ADJ-00019024

Complainant

Respondent

Anonymised Parties

A Worker

An Employer

Representatives

DaveCurranSIPTU

Niamh Ní CheallaighIBEC

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-00024383-001

20/12/2018

The case before you today is taken by SIPTU on behalf of our member against his employer Our Lady’s Hospice and Care Services.

The case is taken under the Industrial Relations Act.

Our member is appealing a disciplinary sanction issued to him on July 27^th 2018.  

The Worker is employed as a Household Assistant with the company since 15^th December 2005. He is based in Dublin.The Worker is the Shop Steward for his employment

On Saturday 23^rd December on The Worker’s day off he was contacted approximately 8.30am by his supervisor Ms G. The Worker was asked would he come in to work that day as the company were short staffed. He advised that he had plans but would reschedule them until later in the day and would be available for 4 hours if that would be of help. Ms G agreed.

The Worker claims that later that morning while he was on shift, the Ward Manager Ms N gave him an instruction in relation to emptying the bins in a manner which he claims was disrespectful. The Worker claims this has been ongoing for over 2 years.

He immediately contacted his supervisor Ms G to report that this had happened.

Later that day there was an interaction around 1.50pm where Ms N instructed the Worker to clean one of the rooms. The Worker contacted his supervisor about this straight afterwards.

On Tuesday 9^th January the Worker was informed that the company would commence a formal investigation under the Disciplinary Policy on 10^th January.This was followed up by a letter on 16^th January with the terms of reference for this investigation. The investigation was to investigate a complaint against The Worker by the Ward Manager Ms N concerning an alleged incident on 23^rd December 2017.

An investigation meeting was held on 7^th February with Mr Y of SIPTU in attendance. Ms N’s allegation is that the Worker spoke to her in a manner which was “unprofessional, aggressive and very intimidating”. Ms N claims that The Worker was “agitated and angry” and that he shouted.

The Worker gave a statement as part of the investigation in which he denied these claims and outlined what happened as he saw it. The Worker acknowledged that there had been an argument but denied that he had been aggressive or intimidating.

The Worker was shown Ms N’s statement as well as Ms E who claimed to have witnessed the interaction. The Worker complained that relations had been strained on the ward which was a result of the way management interacted with staff. Meetings were held with Ms N and Ms E, although the Worker did not see the interview notes from these meetings until after the report was released.

The Worker’s supervisor Ms G was also interviewed and she confirmed that the Worker had informed her twice that day that he felt Ms N had been disrespectful on two occasions.

On 6^th March the Worker was informed by email at 10.30am that he was to attend a meeting at 12 in Human Resources. He was informed that he was entitled to bring a union representative however he was not informed of what the meeting would be about.

The Worker asserted that he had the right to arrange representation and the meeting was postponed. He received a letter that day stating that a complaint had been received by Ms E the witness on 28^th February and he was to attend a meeting on 7^th March.

Ms E complaint stated that “XX is watching everything I do” and that he had made a comment (“please”) which she felt was negatively directed at her.

The Worker was temporarily redeployed from the M… Ward, for what the company saw as witness intimidation.

The Worker gave a statement in response to this where he denied this allegation and claimed that members of management were trying to get him removed from the ward due to his role as shop steward. He claimed that Ms E was “constantly checking on me and my work” and that he was “constantly watching over my shoulder”.

The company met with Ms E on 14^th March and The Worker on 26^th March to discuss this complaint.

On 9^th April the company sent preliminary conclusions to the report. The report found the following:

·         Ms N’s complaint on 1^st January was upheld

·         Ms E’s complaint was deemed inconclusive in part; but that The Worker’s comment “could have been experienced by Ms E as provoking and intimidating”, although it did not constitute intimidation of a witness.

Mr Y from SIPTU highlighted some concerns with the investigation outcome and process, as follows:

·         Generally that the Worker disputed the outcome.

·         The Worker had not been given the minutes from the investigation meetings with Ms N and Ms E.

·         There was a contradiction in the finding that The Worker had not engaged in witness intimidation however the Worker was guilty of a comment which could have intimidated Ms E.

·         There appeared to be leading questions in the investigation meeting with Ms E which raised questions about the impartiality of the investigation.

The final report was issued on 24^th May, with the same findings. A disciplinary meeting was held on 21^st June. The Worker again disputed the findings. The Worker was issued with a disciplinary warning on July 27^th which would be placed on his file for 9 months from the disciplinary hearing, and would expire on 21^st March.

The Worker appealed this decision on 10^th August. He outlined some of his grounds of appeal as follows:

·         No account had been taken of the close relationship between the witness and the complainant, having worked together for 15 years. The witness was therefore not neutral.

·         He had not been afforded due process as he had not been afforded an opportunity to respond to the interviews with the complainant or the witness before the report had reached its draft conclusion stage.

·         The investigation and disciplinary panels had members on them who had been involved in previous cases which The Worker had been involved in as SIPTU shop steward. An appeal meeting was held on 4^th September.

The appeal was not upheld, and the Worker lodged the matter with the Workplace Relations Commission. However, the company objected to the referral, on the grounds that there was another layer of appeal which the Worker had to exhaust. The Worker lodged a second appeal on 30^th October.

The Worker attended a second appeal meeting on 27^th November. He claimed that the complaints were orchestrated against him in order to get him removed from the ward. He referred to being informed by a colleague before the incident that a complaint was going to be made against him.

The Worker’s second appeal was not upheld and the matter was referred again to the Workplace Relations Commission.

The Worker is a shop steward who regularly advises and represents colleagues.  

He strongly contends that he has been targeted by a member of management Ms N in order to remove him from the ward. We note that this removal did in fact occur; The Worker was not removed from the ward following the initial complaint from Ms N, however on 28^th February the witness Ms E submitted another complaint which led to The Worker’s removal. Ms E’s complaint was largely found to be inconclusive on most points, however The Worker remains removed from the ward.The Worker was informed by a work colleague one week in advance of the incident on 23^rd December that a complaint was going to be made against him. He reported this immediately to his trade union representative Mr T. He believes this is an indication that the complaint was orchestrated against him. The Worker acknowledges that there was a disagreement, but he claims that it was Ms N whose tone was disrespectful towards him. He had come in on his day off that day which added to The Worker’s dissatisfaction with the way in which he was spoken to. The fact that he reported these incidents to his supervisor Ms G on that same morning is, we assert contemporaneous evidence which lends credence to his version of events. Ms G confirmed in her interview that the Worker had reported this to her. Ms N had also confirmed that the Worker told her on the day that he had informed his supervisor about the incidents. The Worker feels that Ms N’s complaint is a counter-complaint as she knew that he had reported the incidents himself.

The issue of poor morale and feelings of disrespect from management had been reported previous to this incident. The Worker claims there has been an atmosphere of fear.The Worker highlighted during his appeal that members of both Investigation and Disciplinary panels were involved as representatives of management in cases he was involved in. The Worker is entitled to a fair and impartial hearing which he believes he was denied.

The Worker was not given an opportunity to respond to the interview notes with Ms N or Ms E before the investigation report was issued.

The Worker strongly disputes that he attempted to intimidate Ms E. We note that Ms E’s allegations were not upheld except for an incident where The Worker commented “please”. The Worker has explained that Ms E was in his words shouting down the corridor at an agency employee. The Worker’s comment “please” was in reference to this. We dispute the company’s findings that this can be seen as “intimidating behaviour”.

We note that the claim that The Worker was attempting to intimidate a witness was not upheld, however his removal from the ward on these grounds has not been reversed. This has adversely affected the Worker who had developed positive relationships with employees and clients in this ward over the years.

We also note that the findings of the investigation report are contradictory in relation to the allegation of witness intimidation. The report noted that he was not attempting to intimidate a witness, yet at the same time that his behaviour towards this individual “could be experienced by Witness 1 as provoking and intimidating”.

We note the very subjective nature of Ms E complaint on 28^th February.

Furthermore, the company brought outside issues into the investigation findings, contrary to the terms of reference. We note that the terms of reference for the investigation do not cover subsequent events or incidents unrelated to the original complaint. Given that the report concluded that the Worker was not guilty of witness intimidating, this matter should therefore not have been taken into account in the findings of the investigation. Nevertheless, this was part of the findings which led to The Worker’s disciplinary sanction.

The claim before you is a claim taken by a worker against his employer, the Respondent, under the Industrial Relations Acts 1946-2015. The Worker seeks to appeal a first written warning that he was issued in July 2018. The Respondent’s case is that the sanction issued was fair and reasonable in all the circumstances.

The Worker is employed as a Household Assistant with the Respondent Company

On 1^st January 2018, the Respondent company received a complaint against the Worker by a Ward Manager. The complaint related to an incident which occurred on 23^rd December 2017. 

The substance of the complaint was that the Ward Manager in question called The Worker, who was passing the Nurses station where she was standing and requested that he vacuum the floor in a specific area, as it was unclean and required attention. The Worker responded to the Ward Manager in a hostile manner, stating that he was finished duty. The Ward Manager then enquired whether The Worker would be on shift the following morning, to which The Worker, in an aggressive manner responded that his roster was no business of hers but was a matter between him and his supervisor. The Ward Manager politely explained that she was simply going to request that he prioritise the relevant area in the morning if he was to be on shift. A Healthcare Assistant witnessed the interaction and enquired as to whether the Ward Manager was okay following the interaction, as the Worker had raised his voice towards her. Following this, having walked away, the Worker returned to the Nurses station and, again with a raised voice, stated that he did not like the manner in which he had been requested to empty a bin that morning, as he had only just commenced shift and “knew his role and his duties”. The complaint received continues to state that the Ward Manager calmly explained that she hadn’t been aware that the Worker had just commenced shift but nonetheless, it did need to be emptied.

Following receipt of this complaint, the matter was investigated under the Respondent’s Disciplinary Policy. The Worker was advised of his right to be represented throughout the process, both by letter and via the terms of reference of the investigation itself.  The Worker was accompanied by his SIPTU Trade Union Official throughout the process. The investigation into this matter was thorough and the investigation panel interviewed four individuals who were relevant to the case;  

1. • The Worker
   • The Ward Manager
   • A Healthcare Assistant who witnessed the alleged altercation
   • The Hotel Services Supervisor, who had been informed of the incident after the fact by both The Worker and the Ward Manager.

During the course of the investigation, the Healthcare Assistant lodged a complaint against The Worker, stating that he had intimidated her during the investigation process. This latter complaint was encompassed in the investigation also. The Worker did not deny that an altercation had taken place between him and the Ward Manager but rather stated that he had perhaps overreacted but was “frustrated” and “annoyed” on the date in question and that the reason he returned to the Nurses station on the date in question was that he was “not happy”. The Healthcare Assistant confirmed that the altercation had taken place also, stating that The Worker went into “attack mode” when requested to attend to the room in question. She conveyed her surprise at the disrespect exhibited by The Worker during the incident. The Hotel Services Supervisor recounted the Ward Manager approaching her the following day to outline the situation to her and states that she was then still visibly shaken following the events. Furthermore, she confirmed that while there is a schedule for cleaning, informing Household staff of their areas of responsibility, this scheduled is designed to be used as a guideline only. She confirmed that it is appropriate and indeed common practice for Ward Managers and other staff members to communicate directly with Household staff in relation to cleaning needs where particular areas require attention.

The Healthcare Assistant who had given witness evidence as part of this investigation submitted a complaint that the Worker had intimidated her during the process. Witness intimidation constitutes misconduct in line with the company Disciplinary Policy and so this matter was also investigated under the investigation process, as permitted by the terms of reference. While the witness in question raised three particular issues, only one was upheld, namely that the Worker and interrupted a conversation she was having with another colleague and made a comment.

The overall findings as per the investigation report are as follows (the worker is referred to as the Respondent, the Ward Manager The Worker);  

·  The panel is satisfied that it is reasonable for any member of ward staff to make a request directly to Household Assistants in relation to the cleaning of the ward; consequently, the panel find that the complainant’s request to the respondent was reasonable.

·  The panel is satisfied that the manner in which the complainant interacted with the respondent was calm and non-provoking.

·  The panel is satisfied that on any reasonable objective analysis of the evidence that the respondent exhibited inappropriate, unprofessional and intimidating behaviour towards the complainant.

·  The panel is satisfied that point 3 of Witness 1’s complaint is deemed inappropriate behaviour and is satisfied that Witness 1 could have perceived this as intimidating behaviour.

·  The panel has a more than reasonable belief that the respondent is guilty of the misconduct alleged against him in relation to inappropriate, unprofessional and intimidating behaviour.

The investigation panel then issued the report to the, Head of HR, to determine next steps.

The head of HR decided that the matter ought to progress to a disciplinary hearing. The disciplinary panel comprised a HR Partner and an Educational Technologist. The Worker was once more appraised of his right to be represented and was accompanied by Mr. Y of SIPTU.The Worker was once more afforded the opportunity to put forward his case and it is clear from the disciplinary report that the panel took care in considering the points that he raised. In particular, The Worker’s acceptance that he “may have overreacted” was acknowledged, however the panel viewed The Worker’s actions to go beyond an overreaction. Consistent with the investigation finding, the disciplinary panel were of the view that The Worker’s actions amounted to misconduct and The Worker was issued with the sanction of a first written warning. The Worker was informed of his right to appeal this sanction. The respondent’s practice is to hear appeals under the Grievance policy.

The Worker availed of the opportunity to appeal the sanction against him and his appeal was heard by the Assistant Director of Nursing and the Superannuation Manager.

The Worker raised three grounds of appeal at this point.  

·  That the investigation and disciplinary panel were biased against him due to his involvement as a SIPTU Shop Steward in a WRC case pertaining to another member of staff. The appeal panel considered this ground of appeal and concluded that both stages of the process were conducted in an impartial manner.

·  That there were alleged credibility issues with Witness 1 due to the fact that she raised a complaint against him and due to the fact that she had allegedly been questioned in an inappropriate manner. The appeal panel considered this point but did not find that there was any bias in the questioning of the witness, nor were there any issues with her credibility.

·  That he had was not given an opportunity to respond to the witness statements. The appeal panel considered this point but found that The Worker was issued with all of the witness statements prior to the investigation report being finalised.

The appeal panel upheld the disciplinary sanction.

The Worker lodged a claim to the WRC. Ms. M wrote to The Worker informing him that the internal process had not yet been exhausted and as such the WRC referral was premature. The Worker’s appeal then progressed to stage 2 of the company Grievance procedure. In addition to the three grounds of appeal that the Worker had raised at the initial appeal hearing, The Worker lodged a fourth ground of appeal; that the complaint had been orchestrated against him. The Worker stated that an anonymous staff member had informed him that an allegation would be made against him prior to it being lodged and that  SIPTU would be able to give evidence to the effect that the worker had informed him of same.

It was agreed at the stage 2 appeal meeting (27 November 2018) that The Worker would be afforded the opportunity to provide the name of the staff member in question such that same could be verified,  SIPTU, and revert to the appeal panel by 4^th December. The Worker contacted the company on 3^rd December stating that he could not provide the name of the staff member who he had alluded to, nor could he contact SIPTU who was on leave. The Worker was offered an extension of time, given his union official’s leave, however the Worker declined. It is worth noting that The Worker in fact requested, that the stage 2 appeal panel issue its outcome on that date as he wished to refer the matter to the WRC. The respondent  replied to The Worker, clarifying that the panel had been expecting further evidence from him and thus had not yet deliberated. She assured him that such deliberation would occur, in line with natural justice, prior to the issuing of any outcome.

The outcome of the Stage 2 appeal was issued on 7^th December 2018. The first written warning was upheld. This warning will expire on 21^st March 2019.  

Company Arguments

The Respondent has a duty of care to all of its employees and thus it was reasonable in the circumstances for the respondent to investigate the complaints of other employees against The Worker. Such a duty of care has long been endorsed by the WRC and the Labour Court, and the Respondent refers to the case  of  Zenhacker Ireland Healthcare v A Worker in this regard.

Following a robust investigation, the allegations against The Worker were upheld.
The matter was progressed to a disciplinary hearing and a reasonable sanction was issued. The Respondent is steadfast in its view that the sanction was proportionate. A first written warning is well within the band of reasonable responses to the allegations which were upheld against The Worker. The Respondent refers to Looney V Looney in this regard, in which the EAT held;

“It is not for the Tribunal to seek to establish the guilt or innocence of The Worker, nor is it for the Tribunal to indicate or consider whether we, in the employer’s position, would have acted as {the employer} did in his investigation, or concluded as he did, or decided as he did. To do so would be to substitute our own mind and decision for that of the employer. Our responsibility is to consider, against the facts, what a reasonable employer...would have done...The decision...on the basis of his reasonably held belief in The Worker’s culpability was a decision which a reasonable employer in the circumstances could have reached”

The Worker was at all times afforded his rights of natural justice and fair procedures throughout the process, in accordance with SI 146 of 2000. In particular:

1. •  The Worker was aware at all times of the allegations against him.
   • The Worker was provided with an opportunity to respond to those allegations and to present his version of events.
   • The matter was investigated fully before a decision was made.
   • The Worker was represented throughout the process by SIPTU Union Officials.
   • The assessment of the facts and the sanction issued took into account the representations made by the employee and was an impartial determination.
   • The employee was afforded the opportunity to submit further evidence.
   • The Worker was provided with, and availed of, the opportunity to appeal. In fact, there were two appeal stages heard by panels of different senior managers not previously involved and The Worker was afforded fair hearings.
     

I have carefully considered the evidence adduced by both parties. In all the circumstances, I  recommend that the sanction was fair, reasonable and proportionate and should not be altered.

The sanction is to remain unaltered.