ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference: ADJ-00007674

Parties:

Complaint(s):

Date of Adjudication Hearing: 17/08/2017

Procedure:

In accordance with Section 13 of the Industrial Relations Acts 1969 following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.

Background:

The complainant commenced work in March 2003 as a Clerical officer in a large Dublin hospital. She was promoted to Grade IV supervisor in 2006 and this is her current grade. Her normal working hours are 100 hours per month. Her gross monthly salary is €3,606. As a Grade IV Supervisor she is the most senior clerical staff member on site during her night shifts. Her role is to provide administrative assistance in the hospital reception admissions area on the night shift. The issue in-hand relates to the investigation and emanating disciplinary procedures following a complaint made by a colleague of the complainant about an incident which took place on 9^th February 2016. The complaint was received by the WRC on 21^st March 2017. The complainant was represented by her union at the hearing.

Summary of Complainant’s Case:

The complainant provided a detailed written submission.  

The complainant has two complaints; firstly that she has been subjected to unjust disciplinary sanctions and secondly that the hospital respondent has failed to investigate complaints made by her despite numerous requests by her that they do so.

The complainant’s representative submitted that the complainant is seeking the following; firstly that the disciplinary sanctions are rescinded and removed from her personal record, secondly that any loss of earnings suffered by the complainant due to the imposition of the disciplinary sanctions are returned to her and thirdly that the respondent conducts an immediate investigation into the complainant’s complaints. In addition the complainant wants a compensatory amount from the respondent because of the stress and duress she has been unfairly subjected to during this unfortunate and unnecessary episode.

Regarding the alleged unjust disciplinary sanctions the complainant’s representative submitted that an investigation report was forwarded to the complainant in September 2016 which purports to provide a fair analysis of a complaint submitted by another employee.

The purpose of this report was to investigate matters raised in a complaint by another member of staff concerning the complainant. However, the investigation report included a subsequent event.

The complainant believes the inclusion of the subsequent event is a breach of the terms of reference of the investigation report and constitutes a breach of fair procedures negatively affecting the complainant. According to the complainant the hospital acknowledges this in the investigation report were it states that it was not directly provided for in the remit of the terms of reference.

Furthermore as well as including material that is outside the terms of reference management actively endeavoured to undermine the complainant by seeking CCTV details to assist in providing credence to the inclusion of the subsequent event. As this CCTV information is connected to the aforementioned subsequent event its inclusion must be deemed a breach of fair procedures.   The complainant also submits that the investigation report which falls within the remit of the terms of reference demonstrates that complainant and the other employee had different recollections and perspectives of what occurred between them on 9 February. As acknowledged by the report there were no witnesses.

It is that the union’s contention that management has had a long-term agenda of removing the complainant from the night roster. At the outset of this process, as far back as March 2016 the patient services manager wrote to the complainant informing her that she was to come off night duty with immediate effect for the duration of the investigation. The union intervened at this time pointing out that this was a punitive action against their member and was both prejudicial and unacceptable. The complainant was reinstated on the night roster.

A further issue of concern for the complainant centres on management’s deliberate attempt to embarrass and humiliate her when her colleagues were asked to cover her nights and were informed that the complainant was being transferred today duties.

It is the union's contention that when a frustrated management could not satisfy their agenda via an investigation within the terms of reference they decided to unilaterally expand the parameters of the investigation until they felt sufficiently secure in applying their pre-desired disciplinary sanctions including removing the complainant from the night roster regardless of the negative impact had her both from a work-life balance and financial perspective. It is the union’s view that everything in the investigation report that follows after the heading subsequent event should be disregarded.

The union also wonders why the complainant’s colleague's complaint was given, what it believes to be, unfair priority above that of the complainant.

The union submits that the complainant has been a loyal and diligent employee of the hospital for 14 years and she takes her work very seriously. She is good at her job and is a valuable member of the night team.

The union contends that the complainant was subjected to a flawed investigation, that operated well outside of its own terms of reference to suit management is desired outcome.

Summary of Respondent’s Case:

The respondent submitted a detailed written submission.

The respondent contends take it acted fairly and reasonably at all times in all the circumstances.

The respondent submitted that on 22nd February 2016 the hospital received a complaint from a fellow employee of the complainant concerning the complainant's behaviour. The complainant was informed of the allegation against her and provided her response to same on April 27th 2016. The nature of the complaint against the complainant was that she had bullied her colleague in the course of a night, repeatedly engaging in behaviour which was unwelcome to her colleague.

The complainant attended an investigation interview on 28th April 2016 and was afforded the opportunity to put forward her version of events. The complainant was informed of her right to be represented at this meeting and was accompanied by her Trade Union Representative.

The investigation panel considered the evidence before them and, on the balance of probabilities, concluded that the complainant did make comments about her colleague’s health status, and that such conduct is below the expected standard of behaviour in the hospital, in line with the hospital Dignity at Work Policy.

On the basis of these findings the investigation panel compiled a report, which the complainant was afforded the opportunity to comment on prior to finalisation, which recommended that the matter be progressed to disciplinary hearing. The panel further recommended that the complainant attend Dignity and Respect in the Workplace Training and that, as a temporary measure in order to facilitate supervision, it should be considered that the complainant transfer to day duty.

A disciplinary hearing was convened on 21st December 2016 and the complainant was once more afforded the opportunity to state her case. The complainant was informed of her right to be represented at this meeting and was accompanied by her Trade Union representative.

The complainant’s position at this hearing was that she rejected the findings of the investigation report. She outlined her position in this regard and same was considered.

The complainant received a disciplinary sanction of a first written warning, which would remain on her file for a period of nine months. The warning is therefore due to expire on 26th September 2017.

In order to facilitate greater supervision, the complainant was required to transfer to day shifts for three months initially, following which the matter would be reviewed. As the complainant has been absent from work since having sustained an injury in August 2016, this measure will be implemented upon her return to work.

Finally, the outcome letter further communicated that the complainant would be required to attend Dignity at Work training upon her return to work.

The respondent submits that the latter two outcomes are simply measures put in place by the hospital to support the complainant in attaining the required behavioural standards.

The complainant appealed this outcome to the HR Manager and an appeal hearing was held on 14th February 2017. Following due consideration, the complainant’s appeal was not upheld. This was communicated to the Complainant in writing on 21st February 2017.

In response to the six points raised by the complainant in her Complaint Form the respondent put forward the following.

Points 1 & 2; “My employer investigated my colleague’s complaint” &

“My employer did not investigate my complaint”

The hospital received the other employee's complaint first, some eight days prior to receipt of the complainant’s counter complaint. The complainant was given every opportunity to put forward her version of events in the context of this investigation, however, it is the hospital’s practice to investigate such complaints consecutively. The complainant has been absent from her workplace since August 2016 at which point this investigation process was ongoing. The hospital looks forward to investigating the complainant’s complaint upon her return to work, or, should be fit to engage in such a process beforehand, the hospital is of course willing to engage in this regard.

Point 3; “They breached their own terms of reference during the investigation”. The hospital disputes this point entirely. All matters that formed part of the investigation were appropriate for investigation under the hospital's Dignity at Work process. A total of nine employees were interviewed as part of this investigation process. Among them, were two Contracted Security Workers who were on shift at the time of the incidents in question, who each had witnessed two separate incidents between the complainant and her colleague on the night in question.

In line with the hospital’s Dignity at Work policy, and indeed common practice in the hospital, all witnesses were provided with copies of the minutes of their meetings and asked to sign their agreement to the accuracy of same and return them to the investigation panel.

The two security officers in question attempted to do so via the internal post system, the drop off box for which is located in the reception area. Each of them, separately, handed their finalised minutes in to reception. At this time, the complainant was stationed at the reception desk. Further, separate, altercations occurred between the complainant and the two witnesses. The complainant returned both envelopes to one of the witnesses in question and stated that she would not be accepting same. She stated that she did not know why they were called as witnesses. The altercations were such that each of them raised these issues with the investigation panel the following day.

The complainant was met with and informed of these allegations against her. She was further informed that they would be considered by the investigation panel regarding the ongoing investigation and was given an opportunity to respond to same. Neither the Complainant nor her Union representative raised any objection at this juncture to the encompassing of this matter within the scope of the investigation. The hospital refers once more to its Dignity at Work policy which states;

“It will be considered a disciplinary offence to intimidate or exert pressure on any person who may be required to attend as a witness”.

Upon receipt of the draft investigation report, the complainant, through her Trade Union Official, responded to same on 5th October, objecting to the encompassing of these issues in the report. The complainant stated that she therefore rejected the report. This was the first occasion upon which this objection was raised.

The complainant’s assertions on this point were considered by the investigation panel prior to the final investigation report being issued and subsequently by both the Disciplining and appeals managers during the course of the disciplinary policy. In this regard, attention is drawn to the Appeal Outcome letter which states as follows;

“The hospital does not accept that the investigators went outside the scope of the terms of reference and are of the view that fair procedure was followed at all stages of the process. It is important to note that the complainant attempted to intimidate key witnesses during the course of the investigation. This behaviour in itself is a very serious matter considering that she had been explicitly advised not to do so. This intimidation could not have been treated in isolation as it also contravenes the Dignity and Respect at Work Policy and was therefore included as part of the investigation.”

This remains the hospital’s position. The respondent submits that the complainant was not prejudiced by same, as the sanction of a written warning was nonetheless proportionate to the upheld allegations regarding her bullying behaviour towards her colleague.

Point 4; They issued a flawed and biased report".

The respondent refutes this claim entirely and that the investigation report was neither flawed nor biased.

Point 5; “They issued me with a sanction on the basis of a flawed and biased report”

Again, the respondent denies that the investigation report is in any way flawed or biased.

The respondent submits that the allegations against the complainant were upheld following a thorough and exhaustive investigation.

Point 6; “The sanction was to issue me with a written warning and put me on days for a minimum of three months. They know this is impossible for me to do due to my personal circumstances. I am now seeking the help of the adjudication services to overturn this sanction.”

The respondent submits that the sanction of a written warning was proportionate in the circumstances. In relation to the requirement that the complainant transfer to days for a period of three months, the respondent refers to the complainant's contract of employment which states as follows:

“Daily working hours will be as notified by your Head of Department or Line Manager and may be varied according to service needs”.

The complainant, like all employees, is expected to demonstrate flexibility in relation to her hours of work.

In concluding the hospital submitted that it has a legitimate interest in ensuring that the complainant, in common with all employees, adheres to the required standards of dignity at work. This outcome was therefore not unreasonable, nor did the hospital intend to reduce her pay to the basic day shift rate such that she would be at a financial loss.

The complainant alleges that her personal circumstances rendered it “impossible” for her to work days. While the hospital is aware that the complainant relies on public transport to commute to work, the hospital was willing to be flexible in relation to the complainant’s start and finish times in order to facilitate this.

On this basis the respondent strongly asserts that it has acted fairly and reasonably in all the circumstances and that the outcome of the disciplinary hearing, as upheld on appeal, was proportionate in the circumstances.

Findings and Conclusions:

It would seem to me that the hospital has acted fairly at all times during all phases of the disciplinary process. The inclusion of the subsequent event in the deliberations was not unfair, is allowed for in the procedures and does not render the outcome illegitimate.

I do not think the hospital has acted unreasonably in how it has managed the investigation of the complainant's allegations.   If the complainant wishes to have her complaint investigated she can seek an investigation on her return to work.

Notwithstanding the above the imposition on the complaint of a requirement to work the day shits for a minimum of three months does create problems for her which impact on her family life. I appreciate that while the rationale behind this temporary move is to allow for greater supervision of the complainant with a view to assisting her improve her interpersonal and supervisory skills it is nonetheless a punitive measure. I believe the period of three months is too long.

Recommendation:

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

I recommend that the period the complainant has to work on the day shift be halved to a six week period with a formal review of her progress to take place after four weeks on the day shift.

Dated:   29^th September 2017

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