FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HEALTH SERVICE EXECTIVE (WEST) (REPRESENTED BY HSE CORPORATE EMPLOYEE RELATIONS) - AND - A WORKER (REPRESENTED BY PSYCHIATRIC NURSES ASSOCIATION) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr Nash |
1. Appeal of Rights Commissioner Recommendation r-055493-ir-07-MH
BACKGROUND:
2. This case concerns an appeal by the employer of Rights Commissioner's Recommendation r-055493-ir-07-MH. The issue in dispute concerns an employee of the Health Service Executive (HSE) West who submitted a complaint of bullying
against a colleague.
The Complaint also dealt with the worker's assertions that there had been unacceptable levels of delay in dealing with the issues raised, the terms of reference to the investigtion were changed following representations from the respondent, but without the agreement of the Complainant and that the entire process was at variance with the HSE's Dignity at Work Policy.
The Union is seeking closure to the issues between the parties to allow the worker to return to her previous work location and have a positive working relationship with her colleagues, without the fear of continued bullying and harassment.
Management refute the assertions made by the worker and contend that it made every effort to deal with the issues raised as expeditiously as was possible in the changing circumstances that prevailed since the complaints were made. It further contends that bullying and harassment is not condoned in any way and will not be tolerated by the HSE.
The dispute was referred to a Right's Commissioner for investigation and Recommendation. His Recommendation issued on 9th July, 2008 as follows:
"Based on the uncontested submission of the claimant it would appear that the Respondent has sullied the process by involving itself with the conduct of the on-going investigation. The investigation team must be vested with ownership of that particular part of the process and clearly be independent in the exercise of its' function. By seeking to change the terms of reference in the course of the investigation and by instructing the investigation team accordingly, the Respondent has acted "ultra vires" to its own procedures as laid down in the Dignity at Work Policy. The admissability or otherwise of particular parts of the complaint was entirely a matter for the investigation team once the process was in train. On receipt of the completed report the respondent was then in a position to exercise its judgement and executive function.
In these circumstances and having regard to the interests of all the parties, I recommend the appointment of an external workplace conflict specialist with an open brief to address the original complaint of bullying.
On the 5th August, 2008 the employer appealed the Right's Commissioner's Recommendation in accordance with Section 13(9) of the Indusrial Relations Act, 1969 on the basis that it had not received notice of the Rights Commissioner's hearing of the 17th April, 2008. A Labour Court hearing took place on 21st October, 2009 the earliest date suitable to the parties.
MANAGEMENT'S ARGUMENTS:
4 1 Management made every effort to deal with the complaint as quickly and efficiently as possible. There were unforseen delays to the process due to personnel changes on both sides, but ultimately the HSE endeavoured to appropriately deal with all issues raised and afford natural justice to both parties.
2 There were no changes to the terms of reference of the investigation process. The terms of reference agreed between the parties and acted on by the investigation team were the original terms prepared by the HSE prior to the investigation process.
3 The worker was invited to attend mediation on the complaint in line with agreed procedures but did not accept. Instead, the complaint was processed to the formal investigation stage, which was completed and did not uphold the complaints.
UNION'S ARGUMENTS:
3 1 HSE management did not discharge its duty of care in relation to the complaints made by the worker. There were changes to the terms of reference without the agreement of the complainant, issues surrounding confidentiality as well as extensive delays to the initiation of the investigative process.
2 Management got legal advice on issues concerning the appropriate terms of reference to be used, yet did not get the views of the Union and did not copy the Union with the obtained legal advice.
3 The worker chose not to attend mediation, opting instead to process the complaint to the formal investigation stage. Previous incidents of inappropriate behaviour towards her resulted in an apology, yet there was no improvement in relations between the parties. The continuing incidents of bullying forced the worker to change work locations which still remains in place.
DECISION:
The matter before the Court is an appeal of a Rights Commissioner’s Recommendation made by the HSE.
For reasons explained to the Court, HSE management was not in attendance at the hearing before the Rights Commissioner and consequently based on the uncontested submission of an employee (herein after referred to as “the complainant”), the Rights Commissioner to a large extent found in her favour. HSE explained the reasons for its absence and stated that it had not been notified of the date for hearing.
The Court proceeded with a rehearing of the original case referred to the Rights Commissioner and with the agreement of both parties the Court investigated events post the Rights Commissioner’s referral, to include the final investigator’s report.
The claims referred to the Rights Commissioner pertained to a complaint of bullying the complainant made to management on 2nd February 2005. The complaints related to: (i) inordinate delays in having her case processed, (ii) the terms of reference were changed without her agreement, (iii) the process did not comply
with the“Dignity at Work Policy for the Health Service”2004 and lacked essential requirements of confidentiality. The Union expressed its concerns that the terms of reference had changed from those originally agreed in July 2005. Furthermore, it raised concerns regarding the level of confidentiality within the process.
HSE management disputed that her complaint was not taken seriously, it told the Court that it had immediately initiated a formal investigation into the allegations made, it discharged its duties and obligations to both the complainant and the alleged perpetrator (herein after referred to as “the respondent”) and ensured that it afforded natural justice to both parties.
Inordinate Delay
The Court has carefully considered the submissions of both parties and has examined the investigator’s report into the allegations made. The Court understands that the processing of such complaints and the ensuing investigations can by their very nature take time. In this case the Court is satisfied that any delays experienced were caused by extenuating circumstances and were not the fault of HSE management.
The Terms of Reference
The Court notes that a difficulty arose concerning the Terms of Reference for the Investigation Team. The Court is satisfied from the clarification given by the complainant at the hearing that this led to a state of confusion due to the fact that while she had made a complaint on 2nd February 2005 containing comprehensive details concerning events from 13th March 2003 until 2nd February 2005, she was subsequently asked by the investigating team for background details to her complaint and it was in this process that she supplied details of events going back a number of years – encompassing the period 1996 – 1999. The latter events became the subject of a written apology from the respondent to the complainant in 1999. However, the resurrection of these details caused the respondent to seek assurances regarding the complaints made on 2nd February 2005, which he believed were the full extent of the current investigation.
While this confusion still persisted for the complainant until January 2008, having reviewed all the relevant information the Court is satisfied that the terms of reference finally agreed between the parties on 25th January 2007, were those originally drawn up by HSE management and those which formed the basis for the investigator’s examination of events. Therefore, the Court is satisfied that there was no change to the agreed terms of reference.
Process of the Investigation
The investigator’s report clearly shows that the investigation team sought to ensure that any issues of contention between the parties would be dealt with through the offices of HSE and it thereby set down rules of engagement on 29th November 2006.
Primarily due to the above-mentioned confusion (and the changes in personnel on both management and the Union’s side), it became necessary for HSE management to seek legal advice on how to proceed, the import of this advice was relayed to all parties including the investigating team.The draft investigator’s report was sent to all parties on 11th July 2007 and the complainant through her representative raised a number of procedural and legal issues which HSE management deemed to have been determined
already. On her behalf, her trade union representative named 4 witnesses which they wished to have interviewed as part of the process. The investigation team deemed one of these unnecessary and proceeded to make efforts to interview the other three. One witness did not cooperate. Summaries of the remaining witness statements were sent to the parties in October 2007.
On 18th December 2007, following the completion of the draft investigation process the complainant’s representative sought to have the terms of reference again extended to include issues that predated the respondent’s apology. The complainant herself followed this up with accusations concerning a change to the terms of reference and that the preliminary draft report contained “factually incorrect details”. The investigating team invited her to make a submission on these alleged inaccuracies and any other issues she had with the draft report or its findings. The team set a deadline for receipt of such submissions (21st January 2008). No submissions were made to the investigating team.
The Court is satisfied that the investigation into the complainants made on 2nd February 2005 were carried out in accordance with the“Dignity at Work Policy for the Health Service”2004; the terms of reference and the rules of engagement agreed at the outset were as accepted by all parties and were complied with by the investigating team and by members of management.
Conclusion
The Court notes that the investigators’ work concluded that her complaints were not upheld. However, the Court is of the view that the report’s final conclusions are of significance where it states as follows: -
- “There was a genuinely challenging relationship between the two parties to these complaints. Undoubtedly the complainant is sincere and genuine in her perception that the respondent had attempted to belittle and undermine her.
The genesis of these complaints arises from;- The previous poor relationship between the parties
- A general confusion about the role of the CNM3,
- General poor communication,
- A mutual lack of informal direct communication between the parties when an issue arose between them (probably linked to the previous poor relationship between the parties)
All of the above gave rise to assumptions of a perception of being targeted for singular negative attention and criticism. The evidence is that this was not so.
However, there is clear evidence that the poor relationship between the parties was also noted by many other witnesses to the investigation.
While many people knew of the level of upset experienced by [the Complainant] and the contribution structural factors associated with this role there was a general avoidance of dealing with these factors and sorting them. [The Complainant] is accurate when she said she received a lot of sympathy, however, the underlying contributing structural difficulties were frequently not effectively resolved. It is very regretful that those in senior positions who were aware of the level of distress that these issues were causing to [the Complainant] did not make greater efforts to address and ameliorate a solution to these issues. Perhaps if they had done so then some of these misperceptions could have been prevented.”
The Court notes that at the appeal hearing the complainant stated that her main priority at this stage is to bring complete closure to this matter in order to restore a normal working relationship and allow her return to her original work location area.
Having considered all aspects of this case the Court accepts as genuine the Union’s concerns raised, in fact such concerns were initially raised before it had had access to either the preliminary report or the final investigator’s report. Indeed the Court notes that the Union and the complainant both stated that the final report had not been made available to them until the date of the Labour Court hearing. It was on that basis that the Court clarified the position with the Union and the complainant, and sought agreement from them to proceed to investigate matters, up to and including this final report.
Having examined the details surrounding this case, while the Court does not find fault with the process engaged in by HSE Management and the Investigation Team, it is clear that the complainant's difficulties stem from an acrimonious working relationship between her and the respondent, reaching the point where she felt compelled to move location. However, the Court is of the view that this conclusion hardly advances the resolution of a dispute, which has become, with time, all the more complex and difficult to resolve.
Therefore, in the interest of good industrial relations and the re-establishment of workplace harmony the Court believes that as the process has not been resolved through the internal procedures of the HSE the most helpful approach would be to direct the complainant and her colleague toward restoring proper working relations. For this purpose the Court decides that an external professional mediator should be appointed by the HSE to work with the parties on restoring normality in the working environment and not on apportioning culpability for past events. The exercise should be conducted in a non-adversarial manner and should not extend beyond four weeks.
Following acceptance of this decision the Court will nominate an appropriate mediator.
Accordingly, the Court varies the Rights Commissioner’s Recommendation.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
9th November 2009______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.