Worker

Employer

Anonymised Parties

A Grade 2 Chef

A Public Hospital

Representatives

Vivian Cullen, SIPTU Trade Union

Mary-Jayne Andrews of IBEC

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-00038767-001

16/07/2020

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

CA-00038768-001

16/07/2020

The issues in dispute in this case relate to incidents arising between a Chef and his colleagues both in August 2019 and again in April 2020. The dispute with the Employer relates to the manner in which the incidents were handled and in particular alleged excessive and unwarranted delays in progressing matters. These delays are alleged to have been most unfair to the Worker concerned.

The employment commenced in October 2011 and continues. The basic rate of pay of the Worker is €1,303 per fortnight for a 39-hour week.

For convenience the terminology, Incident One (August 2019) and Incident Two (April 2020), will be used.

As quite an amount of time has passed since Incident One in August 2019 a considerable volume of interparty correspondence relating to the case was presented in evidence and disputed by both Parties.

In summary the Worker alleged that Incident One (August 2019) had not been properly investigated in keeping with Hospital procedures or more importantly in keeping with SI 146 of 2000 – Statutory Code of Practice on Grievance and Disciplinary Procedures. His representative pointed to the Legal precept that “Justice delayed is justice denied”.

In relation to Incident Two (April 2020) the negative overhang from Incident One had completely coloured matters and in particular the involvement of Managers from Incident One in Incident Two was completely inappropriate as they were clearly open to allegations of bias against the Worker. The Worker was on Administrative Leave from April 2020 to date.

The Employer “closure of Incident one” by a screening process and preliminary review by a Senior Manager - letter of outcome in November 2020 - was unfair as the Worker was never afforded proper procedures and was accordingly unable to “clear his good name”.

He had lodged his complaint to the WRC in July of 2020 regarding Incident One and the issue was still outstanding – being the subject matter of today’s dispute.

The Employer had commissioned in late 2020 an outside Independent firm of Consultants, ACRUX Consulting, to investigate Incident No Two. However, in preliminary meetings with the Consultants, the question of how Incident One had been handled was raised by the Worker and his strongly felt need to go to the WRC for assistance in relation to flagrant management delays. The Consultants had felt it necessary to raise this WRC reference issue by way of a procedural query regarding how they should progress their investigation with the Employer – letter of the 8th December 2020. It was understood from the Hearing that, following clarification, the Investigation is underway by mutual consent.

In conclusion, the Worker is seeking a compensation award for the “roughshod” way his rights were handled regarding Incident One and an Adjudication declaration that his rights had been breached by reason of unwarranted delays and Management’s general inexcusable lethargy regarding his case.

In summary, the Employer stated that at all times they had sought to have the circumstances of Incident One investigated /progressed in an Informal manner as per Hospital Agreed Procedures. The suggestion of mediation had been advanced in March 2020 but declined by the Worker as he felt the seriousness of the allegations warranted a full formal investigation.

A major complication then arose due to COVID 19 and the HSE decision to suspend employee relations processes until late June 2020 – this decision being to alleviate pressures on personnel and systems combatting a Pandemic. However, communications resumed in June and mediation was suggested – e-mail of June 26th to the Worker’s Representative.

Considerable exchanges of correspondence followed. The informal approach was not acceptable and the original Complainant in Incident No One was requested to give further information to management. This was finalised in early October and Manager, Mr. X, felt that the incident did not fully qualify under the Terms of the Dignity at Work policy, was more of an interpersonal nature and recommended that mediation would be usefully used. He stated that the Incident One matter be now regarded as “Closed.” Mr. X’s letter of the 19th November 2020 was referred to. Management strongly contested allegations that they had delayed processes or had been lethargic in handling the case. Extensive e mail exchanges between the Parties were referred to as evidence of a case being actively pursued, albeit in the context of a Covid 19 crisis.

Almost in parallel the process of arranging an Independent Investigator for Incident Two was ongoing and ACRUX Consulting was appointed in October 2020.

Any delays are regretted but are the product of the difficulties in getting any engagement between the Worker and the Employer in Informal processes and or mediation. These necessitated formal procedures being engaged in which by their nature have a longer time scale. For example, it was necessary to go back in mid-2020 and seek a witness statement from the other worker involved in the August 2019 incident. This delayed matters as this was not provided until October 2020. In addition, the COVID 19 pressures did not help matters.

The Employer is most anxious that the entire matter be concluded. The Worker is on Administrative paid leave for almost a Year and this situation is most unsatisfactory for both the Worker and the Employer.

This case is being taken under the Industrial Relations Act, 1969.- Section 13 refers.

13.—

(2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of Workers) exists or is apprehended and involves Workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.

(3) ( a) Subject to the provisions of this section, a rights commissioner shall investigate any trade dispute referred to him under subsection (2) of this section and shall, unless before doing so the dispute is settled—

(i) make a recommendation to the parties to the dispute setting forth his opinion on the merits of the dispute, and

(ii) notify the Court of the recommendation.

The Worker concerned is now on Administrative Leave for, by date of Recommendation, over a year.

A considerable volume of correspondence had passed between the Parties and a degree of irritation was evident on all sides regarding the handling of Incident One. The Worker felt that a proper due process of Natural Justice had not been followed while the Employer felt that the standard Employer procedural route had been followed. There was much contention regarding the Worker’s” Rights” in the procedural process and in particular how these may have been impacted negatively by delays. The case took over twelve months to finally resolve.

There are considerable precedents to support the view that employment matters are decided on the basis of the balance of probabilities, the Civil Standard of Proof, rather than the Criminal Standard – beyond reasonable doubt. Having reviewed the agreed internal Employee Relations Procedures and the materials presented there can be no doubt that Incident One was proper to this sphere.

The Worker has genuine concerns regarding “Clearing his good name” in regard to Incident No One in August 2019. However, regardless of his perception that the matter was badly handled, which the Employer denies, he has to accept that Manager X carried out what appears, from the correspondence, to have been a proper Screening and the matter was closed.

None the less and after carefully reviewing the case, the oral evidence, and the written materials, from an Industrial Relations point of view, the situation pointed to an urgent need to resolve matters and get the Worker’s employment situation stabilised. An agreed way forward between the Parties is required.

A prolonged absence from work is not helping matters. Equally in seeking a way forward there was an urgent need to now regard Incident One as “water under the bridge” even if Parties still felt aggrieved. This may be a hard call for the Worker but all the indicators presented, under a normal Employer/Employee process, did not seem to warrant a special almost judicial investigation over and above the standard agreed Procedures in what is after all a major employer of approximately 4,000 staff.

It was important to note that the Screening manager did not think it was a case of such seriousness to merit invoking the Dignity at Work policy. Reading the correspondence, it was hard to see how the Good Name of the Worker had been maligned to the degree suggested.

Put simply time has moved on and reopening this case would achieve very little of practical benefit for any of the Parties.

The delays in Incident One as outlined in the correspondence were unfortunate but in the context of the HSE close down of Employee Relations processes in the Spring of 2000 and the general Covid stresses on the Employer do not, from the evidence seem to warrant a compensation award, as is being suggested.

In this light the Independent process with ACRUX Consulting, into Incident Two, is under way in a most professional manner and should be let continue to a speedy conclusion.

The Worker is on Administrative leave for in effect a Year. It is crucial that he be got back to work as further absence is simply making the situation more fraught. This of course is dependent on the time scale of the Report on Incident No Two and if due in the immediate future a return to work or otherwise can be postponed until then but not for a further prolonged period.

In addition, and always bearing in mind the as yet unknown outcome of the Consultancy report and largely due to the time lapses involved the Worker and the Employer might well benefit from a Mediation process leading to Phased return to work following a prolonged absence, if a return is a possible outcome.

Administrative Leave, Delays in processes, Mediation