ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference: ADJ-00012064

DISPUTE:

Date of Adjudication Hearing: 31/05/2018

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 13 of the Industrial Relations Acts 1969 andfollowing 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 as a Psychologist with the Hospital since July 2007. He is employed to work 18.5 hours per week over two days. He referred a dispute to the Workplace Relations Commission on 28th November 2017 alleging Bullying and Harassment.

SUMMARY OF COMPLAINANT’S POSITION.

The Complainant has been employed as a Senior Clinical Psychologist since July 2007 and he worked 18.5 hours over two days. He also works for the HSE and he also has a private practice. The Complainant’s Contract of Employment provides “your working week will be 17.5 hours per week, exclusive of meal breaks. Details with regard to basic working week, rosters and hours of work are available from your Department head or his or her nominee and are normally those approved and as may be approved from time to time by the Department of Health and Children and/or hospital authority”. He was requested to work a flexi-time system, he agreed and he has continued to work this since. Following difficulties in the Department in 2012 which resulted in confusion over the rota, a system was worked out whereby there was always one psychologist on duty but the Complainant was never on this rota. But he agreed to go on this rota in 2013 on the basis that his hours would remain flexible in relation to start and finish times. In 2012 the Complainant left his HSE post on a temporary basis to do a PHD in Trinity College with the result he was spending 4 days per week in the Hospital doing research work and his job as a Psychologist. He suggested that because of this presence the Head of the Department began to assign more clinical work to him after the new Head of Department was appointed in October 2013. He finished his study in Autumn 2015 and resumed his work with the HSE and was then only in the Hospital 2 days a week.

The Complainant stated that he was approached by a colleague late 2015 to ask if he was leaving as the Head of Department had indicated he was. In March 2016 the Complainant had a meeting with the Psychological Society of Ireland during his lunch break but he was forced to take annual leave to attend this meeting even though he asserted he worked additional hours in the Hospital. He suggested he offset the meeting against these additional hours but this was not agreed.

He stated that in early 2016 a new system recording hours was introduced which only allowed for fixed hours while up until then the Complainant always kept his own time sheets and recorded his working hours. He did not cooperate with this change and the Head of Department referred the issue to HR(named) but the Complainant maintained this was a breach of his contract. He had two meeting with HR in April and May 2016 but he maintained this would impose a fundamental change to his working practice. The Complainant stated he felt bullied by the Head of Department. He stated he filed a grievance and HR agreed to engage an External Investigator to address the issues. At this time he received letter from HR threatening disciplinary action in relation to his flexi system but he continued to work his flexi system.

He stated there was an incident in August 2016 in relation to patient care and the Complainant met with the Head of Department in September 2016 following which it was agreed that his actions in no way compromised patient care. Following this meeting he stated his life was made a misery by the Department Head and he engaged a Solicitor in November 2016 who wrote to the CEO stating the Complainant felt bullied and harassed. There was no response but an independent investigation was initiated. This ran from January 2017 to April 2017 and the result was that two of the six complaints were upheld. The Complainant met with the named HR Director in May 2017 during which he was informed that the alleged bullying was at the lower end of the scale. The Complainant stated that he accepted the report but disputes the position of the Respondent seeking to downplay it. He submitted a list of questions to the named HR Director but she refused to answer these. She also refused to address the ongoing bullying and harassment and he also wrote to the CEO requesting these be addressed.

Subsequent to this the HR Director sought to initiate a disciplinary investigation into the fact that he had made an audio recording of meetings with the Head of Department and that he was refusing to address his flexi system of working. He agreed to attend under protest but the Respondent refused permission to bring a legal representative to this meeting. He informed the HR Director he wished to record the meeting but this was refused and the meeting was abandoned, subsequently reconvened in his absence and a finding made against him

Subsequently he was required to meet with the named Operations Director in relation to his flexi practice. He refused to abandon his position as the issue had been referred to the WRC

The Complainant asserted the current situation is unsustainable with the Head of Department and his continued request to take minutes of any meetings is refused.

The Complainant is seeking in summary – the Respondent be required to review and fully implement the Investigation Report – that the findings should be addressed with the Head of Department whether by disciplinary sanction or otherwise – that the Respondent provide him with a safe place to work going forward – that the Respondent erred in seeking to discipline him – that the Respondent has acted contrary to fair procedures in relation to the disciplinary process – that the recent disciplinary actions constitutes victimisation – that any disciplinary sanction be removed from his file - - that the Complainant is entitled to retain his existing flexi working system – that any change is not permitted in the absence of his agreement – that he be compensated.

The Complainant also forwarded a submission in relation to the High Court case in Lyons v Longford Westmeath Education and Training Board IEHC 272

SUMMARY OF RESPONDENT’S POSITION.

The Complainant is employed to work 18.5 hours per week and these are worked over 2 days. In December 2015 discussions commenced locally between the Complainant and Head of Department in relation to his annual leave and working hours. He was requested to cease his practice of recording his daily annual hours as 7.4 hours per day which should be recorded as 9.25 days as this was the length of his normal working day. This led to protracted discussions with the Deputy HR Director, named and the Head of Department, named. This eventually led to allegations of bullying by the Complainant against the HR Deputy Director and the Head of Department. The Parties agreed in early 2017 to the appointment of an external investigator. Under the agreed terms of reference the scope of the investigation was limited to the Dignity at Work allegations and the Complainant was advised that issues that fall under the Grievance Procedure would be documented by the Investigator and referred on to Hospital Management for review and response in line with the agreed grievance policy.

The external investigator issued the report in April 2017 and concluded that the Deputy HR Director had not bullied the Complainant but that the Complainant had been bullied by the Head of Department in relation to two incidents in September 2016. The investigator concluded this was at the low end of bullying. There were no further incidents of Bullying complained of by the Complainant since that time.

The Complainant was disciplined for covertly recording a mother and child that he was treating in his role of Clinical Psychologist. The Complainant disclosed this to the external Investigator and the Head of Department during the investigation of his allegations against the Head of Department. The Complainant accepted this was an error and he apologised to the Mother and Child.

The Dispute in relation to working arrangements and recording of annual leave is still ongoing and the Complainant has never exhausted the internal grievance procedure in relation to this issue and the Head of Department has not engaged with the Complainant since April 2017 i.e. after the Investigator issued the report. In March 2016 HR Department were advised of some anomalies relating to the Complainant’s working hours, working days and recording of annual leave. The Head of the Department was advised to address these issues directly with the Complainant but the Complainant stated he had an historical agreement/arrangement and that he had a flexi contract. There was no evidence to support this. The Complainant worked 2 x 9.25 days and this is recorded on the system. The Complainant was advised – when applying for annual leave this was 9.25 hours a day – change of hours must be agreed with his Head of Department – additional hours could only be worked with the consent of the Head of Department and the Respondent was required to comply with the Organisation of Working Time Act and with Health and Safety Regulations. The Complainant received this instruction a number of times but he refused to change and now alleges he is subject to ongoing threats of disciplinary action for refusing to comply. In October 2016 he was advised to utilise the Grievance Procedure and to contact his Union and that if he did not comply with reasonable management request then disciplinary action could be taken against him.

The Respondent referenced the meeting between the Complainant and the Director of HR on 20th April 2017 following the Investigators Report and stated that the two incidents of bullying upheld against the Head of Department related to comments made by the Head of Department on 1st September 2016 and 28th September 230216 and these related to the Complainant adhering to working hours and annual leave. The Complainant was advised by letter dated 1st June 2017 that if any further issues arose with the Head of Department then these should be raised with the Director of Operations or HR. Following this the Complainant has only made two allegations against the Head of Department – one in relation to information he sought on administration support in June 2017 after which he was advised to familiarise himself with the Hospital Administration Support. This cannot be regarded as Bullying where a Manager refers an employee to the Company policy/procedure which had been circulated. The second issue relates to a phone call the Complainant made at 2am on 7th October 2017 to the Head of Departments home phone which he stated was an accident. The Head of Department lodged a complaint against the Complainant and the Complainant was informed of this on 18th October 2017. There was a witness to the Complaint making this call and she provided a witness statement. The Complainant stated in an email of 23rd November 2017 that this was an escalation of bullying by the Head of Department and that the complaint was malicious, even though the Complainant admitted to making the call.

The Complainant made two further allegations against other Managers in relation to a meeting with these senior Managers in August 2017 and the second related to their refusal to meet him in his office. The Complainant’s Solicitor in a letter to the Respondent dated 25th August 2017 alleged the request by the Respondent to the Complainant to attend a meeting with two named senior Managers was a “subversive attempt to bully” the Complainant. A further letter from the Complainant’s Solicitor dated 29th August 2017 asserted the Complainant would refuse to attend this meeting.

The Complainant was informed by letter dated 22nd September 2017 that failure to attend a meeting to discuss identified issues meant the Hospital may be left with no alternative but to address the matters in his absence. The Complainant then sought legal representation at any meeting. This was refused and the Complainant agreed to attend under protest. The meeting took place on 4th October 2017 at which the Complainant sought to record the meeting which was refused but he was informed minutes would be provided. The Complainant left the room to seek advice from his Solicitor and when he returned he stated he was advised by his Solicitor to record the meeting. Management refused and the meeting adjourned. The Complainant was afforded an opportunity to make a written submission and he was afforded an opportunity to do so by 11th October 2017. The Complainant did respond on 10th October 2017 setting out his views in relation to his working hours and recording of annual leave but there were no details of any allegations of bullying in this letter. The Respondent replied in detail to this letter on 24th October 2017 and invited the Complainant to a meeting in relation to data protection and confidentiality issues and he was also advised that if he wished to make any allegations of Bullying that had occurred since June 2017 to forward these. The Complainant replied by letter dated 7th November 2017 stating that the failure of Management to meet with him in his office in relation to the 4th October 2017 meeting was “an attempt to intimidate me further”. The only issues identified were in relation to the Administration Policy and the alleged Spurious complaint made against him by the Head of Department in relation to his phone call made to the Head at 2am in the morning. The Respondent replied on 14th November 2017 suggesting a named neutral venue for the meeting and he was informed that he could take frequent breaks to consult with his legal representative. He was also informed that the highest sanction that may be imposed would be a level 2 – written warning. The Meeting was scheduled to take place on November 30th but the Complainant did not attend.

FINDINGS AND CONCLUSIONS.

On the basis of the evidence, written submissions, cross examination and questions at both Hearings I find as follows –

The Complainant filed a complaint of Bullying against two named Managers, one the Head of Department and the second the HR Director on 27th January 2017. It was agreed the complaints would be investigated by a named External Investigator. Terms of Reference were drawn up and agreed in line with the named Dignity at Work Policy. The Investigator commenced her investigation on 22nd February 2017 and she issued her report on 20th April 2017. The Investigator found that the complaints of Bullying against the HR Deputy Director were not well founded. She found that two complaints against the Head of Department were sustained and recommended that the Respondent should consider what supports and/or coaching might be offered to the Head of Department. The Complainant confirmed at the Hearing that he accepted the Investigators Report.

The Complainant sought both in their written submission and at the Hearing that I make a Recommendation that the Head of Department should be disciplined. As Adjudication Officer I have no jurisdiction whatsoever to recommend any such a course of action as all employees are entitled to the application of fair procedures and natural justice. I find that the Respondent has complied fully with the Dignity at Work Policy by appointing an External Investigator and her Recommendations have been acted on.

The Complainant was provided with a written statement of his Terms and Conditions of Employment signed and dated by the Respondent on 20th June 2007 and by the Complainant on 2nd July 2007. Section 20 of this Contract outlines the Respondent’s Policy on Confidentiality. The Respondent initiated Disciplinary Action in relation to the Complainant’s recording of a mother and child in the Hospital in his role as Clinical Psychologist. The Complainant admitted to this during the investigation into his allegations of Bullying against the Head of Department when he presented the recording to the Investigator. This cannot be construed as Bullying against the Complainant.

Both Parties confirmed that the issue of the Complainant’s adherence to the Respondent’s attendance policy and annual leave policy is ongoing and that the Complainant has not exhausted the internal Grievance Procedure prior to lodging his complaint with the WRC. I find that the Complainant should exhaust the internal procedures of the Respondent’s Grievance Procedure before the issue is referred to the WRC under the Industrial Relations Act. I note that the Complainant both in the written submission and at the Hearing referenced decisions that relate to alleged change of contract without his prior agreement and note that no complaint has been lodged under the Terms of Employment (Information) Act, 1994 in relation to this issue. I note that the Complainant also raises the issue of “custom and practice” and note that both Parties are required to comply with the Organisation of Working Time Act, 1997 – 2015 in relation to Annual Leave and again note there is no complaint under the Organisation of Working Time Act. I recommend the Complainant exhaust the internal procedures of the Respondent’s Grievance Procedure which he confirmed he had received in relation to this issue.

The Complainant makes several references to ongoing bullying. The only two complaints that were made related to an incident of June 2017 when the Complainant requested of the Head of Department as follows “Do psychologists get admin support to print and post our letters or are we expected to do this ourselves”. The Head of Department responded that “The admin service is outlined in the attached document circulated a few months ago”. The second incident occurred in October 2017 when the Complainant rang the Head of Department in her home at 2am in the morning. The Head of Department lodged a complaint, the Complainant was notified and he named a witness who furnished a witness statement. The Complainant asserted that this complaint was malicious and contrived. The Complainant admitted to making the call but asserted it was a mistake. The Respondent asserted that these two issues could not be supported as Bullying by the Head of Department against the Complainant. The Complainant did not adduce any evidence at the Hearing to support his allegation that these two issues constituted Bullying by the Head of Department against the Complainant or to identify how these fit the definition of Bullying as set out in the Respondent’s Policy at Paragraph 6 or indeed in the numerous cases of the higher courts with particular reference to the Ruffley case

The Complainant has made two further allegations of Bullying against two other senior managers in relation to their request to him to attend a meeting on 23rd August 2017 in relation to issues pertaining to his working hours and the taking of annual leave and a second complaint of Bullying because they refused to have this meeting in his office. These issues are ongoing and therefore I do not make any recommendation in relation to this complaint. However I note that the Complainant’s Solicitor and the Complainant assert that the Complainant has not been afforded fair procedures and natural justice in relation to meetings requested by the Respondent when they refused him permission to have his legal representative present at these meetings. They referenced the decision of the High Court in Lyons v Westmeath Education and Training Board IEHC 272 was relevant. As this issue is ongoing suffice to say I should not make any comment or reference to this case or indeed any other cases following post the Lyons Decision.

Dispute:

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

On the basis of extensive written submissions, two Hearings, my Findings above and In accordance with Section 13 of the Industrial Relations Act, 1969 I do not find in favour of the Complainant in relation to his complaints.

Dated:   27th August 2018

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

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