Worker

Employer

Anonymised Parties

A Health Care Worker

A Hospital

Representatives

Self-Represented

Hospital HR Manager

Act

Dispute Reference No.

Date of Receipt

Industrial Relations Act,1969

CA-00051157-001

14/06/2022

The issue in Dispute was the alleged Unfair Dismissal of the Health Care Worker by a Hospital.

The Hospital concerned is a Psychiatric Health facility.

The employment began on the 27th July 2020 and ended on the 16th July 2021.

The rate of pay was stated by the Worker to be approximately € 2,000 gross per fortnight for 39 Hour week.

The Worker submitted detailed documents and gave an extensive Oral Testimony.

In general things had gone well following his commencement in late July 2020. He had integrated happily with other staff and was regarded, he felt, as a competent hard worker. However, an incident took place on the 3rd of November 2000 regarding Alarms in Unit 2. He had responded as best he could and in keeping with what he perceived to be proper procedures. However, the Nurse in charge, a Ms S, had deemed it to warrant a Disciplinary action – an Oral Warning. This Ms S continued to Harass him thereafter. A further Disciplinary Hearing took place in March 2021 with Mr W, the Senior Manager and his Union rep. It was agreed to give the Worker a Transfer to Unit No 3 where he would not be in daily contact with Ms. S and could “make a Fresh Start”.

However, the Racist approach of Ms S and now other colleagues, especially Mr Y continued unabated.  Mr Y regularly called the Worker a “Refugee” in a most derogatory manner. There appeared to be no sanctions against any Racist colleagues.

On the 8th June the worker was on duty in Unit No 2, against the provisions of the earlier agreement, and he had a dispute with Ms S. A colleague of Ms S, Ms H, was delegated to give him instructions. A verbal exchange had followed. He had simply queried the instructions and was not in any way argumentative despite it being portrayed that way by Ms S and Ms H.

Mr W met the Worker on the 26th June and queried the incident on the 8th June. Mr W then proceed to tell the Worker that his probation was being extended for another 3 months.

On the 2nd of July the Worker received a letter from Mr W terminating his employment.

In general, the worker alleged that he had continually been subjected to racist Treatment in the Hospital. His legitimate views were never listened to. He was 39 years of age at the time and had extensive blame free experience in other Health care facilities.

All this was ignored, and his dismissal was completely Unfair.

In closing he expressed severe criticisms of the Trade Union that he had been a member of. They had basically ignored him, despite numerous calls and emails to their Head Office and were of no use at all.

The Employer was represented by a Head Office HR Manager, Ms M and supporting Oral testimony was given by, Mr W, the Senior Manager.

It was important to set the context the Employer felt. The Hospital concerned was a Psychiatric Facility with many seriously unwell patients.  Security for all involved was a paramount concern as was excellence of care as many Patients were long stay residents.

The Worker was dismissed because of Performance issues. In November 2020 Mr W had issued an oral warning regarding the Worker’s response to Alarms. In this Facility, Alarms and quick responses were of the utmost seriousness for Staff and Patient Safety.

In February 2021 Mr W again called the Worker to a Performance Review meeting. The issues of concern to management were the safe management of cutlery, the supervision of showers where razors were being used, the use/non-use of proper PPE and a general perception by colleagues that the Worker was not “pulling his weight”. Mr W gave extensive Oral testimony on these points. He had issued the Complainant with a Formal Written warning on the 30th March and had transferred him from his original Unit (Unit 2) to a new Unit -Unit 3 where he could make a “fresh start”. He, Mr W, would meet him monthly to monitor his performance. Nothing of note took place at the April and May meetings with Mr W.

However, on the 8th June a serious public verbal altercation took place with Ms H. This was particularly alarming for the Hospital as a united public front among staff was a vital aspect of the care programme for many very psychiatrically ill patients. In a follow up meeting with Mr S, the Lead on the day, the Worker raised numerous allegations of Racism and in particular expressed the view that Ms S had negatively influenced all staff throughout the Hospital against the Worker.

Mr W met the Worker again on the 26th June. An extensive discussion regarding performance issues took place. On careful reflection Mr W decided not to extend the Probation any further and choose instead to end the Employment.

The Hospital has a very challenging patient population, and the utmost highest standards were absolutely necessary from all Staff. All policies regarding Racism and Employee Welfare were in place. The Facility had a multi racial background staff and Racism had never been an issue.

In his extensive experience as a Manager, Mr W, explained that regrettably, in some cases, staff for a wide variety of reasons do not meet the standards or find it too personally challenging to work in the Facility. This was one such case and it had been better to end the probation.

He had taken a close interest in the Performance of the Worker in the Spring of 2021 and his decision to end the Probation was not taken lightly.

An Appeal of the Dismissal decision, by a senior level Management Officer, was offered to the Worker. It was never made clear to the Hospital why this Appeal was never exercised (Trade Union difficulties were alleged by the Worker) and the WRC proceedings were the first follow through to the Dismissal.

4:1        General Discussion

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

The context is important in this Dispute. The Hospital is a Facility for very seriously ill psychiatric patients with most being referred for often very long, involuntary, in-patient stays.

In this context very rigorous procedures and the highest levels of staff performance are critical.

The Oral testimony from Mr W, the Manager, was very persuasive. In his testimony he did not strike the Adjudication Officer as a Manager who would take hasty or ill-considered decisions. The Hospital context would not allow such decisions.

The Worker in his Oral testimony stated that he had often simply queried why certain procedures were happening and had often, as in the case of the cutlery, simply followed common sense. He was well aware of the danger potential of unaccounted for cutlery in a Facility such as the Hospital.

Much of the Worker’s case was directed against Ms S, the Nurse lead in Unit 2, where the first Performance issues began in late 2020. In fairness to the Worker the absence of Ms S deprived him of the Right to cross examine her at the Hearing.

This has to be balanced by the fact that Mr W, the Manager had two full internal hearings (where the allegations from Ms W were central) into the case and the final dismissal Appeal was offered.

On balance the dispute is basically that the Worker is claiming that the Hospital is riddled with Racism and that he as a non-Irish Worker of colour never had a chance to be even believed.

The Manager, Mr W, explained that this was never the case. He had used his judgment and had listed to the Worker. He had relocated the Worker, in conjunction with the Union Rep, to a different Unit to give him a “Fresh Start”.

In coming to a Conclusion, the Adjudication officer had to weigh up the very serious allegation from the Worker against the professional evidence given by Mr W.

A good working knowledge of the Group Policies was also beneficial to the Adjudicator. The facility is fully Unionised by a range of General and Professional Associations and Unions. It would be very surprising if Racism of the level alleged was in existence.

It was unusual, in this context, that the Worker did not have Union representation at the Hearing. However, the serious allegations against the Union’s alleged dilatory attitude were well ventilated by the Worker.

From the Oral Testimony of the Worker, it was clear that he was very experienced in Psychiatric care. The Adjudication conclusion tended to the view that the Worker, while experienced in Psychiatric care, had never, it appeared, been employed in a very specialist Hospital such as the Employer here. It was very probable that what would have seemed to the Worker “Common Sense” in a less secure Unit was not possible in the Employer Hospital for a variety of high Security concerns.

Not every Worker will adapt to the very specialist environment of the Hospital in this case. Not remaining in the Employment of the Hospital Employer in this case should not be seen as a very negative outcome for the Worker.

4:2      Overall Conclusion.

On balance the Adjudication view has to be with the Employer.

Legal Precedents point out that probation periods exist to manage and safeguard employments.

In this case the Manager had to exercise his considered judgment and end the employment.

No Unfair Dismissal can be seen to have existed.

Probation, Unfair Dismissal.