Complainant

Respondent

Anonymised Parties

A Director of Nursing and Midwifery

A health   service provider

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint    seeking adjudication by the Workplace Relations Commission under Section 13    of the Industrial Relations Act 1969.

CA-00005614-001

1st    July 2017

INMO were in dispute with the Respondent in   relation to what they considered to be the failure of the Respondent to   properly investigate the Complainant’s complaint.

INMO said that their claim/complaint is that a named Chief   Operations Officer (CCO) of the Respondent failed to afford the Complainant,   a Director of Nursing and Midwifery (DONM) in a named area, fair procedure   and equal treatment as an employee of the Respondent.   INMO said that in so doing, the   Respondent have victimised the Complainant and denied her natural justice and   her contractual rights.   INMO said that   while the CCO in an email to them acknowledged receiving the Complainant’s   grievance dated 16^th May 2016 against an Assistant National   Director of HR (ANDHR) and the COO stated she would review the Complainant’s   grievance, instead of applying the Respondent agreed Grievance Procedures,   the COO simply stated that she had forwarded the complaint to the named ANDHR,   the person against whom the complaint was made and no further contact of   correspondence was received by the Complainant or her Representative in   respect of the grievance.   INMO said   the Complainant has stated that the COO has been grossly negligent by leaving   her, a Respondent Employee, in the Respondent Investigation Process where she   felt exposed to intimidation and bullying by the Respondent Investigator,   while the Complainant states in relation to this that cognisance must be   taken of a previous WRC Adjudication Officer’s findings in ADJ-00003781 to   suspend the Respondent’s Investigation.     INMO said it is the Complainant’s view that the COO has victimised her   for making a complaint in good faith.

INMO said the Complainant, by letter of 16^th   May 2016 registered a grievance with the COO under the Respondent’s Grievance   Procedure against the named ANDHR, whom she alleged had been biased and   prejudicial against her.   In a 3 page   written grievance, the Complainant stated that the ANDHR had not and is not   affording her fair procedure, due process and equality as an employee of the   Respondent.   That grievance was sent to   the COO via the INMO and hard copy on 1^st June 2016.

The COO stated she would review the Complainant’s   grievance against the ANDHR in which the Complainant has clearly stated her   view that the ANDHR should be aware that, as an employee of the Respondent   she is entitled, in law, to fair procedures, and that the ANDHR has failed to   adhere to those procedures at the beginning and throughout an investigative   process and in doing so the ANDHR has denied her a fair opportunity to defend   her good name and good reputation.     INMO said that while the COO stated on 1^st June 2016 she   would review the Complainant’s grievance, the COO was negligent in not meeting   the Complainant as the Complainant’s grievance is one of a most serious   nature.

The INMO said that on 20^th June 2016, they   wrote to the COO referring to the Complainant’s grievance and pointing out   that she was aware that the Complainant was, under protest and under duress,   co-operating with an investigative process imposed by the ANDHR without the   Complainant’s agreement and for which there were no agreed terms of   reference.  

The letter further stated the Respondent Grievance   Procedure.   Also in the letter of 20^th   June, INMO stated to the COO that they would be referring the matter to the   WRC.

Subsequently INMO received a letter on the same date (20^th   June 2016) from the COO that stated:

“I refer to my acknowledgement   email of 1^st June in the above regard.

I wish to confirm   that a copy of this correspondence to (the ANDHR) for his review and response, and I will be in contact with you   following receipt of response.”

INMO said that as nothing further was heard from the COO   or any other manager of the Respondent the matter was referred to the WRC on   1^st May 2016.

INMO said that to date (27^th April 2017), the   COO has never reverted to them in response to the Complainant’s grievance   dated 17^th June 2016 since her letter of 20^th June 2016   to INMO.

INMO said that the Respondent’s Grievance Procedures of   May 2004 provides, under Stage 1, that the appropriate manager would arrange   a meeting to discuss the matter complained of not later than 7 working days   following receipt of the complainant.     INMO said that in circumstances where an employee is working under   protest the obligation is that “a   meeting with senior management will be held within three working days of the   grievance being received.” INMO   said that the Complainant is, since May 2014, on protective leave and is   co-operating, under protest, with an investigation process commissioned by   the ANDHR.

INMO said that part of the complaints against the ANDHR   are that:

He refused to accept amendments to terms of reference   (ToR) for an investigation that were submitted on behalf of the Complainant,   while he was aware that the ToR are not agreed and are viewed by the   Complainant as prejudicial and loaded against her.

INMO said the Respondent’s Dignity at Work Policy requires   that “the written terms of reference   will be based on the written complaint and any other matters relevant to the   complaint.” INMO said that by   excluding the proposed amendments on behalf of the Complainant, a series of   relevant matters are excluded from the Investigation.

INMO said that following the first Investigation Team   stepping down, the ANDHR appointed a second investigation, having consulted   with the persons who had made the complaints against the Complainant, but   without having put that investigation team to the Complainant or her   Representative.   For a number of   reasons, the Complainant objected to a named person being an investigator in   this investigator.     INMO said before   the Complainant, albeit under duress and under protest, attended the   Investigation.   She stated that she   had objected to the named person, who was imposed by the ANDHR, but her   objections have been ignored.   By   consulting with the persons making the complaints against the Complainant   only and not consulting with the Complainant or her Representative.   INMO said the ANDHR has breached the   Respondent’s Policy in respect of Dignity at Work.

INMO said that in the course of that Investigation, the   Complainant felt repeatedly bullied by a named one of the investigators and   this culminated in that investigator inappropriately and aggressively waving   a pen at the Complainant during the course of questioning.   An apology has been offered by the person   involved, however, the Complainant, because of the inappropriate behaviour   feels vulnerable to further acts of hostility, bullying and harassment.   On 11^th January 2016, the   Complainant made a written complaint, under the Respondent’s Dignity at Work   Policy, to the named National Director of Human Resources for the Respondent;   she stated that she also felt bullied by the investigator to not speak about   the facts on serious high risks to patients in the named hospital by other   parties.     INMO said that the   National Director of Human Resources referred that complaint to the ANDHR.   INMO said that the ANDHR ignored the   requirements of the Respondents policy and proceeded to contact the two named   investigators, while the Complainant, again, excluded the Complainant in the   process and the ANDHR then dismissed that complaint without any reference to   the Complainant or her Representative.

INMO said that the ANDHR’s actions in relation to the   complainant of 11^th January 2016, have already been the subject of   a WRC Adjudication Officer’s Recommendation, which found that the ANDHR had   failed to apply the Respondent’s policy fairly and that, in so doing, he had   denied the Complainant her rights under the Respondent’s procedure and in   natural justice.

INMO said that such is the bias and prejudice against the   Complainant, evident from the actions and inactions taken by the ANDHR, that   a halt must be called to the current Investigation and the Respondent be   required to put in place a genuinely independent overall review of solicited   complaints against the Complainant and of all matters from 3^rd   March 2014, including the events that followed that to the present date.

INMO submitted a detailed general background to the   matters.

INMO said it is clear that the COO has failed in her duty   as a senior manager to process the grievance lodged by the Complainant in   accordance the agreed procedures of the Respondent for grievances. They said the COO has not afforded the   Complainant fair procedure, equality and due process as an employee of the   Respondent and have effectively victimised the Complainant.

INMO said that the complaint is one of a most serious   nature; the Complainant has stated, that the ANDHR has failed to adhere to   fair procedures, has been grossly negligent and has denied her her right to a   fair defence.   They said that such a   complaint deserved to be taken seriously and should have been treated in   accordance with the agreed policies and procedures.

INMO said the Respondent has demonstrated a bias and a   failure to adhere to their procedures, repeatedly and did not give the   Complainant the opportunity to answer any case, or allegations against her   directly to the Respondent.   Instead,   the Complainant had to wait 6 months before she was given an opportunity by   the first investigation team, to respond to allegations, she has refuted all   of these allegations.   The   Complainant stated that while she was a DON&M all staff had both direct and indirect communications   with a large amount of other managers and staff, internal and external but,   at no stage, did any person, manager or staff member ever bring any concerns   to her regarding her working relationship with staff.

The Complainant has stated that she has always been   dignified, courteous and inclusive.     INMO said the first Investigation was abandoned by the investigators   and this second investigation is ‘paused’ because of a WRC Adjudicator’s finding that the Respondent have been   unfair in the manner in which the ANDHR handled the complaint against the   second investigation team.   They said   the entire process has had the most dire consequences, in terms of the employment   rights of the Complainant and they said that it therefore behoves the   Respondent to fully and thoroughly investigate the complaint against the   ANDHR, as she requested in her complaint letter of 16^th May 2016,   to the COO.

INMO said that such is the extent of the departure from   fair procedure by the Respondent, in the case of the Complainant, that the   following redress is sought:-

•   That the Respondent immediately terminate the   current flawed Investigation and put in its place an Investigation that is   fulsome, fair and balanced, with an appropriate Terms of Reference, covering   all events and involvements of senior managers since 3^rd March   2014 to the present date.

•   That the Respondent investigate the   Complainant’s letter of complaint of 16^th May 2016, against the   ANDHR and investigate the numerous failures by him to adhere to the   Respondent Procedures or the contractual rights of the Complainant, when   dealing with all issues relating to her defence.

•   That the Respondent investigate why the ANDHR   and National Director for Human Resources, who in recent times has again not   afforded the Complainant fair procedures in the process and failed to give   cognisance of the failures of the ANDHR as highlighted in the Adjudicator   Recommendation, ADJ-00003781 of 20^th December 2016, by ignoring   the request on the Complainant’s part, to have the ANDHR replaced as   commissioner of the preliminary screening recommended by that Adjudicator,   taking into account as stated in that Recommendation that the ANDHR’s   decision was unfair and denied the Complainant her rights under justice     -and-    

•   Additionally, such was the departure from the   normal expected behaviour of an employer in this case, INMO believe the   Adjudicator should give consideration to punitive measures, that would require   the Respondent to compensate the Complainant for the stress and damage caused   by the Respondent’s failure to investigate her legitimate complaint.

INMO said that this complaint relates to a discrete part   of an overall process, that has now been underway for over 3 years.   INMO said that during that time the   Complainant has been placed on protective leave by the Respondent, while the   Respondent have repeatedly shown bias in favour of those who made the   solicited complaints against her, and in so doing, deprived the Complainant   of fair procedures, equality, her procedural rights and natural justice.

INMO said that while the complaint against the COO relates   to her failure to apply the Respondent’s policies and procedures   appropriately, the substances of the complaint would, itself, have warranted   a serious review of breaches of the Respondent’s agreed policies and procedures   by the ANDHR and the Complainant’s right to a fair hearing.

INMO said that therefore it is vitally important, that in   this instance, the Adjudicator puts a stop to a deeply flawed process and   recommends a thorough independent investigation of the Respondent’s handling   of the matter.

The Complainant and her Representative responded in detail   to the submissions of the Respondent.

INMO and the Complainant sought a favourable   recommendation.

The Respondent said that initially it was unclear to them   what the subject of the complaint/claim due to the previous complaint heard by a   different Adjudicator in November 2016   and who issued a Recommendation in December 2016 (ADJ-00003781 refers) until   the submission was presented on 27^th   April 2017.   They were now in a   position to respond as follows.

The Respondent said   that all their quotes from the Complainant’s submissions are all in bold italics   with the Respondent’s response following in ordinary typeface.   (It should be noted that I have removed   all names and left titles or initials of titles instead).

The Respondent said that in 2014, a process was initiated   to investigate complainants made by a significant number of senior nursing   management staff against the Complainant.     They said this has been a protracted process with various   complaints/grievances being made by the Complainant to various managers in   the Respondent against the following:

•   A General   Manager
•   A former Chief Operations Officer (COO)
•   A Member of the Investigation Team
•   An Assistant National Director of Human   Resources (ANDHR)
•   A National Director of Human Resources
•   A current Chief Operations Officer (COO)

The Respondent said that the above has been coupled with   lengthy periods in consultation in relation to the Terms of Reference (ToR),   investigators etc, which has led to unnecessary further protraction of the   process.

The Respondent said that the investigative process under   the Dignity at Work is currently delayed due to current grievances by the   Complainant.   The Respondent said that   this had a negative impact on all parties involved, including the 14 persons   making the complainants against the Complainant and has made the process   elongated by virtue of the varying issue being raised on an ongoing basis by   the Complainant.     The Respondent   said that this would be most unusual for any investigative process whereby   the original complaint has been lost in the subsequent and repeated issues /   complaints / grievances being raised at multiple levels with multiple people   by the Complainant.

The Complainant has complained that the   Chief Operations Officer (COO) failed to afford the Complainant fair   procedures and equal treatment as an employee of the Respondent.   The Complainant has asserted in doing so,   the Employer, has victimised the Complainant and denied her contractual   rights and natural justice.   The   Complainant has stated the COO has been grossly negligent by leaving the   Complainant, a Respondent employee, in a Respondent investigation process   where the Complainant felt exposed to intimidation and bullying by Respondent   Investigator.”

The Respondent said they strongly refute the assertion of   gross negligence or that the Respondent has victimised the Complainant and   denied her contractual rights and natural justice, as her complaint of   alleged bullying by one of the investigators is the subject of efforts by   them to conduct a preliminary assessment of the allegation by an agreed   person external to the Respondent and this matter has already been through a   WRC process

The Respondent said that the original Dignity at Work   investigation process under the WRC Adjudication Officer’s   findings/recommendation in ADJ-00003781 is delayed until the matter of this   allegation is addressed, so a claim of negligence and the associated   suggestion of ongoing exposure to intimidation and bullying is wholly   unfounded.   The Respondent said that the   complaint against a member of the Investigation Team relates to a Meeting in   December 2015.   They said that since   then the Complainant has not had cause to assert any ongoing exposure to   intimidation and/or bullying.   They   said the complaint was addressed at the time by the Investigation Team (the   members apologised twice) and by the ANDHR.  

“It is the Complainant’s view that the COO   has victimised her for making a complainant in good faith.”

The Respondent said that to assert victimisation by them   in such circumstances is to distort the facts and the best efforts being made   to progress the matter under complaint, and to use the intemperate   description of ‘victimised’ designed to unjustly vilify the Respondent.

“The Complainant, by letter of 16 May   2016, registered a grievance with the COO under the Respondent’s Grievance   Procedure against the Assistant National Director of Human Resources, whom   she alleged had been biased and prejudicial against her.   The Complainant in a three page written   grievance, due process and equality as an employee of the Respondent.   That Grievance was conveyed to the COO via   the INMO by email and hard copy on 1^st June 2016.”

In respect of these assertions this case is not one with   which the current COO is familiar, as she is new to her role and she was not   involved in the process at the outset.     The Respondent said the COO is not the commissioner of the   investigation, nor is she ANDHR’s Line Manager.   The Respondent said that despite these   facts, the following facts indicate clearly that the COO addressed the   Complainant’s complaint in the manner she believed was most appropriate.  

The Respondent said that receipt of the Complainant’s   correspondence was acknowledged by the COO by return email of 1^st   June 2016.   The Respondent said given   that the matter was totally unfamiliar to the COO and that an understanding   of the matter had to be gained, further correspondence confirming that   complaint was issued to the person against whom the complaint was being made   on 17^th June 2016 and issued to INMO on 20^th June 2016.   The complaint was issued to the ANDHR on 13^th June 2016.

A follow-up teleconference took place and correspondence issued   on 12^th and 26^th July 2016.  

The Respondent said it must be noted that it was agreed at   a point in time that the COO will have no role or decision-making in   any employee relations process that may be recommended in the Investigation   Report and that any such process will be managed independently of the   Hospital Group.

The Respondent said the Complainant has been in   correspondence with the ANDHR’s Line Manager, and inviting the COO into the   issues raised would not progress a solution, but potentially lead to   uncertainty around who is addressing the matter from the Respondent’s   perspective.

“The COO indicated she would review the   Complainant’s grievance against the ANDHR in which the Complainant clearly   articulated her view to the COO that the ADHR should be aware that, as an   employee of the Respondent, she is entitled, in law, to fair procedures, and   that the ANDHR has failed to adhere to those procedures at the beginning and   throughout an investigative process.     In doing so, the ANDHR has denied the Complainant a fair opportunity   to defend her good name and good reputation.   While the COO stated on 1^st   June 2016, she would review the Complainant’s grievance, in which the   Complainant also stated that, as an employee of the Respondent, she has been   exposed to intimidation and bullying behaviour, the COO was negligent in not   meeting the Complainant and the Complainant grievance is one of a most serious nature.”

The Respondent said in relation to these assertions, the   COO appropriately chose to not meet the Complainant while the matter was   being dealt with the ANDHR’s Line Manager for the same reasons set out above.

“On 20 June 2016, the INMO wrote to the   COO referring to the Complainant’s grievance and pointing out that she was   aware that the Complainant was under protest and under duress         co-operating with an investigative   process imposed by the ANDHR without the Complainant’s agreement and for   which there were no agreed Terms of Reference (ToR).”

The Respondent said that the ‘Dignity at Work Policy’   (2009) does not require agreement for the Terms of Reference.   It is also the case that there is no   requirement for an “agreed terms of   reference” in the 2004 Grievance and Disciplinary Policy either, it   simply refers to the investigation being governed “by clear terms of reference” and the Respondent said INMO would   be well aware of this.   The   Respondent said the 2007 update of the Policy states that the investigation “will be carried out in strict accordance   with the terms of reference”.

“The letter further outlined the   Respondent Grievance Procedure as the Complainant’s grievance against the ANDHR   was not dealt with by the COO as per the Respondent’s Grievance Procedure,   also in that letter of 20 June the INMO indicated to the COO that we would be   referring the complainant to the Workplace Relations Commission.

Following the INMO letter on 20 June 2016   to the COO, INMO received a letter later the same day from the COO as   follows: “I refer to my   acknowledgement email of 01 June in the above regard.     I wish to confirm that a copy of this   correspondence has been forwarded to the ANDHR for his review and response,   and I will be in contact with you following receipt of a response.

As nothing further was heard from the COO   or any other manager of the Respondent, the matter was referred to the   Workplace Relation Commission (WRC) on 01 July 2016.

To date, the COO has never reverted to the   INMO in response to the Complainant’s grievance dated 16 May 2016, since the   COO’s letter to the INMO on 20 June (dated 17 June 2016).”

The Respondent said that their response to these points is   the same as that given above - the COO   appropriately chose to not meet the Complainant while the matter was being   dealt by the ANDHR’s Line Manager, thereby endeavouring to not complicate the   matter by intervening.   The   Respondent said that in hindsight, if may have been wise to inform the   Complainant accordingly.

“The Respondent Grievance Procedure   (Grievance and Disciplinary Procedures, May 2004) provides, under Stage 1,   that the appropriate manager would arrange a meeting to discuss the matter   complained of not later than seven working days following receipt of the   complaint.”

In circumstances where an employee is   working under protest, the obligation is that “a meeting with senior   management will be held within three working days of the grievance being   received.”

The Respondent said that this provision is not applicable   to this case as the ‘working under protest’ section in the Policy states as   follows:

“Where the grievance   relates to an instruction issued by the supervisor/manager arising from a   service imperative the employee is obliged to carry out the instruction   “under protest”.   A meeting with   senior management will be held within 3 working days of the grievance being   received”.

The Respondent said the Complainant’s circumstances do not   require such a response as the provision is clearly intended to address   situations where employees are in the workplace, and entering this 3 day   requirement is an example of yet another obstacle to progressing the   investigation into the complainants of the other 14 employees of the   Respondent.

“The Respondent, Director of Nursing and   Midwifery, is since May 2014, on protective leave and co-operating, under   protest, with an investigation process commissioned by the ANDHR.

Part of the complaints against the ANDHR   are that:

He refused to accept amendments to terms   of reference for an investigation which were submitted on behalf of the   Complainant, Director of Nursing and Midwifery while he was aware the ToR are   not agreed and are viewed by the Complainant as prejudicial and loaded against   the Complainant.”

The Respondent said that notwithstanding, as indicated in   the foregoing that there is no requirement for an ‘agreed terms of reference’   only ‘clear terms of reference’, the Respondent refutes the Complainant’s   allegation that the ANDHR imposed the investigation without her agreement and   for which there were no agreed terms of reference.   The named then COO, who was the initial   Investigator had spent a lengthy period in consultation with the INMO and   their member on the terms of reference for the investigation.

The Respondent said that by way of letter of 24^th   September 2014 from INMO to the ANDHR it is stated: “……..   we had on a without prejudice basis accepted as final the Terms of   Reference.”     The Respondent said   that additionally, they strongly disagree with the assertion that the Terms   of Reference are prejudicial and loaded against the Complainant.

“The Respondent’s Dignity at Work Policy   requires that “the written terms of reference will be based on the written   complaint and any other matters relevant to the complaint”. By excluding the suggested amendments, on   behalf of the Complainant, a series of relevant matters are excluded from the   Investigation.”

The Respondent said that on the assertion that the   exclusion of the Complainant’s suggested amendments excludes “a series of relevant matters from the   investigation”, they take the view that the Complainant’s amendments, as   the respondent in the Dignity at Work Investigation, cannot be   asserted under ‘any other matters relevant to the complaints’ as her views   inevitably are rebuttal in nature and character, thus more appropriately   dealt with by the independent investigators.

“Following the first Investigation Team   stepping down, the ANDHR appointed a second investigation having consulted   with the complainants (the persons who made the complaints against   the Complainants) but without having put that investigation team to the Complainant or   her representative.   The Complainant   objected, for a number of reasons to (a named person) in   this Respondent investigation.   Before   the Complainant, albeit under duress and under protest, attended the   Respondent Investigation, the Complainant had outlined that she objected to (the   named person) who was imposed by ANDHR, but her objections have been ignored.   By consulting with the complainants (the   persons who made the complaints against the Complainant)only and not consulting with   the Complainant or her representative, the ANDHR breached the Respondent   policy in respect of Dignity at Work.”

The Respondent said that it is clear from the Dignity at   Work Policy, that “if an issue persists   in relation to the acceptability or otherwise of the nominated person(s), the   matter may be referred to the Joint Chairs of the National Working Group   within 2 weeks for a decision regarding the nominated person(s).”   The Respondent said the INMO cannot hold   them responsible for their failure to refer this issue and it is perfectly   reasonable for them to draw the inference that in not so doing, the INMO had   accepted the nominated Investigator.

“In the course of the investigation, which   the Complainant was co-operating with, under protest and under duress, the   Complainant felt repeatedly bullied by one of the investigators, (named). This culminated in (that investigator)   inappropriately   and aggressively waving a pen at the Complainant during the course of a line   of questioning.   An apology has been   offered by (that investigator), however, the Complainant, because of the   inappropriate behaviour by (that investigator) on the investigation team with (the   named second investigator), the Complainant feels vulnerable to   further acts of hostility, bullying and harassment.   On 11 January 2016, the Complainant made a   written complaint, under the Respondent’s Dignity at Work Policy to the (named) National Director of Human   Resources for the Respondent, regarding feelings of bullying and harassment   towards the Complainant in relation to the action which had been taken in a   December 2015 meeting by (the named investigator).  

The Complainant has stated that she also   felt bullied by the Respondent Investigator to not speak about the facts on   serious high risks to ….. by other parties.     The National Director of Human Resources referred that complaint to   the ANDHR.   The ANDHR ignored the   requirements of the Respondent’s Policy and proceeded to contact the (named)Investigation   Team, while he again, excluded the Complainant in a Respondent process.   The ANDHR then dismissed the complaint   without any reference to the Complainant or her representative.”  

The Respondent said they are surprised that the   Complainant feels vulnerable to further acts of hostility, bullying and   harassment by the named Investigator having received an apology in person on   16^th December 2015, when the matter was raised with her and also   an apology in person when the Investigation was reconvened on 17^th   December 2015.   The Respondent said   the Investigation Team offered additional measures in the nature of   video-visual recording for any future interviews with the Complainant -   this offer was refused.   In   addition, the Investigation Team assured the ANDHR that they wish no other   than to carry out the investigation in a professional manner.

“The ANDHR’s actions is relation to the   complaint of 11 January 2016, have already been the subject of a Workplace   Relations Commissioner Officer’s Recommendation, ADJ-00003781, which found   that the ANDHR had failed to apply the Respondent’s policy fairly and that,   in so doing, he had denied the Complainant her rights under the procedure and   in natural justice.”

The Respondent said there is no denial of rights as this   is the subject of efforts by them to conduct a preliminary assessment of the   allegation by an agreed external person.     The Respondent said that the Investigation Process remains at a   standstill until this grievance is addressed.

“Such is the bias and prejudice against   the Complainant, evident from the actions and inactions taken by the ANDHR,   that we must call a halt to the current investigative process and require the   Respondent to put in place a genuinely independent overall review of solicited   complaints against the Director of Nursing and Midwifery and of all matters   from 3^rd March 2014, including the events which followed that, to   the present date.”

The Respondent said that this claim is clear evidence of   the Complainant’s attempts to frustrate a Dignity At Work process that arises   from claims by 14 of her colleagues.     The Respondent there has been an enormous effort made by the   Respondent to progress this matter from the outset and to decide that the   gargantuan body of work that that has been done to this point should be   negated is unjust to other stakeholders who have fully engaged in what has   been a difficult process for all.   The   Respondent said the gathering of the evidence to date has been fully independent and there is no evidence whatsoever put forward to   the contrary.

The Respondent said that the use of the word ‘solicited’   is suggestive of bad faith on the part of the Respondent and it is refuted in   the strongest possible terms.   The   request of the General Manager to the numerous complainants to formalise   their complaints was perfectly reasonable and was done in the interests of   ensuring accuracy in the process and avoiding possible interpretational   error.   The Respondent said that it is   absolutely astonishing for the Complainant to be calling for a halt to the   current investigative process and requiring the Respondent to put in place a “genuinely independent overall review of   solicited complaints against the Director of Nursing and Midwifery”, which   the Respondent refutes.

The Respondent said with that this case is now heading   into its fourth year with the Investigation nearing completion it is   essential for the employees involved on both sides that it is completed   without further delay.   They said   this was acknowledged by the Adjudicator of the previous WRC Hearing referred   to by the Complainant, where that Adjudicator stated in her findings that she   fully appreciates the challenge for the Respondent in managing complaints of   this sensitivity and complexity and fully acknowledged the Respondent   expressed interest in bringing the investigation of the complaints against   the Complainant to a conclusion.

“The Complainant is the legitimately   appointed Director of Nursing and Midwifery for (named area).   She took up her appointment in January   2009 and, in May 2014, was placed on ‘protective leave’, without being   afforded fair procedure, following complaints solicited (the named) Acting   General Manager in March of that year.”

The Respondent said that once again they strongly object   to and refute the assertion that the complaints were solicited and repeat the   objection to all related assertions in the remainder of the Complainant’s   submission.

“The Respondent, without giving the   Complainant fair procedure and the opportunity to answer any case or   allegations against her, proceeded with an investigation into the solicited   complaints and engaged two independent investigators to conduct that   investigation.   The commissioner for   the first investigation was (the named) former COO of the   Respondent.   The (named) investigators   were engaged.   The Complainant was not   given the opportunity to respond to the complaints before their   engagement.   The investigators then   provided the Complainant with the opportunity to respond to the complaints,   some six months (in October 2014) after the Complainant’s Employer the   Respondent had received the complaints.     Shortly after the investigators received the Complainant’s response,   they notified all parties that they would not proceed any further with the   Investigation and they withdrew.”

The Complainant and her representative had   discovered, in the process of engagement, that the named commissioner of the   first investigation was conflicted as he had previous involvement in advising   the Acting General Manger (in a related matter).   In response to a complaint made on behalf   of the Complainant, the ANDHR acting on behalf of (the named) National   Director of Human Resources, curtailed the first named commissioner’s   involvement in the process before the first investigation started.   Following the first investigation team   stepping down and on foot of further letters sent to the Respondent regarding   the first named commissioner not being an appropriate person to be a   commissioner, the Respondent appointed the ANDHR as a commissioner for a   second investigative process.

In early 2015, in spite of numerous   letters being sent to the ANDHR from the INMO on behalf of the Complainant   requesting an urgent meeting on the Complainant’s stated views on serious   high risks to patients (in a named location), no meeting was ever acceded   to.   This refusal to meet directly   with the Complainant is an outrageous breach of her right to be heard by her   Employer and this was expressed in a letter to the ANDHR, on 24 March letter   from 21 January to 24 March 2015 refers.

The ANDHR, as commissioner to the second   investigation, imposed the original flawed Terms of Reference drawn up be the   first commissioner.   This was in spite   of lengthy and significant requests for amendments to the ToR by the   Complainant and her representative.     The ToR were considered prejudicial and loaded against the   Complainant, by her representative and herself because they excluded crucial   events regarding the Respondent’s senior managers’ involvement in early March   2014 in the process.

The Respondent said the Complainant contends that there   was no consultation with either her or her representative regarding the   make-up of the Investigation Team.     The Respondent referred to 4 pieces of correspondence dated 24^th   November 2014, 18^th March 2015, 20^th April 2015 and 14^th   May 2015 all of which are regarding proposals for the make-up of the   Investigation Team.   Also the ANDHR   had a number of telephone discussions with the Complainant’s INMO   Representative regarding proposals for the Investigation Team.    

“The ANDHR letter to theAssistant   National Director of Human Resources of 18 March 2015, showed the ANDHR had   excluded the Complainant and her representative from considering investigators,   while the ANDHR had consulted with the complainants (the persons   making the complaints against the Complainant) regarding his proposed   investigators and when this came to the Complainant’s INMO Representative’s   attention, letters from INMO were sent in March 2015 and April 2015 to the   Assistant National Director of Human Resources outlining that the Complainant   was excluded and not afforded fair procedure by the ANDHR.   The ANDHR gave no explanation why he had   consulted with the complainants and their representatives regarding his own   nominees for investigators and why he had excluded the Complainant and her   INMO Representative from that consultation.     (A named) proposed investigator was never offered   for consideration to the Complainant or her Representative.   The ANDHR then imposed this investigator   with the other investigator, having only consulted with the complainants (and   their representatives).   Before the   Complainant attended the second investigation, albeit under protest, it was documented   that the Complainant was not given the opportunity by the ANDHR to outline   that she objected to (the named investigator) for a number of reasons, as an   investigator in the process as documentation shows.

The Respondent said once again, the question must be asked   why, if this is such a significant matter for their member, INMO did not   refer it to the Joint Chairs of the National Working Group for a decision.

“The ANDHR, following the setting up of   the second investigation, again denied the Complainant fair procedure and due   process when he did not give the Complainant the opportunity to respond   directly to her employer referring a further complaint to the investigation   team.   Documentation shows the   Complainant’s INMO Representative had outlined the two investigators that   this was denying the Complainant fair procedure and due process”

The Respondent said the referral of the last received   complaint directly into the Investigation is an appropriate action as was   explained to the INMO in a letter of 3^rd March as the independent   and objective Investigation Team could evaluate it in keeping with the   Respondent’s stated desire to have an independent and objective evaluation of   all aspects of the issues   raised.   The Complainant would have an   opportunity to examine this complaint in advance of meeting the   investigators, to prepare her response and to deliver this directly to the   team without any third party involvement.

“The ANDHR, again, did not afford the   Complainant fair procedure as documentation the Complainant requires, to   defend her good name and good reputation, is being withheld from her, while   other parties have access to documentation and other parties have provided   partial documentation, out of context, to the investigation as documentation   shows including one of the investigators’ letter to the INMO of 7^th   January 2016.

In the course of the second investigation,   the Complainant felt intimidated and bullied by one of the investigators,   that culminated in an inappropriate physical gesture.

The Complainant made a complaint under the   Respondent’s Dignity at work Policy, to the National Director of Human   Resources, regarding the behaviour of the Investigation Team and when the   National Director for HR, referred that matter to the ANDHR, he summarily   dismissed her complaint, having spoken only to the Investigation Team, but   never having listened to the Complainant.     This matter has already been the subject of a WRC Adjudication Hearing,   Decision reference ADJ-00003781 where the Adjudicator found that the   Respondent had failed to undertake a preliminary screening of the   Complainant’s complaint of failure by the Respondent to apply their own   Dignity at Work Policy and consequent failure to their duty of care to her   and the Adjudicator stated “accordingly, I am upholding the Complainant’s   complaint of failure by the Respondent to apply their own Dignity at Work   Policy and consequent failure in their duty of care to her.   I find further 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 Investigation Team and having failed to   revert to the Claimant or her Representative.   Thiswas unfair to the Claimant and   she was denied her rights under natural justice”.   The Adjudicator found that the ANDHR   involvement was unfair to the Complainant and she was denied her rights under   natural justice by the ANDHR.”

The Complainant and her INMO Representative have/are   engaging with the Investigation Team by attending meeting and via correspondence.   The Investigation Team offered protective   measures in the nature of audio/visual recording for any future interviews to   the Complainant and this offer was refused.     The Investigation Team has provided the Complainant with a number of   extensions for the responses required to statements and other issues linked   to the investigation.

The Respondent said that the Investigation is nearing   completion.

It is the Respondent’s position that, as there is an   ongoing investigation, any procedural issues, which the Complainant wishes to   raise should be addressed on the issue of the Final Draft as   appropriate.   The Respondent said it   is noteworthy that the Complainant and her INMO Representative are continuing   to engage with the Investigation Team and the Investigation is near   completion. The Respondent said it is   clear that the ANDHR has carried out his role as Commissioner in a fair and   equitable manner with no evidence to the contrary.

The Respondent said that their response clearly   demonstrates that the current COO did not act in any way contrary to the   interests of the Complainant.

The Respondent said that in light of the foregoing they   request the Adjudicator to uphold their position and reject the position and   claim/complaint of the Complainant and INMO.

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

I note that extremely detailed submissions and responses   to those submissions were made to me and I note that much of them were made   by way of background to inform my understanding of the claim/complaint before   me and to contextualise it and it was indeed useful in that regard.

I note that following some discussions at the beginning of   the Hearing it was confirmed by the Complainant and INMO that the   claim/complaint is a discrete one that it is solely that the named Chief Operations Officer   (COO) failed to respond properly or afford the Complainant fair procedures   that complied with the Respondent’s own policies in relation to a written   grievance complaint made by the   Complainant to that COO against the   named Assistant National Director of Human Resources (ANDHR) by letter of 16^th   May 2016 and did not in any way relate to issues covered and dealt with in   the Adjudication Hearing and the Adjudication Officer Recommendation ADJ-00003781, which was accepted by both   parties and related matters and accordingly my findings and recommendations   will be confined to that claim/complaint in relation to the named Chief   Operations Officer (COO).

By way of a letter of 16^th May 2016,   Complainant sent a Formal Written Grievance Complainant under the Respondent   Grievance Procedure (2005) against the ANDHR to the COO.    The COO acknowledged receipt of this   correspondence by email of 1^st June 2016 and stated that she would   review and respond following same.   On   17th June 2016, she confirmed that she had sent the grievance complaint to   the ANDHR for his review and would be in contact with INMO following receipt   of response.   Nothing further was   heard by the Complainant or INMO and they referred the matter to the WRC   (having informed the Respondent of their intention in that regard).

I cannot accept that this was appropriately handled by the   COO as submitted by the Respondent.    If as suggested by the Respondent the COO   was not the appropriate person to whom such a grievance complaint be made to   then the COO should have passed it on to the appropriate person and asked   that person to acknowledge the grievance complaint, inform the Complainant of   that fact and deal with it that way.     If there was doubt on the part of the COO about the appropriate person   then she had an experienced HR Department available to her to advise her on   the appropriate way to deal with it.

I cannot accept that it was reasonable for the COO to   conclude that it was appropriate for the grievance complaint to be solely   sent for review to the person against whom the complaint was made.     How could the COO expect the person   against whom the complaint was made to be objective in relation to complaints   against himself, any such expectation is unreasonable.

Nor do I understand why the ANDHR, as an senior and very   experienced HR practitioner did not consider himself to be conflicted in   relation to the matter bearing in mind that he was the person against whom   the complaint was made, recuse himself, decline to review the matter and   suggest that another uninvolved appropriate   person perform the review.

In my view the only appropriate involvement of the ANDHR   would be to provide his response to the complaints to the person reviewing or   investigating the grievance complaints and to answer any questions from such   person.

Based on the foregoing the Complainant was not afforded   fair procedures in relation to the handling of her complaint of 16^th   May 2016, and the COO failed to respond properly to that complaint or to   afford the Complainant fair procedures in relation to that complaint.   Accordingly I must find that I see   considerable merit in the claim/complaint and it is upheld.

Based on the above finding I see merit in the   claim/complaint and it is upheld by me.

I recommend that as a matter of urgency the Complainant’s   Written Grievance Complaint of 16^th May 2016 be properly   investigated by an appropriate member of management (other than the COO or   the ANDHR) and that both parties fully co-operate in insuring that such is   dealt with expeditiously.

I will not be, as requested by the Complainant,   recommending a termination of the existing investigation into the complaints   against the Complainant by 14 of her colleagues, nor will I be recommending   its suspension as I note that unlike the case with Adjudication Officer Decision/Case   ADJ-000003781, this complaint/case does not involve a member of the   Investigation Team.   Indeed the COO   against whom this complaint/claim is made played and plays no part in that   investigation.   While the other   person, the ANDHR, is the commissioning offer for the investigation he is not   part of the investigation team.   I   further note, as submitted by the Respondent, the Complainant and her INMO   Representative are participating in and engaging with that Investigation and   it is open to them to raise any issues they have in that regard at those   investigation hearings, or as suggested by the Respondent, at the issue of   the First Draft of the Report of the Investigation, or in any Appeal against   the Final Report of the Investigation or in any appeal to the WRC and/or the   Labour Court against the outcome of the Investigation.

I consider it is the interest of all parties, including   the Complainant, that the current Investigation, that has been ongoing for   more than 3 years, should be concluded without any further delay.

I consider the request by INMO and the Complainant for   punitive damages to be premature and        I make no recommendation in that   regard.

I note that the Complainant stated at the Hearing that she   had not been provided by the Respondent with documentation requested and   required by her in order to defend herself against the complaints made   against her and I further note that the Respondent stated that they were not   aware of any requests in that regard that had not been responded to and that   they had no problem providing documentation provided they were in a position   to so do.

While this is not a   matter covered by the complaints/case before me in the instant case and   accordingly is not a matter on which I can make a recommendation, I do note   that there is much common ground between the parties on this matter and I now   repeat the suggestion I made at the Hearing which neither party had any   problem with: that the Complainant or INMO on her behalf submit a letter to the   Respondent listing the documentation they are seeking that has not been   provided to them and that he Respondent reply promptly enclosing the documentation sought or   stating why it cannot be provided.