substantial grounds justifying the dismissal of the Complainant from her employment and that, accordingly, the dismissal was not unfair. The Complainant's complaint of unfair dismissal therefore fails.
Determination
The Complainant was not unfairly dismissed and the complaint fails. Therefore, the Decision of the Adjudication Officer is upheld.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
CO'R______________________
26th October 2017Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary.