ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002266

Dispute for Resolution:

Date of Adjudication Hearing: 3 June 2016

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On 7 March 2016, the complainant referred a dispute pursuant to the Industrial Relations Acts regarding her employment with the respondent. The complainant is the catering manager with the respondent is a hospital.

The dispute was scheduled for adjudication on 3 June 2016. The complainant attended and was represented by IMPACT. Two members of the HR Department attended for the respondent.

In accordance with the Industrial Relations Acts and 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.

Complainant’s Submission and Presentation:

The complainant has been employed with the respondent since 2002 and works as catering manager in the respondent hospital. In this role, she manages a team of chefs and catering assistants in the production and distribution of food to patients and also to the catering facilities within the hospital.

The complainant outlines that this dispute relates to difficulties she and others in the catering department have had with one chef (referred to in this report as the 'Chef'). She outlined that there have been ongoing issues with this Chef's behaviour, which she described as volatile. The Chef had made vexatious complaints against the complainant. There had been incidents where the Chef threatened to kill the complainant and one incident where the Chef assaulted the complainant. Since this latter incident in 2014, the Chef had been reassigned to an administrative role. The dispute arises because the respondent indicated its intention to relocate the Chef back to the catering department.

The complainant outlined that the recommendations arising from an incident in 2011 had not been implemented. In this incident, the Chef had made a complaint against the complainant under the respondent’s Dignity at Work policy. This was investigated and it was deemed that the Chef's grievances were vexatious. The report recommended that the Chef be transferred to a different hospital and that letters of comfort be issued to the complainant and other staff. It refers to the respondent’s health and safety obligations and the concern expressed by staff regarding the Chef’s return. It recommends disciplinary action against the Chef for the vexatious nature of the initial complaint. These recommendations were not implemented. Despite the conclusions of the report, the Chef raised the same grievances during the February 2016 investigation.

Addressing the events of 13 December 2014, the complainant said that this was the first weekend that she was the only manager working with the Chef. At weekends, there was only one manager on duty and she and the other managers had discreetly devised the roster to avoid her having to work with the Chef on any weekend. On this weekend, the manager rostered to be on duty was unable to attend work and the complainant had to fill in. The incident occurred at the end of the shift and as the complainant was plating meals for lunch. She noticed that mince cooked by the Chef had not been cooked correctly and asked that a fresh dish be prepared. The Chef went ballistic and became angry. As the complainant was under time pressure to get the food out while hot, she asked another chef to prepare new dish. The Chef, however, prepared a fresh dish. After the service ended, the complainant said that the Chef approached her with a mad look and the complainant was then assaulted by the Chef by being poked in the chest. In response the complainant put up her hands and asked that Chef not to touch her. The complainant said that she was not aware whether any other staff were present in the kitchen.

The complainant outlined that it was regrettable that it had taken so long for the investigation report to be completed. It was also regrettable that it had not been circulated in draft form to allow for comments. While the complainant was satisfied relating to three findings made against the Chef, she wished to challenge the finding relating to the assault allegation. She had no choice but to appeal the entire report because of the respondent had not circulated a draft report.

The complainant outlined that the report into the 2011 incident was itself a basis to now refuse the Chef a return to the kitchen. She outlined that it was very unsettling to deal with the Chef and that as manager, she could not steer clear of the Chef as other staff could. Arising from the 2011 incident, a finding had been made that the Chef had made a threat to kill to the complainant. The Chef continued working for a week after this incident and was only placed on administrative leave because of another incident. The respondent should have issued the letter of comfort, as recommended, and should have exonerated the complainant. The Chef continued to make complaints about the complainant and there is a pending Equality matter. The complainant said that she feared that matters would escalate further if the Chef returned to the catering department, as they had done following the previous incidents. She said that she was afraid of the Chef and that they had worked together since 2008. The complainant said that staff would be devastated if the Chef returned to the kitchen. While the Chef was now doing an administrative role, she had made comments to staff and in the restaurant to undermine the catering department and the complainant. The complainant outlined that CCTV would only be good in hindsight, once an incident occurred. She outlined that she was vulnerable in her office as there was no easy exit. There were knives in the kitchen so the events could escalate beyond what had already occurred. The complainant outlined that the respondent was reluctant to adequately address the behaviour of the Chef and sought to address the situation with her instead, as she was easier to deal with.

As redress, the complainant seeks that the 2011 report be implemented and that she be compensated for the respondent’s inaction.

Respondent’s Submission and Presentation:

The respondent acknowledged that the catering department was difficult to manage. It is a large department, with a mixture of old and new staff. It is now comprised of different sections that are now merged. It acknowledged that the complainant was required to provide a great deal of support to the junior managers in her department.

The respondent also acknowledged that the Chef posed particular challenges for the complainant and other managers to address. The Chef was prone to change her mind about matters previously agreed, and could display emotional or volatile behaviour at work. There had been an investigation report conducted by a third party in 2011 that recommended the transfer of the Chef to another hospital. The respondent had attempted to implement this recommendation, but this had not been possible. The Chef had been placed on administrative leave and then re-assigned away from the catering department due to the 2014 incident.

The respondent outlined that it had investigated the 2014 and made adverse findings against the Chef. The witness statements had referred to the Chef's erratic and inconsistent behaviour and that colleagues said they steered clear of her. The respondent noted that the Chef attributed her behaviour to culture and to her being a Chef. It had not upheld that allegation of the complainant that she had been assaulted during the incident. This was because a witness could not see whether or not the Chef had made contact with the complainant during the incident, as the witness was directly behind the complainant and Chef. The witness had heard the complainant say "don't touch me" and raise her hands. The complainant had appealed this finding and this appeal was due to be heard on 10 June 2016. The respondent outlined that the draft report into the 2014 incident had not been circulated in draft form to the parties as there had been very long delays on the part of the Chef and her union representative in participating in the process. The respondent outlined that given the finding relating to the assault allegation, there was no contraindication to returning the Chef to her contractual role as chef. It outlined that the possibility of installing CCTV had been discussed as a possibility and that it had an obligation to adhere to due process.

The respondent present the report findings, dated 25 February 2016. The report states that it applies a balance of probabilities test to evidence given to it. It contains a section entitled ‘findings of fact’ that contains an outline of the evidence given by the witnesses interviewed. It finds four breaches that fall within the disciplinary policy and a fifth conclusion which the report concludes is not a breach. This latter conclusion states “There is no evidence to substantiate the claim that the respondent physically touched the claimant.” It makes various recommendations regarding training and management. It recommends “that all staff are communicated with prior to the [Chef’s] return to the department in order to allow smooth transition for all parties.”

Findings and reasoning:

The complainant is a longstanding employee of the respondent. She is the manager of the catering department of the respondent hospital. There has been an ongoing issue with a named member of staff, referred to in this report as the Chef. According to the documentation, the difficulties have been ongoing since 2008. They culminated in an investigation and report in 2011/2012 where it was recommended that the Chef be transferred to a different hospital and that the respondent refer the Chef to the disciplinary process. The complainant is aggrieved that the Chef was not transferred and also that the recommended letters of comfort were not issued. An incident occurred on 13 December 2014 and the investigation report into this only issued on 25 February 2016. The respondent attributes the delay to the Chef’s unwillingness to engage. The report makes certain recommendations and states that the Chef be allowed return to the catering department. The Chef had been reassigned to an administrative role in the interim. I also record that the Chef was not in attendance at this adjudication, nor given the opportunity to make submissions.

Having considered the submissions and documents presented by the parties, the best perspective in which to examine this situation is by way of the Safety, Health and Welfare at Work Act, 2005. As well as the general obligation on an employer to provide for the safety, health and welfare at work of employees, there are specific obligations such as “to prevent, so far as is reasonably practicable, any improper conduct or behaviour likely to put the safety, health or welfare at work of his or her employees at risk.”

Addressing the situation prior to December 2014 situation, it is striking that the recommendations of the report arising from the 2011 incident were not implemented by the respondent with more determination. I appreciate the explanation about not being able to relocate the Chef, but the other steps that were fully within its control were not taken. They include providing letters of comfort and initiating a disciplinary process around the issues identified in the report.

It is common case that the Chef poses particular and unique challenges to manage. The complainant spoke of managing the roster so that she was not on a weekend shift with the Chef, when she would be the only manager at work. It was during a weekend where the complainant was compelled to work that the incident of the 13 December 2014 occurred. In the first instance, it seems extraordinary that a management team sets its roster according to when a particular employee is at work so as to avoid the most senior manager being alone with this employee. This evokes a workplace on edge and this cannot be sustainable.

As of 2016, any return of the Chef to the catering department must take account of the state of play in the department prior to the incident of the 13 December 2014. The incident on this day was not a once-off, but part of an established pattern of behaviour by the Chef. This established pattern was laid out in the findings of the 2011 report, but I think it is also a view shared by the respondent HR department.

The fifth, and contested, finding of the February 2016 report states that there was insufficient evidence regarding the allegation of physical contact and recommends that the Chef be returned to the catering department. The complainant has appealed this finding and this was scheduled to be heard internally shortly after this adjudication. Given that the February 2016 report is the basis the respondent proposes to move the Chef back to the catering department, I make the following comments on its contents. I appreciate that the Chef did not participate in this adjudication and I restrict my comments to matters between the complainant and the respondent.

The complainant has raised the issue that the “findings of fact” section of the February 2016 report does not make findings of fact but contains an account of the evidence of each witness on the points of issue in the dispute. She raises the particular comments attributed to the Chef where the Chef repeats the allegations she made in 2011 (and found in the 2011 report to be vexatious). These allegations are included in the report without comment. The “findings of fact” section does not explain how the report weighed up the evidence in order to reach findings of fact.

The central issue in dispute is the allegation made by the complainant that the Chef physically touched the complainant during the incident of the 13 December 2014. The complainant states this occurred and the Chef denies the allegation. There is the independent evidence of a colleague who observed the interaction. The report records that this witness said that the Chef was volatile during these events, the complainant was stressed/upset, there had been a close interaction between the two, the complainant had said “don’t touch me” and raised her hands; because of her angle, the witness could actually not see whether or not physical contact had occurred.

At the adjudication, the respondent said that it would be unfair to make an inference regarding whether contact had occurred. It is worth considering what an inference is. Black's Law Dictionary, 9th edition defines “Inference as 1. A conclusion reached by considering other facts and deducing a logical consequence from them.” The Dictionary of Canadian Law considers “Inference” as follows "... In the legal sense ... is a deduction from the evidence, and if it is a reasonable deduction it may have the validity of a legal proof. The attribution of an occurrence to the cause is… always a matter of inference."

Taking the facts as found by the February 2016 investigation, there is an obvious inference to make that physical contact was more likely than not to have occurred. At the least, an explanation is due as to why the inference is not drawn from the facts as found by and on behalf of the respondent.

The February 2016 report states that it applies the balance of probabilities test. This test requires a decision maker to weigh up contradictory accounts of events and by probing evidence and making valid inferences to conclude which account is more likely to be true. The report, however, states “there is no evidence to substantiate that the [Chef] physically touched the [complainant].” There is no weighing up of evidence on the balance on probabilities and appears to apply a test akin or even more stringent than the well-established “beyond reasonable doubt” test in criminal law.

The respondent now proposes to return the Chef to the catering department. The report suggests weekly meetings between the complainant and Chef. The respondent is aware that prior to December 2014, the roster was set so as to avoid them working alone together. The respondent accepts that the complainant said that “something terrible” would happen if the Chef returned and that the Chef was volatile. It seems unconscionable to allow a workplace return to a situation where the staff and management are on edge as they were at the time of the incident. Matters are likely to be worse because of the events of the 13^th December 2014 and after that date.

Taking these findings together, I make the following recommendations. The proper perspective from which to view any return of the Chef to the catering department is by way of the Safety, Health and Welfare at Work Act. I recommend that a risk assessment be made under this Act regarding any transfer of the Chef. I have commented on the February 2016 report because this report is the basis for the mooted transfer. I suggest that certain findings and conclusions be reconsidered. I also recommend that the recommendations of the 2011 report be implemented as they are still relevant to the workplace today. Given that the Chef continues to work for the respondent, the letter of comfort should be issued. It is clear that the complainant has suffered loss and inconvenience in the failure of the respondent to follow through on the 2011 recommendations within its control as well as the slow nature of the investigation into the 2014 complaint. I appreciate the respondent’s frustration in the lack of engagement by the Chef, but it falls on the employer to drive the matter on. Taking these factors into account, I recommend that the respondent shall pay the complainant €500.

Decision:

The Industrial Relations Acts requires that I issue recommendations in relation to the dispute. Pursuant with the findings outlined above, I make the following recommendations:

• I recommend that an appropriate expert undertake an assessment under the Safety, Health and Welfare at Work Act regarding any possible future return of the Chef to the catering department;

• I recommend that the respondent re-consider the finding contained in the February 2016 report regarding whether or not physical contact occurred in the incident of the 13 December 2014 and I recommend that it does not proceed with the proposed return of the Chef in the interim;

• I recommend that the respondent implement the outstanding recommendations of the 2011 report, in particular to issue a letter of comfort to the complainant;

• I recommend that the respondent pay to the complainant €500 as redress for loss and inconvenience she suffered as a result in the failure to implement the 2011 recommendations and the delay in advancing the 2014 complaint.

Dated:   8^TH September 2016