Complainant

Respondent

Anonymised Parties

A Nurse

A Health Provider

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-00028996-001

12/06/2019

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

CA-00028996-002

12/06/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00028996-003

12/06/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00028996-004

12/06/2019

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

CA-00028996-005

12/06/2019

The complainant is a community based nurse employed in the delivery of mental health services.

Of the three complaints made under the Industrial Relations Act one (CA-00028996-001) was withdrawn at the hearing.

There has been a long history of inadequate handling of grievances raised by the complainant.

The complainant had external duties mainly away from her base and as a result of regulations and ensuing delays at one of those external units she accumulated Time Off In Lieu (TOIL) entitlements.

She brought the matter to the attention of her own management, but nothing was done. In September 2016 the regulation giving rise to the difficulty was reviewed and this resolved the problem from then on.

However, the dispute about the TOIL adversely impacted on a promotional opportunity when the complainant was told her application could not be considered because of ‘performance management issues’ of which she had not previously been aware.

In due course she was invited to an informal disciplinary meeting on March 21st, 2017 at which she was accused of not fulfilling her contracted hours and of being absent without leave, arising from the difficulties at the external unit.

As a consequence, she was required to report to her base on a daily basis prior to departure for her work in the community. She saw this as a disciplinary measure.

A second ‘informal counselling’ meeting took place on June 13th, 2017 at which the complainant presented evidence in relation to the true reasons why the delays arose, and the consequential claims for TOIL, and she also submitted that the respondent’s approach to the matter represented victimisation.

Management failed to respond to these representations, and when a second matter regarding a service user arose this resulted in a meeting on December 11th but now both issues have been left suspended without any management response.

Another issue arose as a result of monies the complainant says are due to her.

This was first raised on August 1st, 2017 but no meeting took place until the following February.

That meeting was aborted when management said it would not proceed until the complainant had been seen by the Occupational Health Department.

A meeting scheduled for August 22nd eventually took place on September 11th, but matters were not finally concluded until January 2019, except that an action plan agreed at that stage was not effected.

The complainant is seeking the restoration of one hundred and eighteen hours of Time Off in Lieu and consideration of the impact of the breaches of the Disciplinary and Grievance policy on the complainant and compensation for distress.

In relation to complaint CA-00028996-002 regarding the daily reporting requirement the respondent says that this was not a disciplinary sanction. It was an administrative measure to address the complainant’s unaccounted hours and some other issues and the time in question amounted to two hundred and two hours (which the complainant said were not unaccounted).

The respondent has made an offer to resolve this issue.

In relation to complaint CA-28996-003, (Payment of Wages Act), this relates to unpaid expenses. There is no provision for the expenses claimed by the complainant and this matter has been through stages 1 and 2 of its grievance procedures.

In relation to complaint CA-28996-004 (Organisation of Working Time Act) which relates to annual leave which should have accrued during sick leave in fact the complainant has been over credited with annual leave and two days are due to be recouped.

In relation to the complaint CA-28996-005 related to the delay in processing her grievance of December 2017, the initial delay was due to the manner in which the complainant had formatted her grievance, requiring it to be re-written to identify individual respondents; several of whom were named in the same document.

This was not received until April 2018 and even then, further work was required in clarifying the issues.

In June the respondent proposed dealing with the issues informally and through mediation, but the complainant declined this and also the opportunity to attend meetings arranged for June 13th and July 13th.

She was further advised on October 3rd of the steps needed to pursue her complaint and offered assistance in doing so.

She did not do so and the respondent, not having heard anything further, closed the file on April 2nd, 2019.

The respondent submits that all complaints should be dismissed.

The origins of the main complaint arose in 2015 and 2016, it would seem. Certainly, the regulation that gave rise to the problem was changed in September 2016, so it predates that.

The complainant remains very aggrieved at the implication that she was not fulfilling her required hours and indeed it is hard not to see the shadow of this incident over all of the complaints.

This was compounded by other issues; a dispute about subsistence, annual leave entitlement and a possible complaint about the management of a service user which she says was left unresolved. In fact, it is clear from the submissions that this is not the case.

The complaints fall into three modules.

The first of these came initially to a head in 2017 arising from the TOIL problems the previous year and the requirement that the complainant report on a daily basis before leaving her base. This for convenience will be referred to as the ‘keys’ incident.

The second concerns the processing of the grievance submitted in January 2018. This also related to the ‘keys’ incident and others and was described as bullying in her complaint to the WRC.

Finally, there are the issues related to expenses and annual leave.

Starting with the ‘keys’ incident issues issues it is clear the complainant particularly resented the requirement to report daily.

Having heard the submissions of both parties I find that this was not a disciplinary measure, upsetting to the complainant as it may have been. According to the respondent this reporting requirement was in place for only two months and was operative from May 11th 2017.

The respondent says that the complainant did not comply with the requirements of the TOIL guidelines which require any period in excess of two hours in any one week to be approved in advance. She had not done so.

In considering my recommendation below on this aspect pf the matter the complainant must accept that she did not comply with the requirements of the TOIL scheme. It is hard to understand why it took until the meeting of June 13th 2017 for the complainant to present her explanation for the delays associated with the ‘keys’ incident.

In fact, the complainant was on sick leave between July 2017 and January 2018 and following this, in January 2018 she submitted her grievance.

Therefore, while the complainant vaguely suggested a connection and a delay between events in 2015 and 2019 it is more accurate to see the clock ticking from January 2018.

Then, looking at those delays in this it is clear that some delay is attributable to the complainant as a result of the manner in which she submitted her grievance.

Then there is the issue of the annual leave and expenses.

While they were referred to the WRC in June 2019 the complainant stated that in her submission that her problems began in ‘early 2015’; some five years ago. The regulation which gave rise to that aspect of the matter was changed in September 2016, yet the complainant’s sense of grievance about it lingers on.

In fact, the only outcome of that issue was the requirement to report for the two month period in 2017, and it is hard to understand what sort of remedy she now seeks for that, although she may also be aggrieved by the issue that arose in relation to the promotional competition in December 2016.

Why the complainant herself, or her union felt it necessary to elevate this to the level of a disciplinary sanction, which then became the subject of a grievance is not clear.

In particular, her union will know the format in which this respondent expresses its disciplinary outcomes and there was no sign of that here. Resolution of the issue was made more difficult by what looks like an overreaction in describing the reporting requirement as victimisation and special treatment, which overlooks the fact that whatever the correct explanation the respondent was addressing what it saw as a breach of the TOIL regulations arising from the ‘Keys incident’.

To that extent some of this ground of complaint is a problem of the complainant’s own making and it is difficult to understand how either she, or her union have failed to get clarification on this point in the intervening period.

That is not to say that there will not be situations in which disciplinary sanctions are disguised as administrative acts but this is not one of them

The thread in relation to this appears to come to a conclusion in August 2017.

The complainant then embarks on another grievance on August 1st in relation to subsistence. Despite further correspondence on August 30th, September 6th, 12th and 29th, and October 31st her union says that it did not get any response. Formal reference was made at various stages to Stage 1 and Stage 2 of the grievance machinery.

We now move to the next phase in the sequence of events which was the complainant’s grievance under the Dignity at Work policy (although the specific complaint about Bullying and Harassment was withdrawn).

The respondent makes a strong case that the complainant herself contributed to the delay in processing this grievance by failing initially to present it effectively and despite being offered assistance to do so ultimately failing to revise it as required or at all.

The grievance ran to twenty-two pages and as it raised issues under both the Dignity at Work and Grievance policies she was advised in February to re-draft it so that, for example individual respondents could be given sight of the specific allegations against them.

She did not submit this until April 2018 and she was then advised (in May, it appears) to separate the Bullying/Harassment and other grievances.

On June 6th the respondent advised her it was proceeding with the complaints.

There had been meeting on February 27th which was abandoned after a requirement that the complainant consult Occupational Health.

While the complainant’s representative strongly objected to this the respondent explains it by saying that the nurse manager in question had concluded that as the complainant was not able to attend work he was requesting a review by the occupational Health Department.

This does not appear unreasonable, although it would have been more courteous and considerate to have advised her of this in advance of the meeting.

The union accepts that in the course of the succeeding months there were a number of ‘informal conversations in an effort to mediate and address her grievance’.

If so, I cannot conclude that there was delay attributable to the respondent’s inaction. The complainant declined, as is her right, the option of mediation.

Finally, the respondent wrote on August 17th proposing a formal meeting which took place on September 11th, 2018. This was followed by further meetings in November 2018 and January 2019.

By any view of it, the delay in getting to an end point, even an unsatisfactory one in January 2019 is unacceptable. The respondent was in breach of its own guidelines; the complainant says it failed to respond within the seven days required, took twenty five days and even then raised objections.

But the delay between seven and twenty five days is not the decisive one and both parties contributed to the overall delay in different ways.

Following this the complainant was dissatisfied with the outcome of the January 2019 meeting and her union wrote on February 24th staying in general terms that the complainant ‘does not feel that her grievances have been addressed’.

This was an entirely inadequate response and unsurprisingly, the respondent had to ask for further detail which was not supplied until April 23rd.

This further detail included the ‘key incident’ issue, by now at least three years old, the alleged disciplinary action in relation to the daily reporting (of which, mysteriously neither the complainant nor her union had managed to establish the actual status). Also, by that time it was a year and a half distant and should have been long forgotten, and two issues that are considered below; TOIL and expenses.

This does not reflect much sense of urgency on the part of the union if it took it over three months to articulate its member’s specific dissatisfaction with the meeting on January 11th.

Therefore, while the delay has been entirely unsatisfactory, it is difficult to isolate the respondent as being particularly culpable as the foregoing analysis of events will show.

An initial onus falls on a complainant to submit and process a complaint in accordance with the agreed procedures and early consultation with their union prior to doing so can assist in this. Poorly formatted grievances can lead to delay and did so in this case.

The complainant herself showed a lack of urgency in following up the initial complaint, she declined mediation, and showed little indication of a willingness to move on from the incidents complained of or accept compromises that were on offer.

Thereafter, the respondent is obliged to abide by the timelines in its own procedures to process it with all due dispatch once it has been properly submitted. In this case the primary cause of the delay was the format in which the complainant submitted her grievances.

The parties could benefit from reviewing the handling of the various issues here to see how they might both improve their practise for future reference and to ensure compliance with the respondent’s own timeframes for the processing of grievances

The amount claimed to be outstanding in respect of expenses is a mere €78.00. The issues stated by the complainant to be unresolved by the process in April 2019 related to the 2015 regulations, which by that time had been changed for some years.

The respondent submitted that no agreement could be reached on the TOIL issues because of discrepancies in the parties’ respective positions. While with some good will that should have been resolved at the level of the workplace, I regard the offer made by the respondent to resolve the matter as fair and reasonable and it should be accepted by the complainant.

Specifically, I do not find for the complainant in respect of either of the statutory complaints CA-00028996-003 and 004. There has been no breach of either Act. The expenses payment claimed is not properly payable and while I accept the respondent’s submission in relation to annual leave I address this in my recommendation.

In summary, there are lessons for all sides arising from this matter and they must all accept some share of responsibility for the failure to resolve relatively minor matters at a much earlier stage.

I also note that in the January 2019 ‘Update on Actions etc’ the respondent has confirmed that there is no outstanding complaint in relation to the patient, which is referred to above, so that matter too, is closed.

For the reasons set out above I find complaints CA-00028996-003 and 004 not to be well founded.

I find that the requirement to report daily for the two month period did not represent a disciplinary sanction and I recommend that the complainant accept the respondent’s offer of half of the disputed TOIL days as a full and final settlement of all aspects of that issue.

I also recommend that the two annual leave days stated as being due should be written off as a gesture of good will and as part of a final settlement of all these issues, subject to this recommendation being accepted in full by the complainant.

More generally, both parties should separately and jointly reflect on, and review the handling of the various issues here to see how they might both improve their practise for future reference and, without any adverse finding in this complaint to ensure compliance with the respondent’s own timeframes for the processing of grievances.

Delay, Grievance procedure, dispute resolution.