ADJ-00003781

ADJUDICATION OFFICER DECISION

 Adjudication Decision Reference: ADJ-00003781

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

Date of Adjudication Hearing: 24/11/2016

Workplace Relations Commission Adjudication Officer: Emer O'Shea

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).

Attendance at Hearing:

Summary of Claimant’s Presentation and Submissions:

The claimant is employed as a senior manager in a large health sector employment .In her complaint form which was received on the 29^th.June 2016     the claimant alleges as follows:

“Failure by the respondent to apply its policy when I submitted a complaint. The failure to apply procedure has denied me my right to fair and equal treatment and the respondent have failed in their duty of care for me as an employee”.

It was submitted that the respondent had failed in their duty of care and obligation to treat employees equally by failing to adhere to their own policies with regard to Dignity at Work when they received a complaint from the claimant under that policy.

On the 11^th.Jan. 2016 , the claimant had notified the respondent that she had been the subject of repeated inappropriate and threatening behaviour by an Investigator appointed by the respondent and she asked that the behaviour be investigated under the respondent’s Dignity at Work policy and procedures.

The union summarised the backdrop to the investigation – it had been triggered by the hospital admission of a manager at the claimant’s place of work , following an incident of self harm in March 2014.It was submitted that the claimant was away at the time and that in spite of an agreement with the claimant the GM of the premises met the senior management team and did not await the return of the claimant. When the claimant returned to work , it was alleged that the GM sought to remove her from her role. It was submitted that it was accepted by the respondent- following the intervention of the union - that there was no basis for removing the claimant from her role.A chronology of the submission of complaint by the claimant’s subordinates was presented – it was advanced that the GM solicited complaints from the latter parties and demanded an investigation under the Dignity at Work policy.An Investigation Team was set up – it was submitted that this was done despite the Commissioning Officer having advised the GM prior to her attempt to remove the claimant and in advance of inviting the claimant to respond to the complaints.It was asserted that this was contrary to the respondent’s policy.Following receipt of a submission from the claimant’s union, the investigators removed themselves from the process without explanation.

It was asserted that an alternative investigating team was then set up by a Manager A for the respondent and that he did not seek the agreement of the claimant to the investigation team members – it was submitted that this was contrary to the respondent’s policy.The claimant and her representative confirmed that they would co-operate with the investigation under duress and under protest.

The investigation team commenced in Sept. 2015 – despite the protestations of the claimant and her union who contended that the entire process was prejudged and lacked any semblance of natural justice.”The investigation team were asked to step aside from a procedurally flawed investigation and required the respondent to put in place an investigative procedure consistent with its own policies.”The investigation team had scheduled meetings with the claimant on the 16^th./17^th.Dec 2015 and it was submitted that the line of questioning adopted by one of the investigating team was aggressive and assertive .According to the claimant’s representative “the investigator became quite forceful , waving a pen directly at the claimant – that the claimant was traumatised by the exchanges and an adjournment was sought to allow the claimant recove”r.It was submitted that the following day the claimant was still shaken by the hostility that had been directed at her and while the investigator did apologise , the significance of what had occurred did not register with either of the investigators.

It was submitted that at this time the claimant had been off duty for 18 months , that the respondent had shown scant regard for the claimant’s entitlement to equal treatment and had in fact appointed one of the complainants to act in the claimant’s position.

The claimant made a written complaint to the most senior HR manager – Manager B for the respondent- requesting precautionary protective measures for the claimant and asking that the threatening behaviour be investigated under the Dignity at Work policy.It was submitted that no action was taken and on the9 th.Feb. Manager A for the respondent replied to state that he made met with the investigators and had decided that as an apology had been forthcoming from the investigator that was the subject of the complaint and as he had obtained assurances from the investigating team in relation to their professional approach , the matter should be brought to a close.It was submitted that Manager A for the respondent had made no attempt to talk to the claimant or her representative before coming to this decision.

The investigation team sought to meet with the claimant in June 2016- it was advanced that the complaint had still not been dealt with and the union wrote asking how the respondent proposed to protect the claimant and demonstrate their duty of care to her in the context of the written complaint.

It was asserted that in the meantime the investigating team had imposed a precondition on further meetings with the claimant – insisting they would only meet if she agreed to audio visual recording of such meetings – the claimant objected .It was submitted that there had already been a significant breach of confidentiality when the parties were contacted by a national newspaper suggesting the claimant had been suspended from duty as a result of a staff member self harming.It was contended that the respondent had failed to investigate this and consequently the claimant had little confidence in the observance of the confidentiality provisions of the respondent’s dignity at work policy.It was submitted that the policy contained no provision for the preconditions sought.

The investigation team it was contended are now proceeding without verbal evidence from the claimant.

It was argued that from the outset the original incident had been mishandled and a presumption of guilt had been adopted against the claimant – it was submitted that protocols and procedures had been cast aside and a witch hunt had commenced against the claimant .It was contended that the complaints had been solicited and the respondent was prejudiced against the claimant. It was alleged that the respondent had been unwilling to investigate the claimant’s complaint.It was submitted that the respondent had effectively abandoned the claimant and had failed to honour her entitlement to have her complaint processed under the Dignity at Work procedure. It was advanced that the decision by Manager B for the respondent to refer the complaint to Manager A for the respondent , who had commissioned the investigation team who were the subject of the instant complaint –showed scant regard for the complaint before her (Manager B).It was submitted that Manager A for the respondent had a conflict of interest in upholding the actions of an investigation team that he had appointed without agreement. It was submitted that the claimant had been denied her right to be heard under natural justice and had been compelled to seek the assistance of the WRC in order to be heard. It was submitted that the claimant had been placed in an investigation under duress with an investigation team to which she had not agreed and who it was submitted had shown considerably more time and effort to the complainants who had made the complainants against the claimant than the claimant herself.

It was submitted that the actions of the investigator were indefensible and the complaint against them warranted thorough investigation .

The union requested a finding that the respondent had breached their own Dignity at Work policy and deprived the claimant of her entitlement to due care from her employer.In addition a finding was sought that the current investigation be halted immediately pending an investigation of the claimant’s complaint of the 11^th.Jan.2016 .Punitive damages were sought for the stress and damage caused by the respondent’s failure to investigate the claimant’s complaint.

Summary of Respondent’s Submissions and Presentation:

The respondent submitted that the context of the case was an ongoing investigation of 14 complaints from the claimant’s subordinates against her. The respondent submitted copies of the claimant’s letter of complaint to Manager B for the respondent and a copy of the response to same from Manager A for the respondent.It was submitted that Manager B for the respondent had requested Manager A to deal with the matter on her behalf.The following paragraph from Manager A’s response was highlighted “ Taking account of the apologies of ‘ the Investigator’ to the claimant and the assurance I received from the Investigation Team regarding their professional approach that this will bring the matter to a close”.

It was submitted that the claimant and her INMO representative were engaging with the Investigation Team;that the Investigation Team offered protective measures in the nature of audio/visual recording of any future interviews to the claimant ; that the claimant had received a number of extensions for the responses required and that the Investigation   was nearing completion.

It was submitted that any procedural issues which the claimant wished to raise should be addressed on the issuing of the final draft report as appropriate.It was submitted that Manager A’s response of the 9^th.Feb. 2016 was a reasonable decision taking into account the apologies and assurances received.It was advanced that Manager A had carried out his Commissioner role in a fair and equitable manner and that the respondent’s position should be upheld and the claimant’s rejected.

Recommendation

At the hearing , a dispute arose between the parties in relation to the observance by the respondent of the Dignity at Work policy with respect to the terms of reference and composition of the Investigation Team appointed to enquire into the complaints made against the claimant and further correspondence was submitted by the respondent to the WRC on the 29^th.November and by the claimant’s representative on the 5^th.Dec. 2016. Both parties indicated that the correspondence furnished was not germane to the instant complaint.

I have reviewed the evidence presented at the hearing and noted the respective positions of the parties. While I acknowledge that the complaint before me specifically relates to the complaint of the claimant against the respondent for failure to follow their procedures , I find it was of assistance for the claimant’s representative to set out the backdrop to this dispute as it served to contextualise the claimant’s complaint.I have noted in particular the provisions of the respondent’s Dignity at Work Policy and the provisions contained therein with respect to non – employees. Such provisions would be clearly applicable to the claimant’s complaint against the member of the Investigating Team – the policy provides that if the complaint is upheld- having been the subject of a formal investigation , sanctions may include “Exclusion of the individual from the premises: Suspension or termination of service or other contract”.The provisions of the policy preceding Formal Investigation set out arrangements for the preliminary screening of a complaint.

Having considered the submission and presentations of the parties I am satisfied that the respondent failed to undertake a preliminary screening of the claimant’s complaint.Accordingly , I am upholding the claimant’s complaint of failure by the respondent to apply its own Dignity at Work policy and consequent failure in their duty of care to her.I further find that the claimant was denied her right to be heard when the RM made a decision to bring matters to a close having consulted with the Investigating Team and having failed to revert to the claimant or her representative.This was unfair to the claimant and she was denied her rights under natural justice.

While I fully appreciate the challenges for the respondent in managing complaints of this sensitivity and complexity , it is imperative that the respondent is at all times acting fairly and seen to be doing so by the respective parties.In this case, the claimant’s complaint that the respondent breached their own policy is well founded .In the circumstances and given that the named respondent operates at such a senior level within the respondent organisation, I recommend that an agreed external party be appointed to undertake a preliminary screening of the claimant’s complaint – as a matter of urgency .While I fully acknowledged the respondent’s expressed interest in bringing the investigation of the complaints against the claimant to a conclusion, the reality is that the investigation currently stands compromised by virtue of the respondent’s failure to adhere to their own policy in the processing of the claimant’s complaint. Consequently , I strongly urge the respondent to suspend the further progression of the investigation into the complaints against the claimant pending the outcome of the processing of the claimant’s complaint against the investigating team member in accordance with the respondent’s Dignity at Work procedure.

I consider the request by the union for punitive damages at this point to be premature and make no recommendation in this regard.

Dated:   20 December 2016