Employee

Employer

Anonymised Parties

Social Care Worker

Intellectual Disability Service

Representatives

Dave Curran SIPTU

Lydia Dodd 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-00042369-001

08/02/2021

The employee [Employee A] is a social care worker who has worked for the employer for a period of 20 years.  He has never received a disciplinary sanction or had any prior complaint made against him.  The employee submitted a number of complaints in relation to concerns about a colleague [Employee B] regarding the safeguarding of service users and the management of service user’s money.  These were investigated by the employer and some were well founded, and others were not.  The employee against whom these complaints were made [Employee B] then made a complaint that these complaints were malicious.  This was upheld, and the employee received a final written warning and a two weeks unpaid suspension.  He appealed this decision and the sanction was reduced to a final written warning.  The employee is seeking to appeal this sanction.

The employee and employer made written submissions.  On the day prior to the hearing the employee e-mailed a written submission of 40 pages along with 170 pages of appendices.  The employer e-mailed an 8-page submission along with 224 pages of appendices.

The employee is an experienced and qualified social care professional with 20 years’ experience in this role. During this time, he was never involved in any disciplinary issue and never had any complaint made against him.  The employee submitted a complaint on 31/12/2018 to his service manager in relation to concerns he highlighted about practices relating to service user finances.  These were investigated by the respondent’s internal audit function.  The outcome of this investigation was issued to various managers on 18/01/2019.  This review, by the internal auditor, found that Employee B was not “purposely misappropriating funds from service users but certainly needs to be monitored in his booking practices closely.”

The employee’s representative highlighted a number of concerns in relation to this review:

(a)    the internal auditor made a reference to the relationship between Employee A and Employee B.  He concluded by quoting that Employee A’s manager: “So it would seem that [Employee A] “has it in for” [Employee B] a bit which in some ways appear to be unfounded.”  This finding was made despite the fact that there was no complaint madeby Employee B at that time. 

(b)    The internal auditor did not interview Employee A as part of his review.

(c)     Employee B admitted to “a serious weakness in the whole financial record keeping.”

(d)    The report of the review was not sent to Employee A or discussed with him.  He learnt of this review 18 months later.

(e)    If the auditor’s review is correct, then the manager never raised her concerns with Employee A at any stage.

The employee submitted his complaints in order to comply with the employer’s policy which, under the heading of “Suspicion of Money Missing” stated: “… staff must report any concerns, or suspicions of abuse and neglect.”

For some months after this employee A noticed small breaches of policy of procedures in relation to the handline of service user’s money by Employee B.  On one occasion he left a note in the Communications Book for Employee B and the manager in relation to a query he had about a specific sum of money.

The employee asked his manager about the complaint he initially submitted but was told that it was out of her hands and she was instructed not to speak to him about it.  On 22/07/2019 the employee submitted a complaint to the Person in Charge (PIC) in relation to concerns about service user’s money.  A further issue about Employee B drinking alcohol while on duty was referred to.  He received a reply on the same day and advised that the matter was investigated and there was no requirement for further investigation.  This was confirmed in writing and also that the matter was now considered closed.

In September 2019 Employee A made a written complaint to the PIC in relation to the removal of a TV from a service users room by Employee B.  He had observed that the service user was upset.  The service users brother also expressed a concern about the removal of the TV.

On 27/09/2029 the employee received a letter from the employer’s HR Department stating that Employee B had made a complaint about incidents that occurred over a 10-month period.  This was the first time Employee A was made aware of any concerns made by Employee B.

The employee [Employee A] responded in some considerable detail to the allegations in October 2019 and outlined that he and two other members of staff who were of African descent were bullied by Employee B.

The employer established an investigation in relation to the matters raised by Employee B.  This investigation was established to consider if Employee A was “purposefully submitting false allegations.”  There was a total of 5 complaint areas and a number of sub areas to be investigated.  This investigation commenced on 13/01/2020.  The outcome of the investigation was that of the allegations against Employee A three were upheld and one was part upheld and one was not upheld.

A disciplinary hearing was convened as a result of this outcome and Employee A was issued with a final written warning and put on two weeks unpaid suspension.   On appeal [03/12/2020] this was varied, and the two week’s unpaid suspension was removed. 

The employee’s representative provided the hearing with extensive documentation presenting inconsistencies in the investigation.  By way of examples:

(a)     Employee A had raised a query in relation to the spending of €32.00 on an entry under “Coffee Cup”.  On investigation it was established that “Coffee Cup” was in fact the name of a restaurant in Donegal and Employee A would not have known this.  Yet the investigation deemed this to be a “false allegation”. 

(b)    The TV incident whereby Employee B removed a TV from a service users room.  It was found that the TV was removed because the service user had obtained a new TV which provided better access to TV channels she wished to view.  This was found to be a false allegation.  Employee A’s representative pointed out that the correct procedure in such circumstances would be to discuss the matter with the service users Key Worker and document or otherwise record the matter.  The investigation did not seek any records in relation to this or did not speak with any staff member. 

(c)     A further example was an entry in the communications book where Employee A asked the question in relation to a sum of money belonging to a service user.  Employee A acknowledges that this book was not the correct way to raise the query.  However, the nature of the query was not accusatory.  Despite this the investigation found that he made the entry by “knowingly making a false allegation.”

The employee notes that the issues complained of by Employee B span a period of over a year.  All his entries in log books, comments, complainants and interview notes have been forensically inspected by the investigators for signs of hostility towards Employee B.  Some of those comments have been taken out of context in order to paint a particular picture of Employee A.  The same level of scrutiny was not undertaken in relation to Employee B.  Another example of the inconsistent approach by the employer was that another complaint by Employee A could not be investigated due to COVID-19 while at the same time it was able to progress the complaint made by Employee B.

The investigation was also flawed in that it failed to interview other employees identified by Employee A’s trade union.  There was also an omission on the part of the investigation in that individuals who could have verified Employee A’s account were not identified. 

Employee A wanted to make clear that any of the concerns that he raised were not linked to the promotion of Employee B to an assistant in charge role in 2018.  Employee A told the hearing that he encouraged and supported Employee B to apply for the position.  He had no issues in relation to this appointment to this role and was happy to report to him.

It was submitted on behalf of Employee A that he was following the correct procedure in reporting the various issues.  It was his responsibility to balance the cash box each month and he was duty bound to raise any queries to ensure accuracy and compliance with the employers’ policies. This entire episode has been very upsetting for him and the effect of his employer accusing him of purposefully making false allegations taints an otherwise unblemished career.  The ongoing stress associated with these events has led the employee to take early retirement later in the year.

The employer is a provider of services and supports to men, women and children with intellectual disabilities.  These supports include residential supports and independent living, clinical supports, day supports, schools, respite supports and vocational training services.

The employee commenced employment with the employer on 09/05/2009 as a Social Care Worker.  The employee [Employee A] made a series of allegations against a colleague [Employee B].  Both employees were on friendly terms both at work and outside of work for a number of years.  Employee B was appointed to an assistant person in charge role in 2018.  There was an issue in relation to a roster for December 2018 and following a disagreement this was amended.  Employee A commenced a sequence of reporting allegations against Employee B.  These were reviewed and investigated under the employers Dignity at Work Policy.  None of the allegations were upheld.

In September 2019 Employee B submitted a complaint against Employee A.  This complaint outlined five areas:

1.       Employee A purposefully submitted false allegations against Employee B in relation to financial discrepancies in a residential unit in December 2018 and July 2019

2.       Employee A purposefully submitted false allegations against Employee B regarding the consumption of alcohol while on duty in July 2019

3.       Employee A purposefully submitted false allegations against Employee B regarding the removal of a service users property without permission in September 2019

4.       Employee A wrote false allegations against Employee B in the Staff Communications Book on three separate occasions.

5.       Employee A made false allegations against Employee B regarding missing medication from aa residential unit in September 2019.

The employer considered these to be very serious allegations as Employee B could, potentially, be dismissed from his role and be the subject of a criminal investigation.

Employee A was advised of the complaints on 27/09/2019 and further advised that these complaints may be the subject of a formal investigation.  He was invited to submit a written response.  This was submitted on 25/10/2019.

A formal investigation was commissioned by the employer under the provisions of the Dignity at Work Policy.  The investigation team was comprised of an external investigator and a senior staff member.

Employee A attended an investigation meeting on 13/01/2020 and was accompanied by his Trade Union representative.  The investigation was delayed due to the COVID-19 pandemic and was completed in August 2020. 

The employer submits that this investigation was conducted thoroughly, fairly, objectively and with due respect to the principles of natural justice.  The investigation also complied fully with the provisions of its Dignity at Work Policy.

A copy of the preliminary report was given to Employee A and the Investigation Team considered his responses to the preliminary report before arriving at its final conclusions.  The Investigation Team were asked to determine on the balance of probabilities if there was a breach of the Dignity at Work Policy and if the complaints fell within the definitions outlined in the policy.

The Investigation Team concluded that, based on the evidence presented to them, complaints 1,2,3 and parts 2 and 3 of complaint 4 were upheld.  

The employer subsequently invoked the Disciplinary Policy and a disciplinary hearing was held on 29/09/2020.  The disciplinary hearing considered Employee A’s long service and the outcome was that the employee would be issued with a Final Warning and two week’s unpaid suspension.

The employee appealed this decision and following the appeal hearing the original sanction was varied in that the two week’s suspension without pay was removed.  The Final Written Warning was confirmed.

It was submitted on behalf of the employer that the allegations made by Employee A were extremely serious and those relating to alleged abuse of a service user would constitute serious misconduct.  The matters raised by Employee A were not raised in a timely manner as is required by the Safeguarding Policy and other national and organisational policies.  If Employee A had genuine concerns about a service user then he should have utilised the opportunity to inform the relevant person.  These concerns should have been raised irrespective of any other issues with were prevalent in the residential unit at that time. 

The employer submits that the sanction of a final written warning is justified given the circumstances of this case.  The employer requires its staff to work within the boundaries of its values of respect, accountability and integrity.  The need for an acceptable standard of behaviour and conduct is core to the principles of the employer.  The circumstances of this case warranted a serious sanction and a final written warning was reasonable, fair and appropriate.

The employer also submits that all its procedures were in line with its policies and in line with the WRC Code of Practice on Grievance and Disciplinary Procedures (S.I. 146/2000).

This case has presented difficulties for all concerned. Indeed, the issues at the core of this dispute commenced in 2018 and are still active for the employee concerned.  I have taken considerable time to review to extensive documentation provided by the employee and employer in relation to this dispute.  I consider the above summaries give a good account of the respective positions of both parties. 

It is clear to me that this dispute commenced shortly after Employee B was promoted to the position of assistant in charge role.  What is not clear is why a previously positive professional and personal relationship deteriorated to the extent that that relationship now appears to me to be beyond any hope of reconciliation. 

The following is also clear to me:

1.       The employer conducted a thorough investigation and while I understand that the employee is aggrieved with the findings I find that the employer carried out this investigation in line with its own policies and procedures and in line with the principles of natural justice.

2.       While it is understandable that the employee is unhappy with the outcome of the disciplinary hearing I find that was conducted in a fair and transparent manner. 

3.       While the employee was obliged to highlight any cause for concern and particularly in relation to a service user, these concerns should be highlighted in a timely manner and in line with the relevant policies and procedures.

4.       Some of the issues raised by the employee could have been clarified if there was a more satisfactory relationship with Employee B.

5.       I find that the employee does not seem to be aware of the impact and potential consequences as a result of submitting a series of complaints.

6.       I find that there was an absence of a timely and adequate intervention from the relevant manager(s) to prevent the deterioration of a working relationship

7.       The employer should have a more timely system for dealing with such complaints and the subsequent investigation process.

Having considered the matter I find that the employee had a case to answer and that the employer was duty bound to investigate the complaints submitted by Employee B.  This investigation was conducted in line with best practice and while the outcome of both the investigation and disciplinary process continues to be refuted and challenged by the employee I can find no rationale to uphold the complaint.

At the hearing the employer indicated that, as a gesture of good will, it was willing to further reduce the sanction to a written warning.  The implication of that is that the sanction would end on 10/09/2021. At that stage it is then  removed from the employees file.   I note that the employee saw no merit in this.

It is my recommendation that the employee accept the reduction in the warning to that of a written warning.

I recommend that the employee accept the employers offer to replace the Final Written Warning with a Written Warning.

Investigation.  Disciplinary hearing.  Appeal process.