Worker

Employer

Anonymised Parties

A Staff Nurse

A Hospice Foundation

Representatives

Anne Burke,  Irish Nurses and Midwives Organisation

Ashling McDevitt, IBEC

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-00036351-001

25/05/2020

The Worker has been employed as a Staff Nurse since 2010.  She submitted her dispute to the Director General of the WRC alleging that her Employer failed to adhere to the provisions of its own policy when it commenced an investigation into her conduct.

INMO on behalf of the Worker submits as follows:

The Worker has been employed as a Staff Nurse since 2010.

On 18th November 2018, the Director of HR wrote to the Worker notifying her that an investigation would be conducted into allegations the Worker made. Explicit in the correspondence was that the investigation was to be conducted “in line with the [Employer’s] Dignity at Work policy”. Terms of Reference were attached. The correspondence set out the arrangements for the investigation to take place four days later on 22nd November by a named Investigator (Mr A).

On 20th November 2019, the INMO responded to the Employer objecting to the investigation and highlighting procedural deficits.

On 21st November 2019, the Employer provided first sight copies of the complaint to the Worker.

On 27th November 2019, the INMO wrote to the CEO of the Employer highlighting the departure from their own procedure. The CEO responded on 2nd December 2019 requesting the INMO to set out “reasonable grounds of objection” to the unilaterally appointed Investigator. On 18th December 2019, the INMO wrote to the CEO setting out three nominees as is the normal IR/HR arrangement in circumstance where employer’s procedures provide for agreement to be reached on an external investigator. The CEO rejected the INMO’s nominees on 19th December 2019 citing the Grievance and Disciplinary procedure and not the Dignity at Work policy.  On the same day the Employer wrote to the Worker directly confirming its intention to proceed with the investigation on 8th January 2021.

On 20th December 2019, the INMO reiterated its objection to the pursuance of the investigation.

On 23rd December 2019, the PA to the CEO in her correspondence again referred to the conduction of the investigation under the Grievance and Disciplinary policy.

On 8th January 2020, the Employer wrote to the Worker notifying her that the investigation had already commenced. The INMO responded on 14th January 2020.

On 23rd January 2020, the Worker received further correspondence from the Director of HR notifying the Worker of the commencement of another investigation and seeking to amalgamate it with the aforementioned investigation. The Terms of Reference for the latter Dignity at Work investigation confirm that “The Investigation will be conducted by an agreed third party”.

On 24th January 2020, the Worker became ill and went on sick leave, and has remained on same.

On 27th January 2020, the INMO wrote to the Employer setting out their concerns and objections to the amalgamation of the two investigations.

On 30th January 2020, the Employer proposed two external investigators in the context of the second Dignity at Work investigation.

On 3rd February 2020, the INMO wrote to the Employer confirming their loss of confidence in the Employer’s investigative arrangements.

On 29th May 2020, the INMO confirmed referral of the dispute to the WRC.

The INMO argues that from the Employer’s first notification to the Worker, the Employer engaged in flagrant deviations from its own policy. The Employer’s correspondence reflects a hastily arranged, unilaterally imposed investigation. The INMO contends that the Employer’s cherry-picking of some terms of their Dignity at Work policy and not of others does not represent natural justice or fair procedures. The policy must be adhered to in full. Specifically, the IMNO seeks that the following provisions are adhered to:

“Investigations shall be carried out by either a designated member of management or an agreed external third party. [the Employer] shall do whatever is possible to ensure the investigation is conducted thoroughly, objectively, with sensitivity, utmost confidentiality and with due respect for the right of both the claimant and the alleged perpetrator(s).”

“The investigation shall be governed by terms of reference agreed between the parties in advance.”

The INMO objects to the Employer’s approach in respect of their imposition of their nominated investigator.

The correspondence of the PA to the CEO in which she states that she “assumed, perhaps erroneously” that the INMO would have no objections to their nominated investigator, illustrates the presumptive and cavalier attitude of the Employer.

The assertion that the INMO were required to justify their objections to the nominated investigator is not a term that is provided for in the Dignity at Work policy and therefore does not form grounds to proceed with their own nominee.

The Employer’s attempt in their correspondence to alter the policy under which the investigation was being conducted i.e., from the Dignity at Work policy to the Grievance procedure demonstrates concerning unwillingness to adhere to their own policy and further deviation from their policy.

When the Employer sought to initiate a second investigation in January 2020, they adopted a contradictory position to the one which they held in respect of the initial investigation, this time nominating two external investigators representing a total U-turn in respect of their previously held position. This demonstrates the divergence of position by the Employer in respect of the same policy.

The INMO argues that the S.I. 146/2000 underpins the requirement to be “rational and fair” in providing protections to employee in terms of the manner in which grievance procedures are conducted. This has not occurred in this case as the Employer had unilaterally decided to vary the provisions of their policy.

The INMO contends that the initial haste in arranging the investigation, coupled with the Employer’s intransigence in terms of not adhering to their own policies, signals the very deepest concerns for the Worker as to why this would occur. The INMO contends that application of policy and reasonability has been abandoned by the Employer at the expense of the Worker’s entitlement to due process and fair procedures.

The INMO argues that the Worker has suffered intolerable stress and mental anguish as a result of the actions of her Employer. She remains on sick leave, has incurred a substantial loss of earnings and is seeking compensation of €15,000.

Ibec on behalf of the Employer submits as follows:

The Employer operates a number of HR policies and procedures, including:

·       Grievance and Disciplinary policy

·       Dignity at Work policy

·       Sick pay Scheme

·       Attendance policy

The issue commenced on 18th November 2019, when the Worker was informed of an investigation, under the Grievance and Disciplinary policy into allegations of the Worker’s “failure to adhere to the [Employer’s] sickness and attendance policies, her failure to adhere to reasonable requests from the organisation and her general attitude in relation to her conduct towards her colleagues at [Employer], on a formal basis”. This correspondence was issues by the HR Director.

The Worker had also made allegations in relation to her alleged “awful treatment” from the HR Director and other members of management since an accident she had sustained at work in October 2018. The Worker also named the Director of Nursing (DON) in these allegations.

As a result, the HR Director in her aforementioned correspondence stated that “This investigation will also include your allegations of the “awful treatment [you have] had from [HR Director] and other members of management since [your] accident” and “the nonstop, borderline harassment [you have] received all week on [your] time off from both [HR Director] and [DON].

While a formal investigation would normally be conducted by the HR Director, she removed herself from the investigation, including the coordination of the investigation, in order to maintain natural justice.  The INMO were informed to direct any future correspondence to the PA to the CEO.

A Terms of Reference document was issued with this correspondence and clarified that the allegations against the Worker were:

·       Failure to adhere to the Employer’s sickness and attendance policies,

·       Failure to adhere to reasonable requests from the Employer,

·       Conduct towards colleagues.

The document again stated that the Worker’s grievance as above would be also investigated. The document is clear that the PA would be co-ordinating the investigation, however, the investigation itself would be conducted by an external HR Consultant, Mr A.

The INMO responded to this correspondence on the Worker’s behalf stating that the Worker had not refused to meet with the Head of HR in relation to the attendance policy but rather it was the timing of the meeting that was in issue. However, the INMO nonetheless communicated that the Worker would not participate in the investigation as it was in breach of fair procedures that the Head of HR issued the initial correspondence, various allegations of unfairness as outlined, and furthermore, the INMO stated that following on from Conway v HSE, the investigator ought to have been agreed between the parties.

In order to clarify the allegations as per the INMO’s correspondence, both the HR Director and the DON provided a statement to be used as part of the investigation. These were issued to the INMO on 21st November 2019.

On 27th November 2019, the INMO wrote to the CEO raising questions as to who had commissioned the investigation, raising allegations of bias on the HR Director’s part, and correctly stating that, the statement submitted by the HR Director and the DON, post-dated her initial correspondence relating to the investigation. However, it must be stated that the purpose of both statements was to provide greater clarity in relation to the allegations given the INMO’s previous correspondence. The INMO further alleged that the Employer’s attendance policy was flawed.

The CEO responded to this correspondence by letter dated 2nd December 2019, clarifying inter alia that the HR Director informed the Worker in her correspondence of 18th November 2019 that she was removing herself from the investigation and the PA was appointed to this role. The CEO clarified that, because of the nature and size of the organisation, she was satisfied that it was a reasonable course of action. The CEO said further that, while the Grievance and Disciplinary policy states that an investigation shall be conducted by a nominee of the Director of HR which can include an external independent person, the Worker was given the opportunity to submit any objections to Mr A as the investigator. If the Worker presents reasonable grounds of objection, they would be taken into account and a different investigator may be assigned. She noted that the Terms of reference were resubmitted for the INMO review/comments.

It was further clarified that the Worker would have the opportunity to substantiate her own complaints as part of the investigation process and would have the right of reply during the investigation process in line with natural justice. It would also be an opportunity to outline any perceived policy flaws.

The INMO replied on 18th December 2019, stating that “there is no obligation on the INMO to set out our objections to your previously nominated investigator. On that basis the INMO is seeking that one of the following 3 nominees is agreed between both parties as a suitable investigator”.

However, as no reasonable objection was substantiated in relation to the investigator appointed by the Employer, it was communicated to the INMO on 19th December 2019, that the investigation would be proceeding from the week commencing 8th January 2020.

Further correspondence issued between the parties and the Employer was encouraged that the Worker and the INMO did agree to attend the investigation meeting. In their correspondence of 14th January 2020, the INMO requested that the meeting be postponed until 4th February 2020. The Employer facilitated the request.

The Employer wrote to the Worker separately on 23rd January 2020 in relation to the commencement of a separate investigation, relating to a complaint received by the Employer regarding the Worker under the Dignity at Work policy. While the Employer suggested that the two investigations be combined, the Employer further noted in this correspondence that under the Dignity at Work policy, the investigator must be agreed.

Unfortunately, the Worker commenced a period of certified sick leave from 24th January 2020 and thus was not in a position to attend the investigation meeting.

On 3rd February 2020, the INMO wrote to the Employer stating that they had “lost confidence” in the current grievance and disciplinary investigation and suggesting three investigators.

The Worker was assessed by the Occupational Health in March and May 2020. While the report of May 2020 indicated that the Worker was fit to engage in the process, the Worker provided her own medical report from her GP stating that she was unfit to engage with same.

On 26th May 2020 the INMO informed the Employer that the matter had been referred to the WRC and that they would not cooperate with any investigation pending the outcome of same.

The Employer submits that it has been clear in stating that the investigation is conducted under the Grievance and Disciplinary procedure. It has taken the step to appoint an external investigator, a qualified professional against whom no specific objections have been substantiated.

The Employer is eager to engage with the Worker once she is fit to do so and would encourage the Worker to engage with the process. The investigation is furthermore an opportunity for the Worker to substantiate her own grievance.

The Employer is committed to providing the Worker with a fair process.

The Employer referred to ADJ-00008279 and LCR22210 in support of its position.

I have carefully considered the detailed submissions of the parties and I have concluded as follows.

The Employer initiated two separate investigations, the first in November 2019 and the second in January 2020, albeit initially an attempt was made to conduct both as a single process.  

While there was extensive correspondence between the parties in relation to the alleged shortcomings of the process, it was clarified at the adjudication hearing that the kernel of the dispute was the appointment of the external investigator, Mr A by the Employer to conduct the first investigation without consultation with the INMO and the process being carried out under the Grievance and Disciplinary Procedure. The INMO argued that, as per the initial letter of 18th November 2019, the investigation should be conducted in line with the Dignity at Work Policy. The Policy states that

“Investigations shall be carried out by either a designated member of management or an agreed external third party. [the Employer] shall do whatever is possible to ensure the investigation is conducted thoroughly, objectively, with sensitivity, utmost confidentiality and with due respect for the right of both the claimant and the alleged perpetrator(s).”

“The investigation shall be governed by terms of reference agreed between the parties in advance.”

The Employer conceded at the hearing that the HR Director erroneously wrote to the Worker on 18th November 2019 stating that the investigation would be conducted in line with the Dignity at Work Policy rather than the Grievance and Disciplinary Procedure, which does not provide for a mutually agreed investigator. It is clear that the Employer’s letter of 2nd December 2019 refers to the Grievance and Disciplinary Policy. The INMO at the time appeared to ignore the Employer’s reliance on the relevant provision of the Grievance and Disciplinary Policy and insisted on the appointment of one of three investigators proposed by the INMO (letter of 18th December 2019). Despite the subsequent correspondence of 19th December 2019 clarifying the appointment of the investigator under the Grievance and Disciplinary Policy, the INMO again refers to the Dignity at Work Policy in their letter of 20th December 2019. In the letter of 20th December 2019, the Employer clarified to the INMO that it is “…clear that this matter is being addressed under the organisation’s Grievance and Disciplinary Process…”. It further clarified that “If, arising from the investigation that [the Worker’s] allegation of the treatment of her by Management has merit, then the Dignity at Work Policy may be applied.”

At the adjudication hearing the INMO agreed that the allegations raised against the Worker in November 2019 do not fall under the Dignity at Work Policy but insisted on the investigation under the Policy as per the initial letter.

There is no dispute that the second investigation which the Worker was informed of by letter dated 23rd January 2020 was into allegations of bullying and harassment against the Worker and was to be conducted in line with the Dignity at Work policy. While the Employer notes that “it would be best if all matters raised are investigated at the same time as the current investigation”, it does not impose this approach. Following the INMO’s objections, the Employer confirmed that a separate investigation would be carried out and proposed two investigators. The INMO then agreed to “an investigation into all complaints, grievances, etc.“ to be conducted by one of the investigators proposed by the INMO. Following medical assessment, the Worker was deemed fit to engage in the process by Occupational Health specialist but unfit by her own GP. The Employer requested an alternative independent specialist’s opinion. However, the matter was referred to the WRC. 

Having reviewed the matters raised by the Worker in respect of the allegedly flawed process, I find that an error was made in the Employer’s initial correspondence in terms of the applicable procedure in relation to the first investigation (November 2019). Given the INMO confirmation at the adjudication hearing that they are of the view that the matters subject to the investigation are within the scope of the Grievance and Disciplinary Procedure and that there  are no objections to the particular investigator, I find it regrettable that the matter was delayed for such a lengthy period of time.  I find that no compelling justification has been advanced to disturb the appointment of the external investigator in relation to the first investigation and the investigation being conducted in line with the Grievance and Disciplinary procedure.

In relation to the second investigation (January 2020), there was no dispute that it was correctly instigated under the Dignity at Work policy.

Having considered the submissions of the parties, I find that the most important aspect of this recommendation is that the Worker and the Employer work through the process that is in progress. I recommend that the Worker, when medically fit to do so, engages with the Employer in the investigation process with the aim to conclude the matter.

I recommend that the Employer conducts two separate investigations in respect of the matters raised in November 2019 and January 2020. The investigation of the matters raised in November 2019 are to continue to be investigated by the investigator appointed, Mr A. I recommend that the second investigation (matters raised in January 2020) proceeds separately in line with the agreed Dignity at Work procedure.

I have carefully considered the submissions made by the parties to this dispute and I do not find in favour of the Worker in relation to this dispute.

I recommend that the Worker, once deemed fit to do so, engages with the Employer to complete both investigations as soon as possible.

I recommend that the investigations of the matters raised in November 2019 and January 2020 are conducted separately. I recommend that the already appointed investigator continues in his role in respect of the investigation of the matters raised in November 2019. I further recommend that the investigation of the matters raised in January 2020 commences as soon as possible, subject to the Worker being fit to participate, in line with the agreed Dignity at Work policy.

Grievance and disciplinary investigation – dignity at work investigation- appointment of investigator