ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00019787
Parties:
| Complainant | Respondent |
Anonymised Parties | A Nurse | A Hospital |
Representatives | Bernadette Thornton SIPTU | Peter Flood Ibec |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00026260-001 | 13/02/2019 |
Date of Adjudication Hearing: 02/05/2019
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015 and in particular the said Adjudication Officer is obliged to make all relevant inquiries into the complaint. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will take into account any and all documentary or other evidence which may be tendered in the course of the hearing.
The evidential burden of truth rests with the Respondent. Per Section 6(6)of the 1977 Act, in determining for the purposes of the Acts whether or not a 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 other of the specified grounds (as outlined in the Act – conduct, redundancy etc.), or that there were other substantial reasons justifying the dismissal.
Also, an Adjudication Officer must, in determining if a dismissal is unfair, have regard to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal (per Section 7).
In this particular instance, and in circumstances where the Complainant herein has referred a complaint of having been unfairly dismissed form her place of employment wherein she had worked for in excess of one year and where the Workplace Relations Complaint Form (dated the 13th of February 2019) issued within six months of her dismissal, I am satisfied that I (an Adjudication Officer so appointed) have jurisdiction to hear the within matter
Where an employee has been dismissed and the dismissal is found to be unfair the employee shall be entitled to redress pursuant to Section 7 of the 1977 Act. Such redress might include re-instatement, re-engagement or compensation for any financial loss attributable to the dismissal where compensation for such loss does not exceed 104 weeks remuneration. The acts, omissions and conduct of both parties will be taken into account when considering the extent of the financial loss and there is an onus on a Complainant to adopt measures to mitigate the loss.
Background:
This complaint comes before the Workplace Relations Commission by way of Complaint Form dated the 13th of February 2019. The Complaint is one of Unfair Dismissal wherein the Complainant was formally dismissed by reason of perceived problems relating to her clinical practise. |
Summary of Complainant’s Case:
The Complainant was represented, and a comprehensive submission was presented. The Complainant says that she was Unfairly Dismissed and subject to Unfair procedures. The Complainant further says that an inappropriate sanction was applied. |
Summary of Respondent’s Case:
The Respondent was represented and provided a detailed submission. The Respondent says that the termination of this employment was entirely appropriate in all the circumstances. The Respondent has a duty of care to it’s patients to ensure that the nursing care received is of the highest standard. |
Findings and Conclusions:
I have carefully considered the evidence adduced. The Complainant herein is a qualified clinical nurse with 20 years nursing experience. The Complainant has worked in the Irish healthcare system since 2004. In and around 2016 the Complainant was recruited as a “Bank” Nurse which meant that she would be expected to work in any area of the Hospital where shortages have occurred on a given day. There can be no doubt that the Complainant’s job was highly stressful, extremely busy and demanded a high professional standard. Issues did arise with the Complainant’s care and attention to clinical detail. The Complainant made the point that all nurses make mistakes, but emphatically denies that she was making consistent and serious mistakes of a clinical nature. In 2017 the Complainant was subjected to a disciplinary process for the administration of a non-prescription medication – Gaviscon – together with a number of other issues. It is regrettable that the Complainant did not retain any assistance when facing this Disciplinary process. The Complainant advised me that she wanted this matter to remain private and was reluctant to have a colleague or representation at this meeting. The final outcome of this process (which I note was held at the stage 4 level of the Disciplinary policy) was a finding of serious misconduct with the imposition of the Disciplinary sanction of a Final written warning. I cannot know whether or not this sanction was appropriate in all the circumstances. I have no reason to think that it wasn’t. However, I do accept that the Complainant was not told that (in the letter confirming outcome) she could appeal this sanction. The HR Manager has very fairly accepted that this was an oversight on her part though pointed out that the staff handbook would have confirmed this option. I further accept that the Complainant may not have taken fully on board the very serious nature of this sanction which left her in a vulnerable position for the next twelve months. I also note that, as is its obligation, the Hospital notified the Nursing and Midwifery Board of the professional misconduct. I note that this letter went out on the 28th of May a mere two days after the finding had been made and before any Appeal would have been lodged I would have thought? In addition to the Final Warning, the complainant was advised that she would have to undergo a six- month supervision period on a single ward and with limited hours. I was told by the Nurse Practise Development Co-Ordinator (ES) that the Complainant was assigned a clinical facilitator or supervisor (YL) who would be responsible for overseeing this period of time wherein the stated aim of performance improvement was the objective. I would accept that the Complainant in submitting to this process would be entitled to assume that the action plan created would be adhered to as far as might be practicable. I have read through the preamble to the Action Plan drawn up with the Complainant in and around the 15th of 16th of June 2018. This states that reviews were envisaged to take place every four weeks or so and also states that new as well as old areas identified as requiring improvement would also be identified and addressed within the action plan at any subsequent meetings held as part of the overall action plan. In the course of the first four weeks of this period of time, a number of issues came to the attention of YL (and others) such that at the date for the first review in and around the middle of July 2017, the Complainant was in fact suspended by reason of issues of perceived professional misconduct and what have been variously described as “near misses” to the safety of patients in the Hospital. Again, I note that the Complainant denies each and every one of these allegations. The Complainant’s representative has made two very valid points regarding the procedures up to this point. Firstly, the failure to indicate that the Complainant had a right of Appeal meant that the Complainant was given no opportunity to mend her hand as regards the earlier Disciplinary process. By this I mean that it is not inconceivable that had the Complainant sought legal or Union assistance in the course of the first Disciplinary process (Appeal stage) she might have ameliorated her situation somewhat at the said Appeal stage. The Complainant had allowed herself to undergo this entire process without a friend and without understanding the full implications of how a final written warning might impact her down the road. Therefore, when a second Disciplinary Investigation was proposed the only likely possible outcome of a negative finding was a dismissal, the option of final written warning already having been availed of by the employer in the earlier process. Secondly, I find I agree with the Complainant’s representative that the action plan set out in June of 2018 was not really implemented in any meaningful way. The Complainant gave evidence that there was an orchestrated campaign amongst the staff and other nurses to find fault with her. She described an attitude of “professional jealousy and discrimination”. These are serious allegations but did not form a part of the hearing before me. What concerns me is the fact that, having had the sanction of a final written warning put on her file, the Complainant should have been given every opportunity to demonstrate that she could and would improve and that this was the whole purpose of entering her into a six-month supervised programme. The Complainant had no ongoing feedback from YL and was not on notice of the fact that anything that had happened during the first four weeks on the Action Plan was such that a Disciplinary process could be triggered. If the Complainant needed to be micro-managed under the action plan then she should have been micromanaged. This seems to be the whole point of forcing her to take the retrograde step of being put under the supervision period in the manner that she was. The Complainant cannot now, by Order of Court, work as a clinical nurse by reason of the findings made under the two disciplinary processes which she has undergone in the last year. This injunction will stay in place until the Nursing Board has considered the matters. This has, of course, had a devastating impact on her livelihood and her professional standing. I accept that the Respondent Hospital owes its primary duty of care to the end users and that incompetency and deficiencies in nursing standards cannot be tolerated as they give rise to very real dangers to patients. I note that the Complainant was represented in the course of the second Disciplinary process right up to an Appeal, which failed. A comprehensive Investigation was conducted and no fault in that Disciplinary process has been exposed. On balance, I would have to accept that the findings of professional wrongdoing were therefore fairly reached. The allegations were upheld. My only difficulties lie in the facts that when it came to imposing a sanction the Respondent was bound to go one step higher than the one already on file, and that the Complainant was given no support and/or supervision over that period of time (and only 10 shifts) designed to give her every support and supervision. By reason of these two procedural and narrow issues I find the Complainant to have been Unfairly dismissed. |
Decision: 5th June 2019
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 - CA-00026260-001 - I award the Complainant €15,000.00 |
Dated: 5th June 2019
Workplace Relations Commission Adjudication Officer: Penelope McGrath