Worker

Employer

Anonymised Parties

A Teacher & Tutor

A Care Organisation

Representatives

Shonagh Byrne of SIPTU

Beale & Co, Solicitors

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-00041160-001

20/11/2020

The issue in contention concerns an Internal Investigation under the Trust in Care policy. The Worker alleged that the Employer, in its handling of the case, breached the principles of fair procedures and natural justice. The original allegations were in connection with an alleged incident in early September 2017. The worker believed that the matter had been concluded in late September 2017. However, the issue re-emerged in July 2018 when she applied for a promotion. It was still ongoing at the insistence of the HSE in February 2019.

The Worker has been in employment with the Employer since 01/09/2021 and remains so.

She works a 22-hour week for a nett pay of € 644.

In summary an incident with a Resident took place in August 2017 in Centre A.  This was the subject of a complaint against her which was brought to her attention by the Safeguarding Officer, Ms. XA, on the 12th September 2017. The Worker met with Ms. XA on the 13th September and gave a statement. On the 18th October 2017 the Worker re-read and signed the statement. Nothing further was heard by the Worker until July 2018 when the Person in Charge at Centre B, to which the Worker had moved following an Interview, informed her that a Trust in Care (TIC) issue was outstanding from Centre A. The Worker was informed that she could not remain at Centre B while the TIC matter was outstanding. The Worker found this completely unfair as she had never been advised of any TIC issue from Centre A.

The then Regional Manager, Ms. XB, advised the Worker that a new TIC process was necessary.  The Worker co operated fully with this. The Worker was finally informed by Regional Manager, Ms. XB on the 3rd October 2018 that the TIC investigation would not go ahead and at a meeting on the 4th October 2018 was informed that the matter would be closed and all references to it would be removed form her file. An issue had arisen over non-payment of wages during this time and this was also eventually resolved. The Worker returned to Centre B.

In February 2019 the Worker was advised by the then Regional Manager, Mr. XC, that a new TIC Investigation into the original August 2017 incident was required. In an effort to end the process the Worker again agreed to co-operate. On the 8th July 2019 a draft report was issued. The Worker had serious issues of concern with the draft report. These seemed to have been ignored by the Employer. The Worker completely refuted the findings of the Draft Report.

On the 16th September 2019 the then Regional Manager, Ms. XD, informed the Worker that the Report was being accepted by the Employer and the Worker would be required to attend a Disciplinary process. She refused.

In final summary the Worker strongly maintained that the entire process had been completely flawed. The matters had been initially closed in October 2017, closed again in October 2018 and then re-opened by new Managers in February 2019. At all times the Worker had co-operated in an effort to rid herself of the nightmare. However, the final report was completely flawed and could not be accepted. In April 2020 the HR Manager, Ms. XF, offered to expunge the file but the Worker would first have to attend a Disciplinary Hearing. The Worker refused to participate in this, what she felt, was a charade.

She is requesting the latest TIC Investigation be set aside on clear natural justice and procedural grounds and her good name restored. Her application to the Teaching Council could not proceed due to the outstanding TIC issue and she has suffered considerable psychological stress and professional impairment over the past four years.

She is seeking that the TIC process be set aside and financial compensation be made to her for the gross mishandling of the process with the accompanying stress and strains she has suffered.

A detailed written submission was presented supported by considerable oral evidence from Employer Managers. The basic facts of the case, details of dates of TIC investigations etc are as set out by the Worker. The “Closures of the file” in October 2017 and the non-holding of a further TIC investigation in October 2018 were accepted.

The Employer accepted that the entire incident could have been, to say the least, handled better. The key issue for the Employer was the alleged interventionist role of HSE Managers who had pushed for a formal TIC process to be commenced and completed, including the Disciplinary stages in Summer 2020. It was accepted that the Worker had an exemplary record (Respondent e mail of the 30th June 2020) and had no issues of any concern since September 2017.

The only issue was the fact that the Employer could not “close off” the file until the process had been formally completed by a Disciplinary Hearing. The system did not allow any other course of action.

The Worker has not complied fully with all internal procedures and the claim has to be set aside.

3:1          Discussion

The Oral evidence from the Employer Managers and responses to questions from the Worker’s representative indicated that the local Employer was basically in a bureaucratic position that they did not want to be in.

The Worker was an excellent employee, but a minor incident had happened with a resident in August 2017. This had been addressed in September 2017 and realistically that should have been the end of it.

The Disability Care Sector has in recent years been subject to much negative attention and the HSE has via the TIC policy put in place a very proper and rigorous policy to addresses any possible issues.  The processing and exact completion of these Policies and procedures has now, rightly, become a paramount duty for all Managers. Non-completion is seen as a major legal exposure for the Organisations involved.

In the case in hand the issue would never have arisen had the Worker not transferred to Centre B. Here the Manager, Person in Charge, became aware of the incident in Centre A and sought to have a clear PIC Investigation Report on file to complete the Worker ‘s induction.

The Regional Manager, Ms. XB, in October 2018 sought to put matters to rest by confirming that no PIC Investigation was warranted.

However, the Employer representative indicated that the matter had been raised at HSE level, the oversight body for the Employing Agency and the PIC process was again commenced in the Summer of 2019.

In the Oral evidence from the Parties is was clear that the formal completion of the PIC process and a formal Disciplinary Hearing was now the issue. The outcome would appear to have become a secondary issue.

The Worker was being advised informally that she should attend the Disciplinary Hearing as a mere formality and that she would be completely exonerated. However, the Worker was adamant that to do so would be tantamount to accepting the Summer 2019 TIC Investigation outcome which she felt was seriously flawed.

In oral questioning from the Adjudicator the Senior Employer Manager accepted that the TIC processes had possibly become somewhat inflexible and that a normal Managerial resolution of a difficult situation such as this case was not really allowed for. The only exit from the TIC Investigation was the Disciplinary hearing and if the Worker did not go down this route the matter would be effectively log jammed. The Employer could have held a Disciplinary hearing in the absence of the Worker, but this would only have exacerbated the situation.

It appears, from the Manager’s evidence that there is no formal internal Appeal mechanism open to the Worker in the TIC process. It was mentioned that this internal Appeal issue was possibly due to be discussed at National level when the Union/Management Parties would meet to review the operation of the Trust in Care Policy.

3:2        Conclusions.

Having heard all the evidence and in particular the Oral evidence and responses to questions the evidence pointed to the following conclusions.

An incident took place in August/September 2017.

The Safeguarding Officer, Ms. XA, looked into the matters and effectively took no further action. It appeared that she was satisfied that none was required.

That should have been the end of the matter. However, in Summer 2018, the Manager of Centre B had concerns that the file was incomplete without a formal TIC Report. The Regional Manager, Ms. XB, again looked at the mater and closed the file in October 2018. The correspondence and meeting records are crystal clear on this point.

It appeared from the evidence that, at this stage, that there was no reasonable justification for any further pursuit of the matter.

As Adjudicator, albeit operating under the more informal Industrial Relations Act,1969, it appears that the legal principle of Res Judicata has now to apply.

See definition below.

Res Judicata

I. Definition

1.

The doctrine of res judicata safeguards the final and binding effect of decisions in three ways.

a.       The doctrine precludes re-litigation of the same subject-matter within the same proceeding, e.g. after a partial decision (such as on jurisdiction)1 or after the partial annulment of an award.2

b.       The doctrine it precludes re-litigation of the same subject-matter between the same parties in follow-up proceedings in that duplicative claims are inadmissible (ne bis in idem).3

c.        Third, if the subject-matter of the prior decision becomes an incidental matter in follow-up proceedings, the prior decision will be conclusive and contrary pleadings will be precluded.4

From JUS MUNDI Legal Dictionary May 2021 edition.

Accordingly, the TIC Investigation of 2019/2020 should be set aside.

The reasoning is as follows.

By October 2018 two reviews of the Incident had taken place. Accepting that they were not exactly as set out in the TIC process they were none the less competent and particularly the 2018 Regional Manager review was comprehensive.

A Third review, albeit as a formal PIC process in 2019, was from the evidence now completely unwarranted. It is not proper or legal to keep going back to the same set of facts for repetitive investigations.

All the evidence pointed to the PIC 2019 process as a defensive bureaucratic exercise in a situation where it was clear to all concerned that the Worker was exemplary in all regards. Her detailed criticism of the 2019/2020 Investigation of a 2017 incident should have been given more consideration. The reliance by Investigators, all new to the area, on Temporary Agency staff as witnesses to an event two years previously was certainly open to question.

In mitigation for the local Managers involved it was clear that they were uncomfortable with how the case had developed but as a HSE funded Agency they had to be overly cautious in their implementation of HSE central policies. It was not helpful that there had been a considerable staff turnover of Managers during the period.

The Complainant suffered considerable personal stress and professional impairment with her application to the Teaching Council being on hold due to the ongoing TIC process.

An award of Compensation for Distress is warranted for the period from October 2018, when the case was closed for the second time, to the date of the Hearing.

While the Worker stated that financial compensation was not her objective, a sum of € 2,500, being approximately 4 weeks’ pay, is Recommended as Compensation. This sum is admittedly modest, but the principle is determined in favour of the Worker.

LCR Decisions 21263 and Adjudication 13782 are relevant as precedents here.

Delay in Investigation – Principle of Res Judicata, Compensation for stress /unnecessary delays.