Worker

Employer

Anonymised Parties

Nurse

Hospital

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 - 00003434

19/11/2024

The Worker is employed as a nurse manager (CNM2) by the Employer for the past 37 years.  Following a workplace investigation a disciplinary hearing was held, and the outcome was that the Worker was that a sanction short of dismissal would apply.  This resulted in the demotion of the Worker.  She is currently on unpaid leave of absence.  She is seeking to have the investigation and disciplinary process deemed flawed and consequently the sanction discarded. 

The Employer believes that the process was fair and reasonable, and the sanction was also fair and reasonable given the level of trust placed on the Worker.

The Worker is a Clinical Nurse Manager and has worked for the Employer for 37 years.  She believes that she was subjected to an unfair and procedurally flawed investigation and disciplinary process which resulted in her demotion and caused irreputable reputational damage both professionally and personally.  She is seeking to have a recommendation of reinstatement in her substantive role and compensation for loss of earnings arising from this flawed process.

The investigation commenced in October 2023 following alleged incidents in December 2022, May 2023 and June 2023.  The Worker believes that these were previously investigated by the then Director of Nursing.   The Employers decision to reinvestigate these incidents again after a period of 10 months is a violation of the Worker’s right to fair procedures.  The Worker was suspended for the duration of the investigation.  She was denied the right to question or challenge any evidence given by any witnesses who were interviewed. She was instructed not to have any contact with any potential witness.  The former Director of Nursing was not interviewed or did not provide any statement to the investigation.

A disciplinary process followed and as the investigation was flawed then any subsequent process could not be deemed to be fair.  The serious allegations made against the Worker have had a very damaging effect on her professional reputation. As a result of the disciplinary process the Worker was demoted and this resulted in a salary reduction, title regression and a reduction in the hours available.    The Worker appealed the decision and she was denied legal representation at the appeal stage.  There were no witnesses called as part of the appeal and the decision was upheld and notified to the Worker on 14/06/2024.

The Worker is out of work since October 2023 and she cannot be expected to work at a demoted level. 

It was submitted on behalf of the Worker that the law is clear in relation to the correct procedures which must be followed and the Employer has failed to follow these.  The Worker wishes to be returned to the role she held prior to the flawed process and wished to be reimbursed for the financial loss incurred.

The Worker commenced employment in January 1986 as a staff nurse.  She was promoted to Senior Staff Nurse and was appointed a Clinical Nurse Manager (CNM2) in March 2017.  She was permitted to reduce her working hours and she worked an average of 11.96 hours per week.  Her earnings, including qualification allowance, was €30,891 in 2023.

The Employer outlines that as a CNM2 she would have sole responsibility for the entire operation of the hospital when she was on duty.  This involved a significant level of trust and responsibility for staff and patients.

The Employer explained that a Director of Nursing retired in October 2023.   A person then took over interim responsibility pending the appointment of a new Director of Nursing.  As part of a handover a file in relation to the Worker included an Occupational Health Assessment.  This listed serious concerns about the Worker in relation to her conduct and behaviour over an eight-month period.  It was apparent that these matters may have been addressed informally but there was no formal agreement in place arising from the recommendations of the Occupational Health Assessment.  It was decided that a formal investigation was warranted given the allegations of inappropriate behaviour.   The Worker was placed off duty on 08/10/2023 pending the outcome of the process.  It was agreed that a particular narrative would be agreed with the worker in order to ensure that there would be no reputational damage.

The investigation commenced and six key witnesses who were directly involved in three incidents were interviewed.  The Worker was provided with the full interview notes of all these meetings and invited to submit any comments or queries.  The Worker provided her responses in advance of her meeting with the investigation team on 23/11/2023.  The Worker provided further comments and queries on 08/11/2023.  The final investigation report was issued on 17/01/2024 and the Employer believes that all matters raised by the Worker in relation to witness evidence was addressed in the investigation report.

The Employer notes that the Worker’s response to the investigation report was that the process was flawed and that the matters were dealt with by the previous Director of Nursing.   Arising from this report it was decided that disciplinary action may be warranted, and a disciplinary hearing took place on 26/02/2024.  The outcome was issued on 04/03/2024 and while it was felt that a dismissal should take place the panel took the Workers years of service into account and a sanction short of dismissal was affirmed.  This resulted in her demotion to the role of Senior Staff Nurse and be assigned to an area decided by the Director of Nursing.  

The Worker was offered the right of appeal.  She did not do so but her solicitor sent a letter on 15/03/2023.  The Employer agreed to hear an appeal on 01/05/2024.  The outcome was that the decision of the disciplinary panel was upheld as it was deemed to be a fair and reasonable sanction given the overall circumstances of the case.

The Employer contacted the Worker on 03/07/2024 to commence her return-to-work process.  An Occupational Health Assessment was organised for 17/07/2024.  The Worker did not attend citing personal circumstances.   As the suspension was now lifted the Worker was advised that she would not be able to receive her salary if she did not return to work.  The Worker availed of annual leave and when this was exhausted she went on unpaid leave from 21/10/2024.

The Employer rejects the complainant’s assertions in relation to the investigation and disciplinary processes that it conducted.  The Employer states that have acted fairly, reasonably and in line with their policies and procedures.  The Employer suggests that it is not the function of an Adjudication Officer to form an opinion as to whether the Employer was objectively correct in their conclusions but rather its role is to establish if the Employer acted fairly and reasonably.  The Employer is firmly of the view that the Worker’s actions amounted to gross misconduct and warranted dismissal.  However, when considering the sanction which was to apply the Employer had to balance the seriousness of the allegations, her responsibilities given her role, the representations she made and her service history.

The Employer cites a number of legal authorities to support the view that it acted in line with what a reasonable Employer would do and that the sanction was appropriate.   The Employer also submits that they simply could not have ignored the contents of the Worker’s Occupational Health Assessment.  They had an obligation to act on this medical assessment to ensure that there were no risks to staff and patients.  In that context it is not feasible that she could return to her previous role and it will take a significant amount of time to restore the level of trust and confidence that such a role demands.  The Employer is also satisfied that they have done everything possible to maintain strict confidentiality in relation to the Worker so as to protect her dignity and professional reputation.

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

This dispute arose because the Employer commenced an investigation into alleged breaches of inappropriate behaviour and conduct.  The Employer became aware of this matter when an interim Director of Nursing review a file and noted the concerns outlined in an Occupational Health Assessment.  The Worker believed these matters were dealt with on an informal basis by the now retired Director of Nursing.  The Worker further believes that the process utilised by the Employer was so fundamentally flawed that anything arising from it is consequently erroneous.  The Employer believes that it had an obligation to conduct the investigation and the Worker was afforded all her rights throughout the process.

The Worker’s role is such that the Employer is entitled to ensure that the optimal level of care is provided to patients and that the welfare and safety of staff is paramount.  The Employer became aware of some issues which could have been the matter of a fitness to practice referral.  However, the Employer commenced an internal investigation which was followed by a disciplinary process.   It is well accepted that the role of an Adjudication Officer is not to second guess the Employer but rather to assess what a reasonable Employer might have done and not to determine the guilt or innocence of an employee.

I believe that the Employer had an obligation to investigate the issues which came to its attention as result of the handover process when the Director of Nursing retired.  The allegations were clear and transparent, and these allegations were put to her during the investigation process.

a.      The Employer clarified for the Worker what the issues were following her suspension meeting on 08/10/2023

b.      The Employer outlined the specific allegations in a letter dated 16/10/2023.

c.      The Employer did take account of the Worker’s mitigating circumstances namely her length of service.

d.      The decision to discipline the complainant was not predetermined and there was a clear rationale provided to explain why a sanction of dismissal was not made.

I believe that it is not realistic to issue a recommendation that might have the effect of establishing a further investigation into the Worker’s alleged misconduct.  Such a scenario could, at some point, end up in the same situation as currently exists.  That is the Worker remains on unpaid leave and wants to return to work in her substantive role. The recommendation outlined below is intended to assist all the parties to engage in a constructive manner to bring this dispute to an end within a defined period of time.

Demotion.  Investigation and disciplinary procedure.