FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE NORTH EAST - AND - A WORKER DIVISION : Chairman: Mr Duffy Employer Member: Mr Grier Worker Member: Mr Nash |
1. Appeal against Rights Commissioner's Recommendation R-051555-IR-07/JT
BACKGROUND:
2. The worker is employed is employed as a staff nurse and is assigned to Shalimar House, a disability-services residential care unit in Co. Meath. He is currently on paid leave.
In July, 2005, the Clinical Nurse Manager 2 (CNM2) of Shalimar House furnished the Area Manager with reports from staff members in which they expressed concerns of feeling intimidated and pressurised by comments made by the worker. Management claims that in Spring of 2005 a review was carried out on the care plan of a service user who exhibited challenging behaviour. A number of changes were made to the management of the client. Management claims that the worker, who had been on sick leave, unilaterally overturned the agreed plan, thereby exposing clients and his work colleagues to risk. A Dignity at Work investigation followed and a report issued in January, 2006, found"On balance of probability and in keeping with the Dignity at Work Policy, the worker's behaviour can be construed as bullying."The report also concluded that the worker had no insight into the impact his behaviour had on his colleagues.
The worker rejected the findings of the report and believes that he was being victimised as a "whistleblower". The worker responded in writing to the report although it was not until 10 months later, something he claims was not his fault.Thereafter the case was referred to the Assistant National Director PCCC to be dealt with under the Disciplinary Procedure for the Health Service. A hearing took place in March, 2008, and the outcome is awaited.
The case was referred to a Rights Commissioner and his decision was as follows:
" I have considered the submissions and arguments made by both parties and there has been an inordinate amount of time taken up in dealing with this matter and trying to implement due process. I am satisfied that the investigating committee conducted their work to the proper and highest standards. The claimant has delayed this process by ten months, which in unacceptable and unreasonable for all concerned including himself.
In this case I recommend the respondent pursue the findings of the investigation to the disciplinary procedure without delay and bring this case to a conclusion as quickly as possible, in the interest of all concerned".
The worker appealed the Rights Commissioners decision to the Labour Court on the 17th December, 2007, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 21st May, 2008.
WORKER'S ARGUMENTS:
3. 1. The worker was wrongly suspended twice, the first time because he refused to follow an order which clashed with his judgement as a highly trained nurse to people with intellectual disabilities and, secondly, following an investigation which was flawed throughout he was again suspended following false accusations of bullying .
2. The worker was not afforded the opportunity to respond to the investigation by way of a Preliminary Report as per procedure. He was only allowed to make a submission in relation to the investigation after the Final Report was issued and by then it was too late to have any effect. He appealed the findings within three months of being told it was the Final Report so accusations of a 10-month delay are very unfair.
3. The HSE acknowledged that there was an absence of procedures during the investigation. The whole matter has been very stressful for the worker.
HSE'S ARGUMENTS:
4. 1. The worker did not reply to the investigation report for 10 months. Despite this every opportunity was afforded him to respond to the findings. At the Disciplinary Hearing in March, 2008, the worker was again given an opportunity to express his concerns on any relevant issues.
2. This is not a case of a vendetta against a "whistleblower" as the worker claims. A Dignity at Work investigation found that the worker bullied his work colleagues. The worker did not object to the investigation when it was taking place. Management wishes to bring the matter to a conclusion as quickly as possible.
DECISION:
The Court has given careful consideration to the submissions of the parties to this appeal.
It is clear to the Court that the HSE received complaints of bullying from members of its staff. It was obligated to investigate those complaints through its Dignity at Work Policy. The Claimant did not object to any aspect of the investigative process when it was put in place or during the course of its deliberations. The only objection of subsistence raised by the Claimant was at the end of the process when the investigators issued a final rather than a preliminary report.
The Court is of the view that investigations such as the one in issue must be conducted strictly in accordance with the prescribed procedure and any failure to do so cannot be condoned. Nonetheless, in this case it is clear that the Claimant was afforded an opportunity to comment on the report of the investigating committee and those comments were considered by the investigators. This, however, was not in strict compliance with the agreed policy.
In all the circumstances of this case the Court believes that the conclusions reached by the Rights Commissioner are reasonable and appropriate. However, the Court believes that in this case a short attempt at mediation should be undertaken in an attempt to reconcile the differences which are manifestly present between the Claimant and the HSE before proceeding to the disciplinary process recommended by the Rights Commissioner.
The Court is of the view that an external mediator should be appointed by the HSE and this process should not extend beyond four weeks.
With this modification the recommendation of the Rights Commissioner is affirmed and the appeal disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
3rd June, 2008______________________
CONChairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.