ADJUDICATION OFFICER RECOMMENDATION
Adjudication Decision Reference: ADJ-00005235
Dispute for Resolution:
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-00007261-001 | 30th September 2016. |
Date of Adjudication Hearing: 25th January 2017.
Workplace Relations Commission Adjudication Officer: Seán Reilly
Procedure:
In accordance with Section 41 of the Workplace Relations Act 2015 and Section 13 of the Industrial Relations Act 1969 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.
Background:
INMO were in dispute with the Respondent in relation to what they considered to be the failure of the Respondent to properly hear a grievance raised by her under the Respondent’s Grievance Procedure.
Summary of Trade Union Case:
I formally invoked the Respondent’s Grievance Procedure in February 7th 2016. To date my grievance has not been heard despite numerous communications between my representative and management. I believe that I am being denied the principles of natural justice and due process. I am seeking to have my Grievance heard by an independent person of an appropriate grade. |
INMO said the Complainant formally invoked the Respondent’s Grievance Policy on 7th February 2016, against the Director of Nursing (DON) at the Respondent’s Facility for the Care of the Elderly where she worked. INMO said that to date the Complainant’s grievance has not been heard and she believes she is being denied the principles of natural justice and due process. INMO are seeking that the Complainant’s grievance is heard by an independent person of an appropriate grade.
INMO said that on 7th February 2016, the Complainant wrote to the named General Manager invoking the Respondent’s Grievance Procedure against her named DON. The Complainant had been on long-term sick leave as a result of her being assaulted at work in August 2014 and she attended and is still attending Occupational Health (OH), her named Consultant Psychiatrist and a Psychotherapist as a result of this assault. INMO said this Health Report clearly recorded that the Complainant was unfit for work.
INMO said that in the interim there was correspondence on the matter of returning to work between the Complainant and her DON.
On 27th January 2016, the DON wrote to the Complainant stating that OH had deemed her fit to return to work on administration duties, 20 hours per week for 3 months, as part of a Rehabilitation Return to Work Programme and she requested that the Complainant report to her Office on 8th February 2016 at 9.30am to commence this.
On 28th January 2016, the Complainant wrote to her DON informing that she would accept the proposal of a Back to Work Offer. She stated that having discussed the matter with a named Doctor she was prepared to give the proposal her best effort and hope that by doing this in conjunction with ongoing therapies she could return to full health.
INMO said that the Complainant received the letter from the DON on 29th January 2016, dated 27th January 2016, the day before her OH appointment and it stated “Occupational Health have deemed you fit to return to work to administration duties 20 hours per week for 3 months as part of a Rehabilitation Return to Work Programme, as discussed with you on 8th January 2016.”
INMO said the Complainant was extremely upset and distressed and immediately went to the OH Office and sought an explanation. A named Nurse could not explain the contents of the DON’s letter. The named Nurse rang and left a message. The named Nurse informed the Complainant that the DON stated that it was the named Manager for Older People’s Services who had told her (the DON) to write the letter. It is the Complainant’s understanding from the named Nurse that she has documented this in the Complainant’s OH notes.
The Complainant was informed by the named Nurse that the DON stated that she wrote the letter of 27th January 2016 based on the OH Consultant’s Recommendation in the last Report date 9th December 2015. INMO stated this Report clearly states that the Complainant is unfit for all duties. The Report from 28th January had not yet been received by management as the DON’s letter had been written on 27th January 2016.
INMO said that the Complainant could not comprehend why the DON wrote her a letter knowing it contained a blatant untruth, i.e., stating she was fit to return to work when medical evidence in the OH Report clearly states the contrary. On 7th February 2016, the Complainant lodged a grievance against the DON for this.
INMO said that on 29th February 2016, the named General Manager responded to the Complainant, 22 days after she had lodged her grievance, informing that she had forwarded her correspondence to the named Service Manager for her attention to conduct a Stage 1 Grievance Hearing. INMO said this response lay well outside the timeframes laid out in the Respondent’s own Framework for Dispute Resolution.
On 18th March 2016, INMO wrote to the General Manager informing her that it was not acceptable for the Service Manager to hear the grievance as she was directly involved in the case. In this correspondence INMO referred to the time delay and they sought an independent person to hear the Complainant’s grievance.
On 24th March the General Manager wrote to INMO informing that she would ask the Service Manager to nominate a DON to hear the Complainant’s Grievance.
On 5th April 2016, INMO wrote to the General Manager following an appeal on another issue, but they also raised the inappropriateness of the Service Manager being involved in any aspect of the grievance due to contamination and again sought an independent person to hear the Grievance.
On 22nd April the General Manager responded to INMO informing that she was nominating a named DON to hear the grievance and she gave 17th June as the date for that Grievance Hearing.
On 14th June 2016, INMO wrote to the Service Manager objecting to the named DON being appointed to hear the grievance on the basis that it was an individual of a lesser grade than the Service Manager who had been appointed to hear the grievance and they cited this was a breach of basic procedure, protocol and best practice and this letter was copied to the General Manager.
On 15th June 2016, wrote to the named DON informing him that correspondence had been sent to the Service Manager informing him of the objection to his hearing the grievance and that they would not be attending on 17th June 2016.
On 16th June 2016, INMO wrote to the General Manager formally objecting to the person appointed by her to hear the Complainant’s grievance on the basis that this person was of a lesser grade than the General Manager. INMO sought an alternate person of a similar grade to the General Manager.
On 21st June 2016 the General Manager wrote to the Complainant informing that she had appointed the name DON to hear the Grievance on 17th June 2016, at the Complainant’s place of work and that as the Complainant had not attended she considered the matter closed.
On 12th July 2016 INMO wrote to the General Manager, informing of their correspondence to her on 16th June 2016 in which it was stated they were waiting to hear from her with an alternate person and informed that this did not happen. Furthermore, INMO informed that the General Manager had written directly to the Complainant as opposed to her Representative and they informed that the General Manager had been copied all correspondence. INMO cited the Respondent’s ‘Framework for Dispute Resolution’ and informed that they awaited a written response for this unacceptable action.
On 29th July 2016 INMO emailed the General Manager seeking a response to their correspondence of 12th July and informed that the Complainant was entitled to due process to have the principles of natural justice applied to her.
Also on 29th July 2016 INMO received a letter from the General Manager written to herself stating as the Complainant had not attended on 17th June she was considering the matter closed and made no reference to all the correspondence sent to her and other parties, which she had been copied.
On 8th August 2016, INMO wrote to the General Manager informing that they had received a letter from her written to herself and INMO requested that it be re-issued to INMO if that was for whom it was intended.
INMO said that on 7th February 2016, the Complainant lodged a legitimate grievance in accordance with the Respondent’s Grievance Procedure expecting fairness and due process. 22 days later she received a response from the General Manager. INMO said this is contrary to what is stated on Page 3 of the Respondent’s Grievance Procedure; under Principles at bullet point 3 it states: “Every effort will be made to address complaints quickly and fairly.” INMO said that 22 days cannot be described as quickly . Bullet point 6 does allow for the timeframes to be extended in exceptional circumstances, but at no time did management seek or raise the issue of time extension with either the Complainant or her Representative. INMO said management were in breach of their own Grievance Procedure in failing to abide by the timelines contained in that Procedure and in the ‘Framework for Dispute Resolution’ and in so doing the Complainant was denied natural justice, due process and the application of the principles of natural justice.
INMO said they were representing the Complainant in this grievance process and they have provided abundant evidence of that fact with these submissions. The General Manager was copied the letter dated 14th and 15th June from INMO to the Service Manager and the named DON and was therefore aware of the issue raised within the correspondence. INMO said that furthermore they wrote to the General Manager on 16th June stating their objection to the named DON hearing the Grievance, yet the General Manager wrote directly to the Complainant as opposed to Representative. The General Manager did not respond to INMO’s letter of 16th June or 12th July, nor to an email dated 29th July.
INMO contended that this action displays disregard for basic procedure and a lack of respect towards the INMO Official who was acting on behalf of the Complainant. INMO said that by the General Manager failing to respond to the issues raised in INMO correspondence she denied the Complainant having her grievance heard in accordance with the Respondent Policy.
INMO said that in correspondence of 24th March the General Manager stated that she was seeking to have the matter dealt with at the lowest level in accordance with the Grievance Procedure. INMO said that this is factually incorrect as management did not accept that the DON had written a blatant untruth in a letter to the Complainant on 29th January that resulted in the grievance being lodged in the first instance. The DON’s Service Manager could not hear the grievance as she was directly involved in the matter. This Service Manager nominated another DON to hear the grievance complaint. INMO objected to this person hearing the grievance complaint on the basis that the grievance should be heard by someone of a grade higher than the grade of the person against whom the grievance complaint was lodged - and INMO said that again the Complainant was denied due process, natural justice and fairness.
INMO said that the Complainant lodged a legitimate grievance complaint on 7th February 2016 in accordance with the Respondent‘s own policy. INMO said that management failed to apply the policy correctly. Management did not abide by basic procedure and they did not address issues of concern that the Complainant had asked her representative to raise on her behalf relating to the proposed Grievance Hearing. INMO said the Complainant had an untruth recorded in a letter to her that resulted in her being severely distressed. INMO said that they and the Complainant operated within basic procedure in an attempt to have the Complainant’s grievance heard, but management failed to co-operate and this resulted in the Complainant not having her legitimate grievance heard and therefore being denied the principles of natural justice and due process being applied to her complaint.
INMO and the Complainant were seeking that the Complainant’s legitimate grievance is heard by an independent person of the appropriate grade.
INMO and the Complainant sought a favourable recommendation.
Summary of Respondent’s Position:
The Respondent said the dispute in this case refers to a grievance complaint taken by the Complainant, who is a staff nurse at a named location.
The Respondent said that the Complainant lodged a grievance complaint against her named Line Manager on 7th February 2016. The grievance related to how the Complainant perceived the Respondent’s handling of her sick leave regarding a rehabilitative return to work pathway.
The Respondent said that their Grievance Procedure states that the employee’s line manager should hear a grievance, but as the Line Manager was involved in the original issue the Industrial Relations Officer (IRO) advised the General Manager that an alternative manager should hear the grievance complaint as a person cannot be a judge in the their own case ‘nemo iudex in causa sua’.
On 29th February 2016, the General Manager asked the named Service Manager to hear the grievance complaint at Stage 1 of the Grievance Procedure, however, on 18th March 2016, INMO objected to this on the basis that the Service Manager had previously been involved with the case. The Service Manager asked to be excused as she was named in the grievance complaint.
At this stage the IRO was again asked for advice and he advised that as the complaint was against a Line Manager and an alternative manager was required it should be at the same grade in line with the Respondent’s Grievance Procedure and should be held at Stage 1 of the Grievance Procedure.
On 24th March 2016, the General Manager wrote to INMO informing that an alternative DON would be asked to hear the case. On the same date the General Manager wrote to the Service Manager also informing her of this decision.
On 22nd April 2016, the General Manager wrote to INMO naming a named DON to hear the grievance complaint. This DON wrote to the Complainant informing her that he would hear her grievance complaint on 17th June 2016.
INMO wrote to the named DON on 15th June 2016, stating that both they and the Complainant would not be attending the Hearing on 17th June 2016 and stating that INMO believed that it was not acceptable for a person of a similar grade to hear the grievance complaint. The Respondent said that they disagree with this position and analysis of the Grievance Procedure and Policy.
The Respondent did not attend the Grievance Hearing.
The IRO at this stage advised the DON that as the Complainant had been afforded the opportunity to have her grievance complaint and had not availed of it that the matter should be now considered closed.
The Respondent said as the Complainant’s DON/Line Manager was involved in the original issue they had no great issue with an alternative line manager hearing the grievance complaint. The Respondent said that however, and in line with their policy and procedures, they believed the alternative line manager to hear the complaint should be of a similar grade or level as the Complainant’s Line Manager, i.e. a DON. The Respondent contends that if the Complainant was subsequently unhappy with the outcome of her hearing with that alternative manager, then she had the right to appeal to a manager at a higher level at that point in line with the Respondent Grievance Procedure and this would then be heard at Stage 2 of the Grievance Procedure.
Based on the foregoing the Respondent sought that the claim be rejected and their position upheld.
The Respondent said that in relation to the letter of 27th January 2016 to the Complainant they wished to acknowledge that they were wrong in the statement in that letter that in relation to the Complainant that “Occupational Health have deemed you fit to return to work to administration duties.” The Respondent said that they accept that this was in fact factually wrong and not in accord with the Occupational Health Report which states at Number 3 that the Complainant: “is, at this time unfit for all duties in the short term (4 weeks to 3 months) / medium term (3 months to 1 year) / long term (>1 year)”. The Respondent accepts that this is the opposite to stating the Complainant is fit to return to work and she should not have been directed to return to work on 8th February 2016.
The IRO said that he accepts responsibility for what occurred. The IRO said that he had mistakenly and wrongly only looked at Number 6 of the Occupational Health Report in respect of the Complainant that is handwritten under “Comments”(I am omitting the Complainant’s first name and the named location from the following quote from that document) “…indicated she does not want to return to work in … either in a clinical post or an administrative role. I suggested the option of a return to work in an administrative role for a 3 month period followed by resumption of Nursing duties. …indicated she feels she needs a long term admin role. I have suggested she discusses this with you.”
The IRO said that he had read this as meaning the Complainant was fit to return to work in administration duties and he had advised the Line Manager/DON on that basis. The IRO said that he fully accepts that he was wrong in this respect and he, on his own behalf and on behalf of the Respondent fully accepts that that Complainant was in fact deemed by Occupational Health as medically “unfit for all duties”. The IRO said that he further wished to apologise to the Complainant for the contents of the letter of 27th January 2017.
Findings and Recommendation:
Section 41 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 am surprised that the Respondent did not respond directly to the INMO as the Complainant’s Representative when they raised issues in relation to the fact of a DON being nominated to hear the grievance complaint, in circumstances where INMO are a representative body and the Respondent was fully aware of and accepted that INMO were representing the Complainant is this matter. It shows some disrespect to the INMO and disregard for the fact that the Complainant had, as she is entitled to do, chosen to be represented by INMO in this matter, they spoke for her and she would have been dependent on them in that respect. This is quite surprising to me, and had the Respondent shared directly with INMO the reasons advanced at the hearing for using a DON to conduct the Grievance Hearing, it would have afforded both parties to fully understand the others position and to allow them to explore a way forward that was acceptable to both parties. I consider it was remiss of the Respondent not to have so done. I recommend that in the future the Respondent engage as fully as possible with an employee’s recognised trade union representative in any such matter.
I accept that there was a delay in dealing with this matter that is outside the timelines to be expected in accordance with the provisions of the Respondent’s Grievance Procedures, where it states that at Stage 1 “A meeting will be arranged to discuss the matter not later than seven working days following receipt of the complaint.”
The period from the referral of the grievance complaint by the Complainant on 7th February 2016 to the date proposed by the Respondent for the Grievance Hearing of 17th June 2016 is a period of 19 weeks. This is a lengthy period by any standard and is certainly an inordinate period for such a matter, well outside the 7 working days referred to above. While I accept that there were some features to this case that contributed to this delay, such as the fact that the Complainant’s complaint was against her Line Manager, who would normally be the person who would hear a complaint, but plainly could not so do in this case; and the further fact that that Line Manager’s own Line Manager also had a conflict that meant she also could not hear the complaint. However I do not accept that these factors were sufficient to cause a period of 19 weeks to elapse. I recommend that the Respondent puts in place systems and procedures to ensure that except in the most exceptional circumstances (which would not apply to this case as complaints against line managers are not so rare as to be ‘exceptional’) that investigation should begin no later than 3 weeks from the date the grievance complaint is received.
In relation to the question of the grade or level of the person charged to hear a grievance complaint I note that both parties accept that the written Grievance Procedure is silent on this matter and accordingly it could not be said that there is a definitive position within that procedure in that respect that entitles an employee to have a complaint investigated and heard only by a person at a specific grade or level. Accordingly we must rely on commensense and S.I. 146 The Code of Practice on Grievance and Disciplinary Procedures.
It is a fact that an employee is entitled to have their grievances fairly examined and processed and to have this done in an independent way by a person or persons who can be reasonably said to be independent. I have no reason to believe, nor has any suggestion been made to me that the DON nominated by the Respondent to hear the grievance complaint was/is other than independent, or had any potential conflict in the matter, or was not capable of conducting such a process.
However I note that in many employments it is considered desirable that the person hearing the grievance should be at a more senior level than either of the parties involved in the grievance complaints for obvious reasons and I can readily understand why INMO and the Complainant would seek to have a person at a more senior level hear the grievance complaint.
However I am also surprised that the INMO and the Complainant chose not to attend the Grievance Complaint Hearing scheduled for 17th June 2017. I note that it was open to them to attend the Hearing; make their views directly known at that Meeting and if they did not receive a satisfactory result to withdraw from that hearing and appeal the matter to the next stage where all their concerns could then to addressed to a more senior level as part of their appeal, rather than as occurred having the matter come to an abrupt end due their non-participation at that level.
I have very strong reservations at recommending that the Complainant’s Grievance Complaint be the subject of a fresh Grievance Complaint Hearing both because of the lapse of time and other factors.
It is now more than one year since the issue that gave rise to Complainant’s Grievance Complaint arose and I am not convinced that it would be legally safe or practical to conduct a fresh hearing at this remove.
In addition, and of more significance, in view of the statements and acknowledgements of the Respondent at the Hearing I do not accept that a fresh hearing is necessary or would serve any useful purpose.
In relation to the letter of 27th January 2016 that was the subject of the Complainant’s Grievance Complainant the Respondent stated and acknowledged that they were wrong to state in that letter that “Occupational Health have deemed you fit to return to work…” and that in fact that Occupational Health Report stated the direct opposite that the Complainant was “at this time unfit for all duties” and in addition that she should not have been directed to return to work on 8th February 2016. The Respondent apologised for and accepted responsibility for what had occurred. They also explained why what had happened occurred.
In effect the Respondent is fully accepting and conceding the grievance complaint submitted by the Complainant in writing on 7th February 2016 and in such circumstances it is difficult to see what purpose or value would be served by a fresh hearing of the Complainant’s written Grievance Complaint.
In order to bring finality to this matter and to allow the parties to move on from it I recommend that as a full and final settlement of this matter that the Respondent confirm in writing to the Complaint the acknowledgements, apologies and explanations given at the hearing and as contained in pages 6, 7 and 9 of this document within 3 weeks of the date of this recommendation; I further recommend that the other recommendations contained in pages 7 and 8 of this document be implemented by the Respondent.
I so recommend
Seán Reilly, Adjudication Officer:
Dated: 28 March 2017