Complainant

Respondent

Anonymised Parties

Employee

Employer

Representatives

 n/a

 n/a

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00054244-001

21/12/2022

The Complainant is seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts and has submitted that a verbal warning was improperly placed on her employee file (CA-00054244-001).

The Complainant attended the hearing by video link and represented herself and gave evidence under oath.

The Complainant commenced employment with the Respondent on the 7th May 2005 and was employed as a staff nurse.

The incident the subject matter of the complaint herein occurred on the 15th November 2022 and it was alleged that the Complainant had left  an elderly confused patient on her own who  subsequently left the hospital grounds.

The Complainant submitted that she was called into a meeting on the 16th November 2022 in the interim Director of Nursing’s office where the aforementioned allegation was made.

The Complainant submitted that on the 15th November 2022 she was looking after ten acutely ill patients and when she heard the door alarm she noticed a patient absconding from the ward. The Complainant followed the patient to the corridor and tried to bring her back to the ward however she presented challenging and threatening behaviour. The Complainant returned to the ward and informed the clinical nurse manager of the situation and further asked a colleague to inform security and provided relevant details. The Complainant, at this juncture, believed she had done everything she could do and returned to care for her designated patients.

The Complainant provided a written statement on the 17th November 2022 to the Respondent of her account of the aforementioned incident. On the 18th November 2022, as per letter from the Interim Director of Nursing, a formal verbal warning was issued and the Complainant was informed this was to remain on the Complainants file for a 6 month period.

The Complainant submitted that the allegation made her against her was false. The sanction imposed was without any proper investigation or formal hearing. Further, the Complainant was not afforded the right to respond and the Respondent did not adhere to their disciplinary procedures. In the course of her evidence, the Complainant indicated she found the sanction imposed very distressing. 

The Complainant was on certified sick leave from the 17th November 2022 until the 27th January 2023 and on annual leave from 28th January 2023 until the 20th March 2023. The Complainant availed of a career break which commenced on the 20th March 2023 and will resume her hospital duties on or about the 18th March 2024.

This Complaint was received by the Workplace Relations Commission on the 21st December 2022.

The Respondent accepts the background facts and the timeline in relation to the Complainants employment with the Respondent.

The Respondent is a level 2 hospital and was represented at this hearing by the Senior Manger of Corporate and Employee Relations and the (interim) Director of Nursing who both gave evidence under oath.

The Respondent submitted that the aforementioned incident could have been avoided and the Complainant as per her professional training should have known better. The Respondent said it was noteworthy that the Complainant acknowledged leaving the vulnerable patient unaccompanied.

However, the Respondent fairly concedes that the meeting which was convened on the 16th November 2022was not carried out in accordance with their Disciplinary Policy and Procedures (2007). The Respondent submitted that although they believed the Complainant exhibited a significant lack of professional judgement the process of the how this warning was issued was flawed from a procedural perspective.

Ultimately, the Respondent withdrew the verbal warning from the Complainants file as per the letter of the 7th March 2023.

I have carefully listened to the evidence tendered and submissions made in the course of this hearing by both parties.

The Labour Court decision of Bord Gais Eireann -v- A Worker AD1377 aptly sets out my remit in relation to disputes regarding internal investigations ( and also extends to disciplinary processes brought under Section 13 of the Industrial Relations Act 1969 )as follows: “It is not the function of the Court to form a view on the merits of complaints giving rise to those investigations nor can it substitute its views for those of the investigators appointed in either case. Rather, the role of the Court is to establish if the procedures used by the Company conformed to the generally accepted standard of fairness and objectivity that would normally be used in cases such as these.”

Therefore, my role is not to substitute my views for those involved in dealing with this matter but to establish if the procedures adopted by the Respondent conformed to the generally accepted standard of fairness and objectivity that would normally be used in such cases. Having examined the disciplinary process in question and for the reasons outlined on behalf of the Complainant, I am   satisfied that the Respondent conformed to the generally accepted standard of fairness and objectivity that would normally be used in such cases.

As already stated and as per the Labour Court’s position confirmed in Bord Gais Eireann -v- A Worker AD1377, my role in the context of a dispute relating to disciplinary action is confined to considering the reasonableness of procedures adopted in the particular circumstances, as opposed to placing myself in the role of the employer and making findings of fact in relation to the matters alleged.  I am further guided by S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) requiring that the procedures for dealing with workplace disciplinary matters reflecting the varying circumstances of enterprises/organisations must comply with the general principles of natural justice and fair procedures.

In consideration of the above and in light of the concessions made by the Respondent, I am satisfied that the meeting of the 16th November 2023 was not carried out in accordance with the Respondents own polices and procedures. In the circumstances of this matter, I find it was not reasonably open to the Respondent to issue a verbal warning and for it to remain on the Complainants file for 6 months.

In all of the circumstances I am making the following recommendations, the Respondent, its servants and agents must follow their own policies and procedures at all times and the Respondent is to pay to the Complainant compensation in the amount of €750.00

I find that the Complaint (CA-00054244-001) made pursuant to the Industrial Relations Acts succeeds and recommend that the Respondent, its servants and agents must follow their own policies and procedures at all times and the Respondent is to pay to the Complainant compensation in the amount of €750.00

Disciplinary Procedures – Industrial Relations