Complainant

Respondent

Anonymised Parties

Care Worker

Health Sector Employer

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-00007937-001

02/11/2016

In his complaint form, the claimant set out his grievance with the outcome of a review of allegations that had been made against him – arising from this review the claimant was advised that he would be the subject of the counselling stage of the respondent’s disciplinary procedure .It was submitted that the claimant “ is challenging this decision based on the lack of evidence supporting the claim made and the failure to provide legal opinion relied upon by the employer when making the decision”.

The union set out a chronology of the processing of the complaint that had been made against the claimant.On the 1^st.April 2015 , the unit manager conducted a preliminary screening in accordance with the Trust in Care Policy. It was submitted that the claimant was unaware that the meeting held with him that day was a preliminary screening meeting.The claimant denied any wrongdoing – pointing to his exemplary work record and indicated his agreement to co-operating with the investigation so that he could clear his name. Terms of reference were drawn up , an investigation team was identified and the final report was issued to the claimant on the 29^th.Sept.2015.

The union wrote to the commissioning manager on the 15^th.Oct 2015 expressing dismay at the level of inaccuracies and contradictions contained in the report .The claimant was on sick leave arising from the stress of the investigation.A detailed and very critical response to the report was issued by SIPTU on the 3^rd.Nov.2015 – a meeting between the parties took place on the 16^th.November 2015.The union submitted that “ it was agreed that a review of he document would be carried out by 2 approved parties – one nominated by the respondent and one nominated by the union”.

It was submitted that the outcome of the review process was that the investigation process and report conclusions were seriously flawed .The union proceeded to detail the ensuing correspondence between the parties in relation to the status of the investigation report prior and post review.

It was submitted that the union nominee had confirmed the flawed nature of the investigation and that a new investigation was not possible due to the death of the resident central to the complaint.It was submitted that the respondent suggested that the claimant accepted one of the findings of the report as had been identified in the joint review.After further exchanges between the parties , a referral of the matter by the respondent to their legal advisers and a further meeting between the parties , the claimant was issued with a letter from the respondent confirming that 4 of the 5 allegations were not upheld – one allegation relating to a request for a drink was upheld.Arising from this the respondent sought to invoke the counselling stage of the grievance procedure.

The union submitted that the investigation process was significantly flawed and it was suggested that the unit manager was engaged in gathering evidence to strengthen the case against the claimant.The union itemised the deficits in the report and the flawed procedures.It was submitted that the joint review upheld the claimant’s assessment.It was contended that the basis for upholding the one allegation against the claimant was that it was witnessed – it was asserted that this was incorrect and that there was no further evidence to support the claim.

The union sought a decision declaring that the claimant should not be subject to sanction under the disciplinary procedures and some recognition for the financial loss suffered as a consequence of the respondent’s failure to adhere to fair procedures and their own trust in care policy.

The respondent set out a chronology of the processing and management of the allegations that had been made against the claimant.The time line with respect to the preliminary screening , the establishment of terms of reference and the appointment of the investigation team was documented.It was submitted that when the claimant rejected the outcome of the investigation, a meeting took place on the 16^th.Nov. between the parties and the outcome of this was that the complaint and trust in care investigation would be assessed independently by a union nominee and a nominee for the respondenr.It was submitted that the independent assessors found

“on the balance of evidence no matter could be upheld with the exception of the complaint received of the client being denied a cup of tea when requested.This was based on the claimant’s own statement in which he described how he would handle such a request and from a statement from a witness to the event”.

Following a meeting with the union to discuss the independent assessment and the outcome of the report, the union wrote to the respondent requesting that all allegations be rescinded and that the claimant be absolved of all wrong doing.The matter was referred to the respondent’s legal adviser and on the 21^st.Sept. 2016, the claimant was advised that the respondent would be dealing with the matter through the precounselling stage of the disciplinary process.

The respondent acknowledged the flaws in the investigation and Report   but asserted on the basis of the independent review they were acting correctly in utilising the pre counselling stage of the disciplinary procedure.Their legal opinion had concurred with this approach but as the opinion was privileged they were unable to release the details to the claimant.