Complainant

Respondent

Anonymised Parties

A Worker

An Employer

Act

Complaint/Dispute Reference No.

Date of Receipt

S13 Industrial Relations Act 1969

CA00060526-001

13/12/2023

The Complainant is a midwife. She did a four year degree course, three years in college and then a nine month internship. She was a mature student and had one daughter at that time. She started her practice at the Respondent hospital in November 2010 during her first year at college. They did four weeks prior to Christmas and four weeks after Christmas. The next year the hours in the hospital increased. During that time, she and others had serious issues with the toxic environment in the hospital. She observed women being mistreated within the maternity unit. The mistreatment seemed to depend on their qualifications and their ethnic background. She voiced her concerns to link lectures and CPC (Clinic placement co-ordination).  The class went to JK and they expressed their concerns. The Complainant was hopeful that something would be done but nothing ever was. The Complainant felt that she wasn’t liked within the ward. She didn’t get involved with the extra- curricular activities and that made her an outsider. She spoke to HN about the issues, but nothing improved.

She started to document all of the issues she was observing. On one occasion those notes were doctored by her superior. There was a culture of covering up in the maternity ward. The more she came in, the more she observed and the more issues she raised, the more she was disliked and targeted.

Before she qualified, she had her second child. That was at the start of year four. She disclosed it to her CPC, BY. The CPC asked her if it was planned because it was very inconvenient. She was also informed that she wouldn’t be entitled to maternity leave and when she came back, she would be behind all her class mates. Her internship started in the beginning of September, and she had her daughter on the 19th September. She had to do a computer course six weeks later, so she did that. She then went back to work. She was breastfeeding at that time but the breastfeeding room in the unit was closed. She had to express in a cupboard. On one night she was having difficulty expressing so she asked someone on the labour ward if she could use some of their equipment, pump and bottles etc. She was then accused of stealing the breastfeeding equipment.

When she qualified, she was deemed to be dangerous. People would say “watch her, she is dangerous”. That was because she spoke up about the issues and about mistreatment of women from certain social and ethnic backgrounds. 

She didn’t graduate with her class, she graduated with the class behind her. She was waiting for her registration to come through. She was also waiting for some results. She wasn’t given a job while she was waiting for that to come through, but others were. She was left waiting for about nine months. She was the only one who wanted a job who didn’t get a job.  She approached the director of nursing KM and asked for a job. She found her a position as a community health nurse checking ladies in the community who had had babies.

On the ward there were nurses who later specialised in midwifery and they were deemed to be         “know it all’s”. Those who qualified directly as a mid -wife and were not general nurses where criticised for not knowing enough. You couldn’t win.

The Complainant applied for a position in 2015 in PA. She was successful. Her commute was 1hr 30 approximately. She was working days and nights. She was there approximately seven months. Her superiors were AN and ME were her managers. She was repeatedly pulled aside for issues that were not actually issues. In her opinion, she felt that there was talk between the managers in PA and those in GY. Things were said that made her come to that opinion. She kept in touch with SY in GY and she did secure a position there in August 2016. She commenced on 10th November. She was on the post- natal ward. There were about 30 beds in that ward. There were also about 30 staff rostered with about six on at any one time. Her contract was permanent with no probationary period, days and nights, seven days a week. She commenced on a particular ward. HN was her manager. She liked her but then she realised that she was talking about her behind her back. KY, when she first saw her said “are you back to cause more trouble” and then she said “are you still breastfeeding that child of yours”. She, KY was the mother hen of the ward. She had the managers exactly where she wanted them. She set her own roster and she only worked night.   

KY would go to new mothers who the Complainant was looking after and would tell them their babies were starving and that they should be giving them bottles and not be breastfeeding. The Complainant was pro breastfeeding, and KY was not.

On another occasion AN told her to “go fuck off. She often took the opportunity to undermine her in front of staff and patients. She did all of this not thinking about how it would affect the patients.

HN left her role as manager in 2017. PG took over this role in mid -2017. She was pregnant at the time, so she wasn’t there long.

There were certain practises that were done in line with her training in PA that were done very differently in GY. Insulin infusion was one of those things. She asked a senior midwife about how to do it in GY. She was instructed how to do it. She was then pulled in the next day and given out to for not asking a senior midwife. She had asked, so she was confused about what the issue was.

Then in February an induction booklet was given to her, and she was told she would have to do an action plan as her nursing practices were substandard. The plan was eight weeks long. Two nurses present stated that it wasn’t warranted but she had to do it none the less. She was embarrassed about it. It made her look incompetent. Others were commenting on it. Her two preceptors signed off on it, so she had to do the eight weeks. She was completed deflated after that. She knew she was disliked and every day when she had to go into work, she felt sick. Her mental health suffered.  On one occasion she injured her own toe so she wouldn’t have to go into work. Her confidence was shattered. She had to have her lunch alone in her car. On her breaks she would go out and walk around the hospital on her own. She had suicidal ideation. She had to go for counselling to help her.

She did confide in HN as she thought she was her friend. She was at her wedding, so she felt that they were friends. That turned out not to be the case. 

She called for a meeting with PG in October 2017. She told her everything that was going on and that her mental health was very poor. PG told her she was “paranoid”. She said if she had an issue with another midwife and made an issue of it, they would know about it, and it wouldn’t be good for her. She did nothing after the meeting.

The week before the meeting with PG, HN spoke to her and HN got very upset and said she knew what was going on but that it was the system.  

HY, director of midwifery was starting in November 2017. She emailed her and asked for a meeting.  AH Assistant director of midwifery was at the meeting as an observer. At the meeting the Complainant told HY about all of the issues she was having and that her confidence was at rock bottom. The Complainant asked her if she could shadow someone for a while so that she could work on her confidence. She said, not dealing with the request, “if I am going to put you anywhere, it will be in the Labour ward”. The Labour ward is a very scary intense place. It was the opposite of what she was asking for.  Then she told her to  “just go into a room and thrash it out with AN and KY”. She said she wouldn’t be able to do that. She wasn’t up to it as her confidence was shattered and her mental health was now at an all-time low.  

Post that meeting PG wasn’t happy with the situation. Over the next few weeks the Complainant  was ignored, and when she walked into a room people would stop talking. KY would check all of the notes at the start of nights. She challenged the Complainant about charts and on occasion, tore them up and said “do it again”. She accused her of stealing an oxycontin for herself and announced it to everyone. That was disgusting and so wrong. That went on all the time. PG and HY were both told about all of these issues, but they did nothing.

In mid - December she was experiencing physical symptoms of stress. She was certified unfit for work for one week.

On one morning in January, she wasn’t assigned any patients. PG asked her to sit in her office. She left her there all day with no work. She came in at 5pm and said there was an incident in November with patient XX and asked if she remembered it. She did remember. That day she had a large number of C sections. She didn’t have a student to help her. Everyone gets a student. She said “I had carried out two blood sugars on a baby and there were no records of them on the machine.” She said the Complainant wrote 2.7 to avoid the matter being escalated. Anything below 2.6 has to be escalated. The Complainant asked her if she could see the file. She was told it was in storage. She couldn’t understand why a file like that would be put into storage. She went out to the machine and when she was looking at it, PG said AH wanted to see her. After that, the Complainant said she wanted to resigned. She was so unhappy. AH said she wouldn’t get a reference if she resigned. She prepared the minutes of the meeting, and she asked her to sign them to state that she was present at that meeting. She asked if she could have a representative present. She was told HR would have to get involved if she did and that wouldn’t be good for her.  

On 10th January she was asked to attend a meeting that morning with AH. She asked for a representative. She was denied that. PG said she would be there. During the meeting anything she was asked by AH, PG would answer putting her own slant on it. It didn’t paint the Complainant in a very good light.  She felt bullied and belittled, her job was threatened, and she was told that she would end up in the High Court. She was told she would kill babies. She was told she would be placed on an action plan. This was the second action plan. All of this was because of the alleged incident in November. She again asked for the notes or the file. She never saw them. She was asked again why she wrote 2.7 when the reading was actually 2.2 and before she could answer was told the reason she did it was because she wouldn’t have to escalate it.

Eventually when she did get the file on the bloods 2.7 issue. That was during the investigation. However, the feed chart was missing. She remembers that the baby was active, alert, breastfeeding well and was fine. The Complainant followed all of the steps to the letter. There were no issues at all. The Complainant stated that this was all made up to have a go at her. She had to go on an action plan as a result of that fabricated event.

The next week KY was rotated at nights and that hadn’t happened in years. She felt that might be the start of the changes. That gave her some confidence. Then she was rostered at nights and with KY. She couldn’t believe it. She was supernumerary and accompanied by TE.

Two agreements were put in place on the 10th January. Firstly, she wouldn’t be working with KY and Secondly, she would not be working at night during her action plan. When she was rostered at night and with KY, she couldn’t believe it.  Both were in breach of the agreement. She asked if she could change shift and she was told “no, just get on with it.  That night she went to help a lady from the travelling community with breastfeeding. KY told her not to bother as that lady wouldn’t be breastfeeding anyway. She was given a post-it note, asking her to go into a lady in a particular room and give her, her medications. TS had given the direction. The medication was to be given at 3am she was informed. She went to the lady and the lady said she wasn’t due her meds. The Complainant went out to check the chart and then she came back to tell the patient that she was not in fact due her meds the lady told her she had taken them already. Then at 4am TS went in to give the medication again and then realised it had been given. TS asked her if she had given the patient the medication. She said she didn’t. She panicked, they then asked the patient, and she informed them that she had taken her medication earlier. TS came back and assigned her a new patient. That kept her busy for the rest of the night. However, her shift finished early when TS sent her home one hour early. At that stage no doctor was called to see the patient who had been given her medication at the wrong time and nobody took her blood pressure. Between 5am and 8.30am the medication error was discovered by TS, KH and AH. However, nothing was done about it at the time. When the report was published it was headed “near miss”. It stated that the medication was given at the wrong time and the incident was reported by TS.  It was TS who directed the Complainant to give the patient the medication. The following day the Complainant sent a text message to a mid -wife she was close to saying that it was her who gave the medication but she couldn’t say it that night because everyone where there listening. She knew this was the beginning of the end for her. She realised she was being set up.

She was invited to a meeting on the 26th February. It was the action plan meeting. She was told that they were very disappointed with her performance. She asked for some clarity as to how the direct supervision should work. Nobody knew the answer to that. She was told nobody wanted to work with her anymore because the trust in her was gone. Nobody asked about the patient and the medication issue. They just said “you never checked on the patient and you have no empathy”.

Later, on the 26th February the Complainant had a meeting with AG. The purpose of that meeting was unclear. She asked if she could have representation and was told if she did HR would have to get involved and that wouldn’t be good for her.  The incident was brought up. The Complainant said she was going to resign. She was told that was not an option. She was then told she was going to fail her action plan. She was at a complete loss. She had no idea what was going to happen.

Between 26th Feb and 1st Mach was left in the back office doing nothing. On the 1st March she was sent to  HY’s office. She was told it was just a quick chat. She was told they were very disappointed in her and nobody could trust her, and she was being put off duty, with pay, and they were sending her Occupational Health.

On the 8th March she had a meeting with  MS, AH and CM. She was told she was being taken off duty with pay. She said she would not be allowed to work in any capacity, and she would be on basic pay only.  A report was given to her at the meeting. It set out all of the alleged issues with her work however she was never asked for her version of events and was not given an opportunity to defend herself.

Then there were terms of reference for an investigation prepared and given to her on 4th July. Nothing happened between the 8th March and 4th July. SY was to be the investigation office. The Complainant objected to that on 29th August. Then on 15th October MS wrote to say that JK was going to carry out the investigation.  In December the Complainant wrote to HY in relation to her pay. HY replied in January but nothing was said about the investigation. In February 2019 JK wrote to say she had commenced the investigation and gave her a terms of reference. They were the same as those prepared by SY. The Complainant objected to the terms of refence on multiple grounds two of which were impartiality and the vagueness of the terms of reference. 14th March 2019 JK wrote to Complainant’s solicitor to invite her to a meeting to further discuss matters. MS and HY were to be that meeting. Her solicitor wrote and requested to know what the agenda of the meeting was. That was never made clear but in any event the meeting never happened. JK replied stating that the passage of time since the alleged events did not prejudice her position and it was open to the Complainant to make submissions on the effect the passage of time had on the process during the meeting. The Complainant then became worried about her impartiality because HY was to be at that meeting and HY had already formed an opinion of the Complainant a year earlier.  Her solicitor wrote setting out the Complainant’s concerns. The Complainant then discovered that HY filed a complaint to the NMBI on the 15.05.2019.

June 2019 the Complainant was informed that investigators would now be PE and JC. JK’s role was to direct matter and receive the report.

The Complainant instructed her solicitor in June and July to challenge JK’s impartiality. JK was called upon to step aside. JK pointed out that she did not know the Complainant, she did not make the complaint to the NMBI. She did however name HY as the person who made the complaint. The Complainant didn’t know for months that it was HY who made the complaint.  At this stage the terms of reference had not been agreed.  Because the terms of reference issues had never been addressed the meeting in December was postponed.

The Complainant was referred by her GP to a psychiatrist and she is now on medication for anxiety. She is also having counselling and therapy for her mental health issues.

On the 26th March 2020 the Complainant discovered that patients had been told she was fired. A patient met her in Dunnes. She had had her first baby when the Complainant was in the hospital. She had her second baby when the Complainant was on leave. She bumped into her in Dunnes and told the Complainant that she had heard that she was fired. Two other ladies who were patients told the Complainant that they too were told she was fired. One said she was told that she had been fired because she had screamed at a patient.

30th March 2020 JK wrote saying because of Covid she would write on a later date. She also said PH had written to her the day previous inviting her to a meeting on the 30th April. She got that letter a few days later. She was invited to identify anyone who could give information to the investigation committee. Then on 20th April MS wrote to say the process was being halted because of Covid. The Complainant asked why MS was writing in relation to this process as she was not named as being on the investigation committee. That was not replied to.

On 20th September 2020 PH invited the parties to meet in Athlone in October 2020. That was 1.5 hours from her home. The Complainant challenged that due to the cost of travelling and the Covid travel restrictions.  The Complainant’s solicitor wrote in October sitting that the Complainant had found out that JK had retired August 2020.  It was posted on social media. PH’s assistant wrote on the 7th October asking if they were going to attend the meeting on the 8th October. The Complainant questioned the fact that JK had retired. He then said the meeting would be moved to the end of October. Then 12th October the Complainant found out that PE’s title had changed to group employee relations manage who the XXXX university group of which GY university was part. Now he was employed by the same Employer as the Complainant. The Complainant’s solicitor wrote to him stating that the process was flawed as JK had retired and that his position had changed compromising his role as investigator.  Separately CE wrote stating she was going to replace JK as investigation commissioner.

16th October the Complainant wrote to MS setting out issues regarding PE’s change of position and the breaches of confidentially in relation to the Complainant’s position.

The meeting was supposed to happen on the 22nd October was postponed because of Covid. The Country went into level 5 restriction on the 21st October.

In December 2020 furthers issues in relation to the process were outlined to PE and MS. He was also given a confidential medical report about the Complainant’s mental health issues. The letter dated 10th December set out what needed to be done to rectify the process. The letter was sent to PE and MS. 14th December PE’s assistant acknowledge receipt of that. She also set out that PN was being appointed as the investigation officer as CE was not available.

 MS wrote stating that those issues with the process could be outline during the meeting.

During the Christmas vacation Judge Hyland was asked for an exparte interim injunction. She said the matter was not so urgent and she requested the parties to make another application in January when the Courts reopened.  

The Complainant decided to deal with the process internally and not to go down the High Court route.

On 29th January 2021 the Complainant was told her interview was the only outstanding matter in the process and once that was done the report could be finalised.

29th April 2021 she wrote to PE as the process had not commenced. It was also pointed out that one other nurse had to be interviewed and that was the nurse who gave the Complainant the post-it note about the medication for the patient. He said he would interview her on the same day as the complainant. He provided a time frame for the investigation. However, it was almost completed at that juncture.

On 16th June 2021 the Complainant was invited to meet with the investigation team on 12th July 2021.  The meeting was held with PE and JC in the Clayton Hotel. She brought a written submission with her and a medical report. They decided not to hold the meeting because the Complainant was very upset and they felt she wasn’t fit to proceed. They gave her back her medical report. Another meeting was arranged. That was on 27th August, Clayton hotel. PE and JC was there but a different note taker. The meeting was good and the Complainant felt like she had been heard. They asked her what happened to her, she was an excellent nurse and then all of this happened.  The terms of reference were not read out, but they were referred to at the meeting. The Complainant explained the issues she had with the process and she went through all of the allegations and she even demonstrated how she carried out certain procedures. She provided a report by a consultant obstetrician however that report was not referenced. The Complainant also outlined the involvement of TE and LN. At the end of the meeting, they thanked her and said at some point she would have a forum for mitigation. On the 13th October 2021 she received the report from PE. She was asked for her comments on the report. On the 2nd December 2021 she received the final report.  She was very upset with the report. She took issue with several parts of it. Also, none of her concerns about the length of the process where addressed.  She outlined those concerns on the 7th January. The report was sent to PN just before Christmas.

On the 5th May 2022 PN sent the report to EY. He was the disciplinary officer. The matter was progressed at stage 4.  On 18th August PH wrote to say EY would be dealing with the matter. Then on 11th January 2023 AE was appointed as the disciplinary officer.

On 28th February 2023 the Complainant sent her submission to AE for the meeting on the 8th March. The meeting did not happen on the 8th March. It was moved to the 23rd April 2023. It went ahead that day. GN and AE were present. GN was there but her purpose was unknown. All of the Complainant’s concerns about the process and the investigation report were outlined. AE issued her decision 4thJuly, 5 years and 4 months after the Complainant was suspended. She held that the appropriate sanction was a final written warning and that she was to return to work and retrained and a skills reassessment. The Complainant was out of practise for over five years. She was completely deskilled at this stage.  The decision was appealed. She outlined all of the issues she had with the decision and the method of reaching the decision.

The appeal was on the 27th July 2023 TN. He upheld the findings of AE but he directed PN to engage in relation to her return to work. The Complainant wanted to go back to work but wanted to be retained in a respectful way.

The Complainant was due to go back to work in August 2024. She emailed the GM on the Friday afternoon asking when she was to return, where she was to go and who she was to report to. She did not reply to her. The Complainant then did not go into work on the Monday. A day or two later she got an email stating that she was going to be disciplined because she did not turn up on the Monday. She attended on the Tuesday however she was assigned a non- clinical role. There was a return to work bespoke plan for her. She spent the day in the office doing nothing. She could not cope so she went to her doctor and was certified unfit for work. She had PTSD and anxiety, and she has had suicidal thoughts. She hasn’t work since. Her pay was affected. She arranged to use her annual leave so as to maintain her pay however to date that has also not been done.  

PE took the affirmation and gave evidence as follows:

He and JC worked for the investigation unit. They were assigned cases and would carry about 15 cases at any time. He was assigned the Complainant’s case by the Commissioner JK.  He received her file that contained the terms of reference and all of the complaints (4 in total) made against the Complainant. The Complainant was “stood down” in March 2018. He met with all of individuals relevant to the complaints. He interview HY (the Complainant) in Sept 2019 and CM and PG in November 2019. In early 2020  they were moved to contact tracing and the investigation was stalled for about 6 months. She was given all of the notes prior to meeting her. JC and PE met with her in the Clayton hotel in Galway. The first meeting in Athlone did not go ahead because of the distance from her home. There was another one in Merlin Park that didn’t go ahead either. She did not have the relevant documentation, so the meeting had to be cancelled. The purpose of the meeting was to allow her to defend the complaints. At the meeting the Complainant arrived with a very comprehensive document and wanted to reply on that. She was very distressed and tearful. The investigation team were concerned for her mental health. They offered to postpone the meeting until she was in better form. The investigation committee were also not happy relying on her document on its own. They did read it but only the parts that we felt were relevant. They meet with the Complainant when she was feeling better. They asked her everything that they felt was relevant. The prepared a report and sent it to the Complainant for comment. She commented on it. They considered all of her comments and then finalised the report.  They sent it to the Commissioner. There were three charges against her, the issue around the medication, the blood sugar reading issue and the recording of information. The investigation committee upheld the charge on the medication issue, the blood sugar reading but not on the recording of information.

In cross examination PE was asked what the reading of the blood sugar was on the term of reference, He said it was 2.7 and AH stated it was 2.7 in her letter date January 2018. However, at page 7 of the investigation report the blood sugar reading is stated to be 2.5. That is different from the complaint. That is not addressed in the report. He was asked where did the figure of  2.2 came from. He said that when PE asked for the evidence from HY, she presented a photograph of a machine which stated the reading was 2.2. He accepted that photograph as evidence of the reading. When questioned on the matter he accepted that he did not ask when the photograph was taken, by whom it was taken, what machine it was taken from, or even in what hospital the photograph was taken. He accepted the photograph simpliciter.  He also accepted the photograph was not shared with the Complainant until mid 2020, over two years on.

The fourth issue was “errors in medication management” on 23rd February 2018. He was given a copy of a text message that the Complainant sent to CM. She apologised for the error and said she was sorry for telling a lie about it. PE accepted that at face value. When cross examined, he accepted that he did not interview anyone else about it. He accepted that there was no evidence that the Complainant made the decision herself to give the medication. He accepted that he didn’t investigation the matter further. He accepted the Complainant had told him the circumstances surrounding the giving of the medication, but he didn’t deal with that because he had a photo of a text message and he didn’t look beyond that. He didn’t feel it was necessary to interview the nurse who instructed her to give the medication at 3am. He did request a copy of the post it note.  He also didn’t consider that at the time she was under direct supervision so couldn’t act autonomous. 

He accepted that he did receive notes from the Complainant about issues and errors in the draft report. However, he did not feel any amendments needed to be made to the report.

SC:

SC is a Registered Nurse and Midwife and holds advanced degrees in management, leadership and patient safety. In relation to Medication management, there are several legal statutes and organisation policy in relation to the safe administration of medicines. They are relevant to anyone who is registered to administer medications. Firstly, the prescription has to be correct. The midwife is responsible for reading the prescriptions and making sure it is correct and the patient to whom the medication is being given is the correct one.  From the evidence that the Complainant has given, the first issue of concern is the post-it note. She should never have taken her instruction from a post-it note. The error was made, she did give the evidence that she made the mistake. That was that.

The blood sugar level issue: There was a guideline in place at the time in relation to babies that might be at risk of low blood sugar. Levels of below 2.6 had to be escalated. On the night in question PG took the photograph of the reading. The photograph showed the reading as 2.2. SY had the photograph at the time the terms of reference were drafted and in error she put 2.7 and not 2.2. SY stated that she had a print out of the machine reading and the photograph of the reading. When cross examined on the point she was asked if PE had the photocopy of the reading because the Complainant has never seen it. She changed her evidence to say she only had a copy of the photograph.

The Complainant started in November 2016. She was trained. There were some issues with her work. She was at one point referred to the NMBI. The Complainant for that matter was HY. It was accepted under cross examination the referral was made in November 2019, 1.5 years after the alleged events. If there are concerns about a midwife’s practises, it is appropriate that the complaint be made.

5th July 2023 two of the Complaints were upheld and the Complainant was advised to return to work.  SY was involved in the process. She was asked to device a program of return. She looked at the length of time out of practice and the time of practice. She looked at the NMBI code of conduct, and two programs in relation to the return to Midwifery and the adaption of midwifery programme. SC felt there were practice gaps as there had been a break for over five years.  SY came to the opinion that a bespoke return plan be drafted. It ranged from between 22 – 30 weeks. The NMBI programme is not designed to meet the gaps in practice. That programme was very short. She got advice on that programme and felt that it was not appropriate. The Respondent is anxious to get the Complainant back to work. The Complainant did point to some issues she had with the plan as it was a unique approach specific to her and was not the normal return to work plan that others have been subjected to.

Much of this evidence was in conflict between the parties and I have taken the time to carefully review all the evidence both written and oral.  I have noted the respective position of the parties.   I am not required to provide a line for line rebuttal of the evidence and submissions that I have rejected or deemed superfluous to the main findings.  I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held “…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one.  Only broad reasons need be given…”.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties under statute.  I can confirm I have fulfilled my obligation to make all relevant inquiries into these complaints."

The Complainant was a midwife with the Respondent when she was placed on administrative leave in March 2018 following receipt of a number of complaints made by HY, an employee. Prior to that she was called in and placed on an action plan in November 2017.  Her “administrative leave” amounted to a paid suspension.  The Complainant remained on that leave until the process concluded in July 2023.  The delay in reaching a conclusion in the process can only be described as inordinate and inexcusable. Leaving the Complainant out of work for over five years while that process was being carried out not only seriously damaged her professional reputation but also left her in a position where she could not return to work without carrying out significant training to update herself.  

Leaving the delay aside for the moment, the process itself was seriously flawed. PE who was the investigation officer failed to properly investigate the matter and his understanding of the purpose of an investigation was incorrect. He stated in evidence that the purpose of the investigation “was to allow the Complainant an opportunity to defend the allegations”. That is not the purpose of an investigation. The purpose of an investigation is to gather relevant evidence to determine whether an employee has engaged in misconduct, to establish whether a particular incident may have occurred and or to establish facts.  To suggest that its purpose is to allow her defend allegations presupposes misconducted.  

In relation to the blood reading issue, PE accepted a photograph of the alleged machine readings. He did not know who took the photograph. He did not know when the photograph had been taken. He did not know what patient the photograph related to. He did not make any attempt to find out who took the photograph and did not interview that person. He did not try to clarify why the reading set out in the terms of reference of 2.7 was different to the readings in the photograph, 2.2 or where the reading of 2.5 came from. He did nothing to clarify those issues and establish the facts that led to the complaint.

In relation to the medication issue, PE replied on the Complainant’s text message, but he did not try and establish why the Complainant, who was working under supervision at the material time, gave a patient medication at the wrong time. He did not interview the midwife who gave her the instructions to give the patient medication. He did not interview the midwife who was supposed to be supervising the Complainant. I also note that the only issue SY had was that the Complainant had taken instructions from a post it note. She had no issue with the nurse who gave the instructions on the post it note to a nurse who was working under an action plan and under supervision. What that tells me is that all of the focus was on the Complainant’s actions and not on the very obvious flaws in the system of work accepted at the hospital. A system of work which led to a patient being given medication at the wrong time.

The issue of the lengthy delay in the process was not addressed at the investigation stage, the disciplinary stage or at the appeal stage. As stated previously, to leave an employee out of work from March 2018 to July 2024 whilst an investigation and disciplinary process is being dealt with is unacceptable in any circumstance. One would expect, if the matter was dealt with in a proper and  efficient way, that it would have concluded within a matter of weeks.

Another issue that needs to be addressed is the suspension of the Complaint, or the “stepping down” of the Complainant as the Respondent put it. Mr. Justice Noonan in The Governor and Company of the bank of Ireland v Reilly [ 2015] IEHC 241 stated:

The suspension of an employee, whether paid or unpaid, is an extremely serious measure which can cause irreparable damage to his or her reputation and standing. It is potentially capable of constituting a significant blemish on the employee’s employment record with consequences for his or her future career. As noted by Kearns J. (as he then was) in Morgan v. Trinity College Dublin [2003] 3 I.R. 157, there are two types of suspension, holding and punitive. However, even a holding suspension can have consequences of the kind mentioned. Inevitably, speculation will arise as to the reasons for the suspension on the premise of there being no smoke without fire. Even a holding suspension ought not be undertaken lightly and only after full consideration of the necessity for it pending a full investigation of the conduct in question. It will normally be justified if seen as necessary to prevent a repetition of the conduct complained of, interference with evidence or perhaps to protect persons at risk from such conduct. It may perhaps be necessary to protect the employer’s own business and reputation where the conduct in issue is known by those doing business with the employer. In general, however, it ought to be seen as a measure designed to facilitate the proper conduct of the investigation and any consequent disciplinary process.

In circumstances where the Complainant was working under supervision and could not act autonomously, there should have been no risk that the conduct complained of would be repeated. Furthermore, in circumstances were the Respondent did not even speak to, let alone discipline, the nurse who gave the post- it note to the Complainant directing that a patient be given medication ( at the wrong time) they cannot say that they were taking the matter seriously and that the suspension of the Complainant was needed to prevent such incident happening again. I find that the suspension of the Complainant was wholly unwarranted.

I further find that the Respondent failed in its duty to conduct a fair investigation and disciplinary process when it failed to give the Complainant a copy of the investigation report prior to the disciplinary hearing, failed to furnish her with a copy of the photography relied on in relation blood reading issues, failed to interview the nurse who gave the Complainant the post-it note, failed to address the inordinate and inexcusable delay within the process itself.

 In all of the circumstances I am making the following Recommendations:

1.      The Respondent is to pay the Complainant’s legal fees in full.

2.      The Respondent is to remove the final written warning from her file.

3.      Cease permanently the new Stage 4 disciplinary process in relation to her not turning up to work on Monday 22nd April 2024.

4.      Letter of apology acknowledging firstly the inordinate delay in reaching a conclusion in the disciplinary process and for the deficiencies in that process and secondly acknowledging the damage that was caused to the Complainant’s mental health and reputation as a result of the aforesaid delays and deficiencies and furnish the Complainant with same on or before the 30th March 2025

5.      Pay to the Complainant the sum of €15,000.00 compensation for damage caused to her professional reputation as a result of the inordinate and inexcusable delay in the process,  for the unwarranted suspension and for the damage to her mental health. The payment is to be made on or before the 15th April 2025.

6.      Work in a meaningful and respectful way with the Complainant with a view to getting her back to work.

 I am making the following Recommendations:

1.      The Respondent is to pay the Complainant’s legal fees in full.

2.      The Respondent is to remove the final written warning from her file.

3.      Cease permanently the new Stage 4 disciplinary process in relation to her not turning up to work on Monday 22nd April 2024.

4.      Letter of apology acknowledging firstly the inordinate delay in reaching a conclusion in the disciplinary process and for the deficiencies in that process and secondly acknowledging the damage that was caused to the Complainant’s mental health and reputation as a result of the aforesaid delays and deficiencies and furnish the Complainant with same on or before the 30th March 2025

5.      Pay to the Complainant the sum of €15,000.00 compensation for damage caused to her professional reputation as a result of the inordinate and inexcusable delay in the process,  for the unwarranted suspension and for the damage to her mental health. The payment is to be made on or before the15th April 2025..

6.      Work in a meaningful and respectful way with the Complainant with a view to getting her back to work.

Suspension, inordinate delay, inexcusable delay, damage to reputation, investigation, disciplinary, appeal, compensation, reputation.