ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00009596
Parties:
| Complainant | Respondent |
Anonymised Parties | A Nurse | A Health Service Provider |
Representatives | Myles Gilvarry Gilvarry & Associates | Bob McArdle Patrick J. Durcan & Co Solicitors |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014 | CA-00012525-001 | 15/07/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00012525-002 | 15/07/2017 |
Date of Adjudication Hearing: 02/12/2019
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Schedule 2 of the Protected Disclosures Act, and/or Section 13 of the Industrial Relations Acts 1969 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Complaint Under the Industrial Relations Acts
Summary of Complainant’s Case:
The claimant commenced training as a nurse following the entry of her children to second level education in 2008 and qualified in 2012.The claimant was initially engaged on short term contracts and received a permanent contract in 2016. It was submitted that in October 2014, the claimant was falsely accused of altering a Kardex file – a record booklet held in each patient’s file, upon which the Doctor concerned writes in what medication, dose and frequency, the Nurses are to administer. It was submitted that this was a very serious matter and if true would merit disciplinary action and referral to An Bord Altranais. When the accusation was put to the claimant, she denied it and questioned the Consultant’s team who confirmed a Junior Doctor with a similar name to the claimant had altered the file. It was contended that management had failed to check with the consultant’s team before “making this very serious allegation”. On the day in question the claimant handed over to 3 Nurses on Ward Duty that night – “the ward would have been under the supervision of an overall Night Sister who received no report of the incident. On the following morning the 3 nurses reported the Kardex had been altered to the CNM1. It was submitted that the claimant was very distressed by the incident and that despite years of attempting to secure an apology internally, no written apology had ever been given to the claimant. It was submitted that “the claimant was instead accused of breaching confidentiality in having ‘leaked’ the accusation to another staff member (which she denied), and was subsequently penalised and victimised by management”. The claimant set out a full account of the incident from the time she sought a transfer to another ward on the 13th.Oct. 2014 to her ultimate transfer to B Ward on the 2nd.June 2015. She recounted the various exchanges with her manager and the proposals for a meeting between the claimant and the 3 nurses who had made the report. The claimant asserted that she had asked Ms. FG for a letter clearing her name and Ms. FG replied that the claimant could dictate whatever letter she wanted but cautioned against it as it would go on her record. On the 1st.Nov. 2014 the claimant confirmed to Ms. CM that the matter was over with – “It’s finished with and that’s it – end of story”. The claimant stated that she was told by Ms. BC “that she had proof that I had spread the word about the issue outside of the ward”. This was categorically denied by the claimant. The claimant submitted that at this point all she wanted was to be moved off the ward and be left alone. The claimant was off sick from the 11th.Feb. 2015 to the 31st.May 2015 – the claimant started work on B Ward on the 2nd.June 2015. The remedy being sought by the claimant was the restoration of the 15 weeks sick leave she took in 2015, that she be restored to her previously preferred shift pattern and ward and that a formal apology be issued by the respondent. It was submitted that it had not been disputed by the respondent that the claimant had been wrongly accused of interfering with the Kardex. The respondent had handled the industrial relations matter very poorly and the claimant had to research records to have her name cleared. |
Summary of Respondent’s Case:
The respondent set out a chronology of the claimant’s employment history - it was submitted that the dispute regarding the Kardex file culminated in a finding that the signature on the file was that of an NCHD who shared the same identity, initials and had a similar signature to the claimant. It was advanced that it was a case of mistaken identity. The respondent asserted that they attempted to resolve the matter informally and considered the matter closed after a meeting near the end of November 2014. It was submitted that the claimant indicated that she had been happy with the meeting but was awaiting clarity relating to the identity of her line manager, a referral to occupational l health and an issue regarding shifts. Following receipt of a letter from the claimant in Feb. 2015, the DON confirmed “that there was no individual warranting blame from the incident”. In a letter from the claimant dated the 30th.June 2015, the claimant stated “in hindsight and having had the time to reflect on the incident I do believe you reached the correct decision and I thank you for your wisdom and understanding”. It was denied that there had been any victimisation of the claimant. The claimant had been referred to occupational health because of the number of hours she was working and a concern that they would adversely impact on her health. It was contended that a variety of managers had expressed those concerns over a period of time predating the Kardex incident. It was contended that the claimant was claiming victimisation over being transferred to a new ward when she had in fact requested a transfer and was facilitated by management. The allegation of a referral to occupational health being advanced as victimisation was denied – it was asserted that it was borne from concern for the claimant’s well-being because of the number of hours the claimant had been working and was consistent with the absence management policy. It was advanced that all reasonable steps had been taken to resolve the matter and the issue had been dealt with at the meeting in Nov. 2014. |
Recommendation
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I have reviewed the evidence presented at the hearing and noted the respective positions of the parties.
It was put to the claimant’s representative at the final hearing that the claimant had confirmed as far back as 2014 that the Kardex matter had ended and that the claimant had consented to the referral to Occupational Health – in response the claimant’s representative replied that the claimant was entitled to resile from that position.
A review of the correspondence exchanged between the parties at the time indicated that the claimant consented to a referral to occupational health on the 27th.Feb 2014. In such circumstances I cannot accept the claimant’s contention that the referral constituted victimisation of the claimant.
In her correspondence to the DON (Director of Nursing) of the 30th.June 2015, the claimant states that while she was disappointed that the manager did not pursue an investigation into her alleged “ill-treatment” ……… “However, in hindsight and having had time to reflect on the incident I do believe you reached the correct decision and I thank you C for your wisdom and understanding”. The letter goes on to state “I now hope that I can move on with my life and that we can all put the matters outlined above behind us”. In the same letter, the claimant sought the reinstatement of her sick leave and in the DON’s response of the 23rd.July 2015, the Director states that “this is not something which can be considered”. It was very clear that the reinstatement of the sick leave was not going to be conceded at the time but it was not pursued any further by the claimant until she lodged her complaint to the WRC some 2 years later.
While I acknowledge the extent to which the claimant remains aggrieved about the missing drugs incident and accept that the evidence indicates that the matter could have been better managed , I cannot accept that it is reasonable to resurrect the events of 2015 in circumstances where the claimant both confirmed closure in relation to the Kardex incident and did not go any further with her request for the reinstatement of her sick leave.
I fully acknowledge the claimant’s frustration with referrals to occupational health for reasons relating to excessive overtime in circumstances where the overtime was undertaken at the express request of Nursing Administration. It is alarming to note from the perspective of the health and safety of the claimant and her patients that from 2013-2016 alarms bells were ringing with respect to the overtime requests being sought of the claimant by nursing managers - culminating in a schedule in July 2016 where the claimant worked 13-night shifts over a period of 15 days.
In this regard, I recommend that the respondent review and monitor their rostering from a health & safety perspective to ensure that they are fully compliant with legislative provisions on rest periods
Complaint under Protected Disclosures Act 2014
Summary of Complainant’s Case:
It was submitted that the claimant has been penalised for making a Protected Disclosure to her manager Mr. C.A. over controlled drugs going missing “by having her preferred Night Duty taken away and being switched to day duty without explanation”. It was contended that as a result the claimant had suffered from work related stress and anxiety and has been on extended sick leave. The claimant set out a summary of the incidents and the exchanges between herself and her colleagues and managers in relation to the missing drugs. In her direct evidence the claimant elaborated on the following submission which was contained in her referral to the WRC: “On the 29th March 2017 I reported to Mr. C.A., assistant director of nursing (ADON) that controlled drugs (palexia) had gone missing in B ward on the 20th March 2017. I told him I had been phoned at 0943 am on 20th March by Ms. M.C. acting CNM2 of "B" ward, after leaving the Hospital, to search my pockets for the drugs which I found upsetting as the other 2 nurses on night duty in the ward had not been asked that, nor had the nurses who took over the shift. The other 2 nurses on duty with me that night were not even contacted. I told him that the drugs had apparently been "found" in a previously checked waste bin later that morning. The CNM2 never contacted me to say the drugs had been found, I had to text her later on the 20th to find this out. After that report, the CNM2 switched my duties to days, from my expressed and previously allowed night duties and her behaviour to me immediately afterwards was intimidating. I have been on stress related illness leave since 10th April 2017 as a result.” The claimant elaborated at length on the extent to which she was aggrieved about being singled out as the only nurse who was phoned and asked to check her pockets. The claimant said in advising her line manager Mr. C.A. she was not reporting this to get at Ms. MC the Ward Manager but to protect herself. She questioned what would happen if the drugs had not been found. The claimant stated that she was worried she was being set up. She stated that she discussed the matter with a porter who told her she needed to report it. The claimant said that when she returned to work after making the disclosure she found that she had been changed from all night to 3 weeks of days without any discussion. The claimant said that she could not take anymore and viewed this change of rota as punishment. Under cross examination, the claimant accepted that drugs can go missing. The claimant said that she was fearful of being set up again. She stated that she felt it was a set up and that she could not understand the gap between the 2 searches – she thought the medication was put in the bin deliberately. There was no evidence to accuse anyone yet she was the only one who was phoned. In answer to a question as to whether she did believed someone consciously had taken the medication, the claimant said she did not know. When asked if she thought her line manager was part of the plan, the claimant replied that she reported the missing drugs to him and then her duty was changed. She said it was possible that they worked together against her. The claimant asserted that she was accused of taking drugs and asked to search her pockets. The claimant said that the 3 weeks of long days was set by her manager Ms.MC. The claimant stated that if anyone else had been asked to search their pockets there would be no issue. The claimant asserted that management were aware that owing to family circumstances she preferred to work nights. She stated that having reported the matter to Mr. CA on the 29th.March 2017, the new duty roster came out on the 7th.April 2017 and she had been changed from nights to 3 weeks of days in a row. She went to her GP and he placed her on sick leave on work related stress. In her direct evidence the claimant was adamant that any overtime or additional hours worked were done so at the request of management and not the claimant. It was submitted that the Act did not specify the method by which a protected disclosure had to be made. It was submitted that the claimant had previously been accused of wrong doing and policies were not followed. It was asserted that the hospital policy required that there be notification and investigation into missing drugs. In summing up the claimant’s representative contended that the penalisation arose when the claimant’s rosters were altered following her disclosure. It was argued that the claimant’s evidence of making the complaint should be preferred over that of Mr.CA and that the claimant was very clear that she had made the disclosure to Mr.CA and BK. It was submitted that the change in rosters established a prima facie case of penalisation. It was submitted that the misappropriation of drugs was so serious that it could lead to a nurse being struck off. The nurses coming on day duty were presented with a clean sheet at the change over between 7.15-7.30 and 1 hour and 40 minutes later a call was made to the claimant asking her to check her pockets. No attempt was made to contact the claimant to tell her the drugs were found. It was suggested that the manner in which the matter was handled should slant the WRC’s view regarding the evidence presented. It was confirmed that the claimant returned to work in May 2019 having been absent from work for 25 months. |
Summary of Respondent’s Case:
The respondent submitted that Mr. C.A. had no record, recollection or memory of the exchange referred to by the claimant and described by her as a protected disclosure made on the 29th.March 2017. This was confirmed by Mr. C.A. in his direct evidence. It was submitted that the hospital had a robust system in place for controlled drugs which was periodically reviewed. It was advanced that on the day in question, the claimant had worked the night shift, the staff coming onto the day shift were carrying out a drug check as is normal practise and Palexia was noticed as being missing. In conducting a search the drug was located and accounted for and in effect nothing was missing. It was submitted that the discrepancy had been noted and reported to management before any report was made by the claimant and that the matter was dealt with and investigated in line with policies and procedures in place in the hospital. It was asserted that the complaint constituted a grievance rather than a protected disclosure – that she was contacted, not informed of the outcome and the CNM11 allegedly behaved in an intimidating manner. It was submitted that it was not exceptional for a drug to be mislaid in a busy hospital and staff follow through on any discrepancy – in this case the discrepancy was accounted for. It was submitted that the claimant was off on continuous sick leave from the 10th.April 2017. It was submitted that the claimant had failed to use the respondent’s grievance and/or dignity at work policy. It was submitted that the respondent had been concerned for some time about the level of hours the claimant was working and that any action with respect to rosters was not as a result of any alleged reporting of the incident by the claimant. The respondent had no record of any complaint by the claimant against the CNM 2 for her behaviour. It was submitted that the claimant had not utilised the respondent’s procedures on protected disclosures. It was submitted that the missing drug had been found and no wrong doing had been identified and that mistakes do happen. The respondent had followed procedure and had no record of the claimant’s referral to her line manager. ”Management refute any allegation of victimisation/intimidation , the number of hours and night shifts worked by the claimant had been the subject of discussion and concern for some time prior to the incident and was not as a consequence of the incident”. Mr. CA gave direct evidence in relation to the claimant’s allegation and asserted that he had no recollection of the alleged exchange with her on the 29th.March 2017. He said that nobody has a contract for nights only and that he had a very good working relationship with the claimant .If the claimant’s alleged report had been referred to him he would have discussed it with Ms.MC – if it was confirmed the drugs were found that would have been the end of the matter and it would have gone no further. He stated that if something sinister had been reported he would have referred it to the Director of Nursing. Mr. C.A said that nobody has a contract for nights only but where possible they try and accommodate staff. He said that a lot of medication is dispensed between 7.30-9.43 and it is possible for drugs to go missing. When asked if he was aware of the claimant’s previous history, Mr. C.A. stated that he knew there had been an issue but was not aware of the details. He had been advised that the Kardex issue had been dealt with. He confirmed that the Ward Manager does the rosters – he had no recollection of a conversation between him and the Nurse Manager Ms. MC. In her direct evidence Ms. MC gave an account of her carer history and confirmed that she had no relationship outside of work with the claimant. She set out her recollection of the incident on the 20th.March 2017 when the drugs went missing. She said a colleague suggested ringing the claimant and it was not unusual to phone someone at home. Ms. MC denied that she ever had consultation with Mr. C.A with respect to roster changes. The witness could not recall her conversation with the claimant – she said that she rang the claimant because she had come off night shift and a colleague said the claimant would not mind. She would not have approached the claimant in an accusatory manner – it was a case of human error. The witness could not recall if she asked anyone else to check their pockets.Ms. MC said that she did not report the matter as the drugs were found.Ms.MC indicated that she was not aware of a whistle blowing policy. The witness said that rosters are based on skill mix and experience levels. Ms. MC was adamant she would not have consulted anyone else about rosters when it was put to her that the claimant’s rosters were changed following the alleged reporting of the incident. It was submitted that the claimant had indicated she wasn’t accusing anyone – the issue was that she was phoned at home. It was contended that if the claimant cannot identify a wrong doing, there is no remedy under the Act. It was submitted that the missing drugs had been discovered after a short period and the matter was satisfactorily resolved internally. The evidence of the manager on duty was that the ward was very busy that day. At 1.30 that day the claimant was advised that the drugs had been found. It was submitted that the mislaying of drugs was not uncommon and did not constitute a relevant wrongdoing. Making a phone call to ask someone if they knew about the missing drugs was not a wrong doing. It was contended that it was what a reasonable person would have done. Mr. CA did not recall the cliamant’s conversation and the first Ms.MC knew of the claimant’s complaint was when she was off on maternity leave. No causal connection had been established between the alleged disclosure and the roster. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Schedule 2 of the Protected Disclosures Act 2014 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act Decision:
Preliminary Matter of Jurisdiction
The definition of a protected disclosure in the Act is set out as follows :
5. (1) For the purposes of this Act “protected disclosure” means, subject to subsection (6) and sections 17and 18, a disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker in the manner specified in section 6, 7, 8, 9or 10. | ||
(2) For the purposes of this Act information is “relevant information” if— | ||
(a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and | ||
(b) it came to the attention of the worker in connection with the worker’s employment. | ||
(3) The following matters are relevant wrongdoings for the purposes of this Act— | ||
(a) that an offence has been, is being or is likely to be committed, | ||
(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services, | ||
(c) that a miscarriage of justice has occurred, is occurring or is likely to occur, | ||
(d) that the health or safety of any individual has been, is being or is likely to be endangered, | ||
(e) that the environment has been, is being or is likely to be damaged, | ||
(f) that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur, | ||
(g) that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement, or | ||
(h) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed. | ||
(4) For the purposes of subsection (3) it is immaterial whether a relevant wrongdoing occurred, occurs or would occur in the State or elsewhere and whether the law applying to it is that of the State or that of any other country or territory. | ||
(5) A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer. | ||
(6) A disclosure of information in respect of which a claim to legal professional privilege could be maintained in legal proceedings is not a protected disclosure if it is made by a person to whom the information was disclosed in the course of obtaining legal advice. | ||
(7) The motivation for making a disclosure is irrelevant to whether or not it is a protected disclosure. | ||
(8) In proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is. |
I have reviewed the entirety of the evidence presented at the hearing and the extensive submissions made by the parties. In her own direct evidence the claimant asserted that the kernel of this complaint was the singling out of her to search her pocket for the missing drugs. The claimant further asserted that she was not making accusations against her colleagues. In these circumstances I am obliged to conclude that the claimant was aggrieved about the manner in which the respondent handled the matter of the missing drugs and has misconceived this grievance as a protected disclosure in the disputed exchange she had with her line manager. Failure to comply with obligations arising from a contract of employment are expressly excluded from the definition under Section 5(3)(b) of the Act. Accordingly, I find I have no jurisdiction to investigate this complaint under the Act.
Dated: 18th March 2020
Workplace Relations Commission Adjudication Officer: Emer O'Shea