LCR22954

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00041951 (CA-00052801 IR-SC-00000675)

BACKGROUND:

The Employer appealed the Adjudication Officer’s Recommendation to the Labour Court on 8 January 2024 in accordance with Section 13(9) of the Industrial Relations Act, 1969.

On 20 December 2023 the Adjudication Officer issued the following Recommendation:

“I recommend that if the Employer has not already done so the letter of warning and all documentation relating to the investigation under the Trust and Care Policy and the diciplinary procedure be removed from the Worker’s file.

I recommend that the Employer comply with the recommendation set out in the investigation Final Report dated 3rd March 2022 and that it provides the Worker with support and training to include communication with clients.”

A Labour Court hearing took place on 3 April 2024.

RECOMMENDATION:

The Appeal

This matter came before the Court by way of an appeal on behalf of the Health Service Executive (‘the Employer’) from a Recommendation of an Adjudication Officer (ADJ-00052801, dated 20 December 2023) under section 13 of the Industrial Relations Act 1969. The Adjudication Officer recommended, inter alia, that “the Employer pay to the Worker the sum of €3,000 in settlement of the dispute”. Notice of Appeal was received in the Court on 8 January 2024. The Court heard the appeal in Dublin on 3 April 2024.

Background to the Dispute

The Worker is employed as a Healthcare Assistant at Our Lady of Lourdes Hospital, Drogheda since October 2016. On 1 October 2019, a serious complaint was raised by a female patient against the Worker. The complaint was processed in accordance with the Employer’s Trust in Care Policy. A thorough investigation was carried out and a disciplinary hearing followed, the outcome of which was the imposition of a final written warning. The Worker unsuccessfully appealed the disciplinary outcome. The Worker was placed on administrative leave for the duration of the Trust in Care investigation and the disciplinary proceedings. He received full payment, including premium payments for the duration of the period of administrative leave. The Worker returned to the workplace in August 2022.

As the disciplinary sanction imposed on the Worker had expired before the Adjudication Officer issued her Recommendation, and the record of the sanction has since been expunged from the Worker’s personnel file, the issue of the proportionality of the sanction is now moot and therefore does not form part of the appeal before the Court.

The issue referred to the Court is confined to what the Worker contends is the inordinate delays that characterised both the initial investigation of the complaint against him and the subsequent disciplinary process.

The Employer accepts that the process was unusually protracted but submits that the delays were caused, in the main, by circumstances beyond its control, in particular the significant challenges faced by the health service, as a whole, during the pandemic period and the cyber-attack it experienced in May 2021. During the pandemic period, all available staff including those who are normally tasked with dealing with investigations, were deployed to frontline duties.  It is also submitted on behalf of the Employer that there were occasions when either the Worker himself or his trade union Representative was unavailable on dates proposed by it.

Decision

The Court has had the benefit of reading and considering very comprehensive written submissions from both Parties. Their respective Representatives also had the opportunity to make detailed oral submissions at the hearing before the Court. Having carefully reflected on those written and oral submissions the Court finds that the circumstances in which the Employer found itself during the pandemic, coupled with the May 2021 cyber-attack, reasonably explain the unusually long period of time it took to complete the investigation into the complaint raised against the Worker in this case. In those circumstances, and in circumstances where the Worker is at no financial loss, the Court finds that a compensation payment to the Worker is not warranted. This element of the Adjudication Officer’s Recommendation is, therefore, set aside.

The Court so decides.

	Signed on behalf of the Labour Court
	Alan Haugh
GOG	______________________
23 April 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Garrett O'Grady, Court Secretary.