Complainant

Respondent

Anonymised Parties

An Employee

A limited Company

Representatives

Robin McKenna IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00008858-001

20/12/2016

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

CA-00008858-002

20/12/2016

Introduction to my background:-

●      Commenced employment locum relief Care Assistant 2001.

●      2010 I was granted a permanent part-time contract as Supervisor/Instructor.

●      Moved to Parkxxxxx in 2013 with service user I supported.

●      In December 2008, I was awarded by the Labour Court a contract of 78hrs fortnightly, this was never implemented by BOC.

Adjudicator

●      On 21 April 2016 I sent my letter to E.T. (HR Manager) outlining my grievances.

●      On 29 April, E.T. responded to my letter.

●      13 May 2016 I emailed S.C. (Union Rep) about my concerns re the time delay in the process of the investigations. It exceeded 7 working days as according to grievance policy.

●      The investigations into the incident that occurred in March did not occur until the beginning of May 2016 – concluding in September.

●      Final transcript was signed off on 28 September 2016.

●      I did not receive the transcript until 6 weeks after the date, 24 October 2016.

After engaging with a solicitor, it took two requests by Ms O before B.L. National Head of Human Resources, BOC, acknowledged Ms O’s letter sending a copy of Grievance and Disciplinary Procedures.   Throughout all stages of the Grievance Policy, it states “no longer than 7 days to respond to employee”.   This all accounted for the time delay in submitting my complaint on 20 December 2016. I strongly dispute any rights commissioner not entertaining my complaint.

Were fair procedures carried out by BOC?

●      During the investigation by L.M., LM stated that R.B. was not present in Pool Room when incident occurred.   R.B. stated that he checked the CCTV to clarify his whereabouts at the time of the incident.

●      I would like to know why RB was awarded such privileges to view CCTV when it was not RB who was under investigation or facing possible disciplinary offence at the time.

Ref: 8.8.2 of CCTV Policy of Guidelines

Ref: 8.9.2 of CCTV Policy of Guidelines

●      The CCTV is there on the farm as a security purpose only not for a person to verify whether or not they were in a certain place at a certain time.

●      RB went to great lengths to prove his loyalty to his work colleagues by breaching Data Protection.   The person who gave him permission to do so is equally at fault. I do not consider this as fair procedure.

Failing to meet with the National Head of HR

●      On 25 of October, I asked S.C. (Union Rep) on my behalf to notify B.L. my intentions (email to hand).   I did not want to meet again with Mr L and to further engage in an internal process. I felt at times Mr. L’s attitude was not one of a professional manner when he made comments such as “if J had a magic wand” of if “he had a degree from Harvard, what would you like him to do?” Knowing that key details were omitted from the report, whether by design or error of the investigator Mr B. L. The interviewing of persons not involved with grievances is especially troubling, considering the fact that witnesses central to the T.B. complaints were not interviewed.

●      What criteria determined the selection of witnesses to be interviewed? A full and thorough investigation was not conducted.

Background to the Claim

●      As stated, I wrote to HR S.K. requesting a transfer in December 2013. HR never acknowledged this letter, if an acknowledgement had occurred and a meeting arranged I would have outlined my reasons for requesting a transfer. According to the Grievance policy, this letter should have been acknowledged within 7 working days.

●      On 19 February, I again wrote to S.K requesting a transfer “this was declined”. However another employee who was having ongoing unresolved issues with LT was offered a transfer by HR to another programme, This person did not request a transfer and turned it down, (The correspondence that I received from BOC said “Senior management made a decision that employees cannot transfer between services but can apply for vacancies provided they have the relevant qualifications “,) It is my understanding that this person did not apply for another position, this is an inconsistent approach to the application of the transfer policy

●      I started with the respondent in 2001 and moved through three programmes without any relevant qualifications but BOC would not facilitate me with a transfer out of Parkxxx.

In relation to CP1 Investigation

●      I dispute the term External Consultant. L.M. who is also employed by the Respondent and is a Senior Manager within the services conducted the investigation into the CP1

●      Mr M. Consultant found that there was insufficient evidence from other staff in attendance to support my allegations. However, I received an email from E.T. stating that the investigation into the CPI had been concluded and the staff would be dealt with in accordance with procedures (email to hand).

●      On 14 March the conversation with Ms K. took place on the phone. Initially I asked Ms K. if I could stay in Stonexxxx (Residential house) where S U.I supported resides and I carry out my duties from there. This was declined by Ms J instead I was advised to continue to attend Parkxxx T & C until L.T. was to return, “He will sort it out” J said. In the meantime, I was to report to T.B.

●      On 14 March I phoned J.K. to inform her that C.D. was approaching witnesses and warning them that   they would need to be careful of who they are working with and that I was accusing her (CD) of abusing the Service Users. That I was dangerous and to be careful who you are dealing with. I informed Ms J that I knew this would happen. J. Said she” will deal with it, C.D. was told not to discuss this with anyone”

●      On 16 March, I again had to phone J. to inform her that C.D. was continuing to approach witnesses and out to smear my name.

●      J’s attitude had changed from my phone call to her on the 14th from “I will deal with it”, “I told C. she was not to discuss this with anyone”. I then quoted the Trust in Care Policy to J.K. she said” remind me what the policy states again?” “Considering how upset C.D. was leaving here on Monday I would not blame her for wanting to talk to someone, I can’t stop her! After all, we don’t know what she is saying.”

J.K. then said, “We don’t seem to favour people making complaints”.

●      J.K. said that she offered the service of the EAP to C.D. and it is there too if I need it.

Mr L.T. and A.M. spoke to C.D. about approaching witnesses. Both part of smear campaign against me.

●      From the moment I submitted the CPI, A.M. did not remain transparent throughout the investigation.   In the past not admitting to any wrongdoing or unprofessional behaviour by C.D. towards me.  

●      These were all brought up in a meeting, which was attended by A.M., L.T., S.K, and me, of which a written outcome has never been relayed to me.

●      On 24 March Mr B states he searched for me.

●      I had not reported for a number of days. I did not work on Mondays; therefore it would have been difficult to have located me in Parkxxx. Tuesdays as per timetable, which I followed, as best I could as it is continuously interrupted by other S.U. medical appointments.

●      The S.U. and I attended the Horticultural Department on Tuesdays.

●      Once I was notified of my change in the workplace I e-mailed my timetable to T. , he was aware of my daily routine.

●      Prior to me submitting the CPI, T. and I would have spoken on a daily basis regarding the S.U. plans.

●      After submitting the CPI, T.B. chose to use a different form of communication by excluding me from direct communication and passing these messages on to members of staff that I was working with.

●      On the morning of the 22 March 2016. T.B. phoned the residential house I worked in. I answered the phone. T.B. then asked to speak to M.M.   M.M. told T.B. of my plans, as I was never asked.

●      The same day while at the Horticultural Department I asked T.K. (Team Leader) if I could stay and have lunch in the Horticultural Department as things were a bit up in the air (I was a little unsure of where I was to go).

●      I did not want to face another day of hostility, I needed to protect myself and not let S.U. be affected by what I was going through. I was extremely stressed at this point and I did not want this to reflect on my work.   T. responded by saying, “I don’t want to get involved in any of that shit that is going on”.

●      We returned to P.T.C. to get our lift back to the residential house. T.B. was out of the area but I was met by other members of staff N.S.   N.S. would have informed T.B. that I was there.

●      On returning to Stonexxxx Tuesday evening M.M. informed me that T.B. had enquired about my whereabouts all day, even though he had been told that morning on the phone ( I was present when M.M. told T.B. what my plan of work for the day was ) T. phoned again that afternoon and directly asked for M.M. Informing M.M. that S.U. would need the transport tomorrow and M.M. was to inform me. I answered the phone but T.B. chose to communicate messages to me via M.M.

●      On the said day of 23 March T.B. again phoned Stonexxxx, T.B. was informed by S.H. that I would be attending a G.P. surgery to collect prescription.

●      I drove S.U. and S.H. to P.T.C. to drop them off, while doing this I availed of using the toilets in P.T.C. present in his office at the time was T.B. and L.M. who both acknowledged me.

●      T.B. lied about my absence from the work place and that he had no idea where I was and had not seen me for a couple of days.

●      I refer to my file note dated 23 March 2016, which I found in my personal file composed by L.T.

●      It states that L.T.checked the farm and they had no information of my whereabouts. Why did L.T. not check the Horticultural Department?

●      T.B. then approached L.T. to say he had no idea of my whereabouts’. L.T. states he advised T.B.to contact me on my mobile. At no stage did T.B. contact me on my mobile.

●      It also states that T.B. called into the Gym on the way back to P.T.C. enquiring of my whereabouts, which N.S. had already informed of him previously.

●      It states that T.B. called out to me from a distance T.B. did not call out to me, he stood at the door shouted up the hall beckoning me with his finger saying, “you I want to speak to you now”.

●      L.T. phoned me five minutes after T.B had left.

●      Subsequently to all of this I did meet with L.T. and T.B. in L.T.’s office, I refer to file note contained in my personal file which states that T.B. phoned L.T. to say he met with me there. It is obvious that L.T. and T.B. had a phone conversation prior to me attending L.T’s office as it states that L.T. informed T.B. that as T.B. was going to supervise me and invited T.B. to the office also.

●      When L.T. did phone me, why did he not inform me that T.B. would be present?

●      Why did he not say he would be discussing supervisory roles or my so-called absence from work, instead just saying he wanted to chat.

●      I knew immediately after I entered the office and shortly after T.B. entered that I was being “set up”, hence I stood up from my chair and said “this is bullying and now I will be involving my union.” (I became aware at that time of the direction that the accusations were going).

●      At no time did L.T. apologies for phoning me on my personal mobile as stated in the file note. It is common practice within the services that individuals are contacted on their mobile phones. I did not understand the relevance of L.T. commenting on his apologies for phoning me on my personal phone.

●      I do not understand why L.T. would say he tried to ring me on the Stonexxxxx mobile phone, as I would have never carried that with me. It was for the use of another individual and his support staff. L.T. would have known this as he sanctioned the mobile phone.

●      L.T. questioned who was supervising S.U. How I had failed to report to any Team Leader since Monday. L.T. asked T.B. if anyone had seen S.U. since Monday, T.B. said “No”.

●      L.T. then stated he had no idea what was going on as he was “out of the loop” since his return on Monday. Only T.B. phoned L.T. wanting to know had anyone seen Bxxxxx.

●      Referring to the meeting that took place on the 5 April 2016 I felt it became heated at times due to J. becoming very defensive when I tried to explain to J. how it was a common occurrence to have derogatory battles or ambush meetings in L. T’s office, where you were ridiculed and bullied. During the meeting J. responded to my concerns:-

●      It was my perception on how I am being treated, and was everyone lying except me!

●      Was everyone going to have to be careful as to how to speak to “Complainant” due to her sensitivities?

●      Given that I had reported to HR that I felt I was being intimidated and subjected to bully behaviour it appears that no action was taken by the company to remind staff of policies stating what the required behaviours and conduct in the work place should be.

●      J. went on to say that, “the morale on the farm was very low, everyone was watching their backs”, was I to take it that this was my fault. That “management would have to put in place some team building”. To date this has not occurred.

●      J. made an example that if both she and S.K. were best friends and she wanted to speak to S. about what happened; she couldn’t be stopped from doing so. C.D. was not approaching best friends but witnesses.

●      Does it not state in the disciplinary policy that the matter is private and confidential and is not to be discussed outside of that meeting?

●      Referring to this meeting S.C.(Union Rep) stated during my interview with B. L. that he did feel that J.K. was defending C.D. the person I made allegation against. S.C noted that there was no balance of support.   This is all documented on the transcript.

●      S.C. and I requested some time alone to discuss what our next step would be.

●      Sxxx and Ms J left the room.

●      Ms J and S returned. Ms J said she had just phoned L.T. and “no they would not agree to me transferring to the Horticultural Department and anyway despite what I say the S.U. is happy where he is. Multi D also stated he was benefitting from the farm.

There is no documentation of this meeting in my personnel file

●      This was a very different attitude to what J.K. had said to me in our meeting on 21January 2016. There is no document in my personal file related to this meeting, on the 5 April.

●      On 21 January 2016 I phoned Ms J requesting to see her, as I wanted to discuss a transfer out of Parkxxx.

●      I highlighted the grievances I have had in the past with A. M. and L. T. I told J. I could no longer continue to work there. I made it aware to J. that all these grievances     had been brought forward to HR and nothing had been rectified, nor were any of my letters responded to, I also informed J. that the behaviour I had been subjected to in the past was still continuing from A. M. my Team Leader. Again, I state AM was asked to speak to CD on her approaching witness.

●      We discussed the person I support, J. asked me my opinion, and where best would suit him, we discussed placements and peer groups, more suited to him.

●      J. then said if I do get a transfer that the person I support would be left with no one.   My position would be gone. However, when I initially accepted the offer of compensation and my resignation, (for which I acted in haste and subsequently withdrew), my post went for advertising the following day.

●      I remain confused as to the content of the settlement agreement, the document does not define which category of law or which act it relates too, nor is there any clear formula to show how the award was calculated.

●      J. went onto say that she would look at my file in relation to the letter that I sent that was ignored.

●      J. said she would phone me by the end of the week this never happened, I had to phone Ms J eventually getting to speak to her on 11 February.

●      Prior to HIQA coming to Stonexxxx, J. and I had an informal discussion, in relation to our discussion that took place in her office back in January.

●      J. did apologise for the delay in getting back to me and that because of HIQA coming and the anonymous complaint there was a delay in getting back to me.

●      J. said that she checked my file and the letters that I sent were present, J. went onto to say that it looks like I now have a grievance with L.T, A.M. and HR, J. then said about the offer of mediation.

●      I highlighted to J. that Parkxxx services was the most unprofessional programme I had ever worked in within the services.

●      J. Said that if I were given the transfer we would need to look at where we would send you. We left on a very amicable note. Again, none of information spoken about in relation to my concerns of Parkxxx or an agreement to a transfer was documented in my personal file.

●      Shortly after this conversation-taking place I received a phone call from J., J. agreed that she couldn’t see how mediation would work between myself and A., but it was there if I wanted it and we could look at using someone outside the services. J. said that A. did not agree with what I was saying and that he saw things differently. I told J. that I would think about mediation but also agreeing that I felt it had been exhausted.

●      I continued to work in a hostile environment under protest.

●      At the meeting of 21 January 2016, none of discussion that revolved around S.U. or discussion taking place about me moving to another programme is documents in my personal file.

●      Asked my opinion on what group would suit S.U.best.

●      Acknowledge no benefit from farm.

●      Peer group, strong personalities to lead and guide him, suggest pathfinders.

●      Link in with Adult Education.

●      Arts and Crafts.

●      These were the topics discussed in JK’s office on the 21January.

Company arguments

BOC state they took the allegations very seriously however

●      CD continued to work with SU supervised and unsupervised

●      Three of these people M O C , RB & AM who were responsible for CD s supervision later went on to lie in interviews saying the abuse did not occur

BOC argue that the process included interviewing all those who had been named by myself, however 3 of the persons present in the sports hall were not interviewed, there were

●      N. S.

●      O. ( student at the time)

●      SU

I have no option but to believe that omitting these 3 persons was not an act of error but a deliberate attempt by B.L to not seek the truth

What criteria determined the selection of witness’s to be interviewed?

The company also argues that the process did take time due to the number of staff to be interviewed and persons on sick leave.

One member of staff LT remained on sick leave being unavailable for interview, however in the past while on sick leave he did make himself available to conduct job interviews, this is a contradiction which I see as not applying fair practice to the investigation process

Why was AM interviewed as late as September and also on the same day as L.T., I am again left to believe that this was a deliberate act by management to further assassinate my character having two persons who I have had unresolved grievances in the past, I find this especially troubling. I did not avail of Mr. L’s invitation to discuss outcome of grievances as stated nor did I want to continue with the organisations willingness to self investigate

22 March

●      CD was left alone with SU, no supervision, RB had left and AM was not present

5 April

●      CD one to one with SU until lunch time, no supervision SU I supported had lunch with CD who gave him his meds. Later signed by MOC. MOC had lunch in MB with another service user (this is a breach of The Safe Management and Administration of Medication, another staff member person who was not even present at the time of medication being dispensed signed for the medication)

           LT walked into H & H to make tea. LT being senior manager was aware CD was left unsupervised with the SU who I had witnessed the abuse occurring against

Policy statement

“Where allegations of abuse of clients are made against a staff member, the welfare and safety of the client is of paramount importance 5.2 Trust in care

  Protective measures

  Management should take whatever protective measures are necessary to ensure that no client is exposed to unacceptable risk”

●      11April CD no supervision at sports day

●      21April CD supervised SU at AM request in H & H , no supervision

●      1June CD attends an annual overnight farm trip with service users

BOC failed to protect SU from further abuse; this also shows that my allegation was not taken seriously with management and team leader’s lack of respect by not implementing the Trust in Care policy , it also shows that the work colleagues loyalty to each other was more important then the protection of the SU

BOC states the Trust in Care policy was followed and taken seriously as was my complaint

Trust in care policy states

“Manage allegations of abuse against staff members promptly”

It was seven months before I was fully communicated with about the outcome of my grievances and the outcome of the CP1

The policy goes on to say

“Staff who make a complaint or express concerns that abuse may have taken place will be reassured that they will be taken seriously”

At no stage was I ever told that I would be taken seriously, in fact it was quite the opposite with the treatment I received from JU, comments such as “ why are you phoning me? What do you want me to do about it? Did not give me confidence, I felt that I was being seen as a trouble maker by some of my work colleagues, saying I was jealous of the person that I had made the complaint against, vindictive and out to get people sacked.

All of these remarks were relayed to me by fellow workers (GC & R Mc D) who had the courage to tell the interviewer LM that the abuse did occur.

I did not feel protected from the risk of reprisals or intimidation, I was left to work in the environment of those persons who continued to intimidate me, the thoughts of having to go into that environment every day were sickening until the day I decided I could not physically or mentally take any more and had to go out on work related stress.

I continued to have to endure another impromptu meeting with LT where I received further bullying and intimidation

During my interview with PS (service manager) and OS, I informed them about the harassment I was receiving P responded that it was out of his remit and was I receiving EAS, this is documented in the CP1 notes in my personnel file except for P s response to my harassment

They will be kept informed of action that has been taken and its outcome.

Submitting the CP1 in March 2016 I was interviewed on the 17 May 2016, I questioned PS about the time delay, the answer I was given was that there was a time delay in meeting people.

It was not until October 2016 that I received a very brief e mail from ET relaying to me about the CP1, at no time was I kept informed of any action taken

I have already stated CD continued to work with SU supervised and unsupervised in the knowledge of team leaders and a senior manager; I also notified MC designated SW 14 March 2016

The Trust in Care policy states that:

“It will be considered a disciplinary offence to intimidate or exert pressure on any person who may be required to attend as a witness”

Not once but on two occasions I had to phone JK to inform her that CD was approaching and continuing to approach witnesses

●            R Mc D 14 March 2016 CD warned R Mc D “be very careful of Barbara, you have no idea who you are dealing with”

●            G C 16 March 2016 CD warned G “Bxxxxis dangerous, she does not want me working with SU “ In their report BOC have said about comments made that they were “Circumstantial in nature with intent misread into them”

BOC are basically saying that I am over sensitive, this is their defence, that I am the problem and not the organisation and how they conduct investigations.

I have worked for BOC since 2001, in that time my work performance has never been questioned, my difficulties only started when I moved to PS services

BOC are of the opinion that I received no further intimidation after 23 March; unfortunately, this was not the case

13 April 2016

I requested the use of the Golf that was sitting idle outside PS office, I wanted it for the SU, I was not allowed the use of the vehicle and AM did not give me a reason as to why I could not have it.

Friday 15 April 2016

I met RB on driving his car on campus, I saluted R, I was met with a glare, he slowed down and pulled down his passenger window, he leaned over the passenger seat and stared at me, he did not speak.

I was shocked, I then felt annoyed, intimidated by his behaviour and then upset  

Friday 6 May 2016

Met CD and RB who were together, again met with glares, neither of them spoke to me to say hello or anything, just stared.

On the same day I met AM and saluted him, he turned his head away deliberately ignoring me. I was upset at this and felt tearful.

23 May 2016

While attending the funeral of the grandmother of the SU that I supported I walked down the aisle AM and CD were sitting together they started sniggering as I passed by and were mumbling to each other, This was witnessed by staff member CK, I was upset but had to remain as if nothing was wrong as I was in public and with SU.

I met a work colleague WW, who I had a good relationship with, W said to me that he better not been seen speaking with me or he would be “Blacklisted”

TBs rat comment during lunch which BL states was misconstrued by me

I had been sending e mails to AM and MB, this was normal practice where we would have had general discussion about S.U s wellbeing and progress, I then noticed that my response e-mails were being copied to J.K. this seemed to happen after I had submitted my CP1, I don’t understand why this was happening and why I was not informed, when, where and by whom why was this sanctioned

6 July 2016

I was attending another staff members leaving party in the P & T, as I was leaving the party CD and RB followed me, C began to randomly cough behind my back, R started laughing , I again felt upset and intimidated

19 September 2016

I received a mass card from LT, this was sent to my home address, I was deeply perplexed by this, I was surprised and also offended after all this was from a person that I had a grievance against, I believe there to be a breach of data protection as LT had no reason to have access to my personal details, furthermore where did he get my address from?

In addition, he incorrectly assumed that this was a gesture that I would appreciate.

BOC have stated that the Trust in Care policy was followed and that my grievances were thoroughly reviewed but yet they have admitted to a breakdown in the new communication process.

I do not feel that I have received any support from BOC. It has clearly been shown that the person that I made the allegation against received all the protection from persons who went into the investigations and lied on their behalf.

There have been breaches of data protection SC also highlighted that JK seemed to favour the person that the allegation was made against.

I was offered the services of EHS and the Occ. Health nurse as was every other member of staff who was involved in the investigation

I met with the company doctor on at least three occasions between 2016 and 2018, I did not receive any reports on the content of our meetings or know what if any recommendations were made to try to get me back into the work place I have not received any appointments since despite having been on maternity leave.

The case before you concerns the same complaint under two separate acts by the complainant, against her employer, The Respondent Services Ireland (South East Region), namely the Protected Disclosures Act 2014 and the Industrial Relations Act 1969 (Appendix 1). The Complainant claims that the Respondent Services changed the way in which she was communicated with, and treated, as a direct result of a complaint she made under the national Trust in Care Policy (Appendix 2). The Respondent Services totally refute the claims being made.

The complainant raised a formal letter of complaint/grievance to the Human Resource Manager in The Respondent Services on 21 April 2016 (Appendix 3). Through her representative she submitted her complaint to the WRC on 20 December 2016. As per Schedule 2, Section 1, subparagraph 6 of the Protected Disclosures Act 2014 “a rights commissioner shall not entertain a complaint under this paragraph if it is presented after the end of the period of 6 months beginning on the date of the contravention to which the complaint relates”. The complainant’s complaint was lodged eight months after her written complaint to Ms T and nine months after the last issue, per her letter, took place. The complainant’s complaint is out of time. Similarly, the first reference to a protected disclosure was in the complaint form to the WRC dated 20 December 2016. Protected disclosure was not raised by the complainant at numerous meetings, many of which had her union representative present. It is also important to highlight the fact that the complainant has not been dismissed and is still in the employment of the Respondent Services.

Without prejudice to the above,

We will show that fair procedures were followed by the Respondent Services following receipt of a Report Form for Registering Client Protection Concerns for Adults in March 2016 from the complainant relating to an incident on 8 March 2016. This was taken very seriously by the Respondent Services, with an investigation taking place under Trust in Care. Following this, on 21 April 2016, the complainant made a complaint against a number of senior staff. A full and thorough investigation into her complaint took place using the Respondent Services Grievance Procedure (Appendix 4) and, when one aspect of her complaint was upheld, appropriate action was taken by management. The remaining parts of her grievance were not upheld. The complainant was advised, in writing, of the outcome of each of her specific concerns and given detailed reasons as to why they were or were not upheld. She was also given the opportunity to meet with the National Head of Human Resources in the Respondent Services (who conducted the investigation) to discuss the outcome and to clarify any concerns or issues she had but regrettably this was never taken up by the complainant.

Background to the complainant

The complainant has been employed by the Respondent Services since October 2001 and is currently on a permanent part time care assistant contract.

The complainant currently works in Parkxxx Services. This area provides a range of day and residential services to adults with intellectual disabilities, some of whom require higher levels of support due to additional challenging behaviours. The complainant works 25 hours per week on a one to one basis with an individual with high support needs on campus and within the individual’s residential service.

Background to the complaint

On 19 February 2016 the complainant wrote to Ms NK, Human Resources Officer in the Respondent Services requesting a transfer from her current location in Parkxxx Services (Appendix 5). Ms NK responded to the complainant on 22 February 2016 advising her that senior management had previously determined that “employees cannot transfer between services but can apply for vacancies provided they have the relevant qualifications” (Appendix 6). The letter continued that the service “can look at exploring options within other parts of Parkxxx Services”. Ms NK offered to “facilitate” a meeting between the complainant and her line Manager, Mr NT, at a time and date that suited the complainant. It should be noted that the complainant had previously requested a transfer from Parkxxx Services in December 2013 (Appendix 7). At no time did the complainant give a reason as to why she wanted to move.

On 11 March 2016 the complainant completed a “CP1” form relating to an alleged incident in the Pool Room on 8 March 2016. This is a form that is completed by a person when raising a concern of possible abuse against a person with a disability in the service. In line with the requirements under Trust in Care (Appendix 2) a preliminary screening was conducted resulting in an investigation being carried out by an external consultant. This investigation involved interviews with staff and service users. Staff were represented by their union officials. The external consultant found that there was insufficient evidence from other staff in attendance to support the complainant’s allegation.

On 14 March 2016 the complainant contacted Ms YK, Regional Services Manager for the Respondent Services, raising concerns regarding the staff member involved in her allegation of abuse against a service user. The complainant requested a change in location where she delivered her programme with a service user. Ms YK agreed to this change. Ms YK also arranged for the complainant to report to a different team leader, Mr YB, in the short term.

On 16 March 2016 Ms YK received a further call from the complainant regarding the same staff member talking to staff on her allegation of abuse. HR arranged for Mr NT (Parkxxx Services Manager) and Mr YM (Team Leader) to speak with the staff member involved.

On 23 March 2016 Mr YB searched for the complainant as she hadn’t reported to him for a number of days. He located her in the sports hall. He called to her from a distance where he asked about her whereabouts for the previous couple of days. The complainant updated him. Subsequently on the same day the complainant met with Mr NT and Mr YB to discuss reporting relationships. The complainant walked out of this meeting. She then reported the incident to Ms NK and Ms YK, who subsequently rang the complainant. The complainant stated that her understanding of the meeting was different and she wanted her union representative involved.

On 5 April 2016 a meeting was arranged involving he complainant, Ms NK and Ms YK. Mr NC (Forsa) was present as the complainant’s union representative. At this meeting the complainant requested a transfer to the horticultural section of Parkxxx Services due the perceived change in attitude by Mr YB towards her. Following the meeting a proposal was put to Mr NC regarding a move to the horticultural area but to support another service user. Ms NK told Mr NC that the complainant could be met in order to go through the proposal in detail. On 7 April 2016 the complainant responded to the proposal by way of an email to Mr NC (Appendix 8 – P1-2). Mr NC forwarded this response to Ms NK. In her response to Mr NC, Ms NK acknowledged the difficult position the complainant was in following the reporting of an allegation of abuse. The concerns raised by the complainant were also addressed, as was the fact that it was The complainant’s request to move to the horticultural unit which was being implemented (Appendix 8 – P3).

On 8 April 2016 the complainant was written to asking her to attend a meeting on 12 April 2016 to discuss her reporting requirements following the reference in the email of 7 April 2016 that she would continue to work in Parkxxx services “under protest” (Appendix 8). She was advised of her entitlement to representation at that meeting (Appendix 9). As the complainant was unable to attend the meeting due to the unavailability of her union representative, and as the reporting structure needed to be put in place as a matter of priority, Ms NK wrote to her on 18 April 2016 to clarify her reporting requirements (Appendix 10).

On 21 April 2016 the complainant wrote a letter containing a number of grievances to Ms LT (Human Resources Manager, The Respondent Services) (Appendix 3). The investigation into her grievances was undertaken by Mr YH (National Head of Human Resources, The Respondent Services). Over the period May to September 2016, nine staff were interviewed as part of the investigation into the complainant’s grievances. The complainant was interviewed on two occasions (26 May and 8 July). Mr NC was present at both meetings. On the same day as her second meeting (8 July) The complainant commenced sick leave.

On 24 October 2016 Mr YL wrote to the complainant with the outcome of his investigation (Appendix 11). One of her complaints was upheld (the incident in the spots hall). The remaining complaints were not upheld.

On 25 October 2016 Ms LT sent an email to the complainant advising her that the investigation into her allegations contained in the CP1 had been dealt with in accordance with the services procedures (Appendix 12).

The Respondent has a well advertised procedure in place for staff regarding protected disclosures. The system in place is that used by the HSE. The poster (Appendix 13) and explanatory booklet with accompanying form (Appendix 14) were sent to all units in 2015 and are openly on display within the service. The complainant has had representation at all the meetings with the Respondent by way of the Assistant General Secretary of Forsa. Even with the above, at no stage throughout the process was the term “protected disclosure” used or referred to until the complaint was sent to the WRC in December 2016.

5.2       Section 5(5) of the Protected Disclosures Act states:

A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer.

As such any wrongdoing which is the employee’s or the employer’s function to detect, investigate or prosecute does not come within the terms of the Act.

The complainant made an allegation of abuse by a staff member against a service user in March 2016. While it is commendable for the complainant to come forward, this does not in itself mean that everything that happened in the meantime was as a result of the allegation. The allegation, once made, was taken very seriously by the service and investigated fully by an external consultant under the Trust in Care policy. No abuse was found to have taken place.

Section 12(1) of the Protected Disclosures Act states:

“An employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee, for having made a protected disclosure.”

Following the allegation being made, the complainant sent a letter to Ms LT raising a number of grievances (Appendix 3). All of these were investigated by Mr YL under the Grievance Procedure (Appendix 4). The process included interviewing all those who had been named by the complainant in her letter. This process did take time due to the number of staff to be interviewed, annual leave, sick leave, getting transcripts signed off and an overall review conducted. A Trust in Care investigation was running in tandem with the grievance investigation. In the grievance outcome letter to the complainant (Appendix 11) each complaint was detailed with an outcome for each and an explanation as to how the decision was reached. The complainant was given the opportunity to discuss the letter but did not avail of this invitation.

At her first meeting with Mr YL on 26 May 2016 in the company of Mr NC, the complainant was asked how this grievance could be resolved. She wanted to know if the Trust in Care Policy was followed and if her complaint was taken seriously. The result of the complainant’s allegation was that a preliminary screening, in line with Trust in Care, was conducted and following that an external consultant was tasked with conducting a full investigation. In line with requirements, both the Safeguarding Team in the HSE as well as HIQA were notified when the allegation was made and also advised of the outcome at the end of the process. The outcome was communicated to the complainant on 25 October 2016 (Appendix 12). In short, the complainant’s allegation was taken seriously.

The second outcome the complainant wanted to know was if she had been treated fairly. As has been clearly shown, the complainant’s grievance was thoroughly reviewed. While there are some documented points identified by the complainant, these are primarily circumstantial in nature with intent misread into them. The issues highlighted by the complainant were in the period 14 to 23 March, in effect the two weeks immediately following her allegation of abuse. There were no further incidents from then until the commencement of her sick leave in July 2016. This two week period was at a time when reporting relationships were changing and unfortunately there was a breakdown in the new communication process.

As well as investigating her allegation of abuse and her own grievance, The Respondent Services supported the complainant by changing her work area and reporting structure, both at her request. She was also offered the support of the Occupational Health Nurse as well as the Employee Assistance Service. While The complainant may have perceived that she was not being supported and was being treated poorly by staff and management, this could not be further from the truth.

Throughout this process the complainant, who had requested a number of transfers, was afforded the opportunity to work in different locations on two occasions. In April 2016 she was offered a move to another part of Parkxxx Services, which she declined. Following the first adjudication hearing here in Gorey in July 2017, a second offer was made to move to another part of the service (C xxx Day Service). Again, this was declined. Both changes of location would have maintained the complainant’s working hours and conditions.

CA 8858-001

The initial burden of proof is on the complainant to establish a protected act and a detriment. If and only if the complainant established a protected act and a detriment does the burden shifts to the respondent to put forward evidence that the detriment suffered was not due to the protected act being an operative cause. Toni & Guy Blackrock v. Paul O’Neill [2010] 21 E.L.R. 1 established that the burden of proof is on a complainant to establish that on the balance of probabilities (a) she committed a protected act, and (b) that having regard to the circumstances, it is apt to infer from subsequent events that the protected act was an operative consideration leading to the detriment imposed. The Labour Court held that if both limbs were satisfied, the burden shifted to the employer to show, on credible evidence, on the balance of probabilities, that the protected act did not influence the detriment imposed.

The scope of what can be a protected act is broad. The mere request for a copy of a bullying and harassment policy was sufficient for the Labour Court in In Board of Management of St. David’s CBS Secondary School Artane v. Siobhan McVeigh (HSD 118, 8th July 2011), to find that it a protected act. It is also well established that an employee does not have to use the respondent’s grievance procedure for their act to amount to a protected act. In Stobart Ireland Driver Services v. Carroll [2013] IEHC 581, a truck driver asked that he not to be rostered due to his fatigue. This act was held to be a protected act by the Labour Court and the High Court, on appeal. Kearns P. spoke to the broadness of the Act of 2005 by stating, at paragraph 26:-

“There is no requirement in the Act to report any complaint via a grievance procedure. The Act specifically states "report…as soon as practicable". Thus, the respondent in this case can be deemed to have made his complaint when he reported that he was too tired to drive”

Section 5(5) of the Protected Disclosures Act states:

A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer.

As such any wrongdoing which is the employee’s or the employer’s function to detect, investigate or prosecute does not come within the terms of the Act.

Section 12(1) of the Protected Disclosures Act states:

“An employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee, for having made a protected disclosure.”

The complainant made an allegation of abuse by a staff member against a service user in March 2016. The complainant seems to be of the opinion that everything that happened thereafter, was a result of that and that she believed that she was perceived as a trouble maker by her colleagues. I am satisfied that the complaint made by the complainant on the 21st April, 2016 is one that comes within the scope of the Act. However, I note that once that allegation was made, it was taken seriously by the respondent. They carried out a full and thorough investigation and employed an external consultant under the Trust in Care policy to do so. I find that the complainant did not suffer any detriment of the type envisaged by the Act, resulting from the making of the allegation. What she was experiencing was difficulties with other employees, which difficulties, I find would have occurred regardless of the complaint. I can find no nexus between the protected act and the complainant’s issues with staff of the respondent. Contrary to the complainant’s evidence, it seems to me that the respondent did whatever it could to facilitate the complainant’s requests and deal with her grievances.

In all of the circumstances having considered the evidence adduced and the submissions filed by both parties, I find that the complaint is not well founded and accordingly fails.

CA 00008858-002

It is very evident from the complainant’s submissions that she is experiencing difficulties with some of her work colleagues. She has been absent on extended sick leave for a considerable length of time due to work related stress. In those circumstances and with a view to getting the complainant back to work, I am going to recommend that the complainant be offered a role, when one becomes available, in a different location to the locations she has previously worked at, so that she can start a fresh with staff that are new to her.

CA 00008858-01. The complaint fails

CA 00008858-02. I recommend that the complainant be offered a role, when one becomes available, in a different location to the locations she has previously worked at, so that she can start a fresh with staff that are new to her.