Worker

Employer

Anonymised Parties

A Healthcare Worker

A Hospital

Representatives

Barnaba Dorda SIPTU

Eamonn Ross Employee Relations Department

Act

Dispute Reference No.

Date of Receipt

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

IR - SC - 00000675

13/09/2022

The Worker was employed by the Employer as a health care assistant. On the 15th September 2019 a patient reported a verbal interaction which occurred between herself and the Worker the previous day. The Worker was placed on paid suspension pending the outcome of an investigation process. The Employer commenced an investigation process on the 15th September 2019 which resulted in a disciplinary hearing on the 23rd June 2022. This resulted in the imposition of a sanction of a final written warning on the 24th June 2022 which was upheld on appeal on the 14th July 2022. The Worker remained suspended and did not return to work physically until the 8th August 2022. On the 13th September 2022 the Worker referred the present dispute to the Workplace Relations Commission (hereinafter referred to as “the WRC”). The issue in contention concerns an appeal against the issuing of a final written warning to the Worker by the Employer.

The Worker’s dispute was set out in a comprehensive submission received by me in advance of the hearing which was opened to me by his representative.

The Worker herein has asked me to agree with his contention that the Employer’s handling of the investigation and disciplinary process which resulted in the imposition of a final written warning was fundamentally flawed as it failed to adhere to the principles of natural justice, that the disciplinary sanction imposed upon him was disproportionate, that the Employer failed to take into consideration all the circumstances including mitigating circumstances, that he was not afforded the right of cross-examination and that the process adopted was the subject of inordinate delays. 

The Worker stated that he received no support or training from the Employer, either during the period of suspension or since returning to work, despite the recommendation contained in the Investigation Final Report and the contents of the disciplinary procedure but that on his own initiative he made efforts to upskill and undertook a number of courses while he was suspended.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as independent Adjudicator.

The Employer was represented by the Employer Relations Manager. The Employer’s case was set out in a comprehensive submission received by me in advance of the hearing which was opened to me.

The Employer rejected the dispute and stated that a serious allegation was made against the Worker by a patient, that this allegation formed the basis of a formal investigation under the Trust and Care Policy and that the investigation team upheld the allegation. A disciplinary hearing by the appropriate manager, namely the Assistant Director of Nursing, was convened and following the hearing the Assistant Director of Nursing applied the sanction of a final written warning. A formal appeal hearing was convened by the Director of Nursing who upheld the sanction on appeal.

Whilst the Employer accepted that there had been some delay the Employer put forward extenuating circumstances which the Employer asserted contributed to unavoidable delays on its part. Furthermore, the Employer submitted that the Worker contributed to the delay and that the delay did not in any way prejudice the Worker or affect a fair process being applied to him.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

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

The present dispute involves the Worker’s contention that a disciplinary sanction imposed upon him was disproportionate, that it failed to take into consideration all the circumstances including mitigating circumstances, that the process adopted in respect of the same was fundamentally flawed and the subject of inordinate delays. 

This was a difficult case for all concerned and was not aided by the significant delays. The allegations against the Worker were serious and concerning to the Worker and the Employer had a serious matter to investigate in relation to the care of a patient.  When faced with allegations of this nature an employer such as the Employer has a duty and an obligation to all concerned to ensure that the matter is thoroughly investigated without delay to establish the facts and to ensure that the employee and the patient are protected throughout the process.

The Employer confirmed that it utilised the Trust and Care Policy to investigate such allegations and did so in relation to this case. The Trust and Care Policy is a nationally agreed policy for managing such allegations. The policy deals with protective measures such as putting an employee off duty and notes that the views of the staff member should be taken into consideration when making such a determination. There is a two stage process. The first is a preliminary screening the purpose of which is to ascertain if it is possible that an abusive interaction could have occurred. The policy sets out what “must” be included in the preliminary screening and it makes it explicitly clear that this is not an investigation. The staff member must be informed that the preliminary screening is taking place, where appropriate a physical or psychological assessment should be carried out and the manager must consult with another member of management or appropriate professional colleague before making a final decision as to whether or not an abusive interaction could have occurred. If it is decided that an abusive interaction could have occurred, then a formal investigation is warranted. In such cases the policy outlines that a staff member should be advised of the support and counseling services that are available. The Trust and Care Policy is prescriptive in relation to the investigation process. There is agreement required in relation to the investigation team and terms of reference. The scope of the investigation is also required and the staff member is entitled to copies of all relevant documentation compiled prior and during the investigation process. The staff member is entitled to be provided with preliminary conclusions and to provide additional information or challenge any aspect of the evidence. When the final report is issued the relevant manager makes a decision in relation to disciplinary matters if the allegation is upheld.

The Employer confirmed that it utilised the Disciplinary Procedure for Employees of the [Employer] January 2007 for the purpose of the disciplinary hearing. The disciplinary procedure sets out the principles which apply to all stages of the disciplinary procedure. It provides, inter alia, that while the disciplinary procedure will normally be operated on a progressive basis, in cases of serious misconduct the manager may bypass stages 1, 2 and 3 of the procedure. It states that no decision regarding disciplinary action will be made until a formal disciplinary hearing has been convened and the employee has been afforded an opportunity to respond and it makes it clear that the employee will be advised in advance of the disciplinary hearing of the precise nature of the complaint against him or her and will be given copies of any relevant documentation and that the employee will be afforded the opportunity to state his or her case and challenge any evidence that may be relied upon in reaching a decision. The purpose of the disciplinary hearing is to allow the employee to respond to the allegations before the Employer decides whether or not to take disciplinary action. According to the procedure, the employee must be made aware that the outcome of the hearing may result in a disciplinary sanction so that they appreciate the seriousness of the meeting. However, the decision-maker must not pre-empt the outcome of the hearing and the final decision with regard to disciplinary action can only be made when the employee has had the opportunity to state his or her case and plead any mitigating circumstances.

Under the disciplinary procedure employees have a right to appeal a final written warning to a level of management higher than the original decision-maker. Appeals must be made in writing setting out the grounds for appeal within seven days of the employee being notified of the decision. The disciplinary procedure is silent on the principles and procedures which apply to an appeal of a Stage 3 disciplinary sanction.

The Employer had an issue to address and was duty bound to investigate such an allegation. In doing so it is clear that a number of processes were conflated. The preliminary screening process, the subsequent investigation, the disciplinary hearing, and the appeal are separate and although some elements may overlap or duplicate it is critical that each is carried out for its own intended purpose.

The right to fair procedures and natural justice is implied into contracts of employment. These rights are particularly important in disciplinary matters even ones where the sanction may be short of dismissal as even a final written warning can have negative repercussions on an employee. The subject of any disciplinary process should be provided with a full and fair opportunity to state his case as part of the investigation process. It is a fundamental requirement of fairness that an accused employee be given a full and reasonable opportunity to examine all relevant witnesses. It is widely accepted as part of fair procedures and natural justice that an employee has a right to challenge his or her accusers before any findings are made. This right is paramount to any disciplinary hearing which is the point at which a decision is made in such matters and I am of the view that such a right cannot be ignored by the Employer.

In the case of In Re Haughey [1971] I.R. 217, it was said by Ó Dálaigh ó dálaigh C.J. at 264 that:

"… in proceedings before any tribunal where a party to the proceedings is on risk of having his good name, or his person or property, or any of his personal rights jeopardised, the proceedings may be correctly classed as proceedings which may affect his rights, and in compliance with the Constitution the State, either by its enactments or through the courts, must outlaw any procedures which will restrict or prevent the party concerned from vindicating these rights."

Applying that general principle to the facts of that case, the Supreme Court found that a person against whom damaging allegations were made was entitled to the following "minimum protection": "(a) that he should be furnished with a copy of the evidence which reflected on his good name; (b) that he should be allowed to cross-examine, by counsel, his accuser or accusers; (c) that he should be allowed to give rebutting evidence; and (d) that he should be permitted to address, again by counsel, the Committee in his own defence."

In Borges v. The Fitness to Practice Committee [2004] 1 IR 103 it was held by the Supreme Court that that the applicant could not be deprived of his right to fair procedures, which necessitated the giving of evidence by his accusers and their being cross-examined, by extending the exceptions to the rule against hearsay to a case where the witnesses were unwilling to testify in person. In relation to cross-examination the Supreme Court in Borges stated that “[i]t is beyond argument that, where a tribunal such as the first respondent is inquiring into an allegation of conduct which reflects on a person's good name or reputation, basic fairness of procedure requires that he or she should be allowed to cross-examine, by counsel, his accuser or accusers.”

Finally, in the recent Supreme Court case of Zalewski v. Adjudication Officer and WRC [2021] 32 E.L.R 213; [2021] 32 E.L.R 277 it was held that the right of cross-examination was a fundamental aspect of constitutional fair procedures. The Court emphasised the benefits of cross-examination as a core part of fair procedures as follows:

“As long ago as Re Haughey, these features of court proceedings, and, in particular, the ability to cross-examine the opposing party, were regarded as fundamental to fair procedures, and the right of cross-examination … was one of the rights without which no party:… could hope to make any adequate defence of his good name.”

The issue of fair procedures requires examination. I did not have the benefit of hearing from the investigation team, the Assistant Director of Nursing or the Director of Nursing and therefore I cannot comment on whether the investigation and disciplinary processes were conducted by persons with relevant expertise. However, it is clear from the evidence presented that there are a number of significant procedural shortcomings in relation to the preliminary screening, investigation, disciplinary processes and appeal.

The helpful procedures outlined in the Trust and Care Policy and the Disciplinary Procedure were not adhered to. The documentation provided is inadequate. There is no documentary evidence provided in relation to the preliminary screening stage. I was provided with the Investigation Final Report but I was not furnished with any appendices and I did not have the benefit of hearing from members of the investigation team and therefore I cannot comment on whether the investigation had clear and agreed terms of reference. There was no evidence of any notes having been taken at the investigation hearing. The patient did not prepare a statement after the incident and the patient was not interviewed by the investigation team. The only evidence attributed to the patient was the type written statement of the Clinical Nurse Manager presented to the patient on the 1st October 2019 for her signature. While a signature appears at the bottom of the document there is no evidence that the signature is in fact that of the patient. Given the circumstances I would have expected a witness to observe the patient reading and signing the statement and then signing the statement themselves to confirm that they had witnessed the signing by the patient. The patient was not contacted by the investigation team until the 13th July 2020, ten months after the alleged verbal interaction, at which point the patient indicated an unwillingness to cooperate with the investigation. The Respondent denied that the patient failed to co-operate with the investigation and submitted at the hearing before the WRC that the patient was too unwell to co-operate however there was no documentary evidence to support this contention and the Investigation Final Report makes no reference to ill health being the reason for the patient’s failure to attend for interview; the Investigation Final Report states that as of the 27th August 2020 the patient confirmed to the investigation team that she would “not be available to attend any further meetings.”

In the Investigation Final Report it was accepted by the investigation team that there were no witnesses to the incident and nobody to corroborate either parties’ version of events. It was also accepted by the investigation team that the patient was not interviewed by them. The patient therefore never confirmed, refuted or commented on the statement of the Clinical Nurse Manager which the patient is alleged to have signed on the 1st October 2019 or the content of the Worker’s statement or his evidence to the investigation team. Nonetheless in Section 6 the Investigation Final Report entitled “Summary of the evidence into each allegation” the investigation team states as a matter of fact on three occasions what the patient is alleged to have stated in evidence. Again, I did not have the benefit of hearing from the investigation team and I was not furnished with any notes from the investigation however from a reading of Section 6 and the Investigation Final Report as a whole it would appear that the investigation team relied on hearsay evidence in arriving at its findings.  

The Investigation Final Report was completed on the 3rd March 2022 and was communicated to the Worker on the 24th March 2022 eighteen months after the Employer commenced the procedure under the Trust and Care policy. Section 8 set out the three findings - one allegation was upheld under the Trust and Care Policy and two allegations were deemed to be unprofessional in nature but not in breach of the Trust and Care Policy. The report contained one recommendation in Section 10 namely that the Worker attend relevant training that includes communication with clients. As of the date of the hearing before the WRC there was no evidence that the Employer had indicated to the Worker what improvements were required. There was also no evidence that the Employer had implemented the recommendation in the Investigation Final Report or provided the Worker with support, training or supervision despite the Employer acknowledging in its written submission to the WRC that the sanction applied to the Worker allowed him to return to work where relevant training and supervision could be provided to him as recommended by the Investigation Final Report. The letter of the 24th March 2022 informed the Worker that he could “expect to be contacted by a member of the Nursing Management Team in the near future regarding your return to work.” On foot of the letter the Worker had an expectation that he would be returned to work however he received no communication from the Employer. His representative engaged with the Employer on his behalf seeking a return to work date without success. 

By letter dated the 8th June 2022, three months after the completion of the Investigation Final Report, the Worker was called to a disciplinary hearing on the 23rd June 2022 to respond to the findings set out in the Investigation Final Report. I did not have the benefit of hearing from the Assistant Director of Nursing who conducted the disciplinary hearing. There was evidence that the disciplinary hearing was not conducted in accordance with the principles of natural justice or in accordance with the Employer's own disciplinary policy. From a consideration of the documentation furnished to the WRC there was no evidence that the Worker was advised in advance of the disciplinary hearing of the precise nature of the complaint against him under the disciplinary procedure or that he was furnished with copies of any relevant documentation which the Assistant Director of Nursing was going to rely upon at the disciplinary hearing or that the Worker was afforded the opportunity challenge any evidence that was relied upon in reaching a decision. There was no opportunity to cross-examine any witness and no evidence that consideration was given to any alternative or mitigating circumstances. Finally there was no evidence of any notes having been taken at the disciplinary hearing.

A disciplinary hearing is convened to decide, if any, sanction should be imposed following careful consideration of the evidence presented and taking into account the employee’s response to this evidence, including that adduced at cross-examination and any mitigating circumstances provided by or on behalf of the employee. While the disciplinary procedure provides that the manager will not prejudge the outcome of the hearing and will take into account any mitigating circumstances before deciding on appropriate action, having regard to the content of the letters of the 8th June 2022 and the 24th June 2022 and the email communication passing between the Employer and the Worker’s representative following the disciplinary hearing, in this case it seems that the decision was made that this was a case that warranted the sanction of a Stage 3 final written warning before the formal disciplinary hearing even took place and before the Worker was afforded an opportunity to respond.

While it was submitted on behalf of the Employer that the conclusion of the investigation warranted the bypassing of Stages 1, 2, and 3 of the procedure and the disciplinary process to commence directly at Stage 4 there was no evidence before the WRC that this consideration took place nor was there any evidence of the basis upon which it was decided to apply Stage 3 of the procedure. From the evidence that was adduced it is apparent that there was only one option considered and that was a Stage 3 final written warning.

The outcome of the disciplinary hearing held on the 23rd June 2022 was communicated to the Worker by the Assistant Director of Nursing on the 24th June 2022 and merely stated that:

“Having considered the facts of the matter, I now wish to advise you formally that the decision is to impose a sanction at stage 3 (Final Written Warning) at the disciplinary procedure 2007. This sanction will remain on your file for 12 months.”

The Worker’s representative immediately sought clarification as to the “facts of the matter” that were considered by the Assistant Director of Nursing and by email dated the 29th June 2022 the Assistant Director of Nursing confirmed that “The ‘facts’ we referred to in the letter is the actual Report itself, that is what we took into consideration.”

It was confirmed at the hearing before the WRC that “the actual Report” is a reference to the Investigation Final Report.

By further email dated the 1st July 2022 the Assistant Director of Nursing confirmed that “[t]he decision was made on receipt of the final report in discussion with the HR Manager and the Director of Nursing.”

It is clear that the Employer conflated the investigation with the disciplinary hearing.  The difficulty with the approach adopted by the Employer is that at the disciplinary hearing it did not first consider whether a disciplinary breach or breaches had occurred and how serious any such breaches were. It took the breaches identified in the Investigation Final Report as disciplinary breaches and then only considered the issue of sanction.

The Worker appealed the imposition of a final written warning and the appeal was heard by the Director of Nursing who upheld the findings of the disciplinary hearing. I did not have the benefit of hearing from the Director of Nursing. The email referred to above dated the 1st July 2022 states that the Director of Nursing was consulted regarding the decision to impose a disciplinary sanction on the Worker and it was confirmed in the appeal report dated the 14th July 2022 that “having taken advice from Human Resources” a final written warning was the only option that could be considered. It would therefore appear from the documentation submitted to the WRC that the Director of Nursing and the Human Resources Manager were involved in the disciplinary hearing and the appeal hearing.

The Worker submitted that there were significant delays following the taking protective measures to suspend the Worker on pay. The verbal interaction between the Worker and the patient occurred on the 14th September 2019 and protective measures were adopted on the 15th September 2019. The Worker was not interviewed by the investigation team until the 15th March 2021, eighteen months after the complaint which initiated the process and the Investigation Final Report was not communicated to him until the 24th March 2022, over a year after he was interviewed. I accept the Worker’s submission that following the completion of the report the Employer failed to act promptly on receipt of the Investigation Final Report and in so failing tacitly accepted that there was no requirement for a disciplinary hearing. It was not until the 8th June 2022 that the Employer requested that the Worker attend a disciplinary hearing on the 23rd June 2022. The Worker remained suspended with pay from the 15th September 2019 until his physical return to work on the 8th August 2022.

The Employer put forward a robust defence stating that these had been unprecedented times for the Employer as it was battling initially with the effects of a global pandemic and thereafter with the effects of a cyber-attack which occurred in May 2021 and which rendered its records inaccessible for over 2 month. 

I have taken into consideration that there were periods of time when the Worker and his representative were unavailable however it is noteworthy that it took three years from the date of the complaint to conclude the process.

Finally, there was considerable weight given by the Worker to the fact that he was not facilitated with cross-examination, and in particular the opportunity to cross-examine the patient who made the complaint against him. Whilst the Worker’s focus appeared to be on the cross-examination of the patient I note that there was no evidence that the Worker was afforded the right to cross-examine any of the individuals interviewed by the investigation team, namely TH, KM and MKH or that these individuals were interviewed as part of the disciplinary procedure.

The WRC and the Labour Court have consistently emphasised that an employer is required to follow fair procedures before a sanction is imposed on an employee. The Code of Practice on Grievance and Disciplinary Procedures (S.I. 146 of 2000) which promotes best practice in the conduct of grievance and disciplinary procedures, emphasises the importance of procedures to ensure fairness and natural justice. Having considered all of the evidence adduced and the written and oral submissions of the parties and having regard to the legal authorities cited above I conclude that the Employer has been compromised in terms of ensuring a fair and transparent process and adherence to the principles of natural justice. I further conclude that in circumstances where the process took three years from initiation to conclusion there was an inordinate delay on the part of the Employer. The process which resulted in the imposition of a disciplinary sanction was substantively and procedurally unfair.