Complainant

Respondent

Anonymised Parties

Care Assistant

Health Sector

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts, 1969

CA-00020809-001

26/07/2018

The Complainant was employed from 13th November 2017 until the employment was terminated by the Respondent on 20th June 2018. The Complainant was paid €1600.00 net per fortnight and she worked 39 hours a week. The Complainant was provided with a written statement of her Terms and Conditions of Employment including the Grievance and Disciplinary Procedures of the Respondent Company. The Complainant referred a dispute to the Workplace Relations Commission on 26th July 2018 alleging she had been unfairly dismissed.

On 1st December 2017 an incident was reported in respect of an alleged incident between the Complainant and a patient on 30th November 2017. It was alleged that the Complainant struck the patient with a mopping brush and also physically restrained him by the wrists. The incident was referred to the Safety Committee for review. This Committee met on 8th December 2017 and recommended that the Complainant be reassigned to an alternative department pending a review of the incident. The Respondent is governed by the HSE Trust in Care Policy and following a review it was determined that an abusive incident could have occurred and the matter was referred to senior management in line with the Trust in Care Policy.

The Terms of Reference for the investigation were drafted, signed and given to the Complainant on 25th January 2018. In accordance with the Disciplinary Policy, two independent investigators, named, were appointed to conduct the investigation. Eight people, including the Complainant, were interviewed   during the course of the investigation and detailed minutes of each interview were prepared and signed off by each of the eight individuals. The Investigation Report was concluded on 9th May 2018. The Complainant had been out of the country for a period of time which resulted in a delay in concluding the investigation. The Investigation concluded “the investigators are satisfied that an incident took place between (patient) and (Complainant) which lead to the patient sustaining a dislocated shoulder”. The matter was referred to the HR Department.

The Disciplinary Policy was invoked and a Disciplinary Hearing was held on 18th June 2018 and the Complainant was accompanied by her Trade Union Representative. The Disciplinary Panel, consisting of the Director of Nursing and the HR Manager concluded the Complainant’s actions were a serious breach and amounted to serious/gross misconduct. The Complainant was informed by letter dated 20th June 2018 that her employment was terminated with effect from that date.

The Complainant was afforded a right of appeal and she subsequently did appeal. A Hearing was conducted on 23rd August 2018 and was chaired by the CEO of the Respondent. The Complainant choose to be accompanied by her husband. The Complainant was informed on 30th August 20218 that the decision to dismiss was upheld.

The Respondent argued that the Investigation, Disciplinary and Appeals process was conducted in accordance with the principles of natural justice and fair procedures and in accordance with S.I. 146/2000 and the Respondent’s own Policies.

The Trust in Care Policy provides that the Respondent is committed to “promoting the well-being of patients and to providing a caring environment where the patient is treated with dignity and respect”

The Respondent referenced the Complaint Form wherein the Complainant states she suffered an injury at work. The Respondent is not aware and had not been made aware of any injury suffered by the Complainant in her employment.

The Respondent was requested to forward the following Documents post the Hearing which they did on 9th January 2019 – Disciplinary Policy of the Respondent – Trust In Care Policy – Witness statements provided during the investigation – All correspondence between the Parties between 8TH December 2017 and 30TH August 2018.

The Complainant stated she was wrongly accused in relation to the incident. She stated that she was working on the day 30th November 2017. She stated that this named service user had challenging behaviour. On the morning he had gone on an outing and when he returned the Complainant took him to his room. She then outlined a series of events involving other employees including an agency worker.

On 1st December 2017 she returned to work and saw the service user. She reported to her Manager (named) and she stated that she was moved to another house. Later the same day she was called to meet her named Manager and the named Person in Charge where she was informed that the service user had made a complaint that the Complainant had hit him with a mop while cleaning his room. She denied this but she was informed she was to go home.

The Complainant stated that she was invited to an investigation meeting on 9th February 2018. The outcome was to refer the issue to the HR Department. The Complainant stated that she did attend a Disciplinary Hearing on 20th June 2018 which resulted in her dismissal. The Complainant was afforded a right of appeal.

The Complainant stated that she did appeal but the decision to dismiss was upheld.

The Complainant stated that she had not worked since her dismissal and that she was in receipt of Injury Benefit from the Department of Social Protection. She was requested to forward a statement from the Department but she did not do so. The Complainant also stated that she had a Registered Business of her own where she works part-time.

On the basis of the evidence from both Parties I find as follows –

Both Parties confirmed that the complaint by a named patient was fully investigated and eight statements were gathered in relation to an alleged incident on 30th November 2017. Both Parties also confirmed that the Complainant was afforded a right of representation and she was represented by her Trade Union at the Disciplinary Hearing on 18th June 2018 and she was accompanied by her husband at the Appeal.

I have examined in detail the Disciplinary Policy of the Respondent Company and I find that the Investigation, Disciplinary and Appeals process was conducted in line with that policy.

S.I. 146/2000 – Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 sets down the process to be carried out by an Employer and the Disciplinary Procedures to be followed. I find that the Respondent complied fully with S.I. 146/2000.

The Court of Appeal (2018) IECA 346 in Iarnrod Eireann/Irish Rail and Barry McKelvey delivered on 31st October 2018 held S.I. 146/2000 “…….is stated to promote best practice and outlines the principles of fair procedures for employers and employees generally and is, of course, of particular relevance to disputes in an industrial relations context. It is well understood that the code, promulgated so many years ago, was developed so that disciplinary issues could be handled in accordance with the principles of natural justice and fair procedures and in order that good industrial relations might be maintained in the workplace”

On the basis of the evidence, questioning by the Adjudication Officer at the Hearing I do not recommend in favour of the Complainant in relation to the dispute and do not find that she was unfairly dismissed.

Industrial Relations Act – Unfair dismissal – findings that she was not unfairly dismissed by the Respondent.