Complainant

Respondent

Anonymised Parties

A Nurse

A Health Care Service Provider

Representatives

Noel Treanor and David Meskell, INMO

RESPONDENT North West

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-00015187-001

20/10/2017

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

CA-00015187-002

20/10/2017

These complaints relate to the manner, in which an investigation into a complaint of clinical misconduct made against the Complainant, was carried out. The reliefs sought are that the findings of the disciplinary process be set aside on the basis that it was based on a flawed investigation (which breached terms of the Trust in Care policy procedures) and that the sanctions (of a final written warning and a suspension of pay) be lifted.

1.       The Complainant (who is now retired) worked as a staff nurse in nursing home for patients with disability.

2.       In June 2013 two complaints were raised against the Complainant by two service users

3.       The Complainant was not informed of this fact until March 2014. This delay grounds the first complaint that the Trust in Care policy was not adhered to.

4.       In terms of defects in the subsequent investigation, these are inter alia as follows:

(a)    The likelihood that the two service users who made complaints colluded was not taken into account, in the investigation.

(b)    During the interview of the Complainant questions were asked of the Complainant in language which demonstrated that the investigator had pre-determined the guilt of the Complainant.

(c)     She was not offered trade union representation at the first investigation meeting

(d)    At the second investigation meeting her trade union representative was not permitted speaking rights

(e)    The membership of the Investigative Team was not agreed to as between the parties. This was in breach of the Trust in Care Policy.

(f)      The membership of the investigation team was reached in the absence of the trade union representative being present

(g)    When the draft investigation report issued it was clear that thirteen witnesses gave statements to the Investigator which the Complainant was not aware of and was not provided with during the investigation. As such she was not given an opportunity to contradict the contents of these statements. These statements remained part of the material which was considered by the investigation team and therefore its findings were flawed

(h)    The terms of reference of the investigation changed (to take into account other complaints or incidents) and the Complainant was not consulted or made aware of this in advance.

5.       When the draft investigation report was published in February 2015 the Complainant’s trade union representative raised the above complaints and requested that either a fresh investigation commence without the identified defective steps or that an external independent person be appointed to investigate her concerns. In this manner the Complainant gave the Respondent an opportunity to right its errors.

6.       The RESPONDENT did not accede to this request and published the final investigation report without remedying the defects in process.

7.       The disciplinary process then proceeded which because it was based on a flawed investigation and flawed findings, was also flawed.

8.       At the end of the disciplinary process the Respondent found that in relation to one service user the complaint of clinical misconduct was upheld and the sanctions applied were that she was suspended without pay for 3 months and that she be issued with a final written warning.

9.       It is accepted that the suspension sanction was lifted on appeal but the findings of misconduct and the sanction of final written warning were applied.

10.   The Complainant went on sick leave until the date of her retirement.

11.   Having had a long and distinguished career without any disciplinary problems, this unfair treatment close to her retirement age caused the Complainant great upset and anxiety. It was an affront to her professional reputation, something that she had always been proud of. The actions of the Respondent were procedurally and substantively unfair and pushed the Complainant into taking retirement. This had a devastating and long term effect on the Complainant and she wishes for this to be recognised.

CA-00015187-001

The Complainant seeks a recommendation that the findings of misconduct be set aside as these were improperly reached and the sanction of a final written warning for 1 year and suspension for 6 months without pay be removed from her file

CA-00015187-002

As a result of the flawed investigation process, the disciplinary process, was tainted the Complainant seeks a recommendation that the findings of the disciplinary process be set aside on the basis that they were improperly reached, in not complying with the Trust in Care policy

1.       The Respondent made a preliminary submission that the Complaint has no locus standii and or is moot on the following bases:

(a)    the Complainant has retired and the Industrial Relations Acts are designed to assist in where industrial relations between an employee and employer have broken down. It is not designed to compensate a Complainant for breaches of the IR Acts which happened in the past or when the employment relationship no longer exists.

(b)    The sanction of a suspension was not applied and therefore complaint number CA-00015187-001 is not justiciable in these Adjudication

(c)     Furthermore, while this IR complaint is against a FWW sanction, issued by a stage 4 appeal on 20 October 2017, a further appeal lay to the Regional HR manager (and while this ultimate appeal upheld the stage 4 findings and sanction, the appeal decision was not issued until 11 April 2018. The Complainant retired on 16 April 2018 but applied for her pension on 7 April 2018 and therefore was not an employee when the appeal decision was determined. As such the findings and sanction did not apply to her as an employee, but rather as an ex-employee making an FWW futile. This complaint should fail for mootness. In the alternative, if the mootness submission is unsuccessful, the FWW only lasted for a short period of time (4 days) before she retired and this complaint should be treated by the Adjudicator on a “de-minimus” basis.

2.       In terms of a substantive defence to the allegation that the investigation was flawed the Respondent submits the following:

(a)    Any complaints that the Complainant may have had about flaws in the investigation were raised at the time of the investigation and as the Respondent assured the Complainant at the time, could be remedied by the disciplinary process that she was a participant of.

(b)    The argument about collusion was not valid when only the complaints by one service user were ultimately pursued.

(c)     In relation to the initial time delay of 9 months the Respondent accepts that this is a delay however they only learned of the complaint via a service user advocacy board one day before the complaint was communicated to the Complainant. As soon as the Respondent was put on notice of the complaints, the Complainant was immediately notified. No delay was caused by the Respondent.

(d)    During the investigation the prejudicial questions related only the service user, whose complaint was not proceeded with and for this reason it did not constitute a defect in the investigative process.

(e)    The inclusion of the thirteen witnesses in the draft investigation report could be rectified by the subsequent disciplinary process, where the Complainant was on notice of the statements and was permitted to respond to them in the disciplinary process.

(f)      The Complainant was afforded trade union representation at the initial investigation meeting but declined the offer and if this is not accepted, nothing turns on this as the Complainant states that, whether advised or not, she attempted to contact her trade union representative prior to the investigation meeting but could not make contact with him and knowing this, she still proceeded with the meeting.

(g)    At the second investigation meeting, at which her trade union representative was allowed to attend, it is accepted that his speaking rights at the meeting were restricted but this is appropriate given that the investigation was a fact-finding process only.

The Respondent denies the reliefs claimed and contends that the complaints are not well founded.

CA-00015187-001

This complaint deals with flaws in the investigation process and seeks recommendations that the findings be set aside and the sanctions be lifted.

As the second complaint, CA-00015187-002 overlaps with the first complaint I propose to find that the second complaint is not well founded and deal with all the complaints and reliefs under the first complaint, CA-00015187-001.

Preliminary Application

In relation to the preliminary submission by the Respondent that the complaints must fail for mootness and locus standii I find as follows:

As it is accepted by the Complainant that the sanction of suspension without pay for 6 months was never applied, I find that the specific relief, of removing that sanction is not well founded, because it was never applied.

However, the findings upon which the sanction that was applied, that of final written warning, remained extant. And it remained in being when she went on sick leave and up until the date of her retirement. I do not accept that because the ultimate appeal hearing (by the HR Regional Manager) did not issue until after the WRC IR complaint issued to be of any relevance. The WRC complaint was raised following the Respondents decision in April 2017, a stage 4 appeal decision, after which the Complainant went on sick leave. Even if the contention that she had not exhausted internal remedies until the HR regional appeal was heard were to be made, the appeal (to uphold the findings and sanction of the Stage 4 appeal) was issued prior to her retirement, which I am satisfied was on the 16 April 2018 (regardless of the content on the pension application forms).

As the ultimate appeal decision upheld the stage 4 finding, the date of the relevant decision (which is sought to be impugned) is the stage 4 decision, which issued on 7 April 2017. It is this decision which is sought to be impugned and I will now turn to the substance of that complaint.

Substantive Complaint

The reliefs sought are a finding that the investigation process was flawed and that the resultant final written warning, should be removed from her file.

Having heard the evidence of both parties I am of the view that there were failures in the manner in which the investigation was carried out, not in all the complaints raised, but in one respect; namely the investigation report made factual findings based on statements that the Complainant was never given the opportunity to question or contradict. The fact that she was told that the disciplinary process was the mechanism by which she could address these statements is incorrect. The disciplinary process proceeded on the basis of the findings of fact that were in the investigation report and which the Complainant contends should not have been so found, had the process been conducted properly.

In relation to her complaint that her trade union representation was denied at the first investigation meeting, I find that this occurred because of his unavailability and not because it was denied to her. However, regardless of this it was not good practice for the membership of the Trust in Care investigation team was agreed in the absence of the trade union representative.

In relation to prejudicial questioning, I am not convinced that a fact-finding investigation requires a curtailment of questions in the restrictive manner advocated by the Complainant. Similarly, a psychological review of the service users was an excessively onerous request to make and was not necessary given the fact that the collusion assertions became irrelevant once one of the service users was excluded from the investigation. I do not accept that the Respondent was responsible for the delay of 9 months as the service user complaints did not come to the attention of the Respondent until the day before they informed the Complainant. I accept that the terms of reference may have changed slightly over the process period, but not significantly enough to vitiate the entire process.

However, the inclusion of witness statements without an opportunity for the Complainant to address this gave rise to unqueried factual findings. This was in breach of the Trust in Care policy when dealing with complaints by service users and it is unfortunate that, while remedial steps were taken by the Respondent to assuage the Complainant’s fears, the investigation findings took into account matters which the Complainant was entitled to have an input into, as opposed to being excluded from.

I accept that no investigation process can be perfect and in many respects the investigation undertaken by the Respondent did comply with the Trust in Care procedures. I also find that the Respondent did make attempts to take ameliorative action once the defects were outlined to them by the trade union official. However, the reliance on the 13 unqueried witness statements is a fundamental flaw and while it is claimed that the disciplinary process corrected this defect, no evidence has been put before me as to how the disciplinary process set aside the factual findings which these statements contributed to.

As the disciplinary process was based on a flawed investigation, the findings of the disciplinary process are subject to the same flaws.

For this reason, on the specific basis that I have outlined, I uphold the IR complaint and find the findings of the disciplinary process and final written warning should not have issued without the defects in the process, which were identified at the time by the Complainant’s representative, being properly remedied.

I award compensation to the Complainant in line with awards issued by the Labour Court in IR cases against final written warnings arising from misconduct cases. In formulating this award, while I cannot dispute that this is how the Complainant has come to regard it, I am not permitted not take into account her belief that this investigation and disciplinary process occurring, as it did, at the end of the Complainant’s long and successful career, prompted her to take retirement when she did.

I recommend compensation in the sum of €5000.

CA-00015187-001

This complaint is well-founded and I recommend the payment of €5000 compensation to the Complainant.

CA-00015187-002

This complaint is not well founded.

Industrial Relations