FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : BLACKROCK CLINIC (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER IRISH NURSES ORGANISATION DIVISION : Chairman: Mr Flood Employer Member: Mr Keogh Worker Member: Ms Ni Mhurchu |
1. Compensation.
BACKGROUND:
2. The claimant was employed by Blackrock Clinic, from 1989 until she resigned from her position in June 2002. The Clinic is privately run. The claimant worked in a number of units in the Clinic. In May 2001 she was appointed to the post of Senior Staff Nurse. In December 2001 she went on sick leave claiming that she was suffering from stress from work. In February, 2002 she raised a grievance which was subsequently formulated as a claim of bullying and harassment. An investigation took place by the CEO. The allegations were not proven and she subsequently resigned her position.
The Union alleges that the claimant was constructively dismissed. She should receive appropriate compensation and be given a proper reference to enable her to resume her career as a healthcare worker.
- The claim was referred to the Labour Court on the 3rd February 2003 in accordance with Section 20(1) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 8th April, 2003.
The worker agreed to be bound by the Court's recommendation.
UNION'S ARGUMENTS:
3.1 The Claimant gave thirteen loyal years of professional service to the Clinic. She was not granted an independent formal investigation into the allegations of bullying and harassment. The investigation was undertaken by the CEO of the Clinic. This meant no avenue was left open for appeal, and therefore she was not afforded the right to natural justice. If the Clinic had followed their own policy document, which is well written, the above situation would have resolved itself.
2. In December 2002 the Union contacted the Clinic and requested that the claimant be afforded the opportunity of a formal investigation as per the Clinic's policy. This request was dismissed as untenable.
3. The Clinic failed to provide a safe working environment for the claimant. They further compounded the situation by failing to provide a good reference to her for future employment, while claiming in correspondence by the CEO that her professional integrity as a Nurse was without question.
4. The Union is seeking to restore to the claimant some of the lost dignity, esteem and professional confidence that is her right as a healthcare professional.
MANAGEMENT'S ARGUMENTS:
4.1 The Clinic has treated the claimant fairly in all respect and therefore there is no merit in the claim presented.
2. The allegations were investigated fully in line with the principles of natural justice. When it became evident to the Clinic that the case involved an allegation of bullying the claimant was forwarded a copy of the Bullying Procedure. The Claimant's brother, who is also a Councillor, became involved in the case when he requested a copy of his sister's employment contract from the Clinic. As this was the first allegation of bullying under this procedure the CEO decided to undertake the formal investigation himself. At no time did the Claimant or her Union representative query or claim that they did not accept the investigation or procedures as is now claimed.
3. The claimant was allowed representation at all stages in the procedures. She was provided with copies of the statements and was informed of the outcome of the meetings with her own witnesses. She was allowed to provide the names of extra witnesses subsequent to the initial investigation and the Clinic agreed to interview these. At no stage were queries raised about the investigation underway.
4. The claimant was not forced to resign and was offered the possibility of redeployment within the Clinic but failed to act on this. She expressed a preference for seeking employment elsewhere and asked for references. References were supplied when requested.
RECOMMENDATION:
The Court has considered carefully the written and oral submissions made by both parties in this case.
The main Union argument centres on the fact that the management did not adhere to its own procedures in relation to dealing with Bullying and Harassment cases. It further argues that the CEO, in taking responsibility for the investigation himself, eliminated any level of appeal, and given his position it was likely that individuals giving evidence would be intimidated.
The management accepted that the procedures had not been adhered to but argued that this was as a result of the involvement of the claimant’s brother, who was a councillor and that “this had elevated the problem”. They stated that at no stage in the procedure had the Union raised any objection to the process being operated. Indeed, they argued that it was only 6 months after the decision was conveyed to the claimant that any objection was raised.
The Court has considered carefully all of the information supplied. It is clear that it would have been more judicious had the management followed the procedures at the time, with an investigating panel being set up with the option of an appeal to the Chief Executive. However, the Court is conscious that the Union participated fully in this investigation. If it was unhappy with the method of the investigation it could have lodged an objection.
The Court has also given consideration as to whether the investigation was conducted in a fair and reasonable manner and whether the appellant’s right to natural justice was infringed.
The Court is satisfied that the investigation was conducted in a fair manner and while noting the Union’s concern that individuals may have been intimidated by the fact that the Chief Executive was conducting the investigation, finds no evidence to indicate that this was situation. Indeed it would appear that none of the witnesses suggested by the claimant to support her case did so.
The Court is satisfied that the investigation was conducted in a fair and reasonable manner and that the outcome of this investigation was a reasonable response to the evidence presented.
The Court therefore, does not recommend concession of the claim in this instance.
Signed on behalf of the Labour Court
Finbarr Flood
17th April, 2003______________________
JB/Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Jackie Byrne, Court Secretary.