Case Number: ADJ-00000055. Workplace Relations Commission

• Docket Number: ADJ-00000055
• Date: 23 March 2016
• Court: Workplace Relations Commission
• Parties: A Clinical Nutritionist v A Hospital

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000055

Complaint(s)/Dispute(s) for Resolution:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act 1969	CA-00000090-001	06/10/2015
Complaint seeking adjudication by the Workplace Relations Commission under Section 7 of the Terms of Employment (Information) Act 1994	CA-00000090-002	06/10/2015

Date of Adjudication Hearing: 23/02/2016

Workplace Relations Commission Adjudication Officer: Aideen Collard

Procedure:

In accordance with the provisions of the Workplace Relations Act 2015 as relate to the aforementioned complaints/disputes, following the referral of the aforementioned complaints/disputes to me by the Director General, I inquired into the complaints/disputes and gave the parties and their witnesses an opportunity to be heard by me and to present to me any evidence relevant to the complaints/disputes.

1. Complainant’s Submission and Presentation:

1.1. Counsel for the Complainant confirmed a change in legal representation and formally withdrew the complaint under Section 7 of the Terms of Employment (Information) Act 1994. He confirmed that she was only proceeding with a dispute under Section 13 of the Industrial Relations Act 1969, received by the Workplace Relations Commission (hereinafter ‘WRC’) on 6^th October 2015. I note that there was consent from the Respondent to the investigation of this dispute by an Adjudication Officer. This matter had originally been listed for hearing on 16^th December 2015 but had been adjourned.

1.2. Counsel for the Complainant outlined the background to this dispute as follows: The Complainant is employed by the Respondent as a Clinical Nutritionist with the Respondent for the past 10 years. This role requires the assessment of the nutritional needs of patients in varying conditions and with different needs, and the administration of feeding via various means in consultation with the patients’ teams and/or consultants. The Complainant is answerable to the Dietitian Manager Ms X, in respect of whom there is a history of interpersonal differences comprising of Ms X making complaints about her work and counter-complaints from the Complainant against Ms X of bullying and harassment. It appears that none of these complaints have progressed very far in terms of internal investigation.

1.3. A patient (hereinafter ‘Patient A’) was transferred from a regional Hospital in early June 2015 to the Hospital in question. Apart from several short periods of leave, the Complainant was responsible for his nutritional care. Patient A was being treated on a palliative basis, and with the limited information to hand it seems that his medical needs were extremely complicated. Patient A passed away during the second period of the Complainant’s leave and there is no suggestion that this was as a result of his nutritional care. Nor is there any evidence that his family has raised any issue with his care, or indeed are aware of the current situation that pertains to the Complainant in relation to Patient A.

1.4. In or around August 2015, the Complainant was summonsed to Ms X’s Office who handed her an envelope containing an anonymous report entitled ‘Case review 17.08.2015’ (hereinafter ‘clinical review’) and containing a reference number, and was told to respond to its contents. It is agreed by both Parties that this clinical review refers to Patient A and his nutritional care by the Complainant. Aside from that, nothing further is known by the Complainant as to its origins apart from her suspicion that it was generated by or on behalf of Ms X. In particular, there is no confirmation of under what internal or other policy it was conducted, who instigated and/or directed the review, what the terms of reference were, who the investigators were, and/or in what capacity they conducted the review and who was interviewed. The review does not contain any names of anyone involved or the basis for same. It comprises of six typed pages and under six headings, makes numerous findings of fact.

1.5. Upon receipt of the clinical review, the Complainant availed of legal advice and when she did not respond to follow-up demands from Ms X to respond to the contents of the clinical review she found herself subject to the Hospital’s disciplinary process. Notwithstanding various requests for information from her Solicitors, to date no further information pertaining to the origins of the clinical review have been furnished by the Respondent. Instead, the Hospital management pursued its disciplinary process against the Complainant. The clinical review findings were summarised as allegations against the Complainant in a letter dated 13^th October 2015 from the Employee Relations Manager, Mr Y, confirming that the Complainant was subject to an investigation under the Hospital’s Grievance and Disciplinary Procedure (also referred to as ‘disciplinary process’) and enclosing a copy of same along with the terms of reference. A more detailed letter dated 25^th November 2015 was furnished to the Complainant. Counsel submits that the current investigation process gives the false guise of a neutral investigation and cannot retrospectively remedy a fundamentally flawed process. The investigation team comprises of three existing members of staff. The Complainant has been forced to partake in the investigation process and has attended a number of meetings with the investigating team.

Complainant’s Evidence

1.6. The Complainant gave evidence that a member of the investigation team told her that they would make up their minds regardless of her participation in the process and that it was her last chance to defend herself. She was not permitted to have a Solicitor attend at the various meetings attended to date despite requests for same and the seriousness of the allegations. The specifics of the allegations have not been forthcoming. However it has been stated that the team will gather more evidence. Various copies of the minutes of the meetings were furnished to demonstrate serious discrepancies between what was recorded as being said at the meetings by the Complainant and by members of the investigation team. The Complainant has no confidence whatsoever in the disciplinary process which it is submitted is fundamentally flawed and in breach of any fair procedures and due process.

1.7. Additionally, by letter dated 15^th October 2015, Mr Y directed the Complainant not to undertake the same feeding procedure as that undertaken in relation to Patient A for the duration of the investigation under the Hospital Grievance and Disciplinary Procedure. She was requested to defer any patients requiring such feeding to another Manager who would reallocate any such patients to another staff member and assign her another patient instead. The letter also noted that this was for the purposes of delivering safe patient care while protecting both the patient and care provider. The Complainant gave evidence that in practice and owing to a lack of clarity regarding such arrangements, she has had to defer to more junior staff who are becoming aware of the situation as a result and confidentiality is therefore compromised. It is also submitted that this amounts to a sanction in circumstances where the investigation team has made no findings of wrongdoing against the Complainant.

1.8. In the meantime, Ms X has filed another complaint against the Complainant. The Complainant is extremely distressed by the current situation as outlined above and her ongoing issues with Ms X. Counsel for the Complainant seeks to have the disciplinary process set aside as being a sham.

2. Respondent’s Submission and Presentation:

2.1. The IBEC representative for the Respondent read through his submissions which outlined details of the Complainant’s contract and background to this dispute from the Respondent’s perspective. He submitted that on 13^th August 2015 it was decided to review the dietetic treatment of Patient A. Initially there was a scoping meeting with the Complainant on 11^th August 2015 to discuss her approach to Patient A. Further to this, a clinical review was conducted to provide a professional opinion on Patient A’s dietetic management. This was an independent process (carried out by a health specialist) and was not conducted under the Hospital’s Grievance and Disciplinary Procedure. The Complainant was...