Complainant

Respondent

Anonymised Parties

Assistant Director of Nursing

Health Service Provider

Representatives

Irish Nurses and Midwives Organisation, Edward Matthews.

Paul Hume, Industrial Relations Officer.

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-00004007-001

21^st April 2016

INMO were in dispute with the Respondent in relation to their failure to investigate the Complainant’s complaints.  

INMO said the facts associated with this dispute are as simple as they are appalling.

On 19^th December 2014, the Complainant reported to the Respondent that she had been the victim of a physical assault by a named colleague who is a consultant.     She also brought to the attention of the Respondent a pattern of inappropriate behaviour on the part of this colleague leading up to the physical assault.   INMO said that neither of these matters have been investigated by the Respondent, and the Complainant remains on a ‘protective placement’ to date.

Following the physical assault the Complainant availed of a period of sick leave related to what had occurred as she felt unable to return to her workplace because of fears for her own safety.     Following the intervention of INMO the Complainant was facilitated with a return to a different workplace of the Respondent in August 2015.

In the period since then, the Respondent, through the Acting General Manager, wrote to the Complainant on 9^th March 2015 stating that her complaint would be investigated and stated who would investigate the complaint and under what terms of reference.   At this stage it was stated that the complaint was being dealt with under the disciplinary procedure.  

However the Investigation did not commence and in May 2015, 5 months after the complaint was the Complainant disclosed to INMO that what occurred was actually the culmination of a pattern of inappropriate behaviour and she was advised that she should confirm to the Respondent the totality of the issues.   INMO wrote to the Respondent on 5^th May 2015 informing that there was a pattern of behaviour that required consideration and requesting the Respondent to respond.

The Respondent responded on 18^th June 2015, stating that that previous complaints had been addressed by them and that the Complainant was now on ‘protective placement’, a situation that continues to the present day.   INMO responded on 23^rd June 2015 noting management’s position and asking whether the Respondent was now in a position to proceed with the Investigation.

On 26^th June 2015, INMO on behalf on behalf of the Complainant provided to the Respondent a document stating the pattern of inappropriate behaviour that culminated in the December 2014 incident and stated the pattern of behaviour had not previously been investigated and so stood to be addressed by the Respondent.     In an effort to expedite matters it was suggested that both matter should be dealt with through the same process

On 7^th July 2015, the Respondent wrote to INMO stating that the incident in December 2014 would form the sole basis of the proposed investigation, and further stated that the pattern of behaviour alleged would be dealt with through a separate process and they sought the Complainant’s views in relation to the investigators and the terms of reference.

While believing that both matters should be dealt with together, the Complainant did not wish any further delay and so INMO responded on her behalf on 16^th July 2015 accepting the proposed investigators and proposing a minor amendment to the terms of reference.  

INMO said that matters did not progress and INMO wrote to the Respondent again on 20^th August 2015 seeking that the investigation, as agreed, into the December 2014 incident would progress: also they sought clarity on the second and separate process as suggested by the letter of 7^th July 2015 from the Respondent.

On 7^th September 2015, a letter was received from the Respondent that changed matters substantially.   This letter stated that the complaint had now been screened, and was now to be dealt with under the Consultants Contract Disciplinary Procedure 1998, and thus referred to the office of the Director General.   INMO said this was a fundamental change of direction.     INMO responded to the Respondent by letter of 1^st October 2015, urging that the investigation into the December 2014 incident be accelerated and again asking how it was proposed to address the pattern of inappropriate behaviour.

By letter of 20^th October 2015, the Respondent responded stating that the incident of December 2014 had been referred to the Director General’s Office in light of High Court Judgement concerning authority to instigate an investigation against a Consultant.

On 27^th October 2015, INMO wrote to the Director General’s Office seeking that urgent progress be made into investigating matters.   INMO said that as no substantive response was received a reminder letter was sent on 12^th November 2015, but no response was received.

On 8^th December 2015, the local Manager wrote directly to the Complainant referring to the December 2014 incident and the further information relating to a pattern of behaviour and offering the Complainant mediation.

INMO wrote to the local manager on 15^th December 2015 stating a total lack of understanding of the process or procedure being followed, referring to conflicting and contradictory behaviour of the Respondent, referring to a loss of confidence in the Respondent and complaining of the delay and breach of duty on the part the Respondent and placing the Respondent on notice as to the distress and anxiety being experienced by the Complainant and asking that action be taken to investigate the December 2014 incident and the pattern of inappropriate behaviour leading to it.   Similar correspondence was sent to the Director General and the Director of Human Resources.

The Assistant National of Human Resources for the Area made contact with INMO and it was agreed that an Investigation under the auspices of the Dignity at Work Policy would taken place and that this investigation would cover both issues.     The named local Employee Relations Manager (ERM) would make contact to progress the Investigation.  

INMO wrote to the ERM on 30^th March 2016.   No response was received to this letter and INMO wrote again on 21^st April 2016.   The ERM responded on 25^th April 2016, seeking agreement in relation to investigators.   INMO responded stating instructions were being sought from the Complainant in relation to the persons nominated and requested draft terms of reference for the Investigation.   The ERM responded on 26^th April 2016 offering alternative investigators and attaching proposed terms of reference.   INMO responded on 10^th May proposing an alternative investigator and suggesting some minor amendments to the terms of reference.     On 18^th May 2015 the ERM responded accepted the changes to the terms of reference and stating the Respondent’s position in relation to proposed investigators.   INMO responded on 19^th May 2016 accepting the Respondent’s position and asking that the Investigation be commenced.

INMO wrote to the ERM again on 14^th June 2016 seeking to have the matters progressed.

INMO said that matter had been referred to the WRC and on 3 occasions dates for a hearing were offered and were deferred.

INMO said that at no stage since then have they or the Complainant seen or being contacted by any Investigator.

On 19^th September 2016, the Respondent wrote to INMO stating that the agreed Dignity at Work Policy Investigation into the matter would no longer proceed and the matters involved would be dealt with in separate processes and the terms of reference were unilaterally amended by the Respondent.   This was stated to have arisen from representation made the other party; however, at no time prior to deciding on the matter did the Respondent consult with the Complainant or INMO, notwithstanding the agreement that was in place.   INMO wrote to the Respondent again on 28^th September 2016 seeking clarification of the Respondent’s position.

The Respondent responded on 17^th October 2015 stating that both processes would be undertaken by the same investigators and that the investigation into the December 2014 incident would proceed without further delay.

INMO said that despite very significant misgivings, a loss of confidence, an approach by the Respondent which INMO said indicated either a lack of honesty or lack of capacity and an approach that appeared to be deferential to the other party, the Complainant, in order not to delay matters acceded to the Respondent’s position by letter of 19^th October 2016 and again sought that matters would progress.

The Complainant was contacted directly by the Respondent on 24^th November 2016 asking if she would be represented and if she wished to propose witnesses for the Investigation and she promptly replied.

INMO said that nothing further was heard from the Respondent or any investigator and the final correspondence to the Respondent was sent on 25^th January 2017, seeking an explanation for the delay and requesting the start date for the Investigation.  

INMO submitted the following in support of their position:

• The Respondent has failed to implement their own Grievance Procedure
• The Respondent have failed to implement their own Dignity at Work Policy
• The Respondent have failed in their duty of care to the Complainant, which requires that they implement their policies designed to protect employees and to ensure a safe place of work
• The Respondent has engaged in acts that amount to an egregious breach of trust in that they have prevaricated, made commitments and breached those commitments repeatedly.   Further they have made statements that have turned out to be untrue.
• The Respondent has acted in a way that shows undue deference to the other party and at the same time fails to show regard to the Complainant.
• The Respondent have ‘stood back’ while the Complainant has remained on a ‘protective placement’ that is unsuitable for her clinical skills and managerial skills and have shown disregard for her standing.
• The Respondent through their inaction, actions, contradictory actions, confusing actions, changes in course and overall malaise have engendered distress and anxiety in the Complainant that has caused her to avail of mental health treatment.

INMO said that over 26 months after a serious incident was reported no investigation has happened.

INMO said that this is an employer who is either unwilling or unable to vindicate the rights of the Complainant and it is totally wrong that any employer would behave in such a cavalier fashion in respect of the rights and welfare of an employee.

INMO said the behaviour of the Respondent is so egregious that not only does it warrant recognition, it merits particular attention to demonstrate that such behaviour is not acceptable and cannot be tolerated.

In light of the forgoing INMO sought a recommendation that:

• The Respondent immediately commence, and bring to a conclusion within a reasonable timeframe investigations into both matters   -and-
• That the Respondent pay compensation to the Complainant for the distress and anxiety associated with the inordinate delay and inexcusable delay and indeed failure by the Respondent to implement their own policies and furthermore the associated distress and anxiety associated with an unsuitable work placement.   INMO sought a recommendation that the Complainant be compensated in the amount of €30,000.00c.

The Respondent said the Complainant submitted an email to the Acting General Manager on 19^th December 2014, making an allegation against a named Consultant.

On 5^th January 2015, the Acting General Manager referred the complaint to a named IRO (Industrial Relations Officer) for screening under the Respondent’s Dignity at Work Policy.   On 8^th January 2015, the named IRO replied stating the matter should be dealt with under the Disciplinary Procedure contained in the Consultant’s Contract 1998 and 2008.

On 11^th January 2015 the Complainant submitted and Incident Form to her Line Manager.

On 16^th January 2015, the named Chief Officer, wrote to the other party informing him of the complaint and seeking a response within 2 weeks.   The other party responded on 29^th January 2015, stating he was taking advice and would respond without delay.   He further wrote on 2^nd February denying the allegation.   A further letter was received from the other party’s Solicitor on 19^th February 2015.

On 9^th March 2015, the named Acting General Manager wrote to the other party informing him that a named Principal Psychologist had been asked to investigate the Complainant’s allegations under the Consultants Contract and the Acting General Manager also wrote to the Complainant on the same day.

On 7^th May 2015, the Respondent received a letter from the other party asking that the matter be dealt with by way of the Respondent’s Dignity at Work Policy as opposed to the Consultants Contract.   On 19^th June 2015 the Acting General Manager responded stating that the Respondent would deal with the matter under the Consultants Contract.

Subsequently on 25^th June 2015, the Complainant, through INMO submitted a further document with historic allegations against the other party.     The Acting General Manager responded to INMO on 18^th June stating the Respondent considered these historical matters dealt with and closed.

On 26^th June 2015, INMO wrote to the Respondent asking that an Investigation proceed and cover both matters.

On 9^th July 2015, the IHCA (Irish Hospital Consultants Association) wrote to the Respondent asking that the matters be dealt with under the Respondent’s Dignity at Work Policy and stated that only the Director General (DG) could progress a case under the Consultant Contract in accordance with a High Court ruling.     On 7^th September 2015 the matters were referred to the DG’s Office.

On 20^th October 2015, the Respondent wrote to INMO informing that the matters had been passed to the DG’s Office for their attention.

On 8^th December 2015, the Respondent wrote to both parties offering them mediation, which both parties declined and the matter was referred back to the DG’s Office.

There was internal correspondence within the Respondent before a decision was made to deal with the Complainant’s under the Respondent’s Dignity at Work Policy.

On 9^th March 2016, following a discussion between a named IRO and the named Assistant National Director of HR it was decided that the key stakeholders involved nationally believed that the way forward was under the Dignity at Work Policy and that this should progress as a matter of urgency.  

The Respondent then wrote to a number of suitably qualified and trained managers in an effort to get an Investigation Team together.

On 26^th April 2016 the Respondent wrote to INMO stating the named of 2 investigators and enclosing terms of reference for the Investigation.   One of the Investigators subsequently withdrew and replaced by another senior manager.

INMO then asked that an external investigator be appointed and the Respondent acceded to this request.     INMO were informed that an Investigation would proceed.

On 6^th July 2015, IHCA wrote to the Respondent stating that there was no agreement to investigate both complaints jointly.     They wrote again on 27^th July seeking that certain aspects of the terms of reference be amended to focus solely on the initial complainant.

Following a teleconference between named senior managers on 30^th August 2016, it was decided to investigate the Complainant’s separately.

On 19^th September 2016m the Respondent wrote to both INMO and IHCA stating that the 2 complaints would now be dealt with by separate processes.

The Respondent said that from the date that the Complainant submitted her written complaint on 19^th December 2014, they have dealt with this complex case as expeditiously as possible.   They have been faced with trying to negotiate between two professional representative bodies to agree on:

1. Under what policy should the case be dealt with?

2. Should both sets of complaints be dealt with under the one investigation or two separate investigations?

3. Agreeing on terms of reference

4. Agreeing on suitably qualified investigators

The Respondent said that there was also delay when IHCA stated that only the DG could imitate disciplinary proceedings against a consultant.

The Respondent said that they recognise that there has been an inordinate delay in dealing with     the Complainant’s complaint the strongly argue that by being obliged to consult with employee representative bodies they have been drawn into a situation that caused the delay that was largely outside of their control.

In discussions at the Hearing the Respondent said the Investigations was due to start on 1^st April 2017 and would be processed as expeditiously as possible.

Section 41 of the Workplace Relations Act 2015 requires that I make a recommendation 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.

In relation to the question of the Complainant’s placement in alternative work pending the outcome of the investigation of her complaints, I cannot entirely accept INMO submissions in that respect.   I not that what occurred was ‘protective placement’ for the benefit of the Complainant.   It is my clear understanding that this was done at the behest of the Complainant and was certainly done in consultation with her/INMO: indeed INMO in their written submissions states that the Complainant “was facilitated with a return to work to a different” workplace of the Respondent.   I do not accept that it would be reasonable or fair to criticise or penalise the Respondent for facilitating the Complainant in this respect, rather they are to be commended for such facilitation, something that is not readily available in many if not most employments.   However, notwithstanding this I do accept that the Complainant would not reasonably expected have expected to have spent such a very lengthy period in what was to be a temporary, short-term arrangement and she has very good reason to feel aggrieved in that respect.

The changes in the Respondent position in relation to whether there would be one or two sets of investigations is difficult to understand, first there was to be two, then it was one and then that changed back to two.   This was confusing to the Complainant and was not to the advantage of any party and was most definitely one of the causes of what even the Respondent accepts was/is an inordinate delay in dealing with matters.     These were decisions made only by the Respondent and the Respondent must accept responsibility.

In relation to the delay in dealing with the matter and in particular the delay in commencing any investigation, I do accept that some of the delay was caused by the Complainant adding a second set of complaints and by the position adopted by the other party and their Representative – and I accept that the Respondent had an obligation to deal and consult with the other party and their Representative   and take their views and position into account in relation to these matters on the same basis as they dealt with the Complainant and INMO.   I do accept that this might and probably delay matters somewhat.   However such delay would not be more than a few weeks or a couple of months at most and would not in any way account for, justify or excuse a more than two year delay in dealing with matters.   The old adage of justice delayed is justice denied is apposite here.

In all the circumstances I accept the submissions of INMO that the handling of this by the Respondent is not in accord with the policies and procedures of the Respondent in relation to such matter and this is particularly true in relation to the inordinate delays that occurred that are primarily the responsibility of the Respondent.

I note that the Respondent stated at the Hearing that the Investigation in relation the matters would begin on 1^st April 2017.   Should that not be the case then I recommend that the investigations should begin with two weeks of the date of this recommendation and that an indicative timescale of no more than 4 weeks should be agreed in relation to each of the sets of investigations that would only be extended for good reason and for a short defined period.   In addition I require the Respondent to pay the Complainant compensation in the €12,500.00c for the way they have handled this matter and in particular the delays in dealing with these matters.   These recommendations are a full and final settlement of all matters in dispute between the parties.

I wish to confirm that this recommendation is particular to the unique facts and circumstances of the instant case and it cannot and will not be used or quoted or used by either party or any other party in any other case.

I so recommend