Worker

Employer

Anonymised Parties

A Hospital Catering Worker

A Hospital

Representatives

Gerard Kennedy of SIPTU

Hospital Management

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-00042345-001

04/02/2021

The dispute concerns alleged delays and mishandling by Hospital management of a series of complaints, initially made in July 2019, by the Worker against a fellow employee under the HSE Dignity at Work Policy. The Hospital is located in a major Mid-West City. The Worker is of long service and is paid on HSE, Catering Attendant and latterly Catering Supervisor, rates of pay for a 39-hour week.

The Worker, a Catering Attendant, alleged that in late July 2019 she was subject to a sexual assault from a fellow worker, a Porter. She had immediately reported the incident to the Duty Supervisor, Mr. B, who stated that he would arise it with the Porting Manager, Mr.H. No written records were kept of this exchange. No feedback was provided. On the return from Annual Leave of the Catering Supervisor, Ms.N , the Worker made a written complaint to her detailing the incident. A meeting was arranged for early August involving the Worker, Ms. N., the Respondent Employee and Mr. O’C, the Portering Supervisor. The Respondent Employee apologised and said that he had only been joking and there was no harm intended.  The Worker requested from management details as to how her case was going to be progressed. No details were forthcoming.

On the 27/02/2020, SIPTU, wrote to the Hospital General Manager, GM, requesting details as to how the complaint was being addressed. The GM replied that she had no details of any complaint. The Worker wrote directly to the GM on the 04/08/2020 alleging that the Hospital had failed in their Duty of Care. On the 26/08/2020 the hospital replied that the complaint had now been referred to the HSE Dignity at Work Policy unit. A choice of Mediation or Formal Investigation were referred to. In her reply of the 10/09/2020 the Worker opted for a Formal Investigation.

The Formal Investigation commenced on the 18/08/2020 some 25 months post the actual incident.

In the interim period the Worker has had to file further complaints against the same Respondent colleague- the 21/01/2021, 18/03/2021 and the 18/09/2021. As a result of the personal stress involved the Worker has been under the care of the Occupational Health Department, OHD, on three occasions.  OH, recommended in early 2021 that a Stress Risk Assessment take place. This only happened in August 2021 -some 5 months after it was recommended by OHD.

In argument the Union stated that the Employer has an excellent & sophisticated Dignity at Work Policy agreed with all Parties at National level. It should not have taken some 12 months for the complaint to be even acknowledged with a Preliminary Screening. The fact that the Investigation is still ongoing at the date of the Adjudication investigation, some 25 months later, is outrageous and a complete breach of the spirit and letter of the Dignity at Work Policy. The Worker has suffered severe Stress during this period and has had to endure additional alleged incidents.

The Adjudication Officer is not charged with investigation of the alleged July 2019 incident.  A Recommendation for Compensation for the Worker for the extraordinary delays and personal stresses still being endured, (the Investigation still remains open) by the Worker is called for.

The employer Hospital accepted that a possible verbal complaint may have been made by the Worker in July 2019. A meeting did take place, according to a Hospital diary, on the 15th August 2019. It appears from investigations that an apology was offered by the alleged offending Colleague at this meeting. No written records of this meeting were kept. As far as the Hospital management were concerned there was no further communication from the Worker until the SIPTU letter of the 27th February 2020 to the Hospital GM. In her reply to SIPTU the GM requested further details, dates etc to allow the complaint to be referred to the Dignity at Work Investigations Unit.  No further communication was received from either the Worker directly or SIPTU until the Worker wrote on the 4th August 2020 to the Facilities Manager, Ms. F.  Correspondence was exchanged and by the 16/09/2020 the Complaint was referred to the National Dignity at Work Office - DAW Office.  A preliminary local screening by Mr. L of the HR Dept, had taken place on the 18/08/ 2020.

On the 12/10/2020, Ms. F, Facility Manager, wrote, following a request for details from the DAW Office, to the Worker, requesting further details, dates etc to facilitate the Investigation.

Unfortunately, at this stage, the DAW Office was effectively put on hold as staff were transferred to emergency Covid 19 duties. This redeployment of staff was almost universal through the HSE, at this time.

Ms. F of the Hospital wrote, to the Worker, again on the 14/12/2020 as her letter of the 12/10/2020 had not been answered. SIPTU disputed the need for an exact day. However, Hospital Managers conducted an exercise on Staff rosters and identified a possible date in July 2019. This date was then communicated to the DAW Office.

Following normal procurement requirements an outside Independent Investigation was commissioned on the 12/04/2021.

The cyber-attack hit the HSE on the 13/05/2021 further delaying matters. A date of the 22nd July 2021 was set for the Investigation but was postponed to the 18/08/2021 due to the non-availability of the Worker. Following the meeting of the 18/08/2021 further meetings (07/10/2021) have been scheduled with additional witnesses.

The Hospital in summary maintained that a lot of the delay was due to the Worker herself not providing dates etc when requested plus additional delays caused by Covid 19 staff redeployments and the impact of the Cyber-attack.

Once the formal complaint was acknowledged in March 2020 there were serious gaps (March to August) in the Worker’s engagement and had she been more proactive the Complaint could have been moved along faster. It was acknowledged that the Management response to the OH Audit request could have been handled better.

As it now is the Sexual Harassment complaint is being investigated and an Adjudication Recommendation would be premature and almost prejudicial to the DAW Policy.

Extensive oral and written evidence was given in this case. Detailed exchanges of e mails were exhibited. Full cross examination was allowed.

However, when the procedural issues and correspondences are rested it is necessary to focus on the main undisputed facts of the case.

The most seminal of these is the fact that by the date of the Adjudication Hearing ,27th September 2021, an investigation into an alleged sexual harassment incident of July 2019 had still not been completed.

There were numerous genuine reasons for this delay including the Covid redeployments of the Administrative Staff for long periods and then the Cyber attack on all HSE Systems.

The Worker is not without reproach, either, with long delays in answering correspondence not helping. The Facilities Manager wrote, for example, in February 2020 seeking further details but got no reply until August 2020.

Regrading the first six months, July 2019 to February 2020, it appeared from the oral evidence that there was a strong possibility that the junior Management/Supervisors felt that the case had been “Sorted” following the apology at the meeting, undocumented, of the 15th August 2019. It appeared that the issue was not, probably quite understandably, passed “up the line”. It was never clear from the evidence why the Worker felt that the issue was still active but junior Managers felt the contrary. The Worker’s delay, for whatever reason, in having a SIPTU at Official level, get involved in writing to Hospital, was also somewhat unexplained.

However, by the time the Hospital GM got involved, following the SIPTU letter, from February 2020 the proper DAW mechanisms began. Requests for further details from the Worker appeared to have gone unanswered until August 2020. Regrettably by that stage COVID 19 was in full swing and the Hospital, one of the biggest in the State, was, it is universally acknowledged, under extreme pressure. The delays in responding to the O Health Stress Audit request are probably symptomatic of this.

Reading the OH Reports it was clear that the Worker was under a lot of pressure and the alleged harasser was still active (three subsequent complaints). None the less the Worker secured a promotion to Supervisor in May 2021. To quote an expression “There was some sunshine between the clouds”. However, it was of concern that it appeared that three other complaints against the same Colleague were, now, also in the system.

In all these balancing circumstances and particularly where the outcome of the DAW investigation is still unknown a Recommendation, under the Industrial Relations Act ,1969, of an award of financial compensation to the Worker for delays would be inappropriate. This is a matter for the DAW process. The reference by SIPTU to other WRC cases involving delays in processes was noted but it was unclear as to how transferrable they were as useful precedents.

None the less a situation of a delay, for whatever reason, of some 25 to 26 months in a Dignity at Work investigation cannot pass unremarked. Having read the Dignity at Work policy it is clear that speedy action is required to safeguard all parties. Letting 25 months pass, allowing that both Parties were not blameless, flies in the face of the acknowledged good intent of the Policy.

Accordingly, the Recommendation, under the Industrial Relations act ,1969 is that the Hospital Management and the Worker /SIPTU agree a donation, from Management, without any prejudice, of €500 to a suitable local, ideally Hospital focused, Charity in the Mid-West region. The dispute regarding the delays be then considered closed.

In addition, both SIPTU Lay Representatives and the Hospital front line Supervisors could usefully refresh themselves on the practical applications and first steps of the Dignity at Work policy.

Delays in processing complaints, Dignity at Work, Sexual Harassment, Charitable donation.