Worker

Employer

Anonymised Parties

A Support Worker

A Private Clinic

Representatives

Fergus Dwyer of IBEC

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 - 00000557

15/08/2022

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

IR - SC - 00000558

15/08/2022

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

CA-00058576-001

15/08/2022

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

CA-00058576-002

15/08/2022

The worker made claims under the Industrial Relations Act in relation to disciplinary sanctions and bullying and harassment procedures, and claims of unfair and constructive dismissal. These all follow an incident on 4 July 2022. The worker has made the dismissal claims under the Industrial Relations Act as he has less than 12 months service.

The worker started employment with the employer on 4 April 2022 as a Support Worker.

On 4 July he was working a night shift on the Surgical side of the Unit he was working in. The worker submits the Clinical Nurse Manager for the Unit came to him and told him to move to the Medical side of the Unit. He went to the nurses station on the Medical side and asked for more information on the patient from nurses but was not given this information. He then asked the Clinical Nurse Manager for more information on the patient and was told not to ask but to just do what he was asked to do. He says he stayed with the patient for about 30 minutes when he asked a nurse to stay with the patient because he wanted to talk to the Clinical Nurse Manager to get more information about the patient’s care. The Clinical Nurse Manager said she was very busy. The worker asked her if he could stay on the Surgical side where he was feeling more comfortable to do his usual tasks, also he wanted more information about the patient.

He says the Clinical Nurse Manager told him “I am advising you to do what I am saying. Otherwise, you know what will happen to you tomorrow.” He told her the way she was talking to him made him feel uncomfortable. Then the Clinical Nurse Manager started shouting at him. The worker said he would prefer to go home instead of working in that disrespectful environment. The Clinical Nurse Manager sent another carer to the Medical side and told the worker, in front of colleagues, he could go home and the next day she would speak to the Matron and “you will see what will happen to you”.

On 5 July he had a meeting with the Matron and someone from HR. The worker says he was humiliated by the questioning of the Matron. He was sent a dismissal letter on 10 July, which he appealed. There was an appeal meeting on 21 July 2022 with the Chief of Clinical Services. He received the outcome of his appeal on 27 July 2022.

The worker says he was unfairly dismissed, as he did not have the chance to be heard properly, and he was bullied/harassed by members of staff; in particular the Clinical Nurse Manager and the Matron.

The employer says on 4 July 2022 the worker reported for duty on the surgical ward of the Unit, under the supervision of the Clinical Nurse Manager. At 20.40 there was a late admission to the clinic who had dementia and needed special care. As the Care Worker assigned  to the patient’s ward was pregnant it was decided to assign the worker to ‘special’ the patient. In effect this means sitting with the patient to ensure they do not fall or leave the room.

When the worker was tasked with looking after the patient he initially told the Clinical Nurse Manager that he was busy and did not want to ‘special’ the patient, but he subsequently agreed to do so. The Clinical Nurse Manager left the worker with the patient and went to the pharmacy to get the patient’s medication. On her return she noticed the worker had left the patient. The Clinical Nurse Manager found the worker and told him he should not have left the patient and he should return to her at once. The worker said he did not wish to do so and steadfastly refused to return and care for the patient.

The Clinical Nurse Manager again instructed him to return to the patient. The worker again refused and left work a short time later. The Clinical Nurse Manager subsequently reported the actions of the worker to the Matron.

On 5 July HR contacted the worker by phone and invited him to attend a meeting to discuss the events of the previous night and his alleged poor performance. He was advised he could be accompanied at the meeting if he so wished. The meeting took place with the Matron and someone from HR. The worker was invited to explain his actions, where he had allegedly failed to stay with a vulnerable patient. The worker stated he had tried to ascertain details about the patient who he says was screaming and distressed, and that he went home because the Clinical Nurse Manager had been rude to him.

On 7 July the worker was informed of the employer’s concerns that he had refused a reasonable request made by the Clinical Nurse Manager and that his performance in this instance fell short of what was expected of him and that consequently his contract of employment was being terminated with effect from 7 July 2022. He was told he could appeal the decision within 5 working days.

On 11 July the worker lodged an appeal. The appeal meeting took place on 21 July and was chaired by the Operations Manager. The worker was accompanied by a work colleague. Prior to the meeting the Operations Manager had spoken to the Clinical Nurse Manager to clarify her version of events. On 21 July the Operations Manager informed the worker that his appeal had been unsuccessful.

The employer says the worker’s failure to adhere to instructions could have left a vulnerable patient exposed to danger. Matters were compounded by his failure to comprehend the seriousness of his actions when interviewed.

The employer also clarified the worker was within his probationary period and they dealt with him in accordance with their Probationary Policy, which is in their Employee Handbook and was received by the worker on commencement of his employment.

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

The accounts of what happened on 4 July given at the hearing by the worker and the Clinical Nurse Manager were not that dissimilar. The main difference is the personal emphasis. The worker claiming he merely wanted to find out more about the patient. He was upset with the response and wanted to return to the Surgical side of the Unit, with which he was familiar. Whilst the Clinical Nurse Manager saying she merely wanted the worker to do as he was told and stay with the newly arrived patient; she did not have the time to answer his questions. The worker says he was sent home while the Clinical Nurse Manager says he left.

I understand the Clinical Nurse Manager was dealing with a very busy Unit when a late admission was made. She assigned the worker to ‘special’ the patient. He felt uncomfortable with the assignment and says he wanted more information about the patient. However, I think he wanted more support but this was not available. I do not understand why he did not understand that he should not leave the patient. He did not contend that this work was not appropriate to his duties.

The Clinical Nurse Manager was not in a position to provide the support the worker wanted and was probably very short with him. She expected her instructions to be followed and did not understand why the worker would not just stay with the patient.

This led to a disciplinary meeting with the Matron at which the worker appears to have shown no understanding that he had failed to follow an instruction but stressed how unfairly he felt he was treated.

I have considered everything that was submitted in writing and said at the hearing. This was a one-off incident but it was a serious failure to follow instructions in a medical care environment. I do not accept the worker’s contention that he was bullied or harassed. Nor do I agree that disciplinary procedures were implemented inappropriately. The worker did not show that he was constructively dismissed. The disciplinary procedure was carried out over a short period of time but I am satisfied it was appropriate to the circumstances of a one-off incident and that the worker was given the opportunity to put his case and give reasons for his actions. The disciplinary process was also appropriate for someone within their probationary period; in that it included an appeal process.

IR – dismissal not unfair