ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference: ADJ-00008775

Parties:

DISPUTE

Date of Adjudication Hearing: 19/09/2017

Procedure:

In accordance with Section 13 of the Industrial Relations Acts 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.

The Complainant has been employed by the Respondent since September 1981 and currently holds a senior position since September 2014. Another named employee raised a grievance against the Complainant which was processed under the Grievance and Disciplinary Procedures of the Respondent. The Investigator issued his findings which were then appealed by the Complainant and her appeal was not upheld. The Complainant referred a dispute to the Workplace Relations Commission on 12^th May 2017 on the basis that fair procedures had not been applied to the Investigation and Appeal.

SUMMARY OF COMPLAINANT’S POSITION.

The Complainant was informed of a complaint against her by a named employee on 20^th October 2015. The Complainant made a written response on 25^th July 2016 refuting the allegations. The appointed investigator issued his findings on 13^th October 2016 in which he found there was insufficient evidence to prove one way or the other whose version of events was correct. The employee who had initiated the complaint was unhappy following which the Respondent commissioned a named independent investigator to conduct another investigation and he issued his findings in February 2017. The Investigator found that some of the complaints were well founded.

The Complainant was unhappy with the outcome and following discussions with her Trade Union she appealed the outcome. Following the appeal Hearing she was informed her appeal was not upheld. The matter was referred to the WRC.

The Complainant contended that she was denied fair procedures on the basis there were inaccuracies in the investigators report – the failure of the Investigator to call one of her named witnesses who had commenced Maternity Leave – failure of the Respondent to make a statement from a student nurse available in the appeals process. The Complainant is seeking a recommendation that she was not afforded fair procedures in how the complaint against her was handled.

SUMMARY OF RESPONDENT’S POSITION.

A named employee raised a complaint against the Complainant on 9^th November 2015. Following delays in the process, due to sick leave of one of the principle parties, the complaint was initially dealt with by an Assistant Director of Nursing, as provided for in the respondent’s policy. The Assistant Director of Nursing recommended the parties engage in mediation but the employee who had lodged the complaint declined to engage in mediation and requested a formal investigation by an external investigator. A named Conciliation Officer with experience in this field was appointed to conduct the investigation. Terms of Reference were agreed and he conducted his investigation from December 2016 during the course of which he interviewed the principal parties and 11 witnesses, comprised of those recommended by each and both of the parties. He issued his findings on 21^st February 2017 and his findings were partially but not wholly in favour of the Complainant.

The Complainant appealed the findings of the Investigator on 22^nd March 2017 and the appeal was heard by the Director of HR who did not uphold the appeal. The Complainant then referred the dispute to the WRC.

The Respondent stated that the process was fair in all respects. The Investigator clearly stated the process followed in the investigation and the basis on which his findings were made. The Complainant states the findings of the investigator are factually incorrect. However as clearly set out by the Investigator his findings are based on the information made available to him by all the parties. The Complainant also states that a statement was not taken from a witness who was absent on protected leave at the time of the investigation and it is the policy not to call or summon employees who are on long term sick leave or on protected leave and it was made clear to the Complainant and her Trade Union that if this witness contacted the Respondent then in those circumstances the Respondent would contact the employee but this did not occur in this case. The Complainant appealed the outcome and identified the grounds of her appeal which were all considered by the HR Director appointed to hear the appeal. The basis of her appeal was there were inaccuracies in the Investigators findings however the appeals process dos not correct inaccuracies.

The Respondent contended that at all times the Complainant was afforded all fair procedures during the course of the investigation and the appeal.

Findings and Conclusions.

On the basis of the evidence and written submissions from both Parties I find that the Respondent complied fully with their internal Grievance Process. An Internal Investigator was appointed to hear the Complaint against the Complainant. The Assistant Director of Nursing recommended mediation which was not acceptable to the employee who had made the complaint against the Complainant.

The external Investigator appointed has long experience in this area. He issued a 16 page report on 21^st February 2017 following an interview with both the employee and the Complainant and also he interviewed 11 witnesses prior to reaching his conclusion and findings. His findings are given over three pages and relate to three specific complaints lodged against the Complainant. The first complaint relates to use of language by the Complainant which complaint was upheld. The second complaint relates to a complaint against the employee who had made the complaint against the Complainant which was not upheld and the third finding relates to an issue concerning a locked cabinet which was upheld. I find that this report of the Investigator was thorough and fair in all respects.

I note that the identified witness of the Complainant, namely the employee on protected leave did state in an email dated 3^rd January 2017 to the HR Manager she would make herself available by phone if necessary in relation to the investigation. I also note that the Respondent responded by email dated 4^th January 2017 stating that as this employee was currently on Maternity Leave and due to be admitted to Hospital she was not required to participate in the investigation in line with the Respondent’s policy.

The Complainant appealed the outcome of the investigation according to the procedures and the appeal was conducted by the HR Director, named. The outcome was to uphold the decision of the Investigator. All issues identified by the Complainant in her appeal were addressed during the Appeals process and which held that fair procedures and natural justice had been applied to the process and that the findings of the investigator were consistent with the information that was available to the Investigator.

RECOMMENDATION. 

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

In accordance with Section 13 of the Act of 1969 I find that the investigation and appeals process was conducted in accordance with all fair procedures and natural justice and in accordance with S,I, 146/2000. Accordingly I do not find in favour of the Complainant in relation to this dispute.

DATED: 30 November 2017

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