ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001631

Dispute for Resolution:

Date of Adjudication Hearing: 11th May 2016

Workplace Relations Commission Adjudication Officer: Seán Reilly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act 2015 and Section 13 of the Industrial Relations Act 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.

Summary of Trade Union Case:

The Trade Union said that based on a serious conflict of interests and procedural deficiencies the Complainant grievance should be heard as a De Nova case by an independent objective investigator.

The Trade Union said the Complainant qualified as a Registered General Nurse in 1987, she completed midwifery training in England in 1998 and Public Health Training in Ireland in 1995.   She completed a Nursing Degree in 2000, she has vast nursing experience encompassing many specialities in her nursing career and she had demonstrated an ongoing commitment to lifelong learning in undertaking regular training and professional development.   The Complainant has completed preceptorship training; pain management; oncology care; open disclosure training; dementia management; wound care; legal aspects of nursing; elder abuse awareness; catheter care; end of life training and syringe driver training to name but some.

On 26^th April 2013, the Complainant wrote to the named General Manager in her Area, lodging a formal complaint against her named Line Manager under the ‘Dignity at Work Policy’.     Preliminary screening by the Respondent found that the complaint should be heard under the ‘Grievance Policy’ and not the ‘Dignity at Work Policy’.   An Investigator was appointed in September 2013 to hear the grievance.   In February 2015, the outcome of the grievance Investigation was issued and most the Complainant’s grievances were not upheld.  

The Trade Union said it was at this point they learned that the Investigator had been part of the Interview Panel that interviewed the Line Manager against whom the Complainant had made her complaint for the post of DOPHN.   The Trade Union said that the Investigator had failed to disclose this vital piece of information on being asked to investigate the grievance and they said this resulted in a process that lacked any objectiveness.   The Trade Union said that the perception created by the investigator in the findings has the potential to impugn and tarnish the personal and professional reputation of the Complainant and the Investigator has moved outside the Grievance process, displaying a bias against the Complainant.

The Trade Union on behalf of the Complainant sought to appeal the outcome of the grievance complaint to the named CHO for the Area in accordance with internal process and procedures.   On 25^th April 2015, the CHO wrote to the Trade Union informing them that the Appeal sought by them would not he heard at that time; instead he moved to address a counter complaint under the Disciplinary Process and he appointed the General Manager of a different area to carry out preliminary screening in accordance with the process.   On 30^th April 2015, the Trade Union responded objecting to this proposed action and highlighted the serious procedural deficiency that rendered the investigation of the Complainant’s grievance null and void.

On 26^th May 2015, the Temporary General Manager wrote to the Trade Union informing receipt of correspondence and sought details of what was the serious procedural deficiency.   On 4^th June 2015, the Trade Union responded informing of the serious procedural deficiency and stated the Complainant had operated within the Respondent’s own policy and now found herself the subject of a process initiated by the Investigator or her own grievance.   On 29^th June 2015, the Trade Union wrote again to the Temporary General Manager, refusing to accept the Respondent’s position that there was no conflict of interest and they further stated that the Complainant was co-operating with the preliminary screening for a disciplinary process against her and the Trade Union said that to date she has not been informed of the outcome of this.

The Trade Union said that on 26^th April 2013, the Complainant lodged a legitimate complaint in accordance with the Respondent’s process and procedure, expecting fairness and due process.   The appointed Investigator failed to declare that he had been a member of the interview panel that had appointed the person against whom the complaint had been made to the post of Acting Director of Public Health Nursing and that therefore a serious conflict of interest existed in his investigating the complaint.   The Complainant was denied fair procedures, process and the principles of natural justice and accordingly the Complainant’s grievance complaint should be hear as a De Nova case by an independent, objective investigator.

The Trade Union said that in the Respondent’s Grievance and Disciplinary Procedure at Page 3, it states that an employee will not be penalised in any way for making a complaint in good faith, yet the Complainant has found herself in this position with the Investigator of her complaint recommending that action be taken against her.   The Trade Union said that this clearly demonstrates that not only did the Investigator have a conflict of interest, he also lacked any objectivity and that he moved outside the process he was charged to undertake.

The Trade Union submitted that based on the foregoing the Complainant’s grievance should be heard as a De Nova case by an independent, objective Investigator.

The Trade Union and the Complainant sought a favourable recommendation.

Summary of Respondent’s Position:

The Respondent said that the background to this case goes back to 26^th April 2013.   The Complainant made a written complaint to the then General Manager in the Area in which she alleged that she was being bullied and harassed by her then Line Manager.

In line with the Respondent’s ‘Dignity at Work Policy’ the complaint was sent to a named member of HR staff for screening to ascertain under what policy the complaint should be dealt with and he deemed it should be dealt with as a grievance under the Grievance Procedure.  

The Respondent said that normally under the ‘Dignity at Work’ Procedure the Employee’s Line Manager would hear the complaint.   The Director of Public Health Nursing was initially nominated as was the General Manager.   The Trade Union objected to both of these on the basis of a perceived lack of independence and that they had been involved in the case.  

The Principal Psychologist in a named area was then appointed to investigate the grievance and it was agreed that is would be at Stage 2 of the procedure.

The Respondent said that that an initial Stage 2 hearing took place on 4^th September 2013, attended by the Complainant and her Trade Union Official.

The Investigator then met with the alleged perpetrator on 3 occasions; 16^th December 2013, 7^th January 2014 and 22^nd January 2014.

Subsequently the Investigator met with the Complainant and her Trade Union Representative on 19^th May 2014 and 26^th May 2014.

A final meeting with the alleged perpetrator took place on 20^th October 2014.

The Investigator investigated 52 complaints, of which 6 were withdrawn during the process.   In one of the complaints no determination was made due to lack of evidence.   Of the remaining 45, 39 were dismissed, 5 were not upheld and in one complaint a small percentage of it was upheld.

The Respondent said that in total out of 52 complaints none were fully upheld and 75% were dismissed.   The Investigator’s Report was sent to the Acting General Manager on 18^th February 2015.

On 27^th February 2015, the Trade Union wrote to the Chief Area Officer seeking to appeal the Investigator’s Findings and Report.   The Trade Union cited 4 areas of appeal as follows:

1. Procedural deficiencies
2. Lack of objectivity
3. Lack of knowledge of the Respondent’s Grievance Procedure by the Investigator
4. Inappropriate action by the Investigator

The Trade Union again on 2^nd March 2015, wrote to the Chief Area Officer seeking the appeal.   The Chief Area Officer responded on 9^th April 2015, stating that he was not granting an appeal at that time.

The Trade Union wrote back to the Trade Union on 30^th April 2015, stating that they were objecting to his decision to refuse an appeal and highlighting what they saw as a perceived procedural deficiency; however they did not state what this procedural deficiency was in their letter.

The Acting General Manager replied to the Trade Union on 26^th May 2015, stating the Respondent was not aware of any procedural deficiencies and requested the Trade Union to state in detail the perceived deficiencies they saw. The Trade Union wrote back to the Acting General Manager on 4^th June 2015, stating that the Investigator had sat on the Interview Board that had appointed the person against whom the Complainant had made her complaint to her DPHN post and that therefore in their view that a conflict of interest arose and that this was the perceived procedural deficiency.

The Acting General Manager replied to the Trade Union on 18^th June 2015, stating that having consulted with HR, they were satisfied that no conflict exists or existed.   By letter of 29^th June 2015, the Trade Union contested this position.

The Respondent said that they, having considered the Investigation outcome, decided to deal with

it by way of their disciplinary procedure (against the Complainant) and it was sent to the General Manager in another Area for a preliminary gathering of facts process in line with the Disciplinary Procedure.

The Respondent said that it is their understanding that the Complainant is seeking to appeal the Investigator’s Report and the Respondent have not agreed to such an appeal at this time.   The person doing the preliminary screening and gathering of facts Report is now with the Chief Area Officer for his consideration and a decision in that respect will issue soon.   The Respondent said that on issue of the Chief Area Officer’s recommendation they commit to engage in a meaningful manner with both the Complainant and her Trade Union.

Following the submissions of the Trade Union the Respondent said that the Investigator issued a first Report in which he did not uphold almost all of the Complainant’s complaints.   The Investigator, then following advice from HR made his second report in which he made the complaints against the Complainant questioning her motives in making her complaints.

The Respondent said that they had not stated that the Complainant’s Appeal against the findings of the Investigator would not be heard or allowed at all, rather that it could not take place at that time; it was not been ruled out entirely.

Based on the foregoing, the Respondent sought that the claims be rejected.

Findings and Recommendation:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the dispute in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation setting forth my opinion on the merits of the dispute.

I have carefully considered the evidence and the submissions made and I have concluded as follows.

I accept as submitted by the Employer that managers routinely sit on interview panels and this does not mean that they could not conduct impartial investigation.   However this is to misunderstand the position of the Complainant and her trade union, which as I understand is that as the Investigator had been part of an interview panel that had promoted the alleged perpetrator and so she would be known to him and there was a possible perception that having recommended her for promotion he might be favourably disposed towards her and not neutral as between her and the Complainant and they were particularly concerned that he had not declared that fact in advance in order to permit them to consider it and express any view they might have in that respect.

Whatever view one might take in that respect it would have been appropriate for the (then proposed) Investigator to have declared the fact that the alleged perpetrator was known to him and that he was part of an interview panel that recommended her for promotion before the Investigation began in order to allow the parties to consider that fact before they agreed to his appointment.     I consider his failure to so do as regrettable and unfortunate.

I am greatly concerned at the recommendation by the Investigator of disciplinary action against the Complainant.   While I accept that he did this on the basis of advice from HR; that advice was, in my opinion wrong advice.   This recommendation was outside of the Investigator’s Terms of Reference and indeed would be outside the terms of reference of any investigator, an investigator’s role is to investigate the matters referred to them in accordance with their terms of reference, no more and no less.   Any question of discipline is, and must be, a separate matter.   This act was wrong and must, as submitted by the Trade Union, call the handling of the whole matter into question.    

I consider the failure of the Respondent to allow the Complainant an immediate appeal against the outcome of the Investigation as unfair to the Complainant and a direct breach of the Respondent’s own Grievance and Disciplinary Procedures.   I do not accept the reasons given for this by the Respondent; that they were awaiting the outcome of the preliminary gathering of facts in relation to another disciplinary procedure.   The Complainant was entitled, in accordance with agreed Grievance and Disciplinary Procedures, to have her appeal heard and it is my understanding that she is entitled to have it heard within a defined timeframe.   That right was denied to her and that is a breach of agreed procedures.   Nor indeed is there any valid reason why the second case should hold up the appeal of the first one; indeed the opposite is the case; if the appeal had gone ahead and had been successful then, with the Investigators Report overturned there would be no grounds for any case against the Complainant.   I have concluded that this also renders the procedure utilised by the Respondent unfair to the Complainant.

Based on the foregoing I see considerable merit in the submissions of the Complainant and her Trade Union in relation to procedural deficiencies in the handling of this case by the Respondent and those submissions are upheld by me.

However notwithstanding the foregoing I have considerable difficulty with the submission/claim by the Complainant and her Trade Union that her grievance complaint should be heard as a De Nova case by a different independent Investigator, because of the lapse of time that has occurred since the alleged matters that are the subject of those complaints.   The Complainant lodged her complaints on 26^th April 2013, that is more that 3 years and 2 months ago, and the complaints (obviously) refers to matters that occurred before that date.     I cannot accept that it would be reasonably possible or legally safe to conduct an investigation at such a remove and this would be exacerbated by the fact that an investigation has already been held, which could lead to problems with co-operation with a new one at this late stage.     While I fully understand the reasons for this request by the Complainant and her Trade Union I just cannot accept that it is a realistic proposition because of the lapse of time.

Based on the foregoing I am upholding the claim and I now recommend the following.

I recommend that the Report from the Independent Investigator in relation to the grievance complaints submitted by the Complainant on 26^th April 2016 be set aside and accordingly this means that no actions can be taken by either party on foot of it.

I also recommend that as a gesture of goodwill and in recognition of the procedural deficiencies in the way they handled this matter that the Respondent pay the Complainant compensation in the sum of €2,500.00c within 6 weeks of the date of this decision.   I wish to confirm that this sum is not wages or arrears of wages but rather is compensation to the Complainant for deficiencies in the way the Respondent handled this matter.

I further recommend that both parties but this matter behind them and move forward in a spirit of co-operation.

I so recommend

Dated: 16^th August 2016