Complainant

Respondent

Anonymised Parties

A Clinical Nurse Specialist

A Healthcare Provider

Representatives

Irish Nurses & Midwives Organisation (INMO)

 A&L Goodbody Solicitors

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-00022277-001

01/10/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00022870-001

26/10/2018

The complainant is a clinical nurse specialist and, in her role with the respondent’s organisation, she was engaged in the assessment and treatment of adults with intellectual disabilities.  This complaint arises from an incident that occurred at a meeting on March 14^th 2018, when the complainant said that the director of nursing shouted at her and ordered her out of her office.  An investigation into this incident took place, and the complainant appealed against the findings.  She is dissatisfied with the outcome of the appeal hearing and the purpose of submitting this dispute to the WRC is to request an independent investigation and compensation for what she claims is the failure of the respondent to follow its established grievance procedure.

Background

The complainant joined the respondent’s healthcare service in September 2005 as a part-time clinical nurse specialist, working with adults with challenging behaviours.  In addition to her treatment role with over 50 residents, she was responsible for the education and support of staff, for auditing behaviour support plans and for providing support to other areas of the wider hospital campus.  She was a member of the multi-disciplinary team (MDT) and she was also involved in the development of local policies, procedures and guidelines.

In 2007, the complainant was appointed to the Nursing and Midwifery Board of Ireland and she was a member of the Ethics and Fitness to Practice Committees.  In 2008, she completed a Graduate Diploma in Nursing Practice and in 2014, she was awarded a Masters in Nursing Science from the Royal College of Surgeons in Ireland.

At the hearing, the complainant said that because of the way her grievance was handled, “the environment became toxic for me.”  On July 31^st 2018, after 13 years working for the respondent, she resigned and she has since taken up a new role in another organisation.

Incident on March 14^th 2018

On March 14^th 2018, the complainant submitted a grievance against the respondent’s director of nursing (DON) about an incident that occurred at a training day on February 19^th.  On the day that she submitted this grievance, she attended a meeting with the DON to discuss the challenging behaviour of a service-user with autism and complex needs.  Two clinical nurse managers and a clinical pharmacist also attended.  In his submission on behalf of the complainant, the INMO representative said that 10 minutes into the meeting and, without any warning, the DON shouted at the complainant, telling her to leave the office.  The complainant was shocked, and she questioned why she was being ordered to leave.  The DON then walked to the office door and shouted again at the complainant to leave the office.  The complainant said that she was stunned and humiliated.

A few days later, on March 20^th 2018, the complainant lodged a second formal grievance against the DON with the respondent’s human resources director (HRD).  A copy of the grievance was submitted in the complainant’s book of documents at the hearing.  In her letter to the HRD, the complainant said that when they were discussing the service user, she compared his circumstances to a service-user who had similar issues some years previously, with whom they had had some positive outcomes.  The complainant stated that, in her opinion, the least experienced staff were looking after the service-user who was the subject of their meeting that day.  She said that the DON became angry and ordered her out of her office saying, “You can go over to the CEO’s office if you want.”  When she didn’t leave the office, the DON stood up and opened the door, again shouting, “get out of my office.”  The complainant said that the DON repeated this about six times.  She said that, following from the previous incident she said that, “Presently, I do not feel safe working in this environment” and, until the matter was fully investigated, she requested to have no interactions with the DON.

The Grievance Process

On March 20^th, the HRD replied to the complainant’s letter and she suggested that she attend a meeting under stage 1 of the respondent’s grievance procedure.  A meeting took place on April 12^th and the minutes were included in the complainant’s book of documents.  The complainant was represented at the meeting by her INMO representative and the HRD went through the incident of March 14^th.  She said that she had met the DON formally and she had set out the nature of the grievance that had been submitted, but that she had not yet had a formal response from her.  At the end of the meeting, when she was asked what outcome she wanted from the grievance process, the complainant said that she wanted an apology, and an assurance that the behaviour would not be repeated.  The HRD said that she had no problem with this proposal.  The HRD said that she had not met with the three witnesses who attended the meeting on March 14^th “as there was no dispute” about what the complainant had reported.

On May 14^th 2018, the complainant’s INMO representative wrote to the HRD looking for a copy of the minutes of her meeting with the DON.  On May 21^st, he received an e mail from the HRD containing a letter of apology dated May 18^th from the DON.  The HRD said that she had not shared the minutes of the meeting of April 12^th with the complainant and her INMO representative with the DON and that “reciprocity should be maintained.”  The letter of apology was sent to the complainant by post. 

On May 22^nd, the complainant’s INMO representative wrote to the HRD expressing his concern as what he said was the “extraordinary account of a meeting” on March 14^th and the fact that the DON had rejected any suggestion that she had done anything wrong.  In addition, he was concerned that the DON used the opportunity of the letter of apology to criticise the complainant’s professional conduct when she said that the complainant “did not have anything constructive to propose” and that her “input was neither helpful or professional” and that “there was no place for provocative or unprofessional behaviour that undermined me.”  In her letter, the DON also said, “I have a policy of no tolerance towards negative and unprofessional behaviour and this is how I interpreted the events as they transpired.”  She also said that she did not raise her voice or shout at the complainant when she asked her to leave the meeting.  By way of apology regarding what occurred at the meeting on March 14^th, the DON said, “I apologise if this is your perception.”

In his letter of May 22^nd, the complainant’s INMO representative outlined her dissatisfaction with the way in which the HRD handled her grievance and with the apology from the DON.  He set out the complainant’s concerns as follows:

1.  The letter of apology dated May 18^th was, in the complainant’s view, a continuation of the DON’s unacceptable behaviour towards her.

2.  The DON apologised for the complainant’s perception of events, suggesting that the complainant was wrong regarding what occurred at the meeting.

3.  The DON did not accept that she did anything wrong, and instead, criticised the complainant’s contribution at the meeting.

4.  The note of the HRD’s meeting with the DON on April 11^th were not provided to the complainant and she was not given an opportunity to comment on this note.

5.  As a dispute had now transpired about what occurred at the meeting on March 14^th, the complainant wanted the three witnesses who were at the meeting to be interviewed.

6.  The HRD appeared to bring the matter to a conclusion, but she had not stated whether the complainant’s grievance was upheld or not upheld.  This was not in line with the grievance procedure.

On July 16^th 2018, the INMO wrote to the hospital’s chief executive (CEO), appealing against the outcome of the first stage or the grievance process.  An appeal meeting was held on July 30^th at which the CEO stated her view that, to resolve matters, the complainant and the DON should engage in mediation.  The complainant declined this request and, in frustration at the way this issue was being dealt with, she resigned the following day, July 31^st 2018.       

On August 7^th, the CEO wrote to the complainant.  She said that the complainant’s grievance was not upheld “on the basis that an apology was requested and given.”  The CEO expressed her view that the interpretation of the letter of apology “is the issue here” and she again recommended mediation, although at this stage, the complainant had resigned. 

On August 31^st, the INMO wrote to the CEO and reminded her of their meeting on July 30^th at which he said, she had expressed surprise that no witnesses were interviewed.  As the DON did not accept that her conduct at the meeting on March 14^th was unacceptable, the only people who could corroborate what occurred were the other three people in attendance.  The union representative advised the CEO that they intended referring the issue to a third party for an independent inquiry and that they were seeking compensation for the effect on the complainant of the way her grievance had been dealt with.

The Complainant’s Argument that her Grievance was not Properly Managed

The respondent’s grievance procedure was submitted in evidence by the complainant.  In this document, the section titled, “Guidelines for Managers on the Operation of the Grievance Procedure” states as follows:

“Where a complaint is not upheld, the employee is entitled to a clear explanation as to how the decision was reached.”

At the first grievance meeting on April 12^th, the complainant’s view is that the HRD made an “inappropriate attempt to bring closure to the matter” when she stated that the objective of the meetings (with the complainant and the DON) was to “forge some understanding of perspectives, which I believe has been achieved.”  It is the union’s case that the employer has failed to adhere to their own grievance procedure, to the detriment of the complainant.

Rather than receive an apology in the post, the complainant expected to get a copy of the minutes of the HRD’s meeting with the DON, so that she could comment, if necessary.  By sending on the letter of apology, the complainant argues that the hospital has failed to follow its own grievance procedure which states,

“The manager must outline fully the reasons for his / her decision and afford the employee and his / her representative an opportunity to respond.  If the employee is not satisfied with the outcome of the hearing, s/he should be advised of his / her right to progress to the next stage of the procedure.  A letter should be issued to the employee (and copied to his / her representative confirming the outcome of the hearing, the reasons for the decision and what action, if any, will be taken.”

The HRD also failed to advise the complainant of her right to proceed to the next stage of the grievance procedure, which, in the union’s view, is “an exacerbation of the failure of the employer to adhere to their own policy.”

In her letter of May 21^st, the HRD made no mention of the complainant’s views that, in the letter of apology, the DON contradicted the complainant’s version of what occurred at the meeting of March 14^th.  Despite the complainant’s serious reservations about this letter, the HRD conducted no further investigation and denied the complainant the right to reply to the letter of apology itself.  It is the union’s view that this was unreasonable and unfair, and evidence that the natural justice was not afforded to the complainant in respect of how the issue was handled.  Despite two opposing views of what occurred at the meeting on March 14^th, the HRD did not interview witnesses as it is apparent that she wanted to end the investigation at the first stage of the process.  In this way, she denied the complainant the full investigation that she had sought.

Concluding his submission at the hearing, the complainant’s INMO representative said that the CEO’s decision on August 7^th not to uphold the complainant’s grievance appears to be related to her decision to resign on July 31^st.  This was a decision, the INMO representative said, that was “borne out of frustration and disappointment at management’s actions to date.”  He said that the CEO’s decision was not based on any evidence, although the evidence was available to her.

It is the union’s view that this grievance should be independently examined for the following reasons:

1.  In the manner in which the investigation into the complainant’s grievance was carried out, the respondent failed to follow its own grievance procedure;

2.  The complainant was informed that her grievance was being taken seriously, and yet the respondent attempted to conclude the process in the manner that was the least disruptive to themselves;

3.  The agreement to allow the complainant to see the note of the HRD’s meeting with the DON on April 11^th was ignored;

4.  None of the witnesses at the meeting on March 14^th were interviewed;

5.  The CEO did not address the failings in the process.

Background

In their submission at the hearing, the representative for the respondent outlined the complainant’s background as a clinical nurse specialist and noted that she resigned on July 31^st 2018.

We know from the previous section that the complainant raised a grievance on March 14^th about her working relationship with her manager, the DON.  On March 20^th, she raised a second grievance about a meeting that occurred on March 14^th.  Both grievances were about how the DON spoke to the complainant during a meeting. 

At the hearing of this complaint, the respondent’s head of HR said that the issue at the meeting on March 14^th concerned the challenge of having experienced people in place to provide care to a person with intellectual disabilities.  He said that sometimes, hard decisions have to be made and the deployment of resources is the responsibility of the DON.  He said that the dispute between the complainant and the DON was an issue where an expert was pitched against a manager, with both having competing pressures.

The Grievance Process

It is the respondent’s case that a hearing into both these grievances took place on April 12^th 2018.  At the meeting, in response to a question about what outcome she expected from the grievance process, she said that she wanted an apology and assurances that the behaviour she complained about would not be repeated.  On May 18^th 2018, the complainant was provided with what the respondent’s representative said was a “lengthy written apology” and assurances that the DON would be professional and supportive towards her.  While the respondent considered that the matter was closed, the complainant appealed the outcome of both grievances and the appeals were heard by the CEO on July 30^th.  On July 31^st, the complainant resigned, and it is the respondent’s understanding that she had secured a new role.  Rather than her contractual requirement to work one month’s notice, she worked one week’s notice.

The outcome of the appeals was issued to the complainant in writing on August 7^th 2018.  The respondent’s representative summarised the complainant’s response by submitting that she alleges that the employer did not follow its own grievance procedure, specifically by not interviewing witnesses.

Summary of the Hospital’s Response

In accordance with its grievance procedure, the employer acted promptly in response to the grievances submitted by the complainant.  At the hearing of the first grievance, the complainant said that she wanted “an apology in writing…a written apology and a commitment that this behaviour will not be exhibited again…”  The deputy human resources manager who heard this grievance said that she would consider this.

At the hearing of the second grievance, on April 12^th 2018, the complainant again said that she wanted “a written apology in relation to the way she was spoken to and assurances that this kind of behaviour will not be repeated.”  On May 18^th, she received this letter of apology in respect of both grievances.  The letter included a statement from the DON as follows:

“I wish for you (name of complainant) to feel assured that on this occasion and at all times I am and always will be professional and appropriate with you…I regard you as a valuable member or the team…if I have caused you to feel otherwise, I apologise.”

The HRD was informed that the apology was not acceptable, and he said that the complainant rejected the outcome and that she wished to appeal.  At the appeal meeting, the complainant rejected the CEO’s proposal to attempt to resolve the difficulty in the relationship between the complainant and her DON by mediation.

The Respondent’s Position on the Handling of the Grievances

It is the respondent’s case that they investigated and responded to the complainant’s grievances in accordance with their grievance procedure.  They argue that it is not fair to state that the policy was not followed because witnesses were not interviewed as the policy does not provide that, in all cases, witnesses are to be consulted.  In respect of the first complaint, the deputy HR manager suggested that an independent witness be consulted, but the complainant’s representative disagreed and said that this would turn the matter into an investigation.  Conversely, in respect of the second grievance, the incident on March 14^th, the complainant’s INMO representative asked if witnesses had been asked for statements.  The HRD said that this was not necessary as there was no dispute about the facts of what occurred, and she agreed to discuss witnesses at a later stage if it was necessary.  The respondent’s representative said that “matters subsequently moved on as the employee was provided with exactly what she asked for – an apology and assurances that the behaviour complained of would not happen again.”

In the respondent’s grievance procedure, there is a provision for the manager to “explore options for resolving the complaint.”  The HRD acted on this and an apology was offered to the complainant, which she had requested.  She then rejected the apology.  The CEO suggested mediation, and this option was also rejected.

In conclusion, at the hearing, the respondents said that they had met the complainant and her representative on four occasions, they offered an appeal to the next stage of the process and they made genuine efforts to resolve her grievances, including a proposal to refer the issues to mediation.  On this basis, the respondent is satisfied that it has discharged its obligations to the complainant.

Having considered this matter in detail, it is apparent that there is no contradiction about the sequence of events from March 14^th until the date that this complaint was submitted to the WRC.  What is in dispute is the manner in which the complainant’s grievance was dealt with by the respondent and the divergence between her and her manager, the DON, about what occurred at the meeting at which she was told to leave.  From my examination of the details, I have concluded as follows:

At the meeting on March 14^th 2018, a difference of opinion arose between the complainant and her manager about the staff that should be assigned to care for a service-user with complex needs.  The complainant said that her priority was “continuity of care and consistency in approach.”  In response to her effort to argue for more experienced staff to care for this client, it seems that the DON became annoyed and asked her to stop.  When she continued, the complainant was asked to leave.

A decision to ask someone to leave a meeting is unusual in a professional environment, and the instruction itself is likely to have been robust and even loud.  The complainant said that the DON shouted at her to “get out of the office.”  The DON said that she did not shout.  Witnesses were not interviewed, and the DON apologised for the complainant’s perception that her behaviour was “frightening, humiliating, insulting and unprofessional.”  The complainant rejected the apology and she also rejected the option of mediation when it was offered by the CEO at the appeal meeting.

It is my view that, by resigning on July 31^st 2018, the complainant took matters into her own hands.  She was a valued member of staff at the hospital and a specialist in her area of expertise, the treatment of adults with special needs.  By resigning, she has deprived the respondent of what was a valuable contribution and she now works somewhere else.

The dispute that was the subject of his enquiry was the difference in views between the complainant, as an expert nurse, and her manager, who combined her role as a senior nurse, with responsibility for allocating staff to clients.  The outcome of the investigation under the grievance procedure was always going to be that it was upheld or not upheld, and, in this way, it appears that one person wins and the other loses.  The HRD attempted to avoid this outcome and, following her discussions with the DON, an apology was issued to the complainant.  The apology was not as fulsome as the complainant would have liked, but it was accompanied by a decision that she would no longer report to the DON. 

As two senior professionals, it is my view that the most constructive way of dealing with the problem in the relationship between the complainant and her manager was through mediation and it is regrettable that she rejected this option.

As the complainant is no longer employed by the respondent, it is my view that there is nothing to be gained from opening this matter to a further enquiry.

The complainant seeks compensation for the distress she experienced as a result of the incident on March 14^th 2019.  I do not consider that a financial payment will lessen the indignity of being ejected from the meeting on that day.  In circumstances where she felt that there was no point in mediation, and instead, she has left the organisation, as a highly competent professional with a demanding new career, I recommend that the complainant consider the issue and the manner in which it was investigated as closed.

It is my view that there is nothing to be gained from a new independent enquiry into the complainant’s grievance.  So that the outcome that emerged can be avoided in the future, I recommend that the respondent’s CEO review the investigation that commenced from the grievance submitted by the complainant on March 20^th 2018.  I further recommend that any findings from this review are incorporated into the respondent’s grievance procedure and that serious consideration is given to following the procedure with more rigour when dealing with grievances in the future.  

This complaint is about the first grievance that the complainant asked her employer to investigate on March 14^th 2018.  It refers to an incident that took place at a training course hosted by an external provider in the respondent’s hospital on February 19^th 2018.  On behalf of the complainant, the INMO submitted this complaint to the WRC on October 26^th 2018.  The complaint about the second grievance was submitted first, on October 1^st 2018 and this is the reason that the complaints are out of sequence in this report.

At the hearing of the two complaints, the complainant said that on February 19^th, she was at a training course in the hospital.  The purpose of the course was to train staff in the care of people with autism and special needs.  During the course of the programme, the complainant said that the external trainer asked the healthcare assistants who were in attendance about the care of a particular service-user.  The complainant said she was concerned about this approach. 

The five healthcare assistants who attended the course were asked to leave the training and later in the day, the DON told the trainer that the complainant had issues with her course.  The complainant said that she “couldn’t be part of this” and she felt that the care assistants may have thought that they were sent home at her request.  On March 14^th, she lodged a complaint about this to the HR department.  In the afternoon of the same day, she was at a meeting with the DON and she complained that she was “thrown out of the office.”        

The hospital’s response to the first and second grievance is set out under the Summary of the Respondent’s Case in relation to the previous complaint.

The findings and conclusions in respect of this complaint is set out in the Findings and Conclusions section of the previous complaint.

The decision in relation to this complaint is included in the Decision section of the previous complaint.

Failure to follow grievance procedure, failure to accept mediation