Worker

Employer

Anonymised Parties

An employee

An employer

Act

Dispute Reference No.

Date of Receipt

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

27/07/2021

The hearing took place on a face-to-face basis.  The employer is a healthcare provider and the employee is on a salary of €45,000 pa.

The employee works in a healthcare setting.  She was issued with a Final written warning with a 12-month duration which was reduced to a written warning for a 9-month duration on appeal.  She was also issued with a demotion but his was reversed upon appeal.

The employee admitted to changing a diagnosis on a patients record following the request of the patient’s family.  The employee submitted that she investigated the matter raised by the family and upon investigation it became apparent that the original diagnosis had not been entered into the system in accordance with the diagnosis that the consultant had written.  In effect the employee submitted that she had amended a clerical error.

The employee submitted that the procedures were not followed in that the person who conducted the disciplinary hearing was the same person who raised the Terms of Reference for the investigation.  The employee suggested that the investigation did not consider the explanation she put forward for the correction but rather only considered the allegation against the employee.

The employee submitted that she sought clarification as to the allegations made and how they referred to her but that this was not forthcoming.  The employee also submitted that the disciplinary hearing breached the principals of natural justice and fairness.  She also submitted that her response was not given full weight and consideration.

The employee is seeking a recommendation removing the disciplinary sanction from her personnel file and seeking compensation for the unfair procedures and the long delay in concluding matters.

The employer submitted that a complaint was made regarding the change made to a patient record by a non-medical member of staff.  The employer that this change resulted in a situation which impacted on patient safety and was considered serious in nature.

The employer submitted that the matter was investigated, and a disciplinary hearing took place as a result of a separate investigation.  The employer submitted that the disciplinary hearing took place and that it took place in a manner that was just and equitable and the employee was allowed to bring a representative with her.

The employer submitted that after the witness interviews took place the employee was provided with an opportunity to review all the information.  A draft report issued in November 2020 with the final report issuing some six weeks later in December.

The employer submitted that the appeal was also heard by individuals who had no prior involvement in the case.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

The investigation and disciplinary process took less than six months to commence and conclude.  On the basis of this timeline, I can find no undue delay in undertaking either the investigation or the disciplinary process. 

The terms of reference were drawn up by the Head of Human Resources for the investigation that took place, and the disciplinary process began after the investigation process was concluded.  The head of HR then undertook the Disciplinary process.  On the basis of this, I am not satisfied that a breach of natural justice and fairness took place simply on the basis that the terms of reference were written by the same person as conducted the disciplinary hearing.  However, in this instance it became apparent during the evidence the investigator did not investigate all relevant matters – there was an allegation that the was an existing written procedure in place which the investigator was not aware of and did not consider.  It also became apparent that the employee was not allowed to raise this or in the alternative, if she did it was not considered.

Having considered all the written and oral evidence, I am not satisfied that the disciplinary process was flawed in itself but it appears to me that the investigative process was not fluid enough to permit other relevant information to be taken into account.  This resulted in a flawed disciplinary process and accordingly resulted in an unfair decision.

The employee is seeking to have the disciplinary sanction expunged from her record.

I also note that it became apparent that the patient record system is too rigid to allow for entering the full range of different diagnosis.  The employee submitted that she authored a procedure in 2009 for the amendment of clerical errors on patient records but this does not seem to be followed by all staff (or indeed any staff).

It appears that the employee has acted at all times in the interests of accuracy and patient safety however, she took it upon herself to amend a patient record.  The employee only informed the employer of the data change after she had undertaken it.

Having considered all the written and oral submissions made in relation to this dispute, I make the following recommendations:

I recommend that the employer draft written procedures to rectify administrative errors which may occur from time to time and arrange training for its staff in order to ensure and consistent and transparent approach by all administrative staff.  The full list of conditions diagnosed by the medical staff members should be available to administrative staff when entering patient data.

I recommend that the employer adopt a procedure which allows their patient data system to be added to, in areas such as the naming of patient diagnosis.

I recommend that the disciplinary sanction that has elapsed be expunged from the employee’s employment record.

I recommend that the employee should receive the sum of €4,500 in recognition the fundamental flaws in the investigation of this matter.

IR Acts – patient records – clerical error – revised systems recommended