ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference: ADJ-00012682

Parties:

DISPUTE:

Date of Adjudication Hearing: 28TH March 2018 and 16/05/2018

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 13 of the Industrial Relations Acts 1969and 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 as a Medical Specialist with the Respondent since 1st February 1998. The Complainant referred a dispute to the Workplace Relations Commission on 10th December 2017 in relation to an investigation into allegations the Complainant made against a named Employee and a complaint this Employee made against the Complainant.

SUMMARY OF COMPLAINANT’S POSITION.

The complaints/grievances which the Complainant has made relate to three specific areas – (a) the failure of the Investigators who were appointed to deal with allegations of bullying by a named employee against the Complainant and complaints by the Complainant against the same Employee in relation to not complying with two of the four terms of reference of the investigation –(b) the Complainant and his Solicitors had raised the issue of non-compliance with the terms of reference by the investigators. The Respondent confirmed in a summary manner that the terms of reference had been complied with. The Complainant sought reasons for this finding but to no avail. The Complainant then sought to appeal this which was denied – (c) the Complainant had raised grievances in February 2017 regarding a number of issues, including the manner in which an investigation into complaints by staff by the Respondent from January 2017 was being conducted. These grievances were rejected and he sought to appeal but the Respondent has refused to put in place a process to enable the Complainant to prosecute his appeal.

In 2011 an employee made a complaint of bullying against the Complainant under the Dignity at Work Policy and the Complainant sought to have his complaints of bullying dealt with in the same investigation, together with certain clinical management issues as these issues were relevant to his complaints. The Parties agreed the Terms of Reference of the investigation in February 2015 and two external investigators were appointed. The Investigators issued their report in August 2017 and the Complainant alleged they failed entirely to deal with the clinical management issues but chose to focus exclusively on the nature of the interaction between the Complainant and the other named Employee. The Investigators upheld the complaints against the Complainant and were found to be of a serious nature resulting in the Respondent holding a Disciplinary Hearing under Stage 4 of the Respondent’s Disciplinary Procedure.

Following the issuing of the Report the Complainant and his Solicitor raised the issue of the non-compliance by the Investigators with the agreed Terms of Reference. The Respondent confirmed the Investigators had complied. The Complainant sought to appeal but no appeal has been provided. There was an exchange of correspondence between the Parties but the Respondent confirmed by letter dated 4th December 20217 they would not be conducting an investigation into an investigation.

In 2017 the Respondent commenced an investigation into an incident where an employee complained of the behaviour of the Complainant on 3rd January 2017 and was pursuant to the Respondent’s Disciplinary Policy. He raised a grievance in relation to how the complaint was handled by the Respondent and a named person was appointed to investigate his grievance. His complaints were not upheld. He notified the Respondent of his intention to appeal seeking notes of the investigation. The Respondent has maintained the Complainant did not lodge an appeal and that the time for lodging an appeal had expired. The disciplinary process concluded in the absence of an appeal by the Complainant

SUMMARY OF RESPONDENT’S POSITION.

Complaints were lodged by the Complainant against a named employee and counter complaints were lodged by this Employee against the Complainant. This was in 2011. Following protracted negotiations terms of reference were finally agreed and a team of investigators were appointed. The investigation commenced in 2015 and it took two and a half years to be completed. There were four findings and conclusions – The Complaints against the named employee by the Complainant were not upheld – the complaints against the Complainant were upheld and it was found the breaches of the Dignity at Work were of a serious nature – the Complainant was found to have failed to cooperate with the investigation and actively sought to obstruct it and that he had breached the confidentiality requirements of the investigation – the fact there were clinical issues reflected in the complaints were found to have no bearing on, or relevance of the merits of the complaints or the investigators findings. The report was referred to the Respondent’s disciplinary procedures in line with their agreed policies, agreed with the recognised trade unions. This is ongoing.

The Dignity at work policy provides that “on completion of the investigation, the investigator(s) will submit a written report to senior management who will ensure that the terms of reference have been complied with”. The report was considered by the Respondent to have complied with the terms of reference. The Respondent asserted that the Complainant is now seeking to obstruct the Respondent’s policies by using the complaint to the WRC to prevent the Respondent from concluding the disciplinary process.

The Investigators declined to explore the Complainant’s generalised complaints about clinical management issues as their concern was to conduct an investigation under the Dignity at Work Policy into the complaints before them, including to identify and clarify the clinical management issues which are reflected in the complaints and responses. The Complainant wanted the investigators to investigate clinical management issues above and beyond those reflected in the complaints. The investigators found “ However, we remain resolutely of the view that inadequacies in these areas do not excuse or mitigate in any way conduct that is otherwise in breach of the policy..”.

FINDINGS AND CONCLUSIONS.

On the basis of the evidence, written submissions with supporting documentation and questioning at the Hearing I find as follows –

Both Parties confirmed that the Complainant lodged complaints against a named colleague and there were counter claims of Bullying against the Complainant in 2011. Terms of Reference were finally agreed in 2014, two Investigators were appointed to investigate the complaints under the Dignity at Work Policy of the Respondent. They produced their 26 page report on 13th July 2017. I have read the Report which was provided to me and a clear reading of the report shows that the Investigators clearly deal with the Terms of Reference as it pertains to the clinical management issues over three pages of the report. At page 17 of their report they state – “Disputes arising from differences in treatment policies are matters primarily for (Respondent named) management to decide on and resolve, in consultation with the relevant professionals and to be worked out in an atmosphere of mutual trust” They go on to state “…to the extent that we have been asked to identify and clarify the clinical management issues reflected in the complaints, they are simple. They are a failure to resolve policy conflicts within the medical team and the failure to install a functioning management system”. I find that the Investigators have complied fully with the agreed Terms of Reference. It is clear from this report that where clinical management issues arise then they are a matter for the Respondent, with professional advice , to decide. It is not the function of Investigators appointed to investigate complaints under the Dignity at Work Policy to decide on these issues.

In relation to the Complainant’s second complaint, he is effectively seeking an investigation of the investigators report. The Dignity at Work Policy which is an agreed policy with the Trade Unions provides as follows under OUTCOME OF THE INVESTIGATION as follows – “If the complaint is upheld, appropriate action will be taken e.g progression through the disciplinary procedure, counselling and/or mediation. Management will monitor the workplace to ensure there is no recurrence”. The evidence was the complaints against the Complainant were upheld while the complaints by the Complainant were not. I find the Respondent is complying with the agreed Dignity at Work Policy in that the issue has now been progressed through the Respondent’s Disciplinary Procedures.

I refer to the complaint by the Complainant in relation to his interpretation of paragraph 11 under Conducting the Investigation, which states as follows – “On completion of the investigation, the investigator(s) will submit a written report to senior management who will ensure that the terms of reference have been complied with”. This was fully complied with by the Respondent who confirmed the Investigators had complied with their terms of reference. The Complainant sought to appeal this decision of a senior manager on the basis the Investigators had not complied with the terms of reference as they referred to clinical management issues. It is clear from the Investigators Report in relation to this issue, as I have set out above, that the Investigators fully complied with their Terms of Reference.

The Complainant’s next issue concerns a complaint made by another named employee against the Complainant in January 2017. The Complainant filed a complaint in relation to how the investigation of this complaint against him was conducted. His grievance was investigated and was not upheld.

RECOMMENDATION.

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute. On the basis of the evidence and my findings above I find that the Respondent has complied fully with its Policies and Procedures and that the Investigators also complied fully with their Terms of Reference in how they conducted and finalised their report. I do not find in favour of the Complainant in relation to any of his complaints. I recommend that the Complainant, if he has clinical management issues should refer any complaint to the appropriate professional body to adjudicate on these clinical management issues.

Dated:   28th August 2018

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

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