LCR23065

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00046473 (CA-00057305 IR-SC-00001479)

BACKGROUND:

The Worker appealed the Adjudication Officer’s Recommendation to the Labour Court on 26 March 2024 in accordance with Section 13(9) of the Industrial Relations Act, 1969.

On 15 February 2024 the Adjudication Officer issued the following Recommendation.

“Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute

In all of the circumstances, I am upholding the complaint and I recommend in full and final settlement of the dispute that

a) The respondent confirm in writing to the claimant that the entirety of the disciplinary process is set aside and confirm that they have expunged any references to the allegation from the claimant’s file

b) The respondent engage immediately with the claimant and occupational health with a view to facilitating the claimant’s return to work and

c)The Respondent pay the claimant a sum of €8,500 compensation for the distress arising from the delays in process , breach of procedures and failure to proactively follow up on the Occupational Health recommendations on engagement.’’

A Labour Court hearing took place on 22 October 2024.

DECISION:

Background

This is appeal brought by a Worker from a Recommendation of an Adjudication Officer (ADJ-0004673/CA-00057305, dated 15 February 2024) under section 13 of the Industrial Relations Act 1969. The Court heard the appeal in Sligo on 22 October 2024.

The Worker has been employed as a General Support Grade worker at Sligo University Hospital (‘SUH’) since March 1999. He generally covers the 8.00 pm to 8.00 am shift. An incident was alleged to have occurred at SUH on 10 August 2020 when the Worker was the bleep holder for the emergency bleep on the night shift. It was alleged that the Worker delayed in responding to a number of priority bleeps from ICU and Theatre which were reported on the HSE Q pulse system.

The Worker was invited to attend a Stage 1 Disciplinary Meeting scheduled for 22 September 2020 in order to address the aforementioned allegation. This meeting did not take place until 15 February 2021 as the Worker went on certified, stress-related sick leave from 20 August 2020 onwards following which he was referred on multiple occasions for assessment by Occupational Health. The Worker remained on sick leave for almost three years. The Worker exhausted his sick pay entitlements in that period and appears also to have been approved for TRS payments. The Worker was awarded €8,500.00 by the Adjudication Officer by way of compensation for the distress caused to him for SUH’s delay in dealing with the allegations raised against him. However, he estimates his net loss of earnings to be €77,107.33 and is seeking compensation in that amount from the Court in this appeal.

Submissions

The Worker submits that he attended immediately to the bleep he received from ICU on 10 August 2020. He contends that the allegation that he did not do so is a false allegation and caused him to feel unsafe about returning to work until the matter had been fully investigated. He claims that he had also been falsely accused in the past of similarly failing to respond to an emergency bleep in a timely fashion. He did not, however, at any stage raise this issue by way of an informal or formal grievance with SUH.

The Worker told the Court that during the course of the disciplinary meeting on 15 February 2021, he provided a full account of his version of the relevant events of 10 August 2020 but that he was not provided subsequently with any minutes from the meeting and heard no more about it until July 2021 when he was advised that a Stage 1 warning that had been applied to him had expired. The Worker’s Trade Union intervened on his behalf as the Worker had never been informed that he had been issued with such a warning.

The Worker informed the Court that he eventually received a proposal in July 2022 from the HSE Human Resources Manager then dealing with the matter to ‘set aside’ the Stage 1 hearing and deal with the matter by way of informal counselling. The Worker submits that he could not accept such a proposal and that his refusal to do so was met by a threat from his employer on 11 July 2022 to discontinue his sick pay.

It is submitted on behalf of SUH that there were a number of procedural shortcomings in the manner in which the disciplinary process was conducted in this case. It is accepted that the Worker should have been informed in writing of any sanction that issued and given an opportunity to appeal it. However, it is also submitted on the Employer’s behalf that when the aforementioned shortcomings came to its attention it offered to set aside the process and deal with the alleged events of 10 August 2020 by way of informal counselling in order to achieve closure and secure the Worker’s return to work. This approach, it submitted, did not prove acceptable to the Worker who proceeded to refer the within dispute to the Workplace Relations Commission. Shortly afterwards, the Group Employee Relations Manager for the Saolta Group of Hospitals, it is submitted, having reviewed the case, wrote to the Worker’s Trade Union Representative to advised that the Stage 1 hearing had been set aside and removed from the Worker's file and any reference to matter had been expunged from his personnel file.

Discussion and Decision

The Worker told the Court that he was given full opportunity to set out his version of the events of 10 August 2020 when he attended for the Stage 1 disciplinary meeting on 15 February 2021. The Court has had the benefit of reviewing the ‘General Incident/Near Miss’ report prepared by the Senior Staff Nurse on duty in the ICU in SUH on 10 August 2020. That report details the circumstances in ICU at the material time which necessitated the urgent transfer of a critically ill patient to theatre for a procedure to unblock their airway. The report further notes that the night porter was bleeped three times by the senior staff nurse on duty to advise him of the urgent nature of the call and that the theatre staff had also attempted to inform him of the urgency of his attendance. Notwithstanding this, according to the report, the Worker did not attend for some ten minutes at which stage the patient was already on route to theatre. The Worker’s ‘defence’ against the allegation that he did not attend in a timely fashion to transfer a critically ill-patient on the night in question was to accuse the senior medical staff on duty that night of conspiring to falsely accuse him of dereliction of duty. This is a most serious accusation made by the Worker and for which he did not offer any supporting evidence during the disciplinary process or at the within hearing.

The Court further notes the following observation that recurs consistently in the Occupational Health reports returned to the Employer about the Worker’s condition whilst on sick leave: “In my opinion, he is likely to be fit to return to work in the short-term …”. Nevertheless, he remained absent from work for almost three years.

It is certainly the case that there were procedural deficiencies in how the Employer dealt with the disciplinary process in this case but when these were highlighted by the Worker’s Representative, the Employer made a series of very reasonable – in the Court’s view – proposals to de-escalate matters and secure the Worker’s return to the workplace which were rejected by the Worker. The Court is also of the view, that the Worker’s decision to remain out of work for almost three years was not justified.

Having carefully considered all the material before it, the Court finds that the Worker’s claim for compensation for the loss of earnings that resulted from his prolonged absence from the workplace is without merit. Furthermore, the Court – for the reasons set out above – finds that no compensation is payable to the Worker in this case in respect of the Employer’s procedural shortcomings in circumstances where the Employer made more than reasonable efforts to redress those shortcomings. The award recommended by the Adjudication Officer is, therefore, set aside.

The Court so decides.

	Signed on behalf of the Labour Court
	Alan Haugh
AR	______________________
18th November 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Aidan Ralph, Court Secretary.