Worker

Employer

Anonymised Parties

A Senior Staff Nurse

Health Service Provider

Representatives

Mary Power, Irish Nurses and Midwives Organisatin

 HR

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-00040234-001

05/10/2020

The Worker is seeking to expand the proposed terms of reference to an upcoming Dignity at Work investigation. The Worker also is requesting that one of the investigators has a nursing background.

INMO on behalf of the Worker submits as follows:

The Worker is employed as a Senior Staff Nurse, she has in excess of 30 years’ experience in nursing.

A grievance was raised by the Worker as a result of a meeting which was held on 20th April 2016 between eight Healthcare Assistants and the then Director of Nursing and CNM2 which resulted in complaints being made by certain HCAs against the Worker. Prior to this meeting there was no evidence that any complaints against the Worker existed.

The Worker suffered a heart attack on 4th May 2016 in the aftermath of these complaints and in the midst of an unhealthy work atmosphere.

A number of complaints relating to procedural concerns with regard to the process around how the allegations were elicited was raised by the Worker. However, the local internal investigation had “not found any evidence to support your complaints”.

On 20th February 2017 the Worker was advised that a formal investigation under the Dignity at Work policy was to be conducted into complaints made against the Worker.

On 27th February 2017, the Worker was provided with the list of complaints made against her for the first time.

Following concerns that fair procedures were not afforded to the Worker, an adjudication hearing with regard to progressing her initial grievance before proceeding with the Dignity at Work investigation was held in March 2018. This resulted in a recommendation that “the complainant’s grievance be addressed by the internal investigations unit and an independent investigator from this unit commences this grievance promptly to conclude within a three month period”.

The investigation was conducted and the outcome was issued on 6th February 2019 partly upholding the Worker’s grievance. The INMO immediately sought to meet with the then Employee Relations Manager (ERM) and the Commissioning Manager (CM) to discuss the outcome of the report. The meeting was scheduled on 6th April 2020 but was deferred due to Covid 19.

The Employer informed the INMO in March 2019 that it would proceed with the formal investigation under the Dignity at Work policy. In December 2019, the Employer advised the INMO of two proposed investigators to conduct the investigation and sought confirmation that they were acceptable. Proposed terms of reference for the investigation were also advised of for the INMO’s consideration. On 10th March 2020, the INMO sought inclusion of additional terms of reference and sought to clarify that a second investigator would have a nursing background.

On 14th August 2020, the Employer denied the request to include in the terms of reference all events leading up to and subsequent to the issuing of the complaint, the lack of adherence to the procedure (points 1, 2, and 3) citing that they were inappropriate on the basis that they have been considered in a previous WRC adjudication.

Further correspondence ensued and the matter was referred to the WRC on 5th October 2020.

The Worker is seeking that all matters pertinent to this case be comprehended in the upcoming Dignity at Work investigation. The Worker requests the inclusion of the following additional terms of reference:

1.       To investigate all related events leading to and subsequent to the issuing of the complaint documents made against the Worker.

2.       To hear the Worker’s concerns with regard to how the dignity at work complaints were made and the adherence or otherwise to the procedures to investigate such complaints.

3.       The inclusion of the February 2019 Investigation report findings.

4.       To provide both sides with copies of all relevant and relied upon core and supplementary documentation and all witness list, prior to the investigation.

5.       That audio recordings and minutes of each investigation interviews will be made available at the earliest opportunity to both sides.

6.       That the investigators will present conclusions based on the evidence gathered in the course of the investigation and invite any person adversely affected by these conclusions to provide additional information or challenge any aspect of the evidence.

The INMO protests that the appropriateness of a Dignity at Work investigation conducted into allegations/complaints where said complaints were obtained after a meeting held in April 2016, is indeed very relevant as this meeting was the impetus to the generation of attendees’ complaints made against the Workers. The meeting was later found to be improperly held and to have contravened the Employer’s policies. The INMO questions whether it is credible for the Employer to proceed with the Dignity at Work investigation in the circumstances.

The INMO contests that the Employer continues to disadvantage the Worker by denying her the opportunity to meet and discuss the outcome of the February 2016 report, which leaves the Worker to assume that her rights and entitlements are secondary not only to her colleagues but also secondary to the Employer’s efforts to close this matter as efficiently as it can.

The INMO seeks that the terms of reference would comprehend all events relevant to the procurement of allegations of complaints, to ensure fair procedures are applied to the Worker and to ensure that the Employer exercises no bias against the Worker.

The INMO argues that the failure to have all relevant matters included in the terms of reference could, most probably, result in the investigators deciding not to consider such events. 

The Employer’s Dignity at Work policy states that: “if the complaint is upheld, appropriate action will be taken i.e. progressing through the disciplinary procedure, counselling and /or mediation”. Therefore, it is imperative that the terms of reference have the ability to consider all matters leading up to, during and associated with the complaints to ensure fair procedures are afforded to the Worker. The INMO is seeking that the Worker will not be deprived of an opportunity to raise all her concerns of how the complaints were made or the procedures used to investigate these complaints be included in the terms of reference. The Worker is seeking to ensure that her longstanding concerns with regard to the Dignity at Work investigative process would be sufficiently robust to comprehend all matters to ensure fair and transparent consideration.

The Worker’s statement

The Worker took the opportunity to voice her reflections. She outlined how traumatic the events had been for her. She described the events of 20th April 2016 and the difficulties she had with the meeting on the day and the subsequent February 2019 report. She expressed her concerns about the Employer investigating complaints that emanated from a meeting that should not have happened. She noted however that all complaints post-dated the meeting. While she was cognisant of the duty of care the Employer has to the staff who made complaints against her, she pointed that the Employer also has duty towards her. She claimed that the Employer denied her fair procedure. She also outlined the isolation she suffers and referred to incidents of being adversely spoken about.

The Employer submits as follows:

The INMO submission sets out a chronology of matters since April 2016, which the Employer largely does not dispute in terms of timeline/chronology. However, the Employer has a different view to the Worker’s characterisation of certain occurrences.

The Worker contends that the outcome of the February 2016 investigation means one of two things:

1.       That the investigation’s findings, and what the Union considers consequential issues, should be incorporated into the scope/terms of reference of the Dignity at Work investigation;

or alternatively

2.       That the Dignity at Work investigation should not proceed at all.

In respect of the first matter, the Employer submits that the fact that the Worker’s grievance pursuant to the February 2019 investigation was upheld does not require any change to the Terms of Reference of the Dignity at Work investigation.

The scope of the Dignity at Work investigation, as with any investigation under the Employer’s Dignity at Work policy, will determine:

a)       Whether the complaints fall within the definition of bullying, harassment or sexual harassment as defined in the policy;

b)      Whether the complaints are upheld as the offending action amounted to inappropriate behaviour, bullying, harassment or sexual harassment.

The proposed Terms of Reference for the investigation to be conducted under the Dignity at Work policy into the complaints made against the Worker were advised to the INMO.

The investigation will be conducted thoroughly and objectively and with due respect for the rights of both the complainants and the alleged perpetrator. The Worker will have every opportunity to put forward the response to the complainants made against her.

The Employer does not agree to the inclusion of the additions to the Terms of Reference sought by the Worker for the following reasons:

To investigate all relevant events leading up to and subsequent to the issuing of the complaint documents made against the Worker.

The parameters of what may be investigated pursuant to the nationally agreed policy are made very clear in that policy. Notwithstanding that, it is quite clear that the February 2019 report (which was completed pursuant to a direction form the WRC in a prior adjudication) has already considered matters leading up to the lodging of complaints by other employees against the Worker. In particular, the report considers the issues raised by the Worker regarding: the holding of the meeting on 20th April 2016, where she was the subject of the discussion; the Worker’s contentions that arrangements were put in place as regards the “collection” of complaints against her by one staff member; nomination of a spokesperson for HCAs; and “re-writing” of complaints against her.

The INMO does not specify any other particular issue that the Worker has a concern about leading up to the lodging of complaints against her.

The fact of the matter is that complaints have been submitted. The employees are entitled to raise a complaint through the Employer’s Dignity at Work policy and the Employer has a duty to deal appropriately with that complaint as per the policy, ensuring that fair procedures are afforded to the employee against whom the complaint is made. The purpose of the policy is to determine whether the complaints made are upheld, and the Employer submits that the appointed investigation team should be permitted to proceed with their investigation pursuant to the Terms of Reference already notified to the Worker.

In terms of the events subsequent to the issuing of the complaints against the Worker, again the INMO does not specify any particular event or issue that the Worker has concerns about subsequent to the lodging of the complaints against her. If the Worker has concerns around other matters or events, she is fully entitled to raise her concerns under a relevant Employer’s policy/procedure. Without knowing what the Worker’s issues are, the Employer is not in a position to assess whether her issues may be dealt with under any other policy.

The persons nominated to investigate those complaints are independent and not connected to the complaints in any way. The investigation team are tasked with investigating the complaints in accordance with fair procedures. The Employer notes that one of the members of the investigation team does have a nursing background which was one of the matters referred to in the WRC complaint form.

To hear the Worker’s concerns with regard to how the dignity at work complaints were made and the adherence or otherwise to procedures to investigate such complaints.

The first element – to hear the Worker’s concerns with regard to how the dignity at work complaints were made – appears to be a duplication of or closely related to the point above, which has been addressed.

In terms of adherence or otherwise to procedures to investigate the complaints, the proposed inclusion of such a term is not understood. If the Worker has any concerns with how the investigation is being conducted, in the first instance she should raise this with the Commissioner of the Investigation. It would not be appropriate for an investigation team to investigate how they themselves are going about the investigation (the rule against bias).

The Employer is in a position to demonstrate that fair procedures have been afforded to the Worker to date in the investigation.

The inclusion of the February 2019 Report findings, which determined that a meeting held in April 2016 should not have happened, which breached all HR policies.

The Employer submits that the inclusion of the Report’s findings within the Terms of Reference of the present Dignity at Work investigation would be inappropriate. The purpose of the INMO’s request to include same is not clear.

Whilst the Employer accepts the outcome of the February 2019 investigation in so far as it determined that the meeting held on 20th April 2016 should not have been held it does not negate the fact that complaints have been received by the Employer under the Dignity at Work policy and the Employer has an obligation to investigate same. The February 2019 investigation findings do not go to the core of the matters which are for consideration by the investigation team in the Dignity at Work investigation.

The Employer makes it clear that the Worker is free to raise with the investigation team the facts of the outcome of the February 2019 investigation and request them to take that outcome into account. The weight to be afforded to the Worker’s representations will be a matter for the investigation team.

To provide both sides with copies of all relevant and relied upon core and supplementary documentation and all witness list prior to the investigation.

The Terms of Reference make it clear that the investigation will be conducted in line with the Employer’s Dignity at Work policy, which states that:

“both parties will be given copies of all relevant documentation prior to and during the investigation process, i.e. -Written complaint -Written response from the alleged perpetrator -Witness statements (which should be signed) -Minutes of meetings”

Accordingly, there is no question but that all relevant documentation will be provided to both sides in the investigation.

In terms of the witness list, it is not clear what the rationale for this request is and there is no provision for same in the Dignity at Work policy. It is a matter for the investigation team to interview any witnesses or other relevant persons and, as per the policy, the investigation team may interview anyone who they feel can assist with the investigation. In any event, it is unlikely to be possible for the investigation team, prior to the investigation, to notify the parties of the witnesses who they intend interviewing, because information may come to hand during the course of the investigation as a result of which the investigation team may determine that they need to interview further witnesses and the investigation team will not be bound by any preliminary list of witnesses.

The audio recordings and minutes of each investigation interview will be made available at the earliest opportunity to both sides.

The Employer’s Dignity at Work policy provides:

“an agreed minute of each meeting will be issued to both parties.”

There is no provision in the policy for audio recording of interviews/meetings. The manner in which an investigation team capture the minutes/details of meetings/interviews is ultimately a matter for the investigation team’s determination, subject to the policy. The Employer does not consider there is any prejudice to the Worker arising out of its position that meetings will not be audio recorded, given that the nationally agreed Dignity at Work policy will be fully adhered to – that an agreed minute of each meeting/ witness interview will be issued to both parties. No reason has been demonstrated by the INMO as to why there would be any particular unfairness to the Worker as a result of same.

That the investigators will present conclusions based on the evidence gathered in the course of the investigation and invite any person adversely affected by these conclusions to provide additional information or challenge any aspect of the evidence.

The Terms of Reference make it clear that the investigation will be conducted in line with the Employer’s Dignity at Work policy, which states:

“The investigator(s) will present preliminary conclusions based on the evidence gathered in the course of the investigation and will invite any persons adversely affected by these conclusions to provide additional information or challenge any aspect of the evidence.”

Accordingly, the clause is already implied in the Terms of Reference.

The Employer submits that its Dignity at Work policy is a nationally agreed procedure with which the Worker and her Union are fully familiar. The Worker’s entitlement to fair procedure and natural justice can and will be fully adhered to in the context of the proposed investigation without the necessity to amend the Terms of Reference of that investigation.

In respect of the second contention which appears to be made by the INMO that the Dignity at Work investigation should not proceed at all and the INMO questioning whether it is “credible” for the Employer to proceed with the investigation arising out of the decision in the February 2019 investigation, the Employer notes that the Recommendation of the Adjudication Officer was that once the Worker’s grievance had been addressed that the investigation into the outstanding complaints under the Dignity at Work policy should commence.

The Employer submits that the outcome of the February 2019 investigation does not preclude the continuance of the Dignity at Work investigation. The Employer has a duty to both parties - the employee who has made the complaint and the respondent to the complaint.

The Employer submits that the February 2019 report found that the meeting on 20th April 2016 should not have taken place. However, it made it clear that the management acted completely in good faith and without malice. Once the DON became aware of the nature of the meeting, she immediately informed the staff that the issues were matters relevant to the Dignity at Work policy and indicated the correct process. There was no finding that the management in any way canvassed or encouraged staff to make complaints. The report also considered the Worker’s concern that a staff member had been identified to collect written complaints and act as a spokesperson on behalf of the HCAs.

The Employer submits that the fact is that complaints have been received by the Employer. Taking the Employer’s duty to provide a safe place of work and its obligations under the nationally agreed policy, the balance of fairness favours the progression of the investigation of the complaints made against the Worker. The Worker can be assured that the investigation will be conducted in accordance with fair procedures and natural justice.

I have carefully considered the extensive written and oral submissions made by the parties in relation to this dispute.

In essence, the dispute relates to the investigation of complaints made against the Worker under the Dignity at Work policy. The matter is closely related to the dispute the Worker referred to the WRC, which resulted in the Recommendation ADJ- 00010879. The Adjudication Officer recommended that “…the Complainant’s grievance be addressed by the internal investigations unit and an independent investigator from this unit commences this grievance promptly to conclude same within three months. Thereafter once this investigation is concluded the complaints of the dignity and respect policy should commence.”

There are two elements in the within dispute. Firstly, the INMO on behalf of the Worker questions the appropriateness and credibility of a Dignity at Work investigation into complaints which were obtained after a meeting which was later found to be improperly held. Secondly, the INMO seeks the inclusion of six additional terms of reference. Additionally, in the WRC referral form the Worker sought that one of the investigators had a nursing background. It was confirmed at the adjudication hearing that this is the case.

In relation to the first matter, I note that the Adjudication Officer in ADJ-00010879 clearly recommended that “once this investigation is concluded the complaints of the dignity and respect policy should commence”. It is clear that the Recommendation was that the Dignity at Work investigation proceeds regardless of the outcome of the grievance investigation.The Worker did not appeal this Recommendation.

In respect of the inclusion of the additional terms of reference, I note that the Employer has a detailed nationally agreed Dignity at Work policy. It was not claimed at the hearing that the Employer in any way diverted from its provisions. Rather, the Worker is seeking to add certain points to the Terms of Reference.

Having carefully considered the parties’ submissions, I do not recommend in favour of the Worker’s claim. I find that the investigation into the Worker’s grievance has concluded. I therefore recommend that the Dignity at Work investigation into the complaints against the Worker proceeds in line with the nationally agreed policy.

I do not recommend in favour of the Worker’s claim. I recommend that the investigation of the complaints against the Worker commences as soon as possible in line with the Dignity at Work policy.

Dignity at Work complaints – grievance -