Complainant

Respondent

Anonymised Parties

A Catering Attendant

A Community Hospital

Representatives

Martina Weir SIPTU-Workers Rights Centre

John O’Donnell, HSE

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-00020882-001

30/07/2018

Following investigation the complainant was issued with a Final Written warning to last for 18 months.  

The complainant commenced work as a Catering Assistant with the respondent on 1st January 2001 working on wards serving meals to elderly patients. In May 2017 she was informed that a complaint had been made against her by the family of a patient which was to be investigated. The Investigation team met with the complainant on 3rd November 2017. Minutes of that meeting, and minutes of a meeting with the daughters of the patient were provided on 13th November 2017. A further meeting took place on 23rd November at which the complainant was represented by SIPTU. The preliminary report issued in January 2018 and found that there was validity to the allegations and the complaint was upheld. SIPTU raised matters of concern which were to be considered before completion of the Final Report. The Final Report varied little from the preliminary report in its findings.   The matter was then referred to the Disciplinary Process at Stage IV which allowed an outcome up to and including dismissal.

The disciplinary hearing took place on 13th April 2018 and the decision was to impose a Final Written Warning to remain on the complainant’s file for 18 months. The complainant lodged an appeal which was heard on 25 June 2018. The outcome of the appeal not alone upheld the original decision but imposed a further penalty in withholding an increment until a training programme was completed by the complainant. In reaching this conclusion the decision maker in the appeal made reference to the complainant’s statement in the original case of having a good record and he disagreed that this was the case. There was no provision in the respondent’s procedures for an escalation of the sanction at the appeal stage.

The complainant’s case revolves around the flaws identified in the investigation process; the severity of the sanction; and; the Imposition of additional sanctions contrary to procedures.

During the investigation the daughters of the patient were interviewed but not the patient herself.   The family confirmed that the patient had poor mobility but was’ mentally great’ and therefore there was no reason to exclude her. Neither of the granddaughters, nor the niece were interviewed and yet their statements were taken into account. The evidence of a deceased patient was to be disregarded but is mentioned on numerous occasions in the report which shows that it influenced the investigator.   There were also a number of contradictions in the evidence.

The complainant’s 18 years of service was not sufficiently taken into account.

The respondent’s disciplinary procedures provide for a Final Written Warning to last for up to 12 months which can be extended in exceptional circumstances. No clarification was given as to what exceptional circumstances existed and why, in this instance, the period was extended to 18 months. The later additional sanctions imposed at the appeal stage appear to have been decided upon on the basis that the complainant had misrepresented herself in terms of her overall record. The complainant had no formal warnings on her record.

A complaint was made by two family members of a resident of the respondent community hospital of distress caused to the resident by the complainant. An investigation was conducted by trained investigators in accordance with the Trust in Care Policy 2005. The Report of the Investigation concluded that, on the balance of probability there is validity and credibility to the allegations made’. The complaint is therefore upheld.  The matter was referred to the Chief Officer who decided to consider the matter under Stage IV of the Disciplinary Procedure which allows for sanction up to and including dismissal. The outcome was a Final Written Warning to last for 18 months.

An appeal was lodged by the complainant on the grounds of; flaws in the investigation process, the severity of the sanction and the duration of the time already elapsed.   In relation to the claim of flaws in the process the conclusion of the appeal was;

‘The issue to be considered was whether or not any one of the flaws identified (if held up) or combination of all of the flaws identified (again if held up) sufficiently undermine the findings of the investigator in this case. The absence of independent witnesses to corroborate or otherwise the allegations/complaints being made is somewhat concerning. However, given the nature of the complaints and the manner in which care is delivered, it is clear that it will often be difficult to find independent witnesses to events such as those complained of. This does not mean that we can therefore conclude that such an allegation is without foundation and should be dismissed.   Tod do so would leave vulnerable service users at a significant disadvantage in our process. Our responsibility to patients/service users must be acknowledged in all of our processes and I am satisfied that the investigator in this case, who was agreed between parties, followed appropriate procedures, provided draft findings to you and achieved an appropriate balance in arriving at her decision on the balance of probabilities. I am therefore satisfied that the conclusions arrived at by the investigator and the process by which she arrived at them was sound.’

In relation to the severity of the sanction the conclusion of the appeal was;

Given that there was a clear finding of abuse of a patient following a complaint being upheld following investigation under the Trust in Care Policy, the decision of the Chief Officer regarding severity of sanction was likely to have been based on a judgement as to whether or not this constituted serious misconduct. Given that it was open to him to impose a sanction of dismissal it is clear that he decided that the abuse in question did not warrant this level of sanction.

In relation to the time already elapsed the conclusion of the appeal was;

You explained the impact that this case has had on you since the initial complaint was made. While I am not unsympathetic to this, I am inclined to view it in the context of the actions which you were found to have committed….I note your request that serious consideration be given to the time already spent argument.   I cannot agree to any such request.   To do so would suggest that a decision on this matter existed before it was taken by the Decision Marker. I am satisfied that there was no undue delay in the investigation and disciplinary processes and that you had the benefit of the application of the agreed Trust in Care Policy and Disciplinary procedures.

The respondent has a duty of care to both its patients and its staff and there is a balance to be struck in terms of the employee’s entitlement to be heard and to examine the evidence being alleged against him or her, and the possible vulnerability of a patient in such a process. If the patient is not able, or unwilling to participate, there should be supporting evidence elsewhere to determine the weight an investigator should attach to any complaint. Where the evidence is sufficient to meet the test of ‘balance of probability’, but not overwhelming, it may be desirable to reflect this in the sanction. In reviewing the investigation report I see no fundamental flaw in the reasoning and conclusion.

In the Appeal the respondent imposed an additional sanction. The appeals decision maker seems to have assumed that the original decision maker in the disciplinary hearing imposed a lesser penalty due to the complainant having stated that she had a good record. There is no evidence to support this assumption. There was an incident involving the complainant some years earlier which was dealt with informally and the outcome was a decision by management that the complainant needed training - presumably on her interpersonal skills and/or the respondent’s various relevant policies on patient care. Having identified this as a requirement the respondent did not provide the training and therefore must accept some responsibility for the ensuing problems. Rather than seeing that incident as compounding the complainant’s subsequent transgression, in my view the failure to provide the training should be a mitigating factor. I note, in the investigator’s findings, considerable reliance on policies regarding patient care and the finding that It appeared from meetings with the Respondent (the complainant in this case) that she may have been unaware of the real content of this policy’.

For this reason, and because there is no provision for additional sanctions in the respondent’s disciplinary procedure the additional sanctions imposed following the appeal should be set aside.

The purpose of a disciplinary procedure is to achieve an improvement in the employee performance.   The effect of a final written warning is that there should a period of time during which any further transgressions by the employee might give rise to a dismissal. In this case the incidents complained of took place in May 2017 and no evidence was given of any recurrence since that date. In all of the circumstances I believe the warning should be stand but be for a period of 9 months rather than 18 and be effective from the 13th April 2018 – the date of the disciplinary hearing - and therefore ending on 13th January 2019.

I recommend that the Final Written warning be for a period of 9 months ending on 13th January 2019.

Disciplinary process – severity of sanction – investigation process