Complainant

Respondent

Anonymised Parties

Healthcare Administrator

A Healthcare Provider

Act

Dispute Reference No.

Date of Receipt

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

CA-00026976-001

12/03/2019

The following is a summary of the Worker’s case.

The Worker said that she submitted a complaint under the Employer’s Dignity at Work policy on 25 August 2016. The preliminary screening took place on 4 January 2017 and it was recommended that an investigation would take place. The terms of reference for that investigation was to be completed within an 8 to 10-week deadline.

On 1 June the Workers Union wrote to the Employer and sought an update on the investigation. The Employer wrote back to say that a new Commissioner for Investigation was now in place. However, notwithstanding there has been no movement on the investigation nor any information forthcoming from the Employer until just before the case came to be heard before the WRC on 20 June 2019.

The Workers said that the Employer has a duty of care for all its employees. It has policies in place that proclaim to facilitate this, but it is not good enough to have such policies, if they are not adhered to. The Worker said that one of the main principles of the Employer’s policies is that workplace issue would be dealt with in a timely manner. The Worker’s grievance is against a senior staff member, which is always going to be a stressful situation. However, the case is still ongoing three years later and this is unacceptable.

The Worker said that the Employer is not operating in adherence with its own Dignity at Work Policy where it pertains to timeliness. The Worker also said that it has only found out that the investigation team has stepped down from the investigation and a new external investigator is about to take over. The Worker said that due to the difficulties that she has raised with her Employer she took a transfer away from where she had experienced difficulties. She said that this has put an additional cost on her.

She said that she is also undergoing counselling arising from the workplace issues, which is another financial cost. She said that from April 2015 to date she has paid over €5,520 in professional counselling services.

The Worker has referenced some previous WRC and Labour Court recommendations where compensation was ordered by the deciding officers in matters where excessive delay was found.

The following is a summary of the Employer’s case.

The Employer said that there has been a delay in the completion of these matters. However, much of the delay is not of its own making and it has now put steps in place to complete the process as quickly as possible. The Employer said that it can be seen from a chronology of events concerning the case where unfortunate delays arose.

The Employer acknowledges that the Worker made a bullying and harassment complaint under its Dignity at Work policy on 25 August 2016. The Employer set about following the procedures as per its policy. Mediation was offered as a possible vehicle for solution, however the parties declined.

The formal investigation initiated in February 2017. There was a period of delay to reach agreement on the terms of reference and in the initial interview, much of that was due to the Complainant’s maternity leave. There were considerable delays in obtaining suitable interview days with the accused employee, who also raised preliminary issues regarding the investigation at the investigation interview in January 2018. These required the investigation to be paused until they could be adequately addressed.

The original Investigation Commissioner retired and had to be replaced during 2018.

The original Investigation team withdrew from the investigation in November 2018.

The Employer said that the national investigation unit and the new Investigation Commissioner have worked to progress the assignment of the case to an independent external investigator. The matter is ongoing with a view to completing the investigation promptly.

The Investigation Commission wrote to the parties on 7 June 2019 confirming that the original investigation team had withdrawn and set out how the Employer plans to proceed.

The Employer said that the delays were excusable by virtue of the chronology of the processing of the complaint. In particular to the statutory and protected leave periods and the fact that the accused employee was entitled to their right of fair procedure. The other delays were not deliberate in any way and it gave an undertaking that it will progress the complaint without any more undue delay.

The Employer said that it was placed in a delicate position throughout this process in respecting the rights of all parties and it accepts that the time limits have not been in line with its own expectations accordingly.

The Employer accepts that the Worker should have been informed sooner of the status of the investigation particularly once it learned that the investigation team had withdrawn.

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

The matters at the centre of this dispute are the considerable period of time this investigation has run and the lack of communication from the Employer to the many requests for updates from the Worker.

I have carefully looked at the time line and can only acknowledge the challenge presented to the Employer in that time line. Much of the delays could not have been foreseen and this has frustrated the process. I do note the efforts of the Employer and its plan to now complete this investigation as soon as possible. However, that urgency did not always appear to be present.

I am also struck with the lack of communication from the Employer throughout, in particular once the investigation team withdrew in November 2018 – more than two years since the grievance was originally raised. I note that the Worker was oblivious to all of this and was actually waiting for the final investigation report day in, day out.

The Worker articulated the burden that this matter has had on her. That cannot be undone and was definitely avoidable by better communication.

I cannot attribute blame to the Employer for all the delays, that would be too simplistic. However, with better and closer management of events under its control those delays could have been shortened and handled better. The fact of the matter is that the substantive matter under investigation continues without resolution and three years have now passed.

The Employer’s Dignity at work policy states that it will carry out investigations expeditiously and with minimum distress for the parties involved. I am satisfied that it is ultimately for the Employer to be responsible for the efficient investigation of such grievances. I have to find that is not the case here, and the delay has done damage to the integrity of the Employers Dignity at work policy.

Accordingly, I recommend without prejudice to the Respondent’s own conduct throughout, that the Respondent should make a payment of €4,000 (four thousand euro) to the Worker as an acknowledgement of the difficulty these experiences have caused to her.

The investigation should now be continued without haste and be concluded as soon as possible in everyone’s interest.

I make this Recommendation on the specifics of this case, and for this case only, and it shall not set a precedent in any other dispute.

Industrial Relations Acts - Dignity at Work policy – delay – no communication – well founded