Complainant

Respondent

Anonymised Parties

A Care worker

A Care provider

Representatives

SIPTU

Employee Relations Manager

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-00032429-001

22/11/2019

A complaint was made by a patient against the employee who is a care worker with the respondent. This complaint was made in March 2018 and the investigation did not conclude until February 2022.  The employee was on extended sick leave without pay for a considerable period of time and is seeking redress due to the extended time frame of the investigation.

The complainant is a member of the Care Staff in the respondent Care Centre.  An alleged incident was said to have taken place on 9 February 2018. A service user was said to have made a complaint against the complainant on that day. The complainant was advised on 22 February 2018 that a Preliminary Screening had concluded that ‘…an abusive interaction could have occurred…’ and that an Investigation under the ‘Trust in Care Policy’ would commence.  From that date the complainant did not receive any clarification on matter, although she repeatedly asked for a copy of the complaints, until June 2019. Even though the complainant repeatedly requested further relevant material (cctv footage from the area of the alleged incident, any witness statements etc), she was left completely in the dark on the matter and none of the requested materials were ever sent to her.

Although she had been advised that she could continue in the workplace and that protective measures would be put in place to protect all parties the complainant found that these were not actually in place, to the extent that she found herself alone with the patient in question at times. This caused the complainant considerable stress and she became ill and was off work for an extended period. Her sick pay entitlement was exhausted as a result and she suffered considerable financial loss. The failure to get clarity on any matter relating to the Trust in Care investigation, the failure to put adequate protective measures in place at work, the continuing stress as a result of being left in a complete limbo in these circumstances, and the financial loss suffered became unbearable.  As the respondent failed to protect the complainant in this process it is submitted that the allegations against the complainant be considered withdrawn and this confirmed in writing.  It is further submitted that all financial loss accrued to the complainant be fully restored.

The complainant raised these matters under Grievance Procedures but the outcome was not satisfactory as the abuse of the Trust in Care Policy was not adequately addressed, nor was the complainant’s financial loss addressed.         The complainant submitted grievances in respect of that process after a year and a half had passed and, with first-sight of the actual complaints only having been afforded some 15 months after the alleged incident and being subject to continuing loss from March 2018, she felt that this would be the quickest way to have her concerns addressed in a timely fashion. It was hoped that the grievance outcome would dispose of the TIC issues given the fundamental breaches of the Policy, combined with prejudicial delay. Regrettably, that didn’t happen.

The nature of the complaint is understood to broadly relate to a series of matters connected with the investigative processes conducted by the respondent under the Trust in Care Policy surrounding an alleged incident in February 2018, the complainant’s sick pay entitlement being exhausted and financial loss suffered by her as a consequence.  The subject matter of the complaint was heard at a Stage 3 Grievance Hearing by the former Head of Human Resources. 

The complainant submitted a grievance in relation to the following items:

 “In broad summary, the Grievance related to the management and progression of a complaint by a service user against (the complainant), and in particular the alleged failure by management to:-

•                 Provide copies of the complaint(s) / allegations in writing to (the complainant) in a timely manner

•                 Provide a copy of the preliminary screening undertaken under the Trust in Care Policy

•                 Provide copies of witness statements from staff and/or other witnesses

•                 Provide copy of CCTV footage relevant to the complaint

•                 Provide a response to repeated requests for the above information from both (the complainant) and her representative.

In addition, SIPTU contend that the Trust in Care Policy – “in providing documentation to the ‘accused person’ only at the end of the Preliminary Screening – is inconsistent with prior notice in fair procedures; to natural justice and / or a right of reply.”

The findings arising from the grievance hearing were as follows: 

•                 “That the Grievance is upheld in respect of the failure by management to provide full disclosure of information relevant to the complaint to (the complainant) in a timely manner

•                 That I was unable to obtain a cogent first hand explanation for the delay in responding to requests for the information, primarily as the Manager concerned had retired in the interim

•                 That management confirmed there was no CCTV footage of the alleged incident available, so this could not be provided in any event. However it is noted that this information was not conveyed to (the complainant) in a timely manner

•                 The matter of the alleged limitations of the Trust in Care Policy are outside the scope and remit of this Grievance, as the said Policy forms part of a collective agreement between (the respondent) management & staff representative bodies and amendment would require national review.”

The recommendations arising from the grievance hearing were as follows:

•                 “The material requested be provided to (the complainant) to allow for the preparation of a defence to the complaints lodged, and a comprehensive right of reply

•                 That a Trust in Care Investigation – if deemed necessary and appropriate – would proceed to a conclusion as soon as reasonably practical

•                 That (management) engage positively, and on a without prejudice basis, to identify a protective work placement in an alternative work location within the region, as opposed to an automatic continuation of absence on sick leave.”

The respondent also apologised for the delay in issuing this decision which issued in October 2019

Management met with the complainant and her representative on the 9th February 2022 to discuss the Trust in Care Investigation Final Report. The investigation related to a ‘complaint/allegation of the 9th February 2018.  The Investigation Report was completed on the 20th October 2021. 

It was acknowledged by Management in exchanges with the complainant and her representative, that the COVID-19 pandemic and associated restrictions, as well as a serious and lengthy Network issue, caused a delay in the commencement of this investigation.

The investigation was carried out under Trust in Care Policy and in line with the Terms of Reference which was agreed with all parties in June 2019.

At the meeting of the 9th February 2022 to discuss the Investigation Team Final report with the complainant and their representative, Management confirmed: 

•                 That the Investigation Team found that the complaint/allegation is not upheld.

•                 It was acknowledged that owing to various changes in personnel and commissioners throughout the course of this Investigation that there were delays in getting the investigation advanced in a timely manner. 

•                 Management committed to ensuring that local management were fully aware of the impact which the Investigative process has had on the complainant and to addressing their concerns regarding returning to their former role. 

•                 Management apologised to (the complainant) for the distress which the delays in the investigative processes had caused. 

•                 Thanked the complainant and their representative for their participation at the meeting and their openness in the discussion. 

It is the respondent’s position that the complainant was paid in accordance with the Sick Pay scheme in operation. Management complied with a recommendation from the Occupational Health Service to reduce the complainant’s working hours from 39 hours per week to 19.5 hours per week with an effective date of the 07.09.2020.  The complainant’s working hours increased to 24 hours per week effective from the 26.09.2022. 

Management contend that there is no basis for payment of the financial loss as presented by the complainant to be made - any decision to the contrary would have potential to establish a precedent, affecting a body of workers.

Where there are complaints made by patients of mistreatment the respondent is obliged to investigate and detailed procedures exist as to how this should be done.   The procedure under which the respondent investigates complaints stipulates protective measures that should be in place to protect both the patient and the member of staff against whom the complaint has been made.  The procedure states that these protective measures may include providing an appropriate level of supervision or putting the staff member off duty with pay pending the outcome of the investigation. It is clear from the evidence given that the employer initially undertook to have appropriate measures in place in the workplace to protect both the employee and the patient who made the complaint against her, but these commitments were not in fact properly followed through.  The respondent chose not to put the employee on paid leave pending the investigation.

There is no question that the respondent failed in its duty of care to the complainant in relation to the delay in finalising the complaint made against her.  While reference is made to some underlying causes including Covid, the Network issue and retirement of a key manager, these do not in any adequate way explain the delays, with for example on a number of occasions several months passing without any apparent progress and a period of almost 4 years from the initial complaint to the final meeting communicating the outcome to the employee.  I note also that the aggrieved patient made two statements seeking to withdraw the complaint and that ultimately, the investigation exonerated the employee.

The evidence given by both parties at the hearing was not adequate for me to determine how much money the employee lost due to having exhausted her sick pay however, it is clear that it was a very significant sum. Neither is it possible for me to judge whether or not the complainant would have been absent on sick leave if the investigation had been conducted in a timely manner. However, the extent of the delay in this instance was inexcusable and was acknowledged by the respondent as being so, and, in my opinion, would undoubtedly have impacted on the well-being of the employee.

I believe that compensation of €40,000 is appropriate.

I recommend that the respondent pay the complainant the sum of €40,000 in compensation in full and final settlement of this claim

Delayed investigation, impact on employee health