ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000612

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 02/03/2016

Workplace Relations Commission Adjudication Officer: Joe Donnelly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

The respondent did not adhere to the procedures set out in its Trust in Care policy and failed to carry out an investigation in an expeditious manner.

The setting up of an external investigation team under the Disciplinary Policy was unwarranted as the findings did not support an allegation of serious misconduct.

The failure to abide by the policy and the delays in the procedure have resulted in a failure on the part of the respondent in their duty of care to the complainant and led to the latter being absent for a two month period due to stress and receiving counselling under the Employee Assistance Programme.

Respondent’s Submission and Presentation:

Management met with the complainant on 28 June 2014 regarding allegations made against her. The process of investigating the allegation was then put in train and the complainant advised accordingly.

At a meeting on 3 September 2014 the complainant was advised that a further allegation regarding her conduct had been received and that because these issues involved a minor it was necessary to seek advice and clarification on how to proceed. Later that month the complainant was advised that the matter had been referred to the Gardai and that she was being reassigned to other duties.

In February 2015 it was confirmed that an investigation under the Trust in Care policy would take place and the composition of the team / terms of reference agreed. The complainant was interviewed on 7 May 2015.  The final report was issued to the complainant on 26 August 2015.

In September a senior manager advised that an investigation team under the respondent’s Disciplinary Procedures was being set up but later that month the manage advised the complainant that, having examined the Trust in Care report, the investigation team could proceed no further.

The issue of disciplinary action was referred to the complainant’s line manager and in February 2016 a redeployment had been agreed with the complainant together with confirmation that no disciplinary sanction would be imposed.

Decision:

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

Issues for Decision:

N/A

Legislation involved and requirements of legislation:

N/A

Decision:

It is clear that any allegation involving interaction with a minor has to be treated with the utmost seriousness and the respondent was very conscious of this requirement. The Trust in Care policy has quite detailed procedures for dealing with complaints of abuse and states clearly that an internal investigation must proceed even where the alleged abuse could potentially constitute a criminal offence.  What appears to have caused some delay in this particular instance is that allegations involving a minor could be investigated under the Children First policy and the fact that the Gardai requested the respondent to hold off on the internal investigation.  However the general principles laid out in the Trust in Care policy, setting out the rights of all parties involved in an investigation, would appear to me to be as applicable in cases dealing with minors as in other situations.

Some delays in the procedure were genuinely outside the control of the respondent but there does seem to have other gaps in the process which could have been dealt with by the respondent more expeditiously. This applies in particular to bringing a conclusion to the disciplinary process.  I note that the respondent has confirmed that no disciplinary sanction will apply and that the date of the agreed redeployment is 7 March 2016.

For the complainant it was argued that when she was reassigned she lost out on potential extra hours that she used to work over and above her contracted hours. In addition she had to take eight weeks sick leave which was paid at full pay but could cause her a loss if she was ill in the future.

Having considered all the matters in this case I recommend that the respondent pay the complainant the sum of €2,500 as compensation and in full and final settlement for all issues arising.

Dated:   23 March 2016