Complainant

Respondent

Anonymised Parties

A Care Support Worker

A Care Support Provider

Representatives

SIPTU

Act

Dispute Reference No.

Date of Receipt

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

CA-00020130-001

02/07/2018

The Worker claims that her Employer behaved unfairly and unreasonably in issuing her with a Written Warning at Stage 2 in its Disciplinary Procedure.

The Employer said that after a series of meetings with the Worker it felt it had to invoke it’s Disciplinary Procedures, where a disciplinary panel decided to issue her with a Written Warning which the Employer deems was fair and just.

The Worker is a Care Support Worker with the Employer since 2012 working in a residential centre for people with physical and neurological conditions.

She claims that she was invited to a disciplinary hearing with her Service Manager on 23 March 2018 and was issued with a Written Warning at Stage 2 of the Disciplinary Procedure by letter dated 4 April 2018. She said that she appealed that decision on 17 April 2018 and that was heard on 5 June 2018 and the appeal was subsequently dismissed on 25 June 2018. The Worker claims that the Written Warning will remain live on her file until 4 January 2019.

The Worker argued that the Employer’s Disciplinary Procedure makes provision for a ‘Pre-Procedure – Counselling Stage’, which is “… to ensure that employees understand what is expected from them and to provide an opportunity to discuss any aspects of the job which may be causing them difficulties in reaching the required standard. The Disciplinary Procedure is normally only invoked where the Counselling stage fails to bring about the required improvements.” The Worker claims that this Pre-Procedure – Counselling Stage was never implemented by the Employer.

The Worker claims that it raised this point on appeal, however the Appeals Officer said that “supervision meetings were held with you following the identification of each medication error”. The Worker claims that she did have “no-fault meetings” following certain instances/errors, as per the standard procedure in the health care industry, but this is not the same thing as the Pre-Procedure – Counselling Stage meetings as envisaged in the Disciplinary Procedures, as that provides for the identification of measures that can be taken to assist that employee, formulate an action plan and all should be documented and signed by both parties.

The Worker claims that the Appeals Officer did not make it clear whether the ‘supervision meetings’ were a substitute for the ‘Pre-Procedure Counselling meetings’ or that the Employer by invoking the Disciplinary Procedure was reasonable and was within the provision of the Employer’s policy. The Worker points to the fact that the Disciplinary Procedure states, that it “will normally be operated on a progressive basis” and only in cases of abnormal circumstances or gross misconduct may it bypass stages 1, 2 and 3 of the procedure.

The Worker said that the Employer makes no reference to the Worker’s previous good record over a six-year period. The Worker claims that neither the Disciplinary Hearing Officer or the Appeals Officer identified any “abnormal circumstances” or “gross misconduct”, which might justify the Employer’s failure to follow the Pre-Procedure – Counselling Stage or deviate from the norm of a progressive sanctions. It claims that all of this appears unfair and unreasonable.

The Worker has sought that the Written Warning issued to her on 4 April 2018 be withdrawn and all the documentary evidence be removed from her personnel file.

The Employer said that it was established in 1997 and operates a range of support services to people with physical and neurological conditions. The Employer said that it provides a service to some of the most vulnerable members in society. It said that the services it provides are highly regulated and accordingly, staff are acutely aware of the need to continually demonstrate conduct, competence and capability that will always meet the necessary high standards and shall not place their clients, themselves or the Employer at any risk.

The Employer said that the Worker joined as a Care Support Worker on 14 February 2012. A crucial part of that role is confidently demonstrating compliance with oversight, documentation and accountability. In June 2017 it was noted that the Worker was involved in a number of confirmed medication errors (four in five months) and it was decided that she should undergo medication retraining. There was no immediate training available and she had to wait until October 2017 to attend retraining, and during that time two more errors were reported. The Employer decided that the Worker should be removed from medication administration due to the seriousness and possible consequences. She completed the retraining and no further errors were recorded until January 2018.

The Employer said by the end of February 2018, four more medication errors were recorded in the previous two months and the Worker was again removed from medication administration and was invited to a disciplinary hearing. The hearing was conducted under the Employer’s Disciplinary Procedure on 23 March 2018 and the Worker was accompanied by her Trade Union representative. The disciplinary panel determined that a Written Warning - Stage Two was appropriate taking all factors into consideration. The Worker appealed the decision which was heard on 5 June 2018 where the sanction was upheld.

The Employer said that there were four grounds of appeal which appear to be the crux of the Worker’s dispute, namely,

1 - The disciplinary process provides for a Pre-Procedure Counselling stage which was entirely omitted in this case and that the disciplinary procedure should normally only be invoked where the Pre-Procedure Counselling stage fails to bring the required improvements.

In reply, the Employer claims that in a letter sent to the worker on 27 September 2017 following a supervision meeting which stated that “any further breaches may necessitate disciplinary action” and that supervision meetings were held after each error and she was given supports including retraining.

2 – The disciplinary sanction will normally be applied on a progressive basis except in respect of gross misconduct, the Written Warning - Stage Two was out of step with the policy.

In reply, the Employer said that the disciplinary panel considered all the options open to it and took into account the Worker’s willingness to improve. The disciplinary panel believed that the level of errors warranted gross misconduct but settled with a Written Warning - Stage Two.

3 - Not enough consideration was placed on the Worker raising concerns to the evening shift staffing levels and the use of other administrative aids.

In reply, the Employer said that it considered both, however that does not give justification to the level of the Worker’s errors as compared to others working with her and it did not render her errors as not serious.

4 – No consideration was taken of her long standing good record of service.

In reply, the Employer said the panel took everything into consideration and would expect that her length of service and experience would have made her an exemplar in her role and dispensing her duties for more junior staff.

Having carefully considered the submissions provided from both sides to this dispute, it is obvious that the Worker is held in good standing by the Employer as a valued member of its care professional team.

I note that the Worker was very much under the impression that there were a number of errors many of which were so insignificant in nature that she seems somewhat surprised that they were documented as errors. She raises the argument that she was under pressure due to an uneven distribution of work in her workplace and that she has highlighted this, as well as possible solutions, to the Employer in the past. I note the Employer places a serious emphasis on ensuring all aspects of the care plans are followed and documented, and due to the level of regulation in the healthcare area that this is an essential integral part of its employees’ role otherwise mistakes could lead to serious implications.

I find the Employers position in this matter to be very compelling and the need for precision in this field is paramount and necessary.

I note that the Worker is under the impression that sufficient weight was not given to her excellent long service with the Employer. I note that the Employer said that everything was taking into consideration.

I find that the disciplinary panel have to make a finding based on the evidence before it. The correct balance of the facts and applying the appropriate weight before coming to a conclusion is for the panel to make. It has been said that all factors were taken into consideration and I can only say that their process to reach a decision seems rational. I do not deem that there was anything peculiar in connection to this aspect of the dispute.

I note that the Worker determines that she was not brought to the appropriate ‘Pre-Procedure Counselling meetings’ prior to the induction of the Disciplinary procedures; that she was only invited to ‘supervisory meeting’/ ‘no-fault meetings’ following certain instances/errors, and these are normal procedures and not akin to what is envisaged by the ‘Pre-Procedure Counselling meetings’. The Employer maintains that the meetings held with the Worker were ‘Pre-Procedure Counselling meetings’ per se, and as they failed to render a real or significant improvement the matter was escalated to the disciplinary procedure in line with its policy.

I find that the Employers Disciplinary procedures is drafted in a way to firstly attempt to deal with possible difficulties in relation to employees’ performance or conducts informally, followed by a formal manner and process. It tends to give the benefit of the doubt to the employee and allows for the opportunity for informal Pre-Procedure Counselling meetings to address the misgivings before a more formal procedure is applied. The informality of the Pre-Procedure Counselling meetings is still structured to a degree, and there are five bullet points which relate to what “should” happen. The application of how these Pre-Procedure Counselling meetings are arranged and scheduled appears to lie with the line manager. The Worker takes issue that ‘Pre-Procedure Counselling meetings’ are not to be confused with ‘supervisory meeting’/ ‘no-fault meetings’ which are customary in the industry and therefore she did not have them. I consider that the informality in nature of the ‘Pre-Procedure Counselling meetings’ could well be intertwined with the ‘supervisory meeting’/ ‘no-fault meetings’ as long as they are consistent with their purpose, namely, informally raising a fault, hearing the other sides view and looking at corrective measures without having to go down the formal route.

Bearing in mind time and work pressure, I cannot see how or why the Employer and Worker would hold two different meetings with different “titles”, to discuss the same matter; namely, a no-fault meeting and a Pre-Procedure Counselling meeting to address the same issues. I am satisfied that common sense has prevailed here. I note that the Pre-Procedure Counselling meetings are designed to allow the Employers take a step back before going down the formal procedure, and to allow time for both parties to address and work through any difficulties. It appears good practice and a reasonable approach for managing staff and errors. I note that it appears to remain consistent here and I find no fault in its application in this case. I am satisfied that the process was followed as per the procedure and it appears in order.

The Worker takes issue that the Disciplinary Procedure states that it “will normally be operated on a progressive basis” and only in cases of abnormal circumstances or gross misconduct may it bypass stages 1, 2 and 3 of the procedure. The Worker claims that neither the Disciplinary Hearing Officer or the Appeals Officer identified any “abnormal circumstances” or “gross misconduct”, which might justify the Employer’s failure to follow the Pre-Procedure – Counselling Stage or deviate from the norm of progressive sanctions. It claims that all of this appears unfair and unreasonable.

The Employer was of the view that the high number of errors warranted progression to a Stage 2 Written Warning, and that a more severe sanction was considered but the Disciplinary panel took account of the Worker’s acknowledgement of the errors and her willingness to improve.

I find that it would be excessively restrictive to limit a Disciplinary Hearing panel to only one option, and that being the first or “next” stage in the disciplinary procedure. Every case is adjudged on its own merits and the full suite of options needs to be available, otherwise the disciplinary procedure would be drafted in a way that prevents the various Stages being opened to a disciplinary panel. The Employer said that the high level of errors was in itself beyond normal and I am satisfied that this case is of such a nature, and this allows the disciplinary panel to decide on a higher sanction than Verbal Warning - Stage 1 and up to, and including, gross misconduct taking all mitigation factors into play.

I do not find the Worker’s claim that the Employer was unfair or unreasonable to be justified and accordingly, I am satisfied that the Worker’s case cannot succeed.

Industrial Relations Act 1969 – Section 13 – Trade dispute – Written Warning – Stage 2 - Worker’s case cannot succeed.