ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00008858

Parties:

Complaint(s):

Date of Adjudication Hearing: 3/Apr/2018

Workplace Relations Commission Adjudication Officer: Jim O'Connell

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint

Background:

The claimant was employed by the respondent from July 7th, 2014 as a Residential Support Worker until his resignation on April 24th, 2017.

The complaint as submitted read, "My employers failed to provide me with a safe place and system of work. I was assaulted on 5th October 2016 and 2nd November 2016. I received no support from my employer. I had wages deducted from my salary while on sick leave following the assaults. I was refused a transfer to another unit. I attempted to deal with the issue through Grievance procedures but was ignored. I was then made the subject of a complaint and despite my best efforts was unable to get the matter independently adjudicated by my employer. I was suspended with pay on 15th December 2016. I was under medical supervision for work related stress and anxiety. As I was unable to resolve matters with my employer I was reluctantly forced to leave my employment on 24/4/17."

The respondent submitted that the claimant resigned his position and that he was the subject of 2 separate complaints and failed to engage with management in relation to a complaint he raised because of his perception that it was already bias against him.

Findings:

Both parties made written and verbal submissions at the hearing.

In dealing with claims for constructive dismissal, where the employee believes they had no alternative but to terminate their employment due to the actions or inactions of the employer, then the burden of proof rests with the employee.

The respondent in this instance operates in an area which provides responsive, quality services to children and families who are assessed as being in need. This is done through the provision of a continuum of services that integrates emergency residential respite, medium and long-term children's residential homes and community based services. Residential support workers make up a substantial portion of the front-line services who engage with clients daily. It is a tightly regulated service which operates in conjunction with other services such as TUSLA and is responsible for implementing and upholding national standards as well as complying and adhering to all relevant legislation.

It is a career choice which undoubtedly can be very rewarding but also be very stressful and carry with it the risk of assault and injury.

An incident surrounding a young person, (LH) on Sunday August 14th, 2016 and its subsequent follow up on Monday August 15th, 2016 is an initial point of contention as the respondent maintains this meeting was work review related while the claimant maintains it was an investigation into the previous day's incident. No evidence was offered to support either parties claim, but in examining the contents and context of the disputed minutes the meeting took on aspects of an investigation and performance review.

The subsequent communication between HR and the claimant on the 22nd and 23rd August 2016, clearly identify the claimant exercising his right to raise a grievance against his unit manager. Instead of taking ownership of the grievance, and for reasons unknown and unexplained, HR passed the issue to the Regional Manager. The adjudicator accepts that the regional manager was acting on what HR had passed to him on the 22nd August as it was in fact only on the 23rd August the claimant indicated his decision to lodge a formal grievance, but the fact remains that in an email dated 22nd August the claimant had raised a number of serious issues.

I find the Regional Manager was dealing with the issues raised by the claimant on the 22nd August in an informal manner. There is no evidence to suggest that the Regional Manager was aware that a formal grievance was lodged on the 23rd August and as such proceeded to have an informal talk with the unit manager, which at the time would have been in line with the respondent’s grievance procedure.

I find that having acted on the information received on the 22nd August the Regional Manager communicated to the claimant, "I am confident of an immediate improvement in the environment", and "I trust that your concerns have now been appropriately addressed". I find that the claimant overlooked a number of critical pieces of information contained in the same letter. It clearly states, "I acknowledge receipt of your correspondence received by the respondent on the 22nd August 2016." This clearly states the date prior to the claimant officially stating that he wished to raise a formal grievance, and, "However, should you remain concerned at any stage in the future I would encourage you to relay these." This clearly does not put an end to the matter but rather leaves the door open for the claimant to pursue a grievance. I find it somewhat extraordinary that the Regional Director stated that he was confident of an immediate improvement in the environment following the raising of some of the claimant’s concerns with the unit manager and she acknowledged that her interactions with staff must be in line with organisational standards and professional boundaries will be adhered to moving forward. This would appear to acknowledge that something untoward had been discussed or uncovered.

I find that this communication was interpreted by the claimant as settling of his grievance and as such formed an opinion based on same, as is clear from his reply dated September 1st.

I find that at this point, HR was effectively acting as a third party and should have noticed that the communication sent by the Regional Manager on August 26th to the claimant was wholly inappropriate given the fact HR were aware that the claimant raised an official grievance on August 23rd. I find that HR should have intervened and pointed out the obvious error with the communication. I find that this was a missed opportunity which could have defused the situation and allayed the fears and misgivings the claimant had formed in relation to the grievance process. As a result of this it is understandable as to how the situation escalated and both parties became entrenched in their positions.

I find further communications combined with HR's silence only served to escalate the situation.: e.g. Letter dated 7th September from HR to the claimant requesting his attendance on Monday September 12th at a meeting to discuss his performance review. This meeting was to be conducted by the claimant’s unit manager and HR. This meeting was to take place on the claimants first day of annual leave in Spain. I find it unlikely that both HR and the unit manager were unaware the claimant was due to be on annual leave and the obvious conflict of interests, i.e.: the unit manager was the subject of a complaint and was aware of the contents and context of the complaint. In the interests of fairness and natural justice, the unit manager should have been excused from this meeting but instead was to be aided in the process by HR. The failure in identifying this conflict of interest also re-occurred in correspondence from the Regional Director to the claimant dated September 20th, 2016, when the Regional Director stated, "Firstly, it is important to note that there are two separate processes under way at present:". The Regional Director identifies 1. The formal grievance against the centre manager and 2. The performance review to be carried out by the centre manager.

I find that the correspondence received that same day September 7th by the claimant from the regional manager taken in conjunction with the letter from HR on the same day may have only served, inadvertently, to reinforce the claimant’s perception of bias towards him. I find that further correspondence at this time from both parties only served to bring the process to a halt with no mutually viable solution amenable to either party.

I find that in examining the evidence, as provided by both parties that a failure to apply proper procedures in the first instance of the claimant’s grievance and the fractured un-cohesive response from the respondent contributed significantly to the stalemate at that time.

Some correspondence passed between the parties in relation to a S.E.N which occurred on August 14th, 2016.

On October 2nd, 2016 the claimant sent correspondence to the Regional Director which was cc'd to HR. The contents of this correspondence once again raised concerns the claimant had with the unit manager and requested a transfer until the resolution of an active complaint and grievance. No response was received by the claimant.

Further correspondence sent by the claimant on November 8th, 2016 to the Regional Director, where "worries and concerns" were expressed in detail, also highlighted in that correspondence were the reasons and logic behind his request for a transfer.

I find that the correspondence of November 8th, 2016 paints a very disturbing picture of the claimants working environment.

The claimant had been assaulted twice requiring medical attention and had been medically declared unfit for work as a result. The claimant regularly received threats of violence from a named client and had a rock thrown at him through a window, a laundry basket ran into his stomach, (witnessed by staff) and repeated threats of violence, he also expressed his real fear of being on the end of a more serious complaint due to the behaviour of the same client, whereby she would walk around in various stages of undress and shower with the door open. I find the fears and concerns raised by the claimant given the chain of events were very real at that time and given the fact that his unit manager, had, according to the disputed notes of a meeting dated August 15th, 2016, noted that up to that point in time, it was LH's fourth complaint and other clients such as TA had made complaints against him. I find the claimant having already expressed his fears of the lack of management support in previous correspondence combined with a lack of management response contributed significantly to the claimant’s sense of exposure and isolation.

Correspondence from A.H dated November 9th, 2016, to regional Director expresses her concerns with regards to the claimant.

"Please see below, the false statements he has made about me thus far. These have been compiled from emails received from Danny on both the 19th and 28th of October. (You were included in this email)."

"These ongoing allegations and suggestions that I have bullied, harassed, threatened and suggestions that I have acted in a malicious manner towards a ((D) (named person) should not continue as they are unfounded and defamatory."

"To date, (D) named person has failed to comply with an informal meeting that had been scheduled to take place in August to address a complaint made about him......"

Correspondence from the Regional Director to the claimant dated 9th November 2016.

"As you are aware a number of incidents have taken place with TA during her time in our care...There is no evidence, however, that these are targeted towards yourself as others have also been affected. I appreciate that your relationship with the child may have been affected by the recent restraint which you deployed."

I find that by stating there is no evidence to suggest that the claimant was targeted as others have also been affected was premature at best because as stated in the same letter, "We will take that opportunity to conduct a review of the incident and a risk assessment"

"Noting that you have not entered into the spirit of supervision you might be advised that this is causing the Organisation some considerable concern. Accountability and professional responsibility is an essential aspect of your continued employment and is an opportunity to reflect on your practice and explore alternative strategies to manage situations you may be encountering."

"Given that you have recently referred a grievance to the WRC I now instruct that you hereby refrain from entering into any direct form of written communications with respondents (AH) until further notice."

The correspondence also outlines measures which the respondent was undertaking to support increased supervision levels and as an interim measure, the respondents (RM) has been allocated to undertake the claimant’s supervision meetings.

I find it is highly likely, given the contents and context of the correspondence from the regional director to the claimant, that this correspondence was written after he (regional director) was in receipt of correspondence from the unit manager and acted on same insofar as to instruct the claimant to have no further written communication with A.H and not for the reason stated in the correspondence. The respondent also as an interim measure placed R.K to undertake the claimant’s supervision meetings, but also noted the claimants lack of cooperation with A.H with regards to an informal meeting scheduled for the previous August, which in fact was incorrect as it was scheduled for September 12th, 2016 and once again the obvious conflict of interest was overlooked.

I find that by placing measures, restrictions and dismissing the claimants fears and not addressing his request for a transfer the respondent effectively isolated the claimant.

The respondent subsequently was in receipt of a formal grievance dated November 13th, 2016 from the unit manager pertaining to the claimant. In which she outlined the negative impact on her both professionally and personally, she also states she is afraid to be alone with him and that she has real concerns for her safety due to his aggressive, unpredictable and unprofessional behaviour.

In correspondence dated November 15th, 2016 the claimant was advised of the complaint and notified that he was to be temporarily redeployed to another unit.

In failing to redeploy the claimant on foot of his concerns, worries and request for a temporary transfer which were based on the grievance raised against his unit manager and a real concern that he was deliberately targeted by a client and did suffer physical injuries as a result and now finds himself redeployed on foot of a complaint raised by his unit manager. The respondent has demonstrated a clear bias in its handling of the complaint made by the unit manager. The claimant was not afforded the same consideration on submission of his grievance.

In conjunction with the above the claimant suffered a loss of earnings and had to pay medical expenses because of occupational injuries. I find it extraordinary that the respondent failed to deal with this issue in any meaningful way. The failure of the respondent to deal with this only serves to reinforce the claimant’s perspective and given the fact it happened twice and was not rectified in the claimants remaining months certainly would not have the claimant subscribe to the idea that he was a valued employee.

In correspondence dated December 5th, 2016 the claimant was invited to attend an investigation meeting in relation to a complaint made by a client on August 22nd, 2016.

The claimant was subsequently suspended by the respondent on December 14th, 2016 by the respondent and was only informed as to the reason for his suspension on December 15th, 2016, it was submitted by the claimant that the reason given was his refusal to participate in an investigation regarding a complaint made by a young person.

The claimant had requested minutes of this meeting but has never received them.

In examining the evidence as submitted, it is evidently clear that no complaint against the claimant was made on August 22nd, 2016 by a young person, but in examining the evidence that date holds significance by the fact it was the first day the claimant had notified HR in relation to the issues he was experiencing at work. I find it highly unlikely that reference to this date was coincidental given its significance. In fact, reference to that date given its significance should have been near impossible by respondent’s (MC)as he was dealing with a separate issue. The respondent had also failed to advise the claimant of his rights in relation to the investigation, this could only serve to reinforce the claimant’s perception of bias with regards the management of the respondent.

The claimant resigned in correspondence dated March 24th, 2017 to HR, stating, "I have given careful consideration to my position and have reluctantly reached the conclusion that in the interests of my own health and wellbeing, and in the light of events that have transpired that I should seek employment elsewhere."

   I find the claimant had considered his situation and in view of the preceding events was left with no alternative but to terminate his employment with the respondent.

In examining the evidence as submitted it is clear the respondent has grievance procedures but clearly displayed a lack of knowledge in how to apply these procedures in a manner that was transparent and complied with the principles of natural justice. I would recommend the respondent familiarise itself with the application of its grievance and disciplinary procedures, the respondent operates in an area where there are strict procedures, protocols and legislation to be adhered to when dealing with its clients. I find it extraordinary and unacceptable that when a client raises a complaint in writing, it can be acted upon within 24 hours, yet when an employee raises a grievance and the respondent fails to implement its own procedures correctly that it should result in the complaint making no advance in 7 months. The respondent must take responsibility for this failing.

In the first instance the following issues arise:

Failure by HR to take ownership of the issues raised. On receipt of the issues, HR immediately refer the matter to the Regional Director.

The intervention of the Regional Director and the official raising of a grievance to HR, the contents of the correspondence dated August 26th would seem to indicate that some actions by the unit manager were untoward, particularly as an improvement in the environment was expected because of an informal talk.

In hindsight the Regional Manager should have referred the issue back to HR and insisted they make the necessary arrangements to process the claimant’s grievance. Unfortunately, correspondence between the claimant and regional Manager only served to entrench the parties and unfortunately this pattern repeats itself. The fact that the respondent failed to implement its own procedures correctly, does not diminish its responsibility to the claimant to have his grievance dealt with in accordance with the principles of natural justice and fairness.

The respondent did not demonstrate any real attempt to get past this stalemate; instead remained silent, and remained silent on the issues of loss of earnings and medical expenses. Then further combined with the grievance raised by the unit manager, transfer on foot of that complaint followed by subsequent suspension in relation to a separate matter, which also demonstrated a lack of basic procedural knowledge, I find that the claimant after some consideration and considering the previous number of months events, had no alternative but to resign. I find the actions and inaction of the respondent from the time the claimant made his initial complaint to the time of his resignation, made the claimants position untenable.

Based on the evidence as submitted I make the following recommendation.

Recommendation

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I decide in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I find the claimant was unfairly dismissed and I award him €15000 in compensation.

Dated:   3rd July 2018

Workplace Relations Commission Adjudication Officer: Jim O'Connell

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