FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HEALTH SERVICE EXECUTIVE - DUBLIN NORTH EAST - AND - A WORKER (REPRESENTED BY HAYES SOLICITORS) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Mr O'Neill |
1. Appeal of Recommendation of a Rights Commissioner R-064114-Ir-08/RG
BACKGROUND:
2. The worker is a medical doctor and has worked in the HSE Dublin North East Addiction Service since 1998. His case is as follows; in November, 2003, the worker was suspended from duty by a Consultant Psychiatrist on alleged health grounds. His pay was stopped when he refused to attend for medical assessment on his mental state at the Occupational Health Department. This decision was overturned on appeal in April, 2004, by the Assistant Chief Executive, Northern Area Health Board (NAHB), who also found that there were procedural error on behalf of management in relation to the suspension. On foot of the findings by the Assistant Chief Executive the NAHB appointed mediators who in time issued what was known as the Walker/Whitford Report. The Report made a number of recommendation which, the worker believes, the HSE did not implement. As a result the worker initiated the internal grievance process within the HSE and this was heard by the Assistant National Director of Human Resources. She upheld the worker's appeal and found that the Report had not been implemented in full. However, the worker believes that the investigation did not go far enough and that there are unresolved issues. These included the HSE's refusal to acknowledge that the actions taken against him in November, 2003, were disciplinary in nature. He also believes that the damage to his reputation has not been addressed.
The HSE believes that it has done all that it can to address the worker's grievances. Monies due to him have been restored as well as an ex-gratia payment. There have been a number of comprehensive investigations, all of which have found in the worker's favour, and yet he is seeking a further investigation.
The worker referred his case to a Rights Commissioner and her recommendation was as follows;
"While other issues were discussed during the course of the hearings, I intend to confine myself to the three issues in dispute referred to the Rights Commission Service as follows - Superannuation - Appointment of a senior clinician - review by the HSE of the circumstances surrounding the suspension of the worker.
On the basis of all the evidence, which was extensive from both parties, I find as follows:-
1. The suspension of the worker from duty by the Consultant Psychologist on 20th November 2003 was found to be incorrect by Assistant Chief Executive, HSE, by the Walker/Whitford report and by Assistant National Director of Human Resources, HSE under Stage 3 of the Grievance Procedure of the HSE. Accordingly, there have been three investigations into the suspension, all of which have found in favour of the Claimant. It is now five years since the Worker was suspended. I cannot, therefore, recommend that a further HSE investigation should take place as I do not believe it would be conducive to establishing normal working relationships within the Addiction Service which both parties state they were anxious to achieve.
2. The Walker/Whitford Report recommended "that consideration be given to an agreed senior clinician from outside the service adopting a mediating/facilitating role with the Worker in order to avoid conflicts arising and escalating in the future".This recommendation was considered by the HSE in the Assistant National Director of Human Resources' Report where she recommendsthat the resources of our internal confidential mediation service be assigned for a period of two months initially to support the Addiction Services in this work. This is critical as it is essential that the parties work to reconcile differences and rebuild a relationship of trust together.The Assistant National Director of Human Resources went on to elaborate that the Mediator was not to become involved in any current or future operational management issues, such as outstanding complaints etc. During the course of the hearing on 29th January 2009 the employer made reference to the difficulty of implementing this recommendation at this stage without being specific. However, I recommend that the proposal of the Assistant National Director of Human Resources be implemented with immediate effect in that a senior clinician with mediation skills should be appointed for a period of 2 months and extended if found necessary by the parties.
3.The issues around the Superannuation Scheme have been implemented to the satisfaction of the Claimant".
The worker appealed the recommendation to the Labour Court on the 28th April, 2009, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 24th July, 2009. The following is the Court's decision:
DECISION:
This appeal came before the Court against the background of long standing grievance on the part of the Claimant concerning the circumstances in which he was suspended without pay in 2003. That suspension has been the subject of three substantial investigations in the intervening period. The outcome of each of these investigations has been to vindicate the Claimant fully and to hold that the HSE has acted wrongly in imposing the impugned suspension.
It is clear, however, that the Claimant wishes to have a further investigation into matters surrounding his suspension, including the motivation of those responsible for that decision and the means by which it was brought about.
That aspect of the dispute was referred to a Rights Commissioner for investigation. Following a thorough investigation of the matter and a careful analysis of all the relevant submissions and arguments the Rights Commissioner concluded that nothing further could be gained by another investigation. The Rights Commissioner made other recommendations aimed at moving the outstanding issues in dispute forward and their ultimate resolution. These recommendations have been accepted by both parties and the only issue for the Court is whether or not the Rights Commissioner's recommendation that a further investigation is not warranted is reasonable in the circumstances of the case.
As in all cases under the Industrial Relations Acts 1946-2004, the Court is guided by established standards of reasonableness and good industrial relations practice. Applying those standards to the facts of this case the Court is satisfied that the Claimant has been fully vindicated against any suggestion of wrongdoing and he has received full and adequate redress for any injustice which he suffered. The requirements of good industrial relations practice and reasonableness dictate that all parties now put the events of six years ago behind them and that they move on to deal with residual issues through the mechanism referred to in the Rights Commissioner's recommendation.
The Court cannot see any error in the approach adopted by the Rights Commissioner in her recommendation. Her conclusions are sensible and her approach to the case is eminently reasonable.
In all the circumstances the Court believes the recommendation of the Rights Commissioner should be affirmed.
Accordingly, the appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
31st July, 2009.______________________
CON.Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.