LCR22486

FULL RECOMMENDATION

SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969

PARTIES :

HSE CORK AND KERRY COMMUNITY HEALTHCARE

- AND -

1 WORKER
(REPRESENTED BY IRISH NURSES AND MIDWIVES ORGANISATION)

DIVISION :

SUBJECT:

1.Appeal Of Adjudication Officer Decision No’s: ADJ-00030228 CA-00040234-001.

BACKGROUND:

2.The Complainant appealed the Adjudication Officer’s Recommendation to the Labour Court on 26 July 2021 in accordance with Section 13(9) of the Industrial Relations Act, 1969. On 12 July 2021 the Adjudication Officer issued the following Recommendation:

"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.’’

A Labour Court hearing took place in a virtual setting on 15 October 2021.

UNION’S ARGUMENTS:

1. The Dignity at Work Investigation should not proceed due to both the inappropriateness of the collective meeting of April 2016 which breached HSE policy and given the extensive time delay of five years.

2. If the Investigation must proceed, the Worker is seeking that two additional terms of reference must be included to ensure that all relevant salient facts are comprehended in the Investigation.

EMPLOYER ARGUMENTS:

1. In a report on the meeting in April 2016, it was stated that the meeting should not have taken place. However, the report made it clear that the Employer acted in good faith. The Employer, once fully aware of the nature of the meeting, immediately acted to proceed in a more appropriate manner.

2. It is the Employer’s duty to provide a safe place of work and its obligations under the nationally agreed HSE Dignity at Work Police. The balance of fairness favours the progression of the investigation.

DECISION:

This is an appeal by the INMO of an Adjudication Officer’s Recommendation ADJ-00030228 on behalf of a Senior Staff Nurse with the HSE.

The Worker seeks that a Dignity at Work investigation be halted given the time that has elapsed since the initial complaints were made. In the alternative, the Worker seeks that the terms of reference for the investigation be expanded to reflect concerns she has raised about the process.

The Adjudicator rejected the Worker’s claim and recommended that an investigation into the complaints against the Worker commences as soon as possible, in line with the nationally agreed Dignity at Work policy.

The INMO, on behalf of its member, seeks that the Court review whether a Dignity at Work investigation into complaints made over five years previously should proceed, where those complaints were elicited in contravention of the 2009 Dignity at Work Policy. Alternatively, the INMO submits that the Dignity at Work Policy provides for terms of reference to comprehend ‘other matters relevant to the complaint’.

Should the investigation proceed the Union seeks that the terms of reference are expanded to encompass matters relating to how the four complaints were generated, and the findings of a 2019 investigation, which upheld the Worker’s formal grievance into procedural concerns. The Worker’s trust and confidence has been damaged by the process and she fears that she will be deprived of an opportunity to raise concerns unless they are explicitly stated in the terms of reference.

The HSE submits that under the Dignity at Work Policy it has a duty of care to all parties concerned. An investigation into formal complaints made in 2016 has not been instigated while the Worker has progressed complaints about the process through the agreed grievance procedure and on two separate occasions to the WRC adjudication services. As a result, the individuals concerned are still waiting to have their formal complaints investigated.

The HSE accepts the outcome of the 2019 investigation which found that the group meeting in 2016 should not have taken place. It submits that this finding does not negate the fact that formal complaints were made under the Dignity at Work Policy which the employer has an obligation to investigate. The Worker’s concerns about the process do not require a change to the terms of reference for the Dignity at Work investigation. The HSE submits that the investigation will be conducted thoroughly and objectively and with due respect for the rights of all parties concerned.

The Court has given careful consideration to the oral and written submissions of both parties.

The Court is struck by the length of time that has passed since complaints under the Dignity at Work Policy were first instigated in 2016. Formal investigations into complaints of this nature can be a difficult matter for all parties, particularly where the people involved continue to work together in a small hospital. The Court notes that the Dignity at Work Policy provides for mediation which remains available to all parties at all times, on a voluntary basis. The Court encourages parties to avail of such an avenue to resolves matters wherever possible.

In this case, the Worker objects to a formal investigation proceeding on the basis that the Dignity at Work Policy does not provide for group meetings and because a meeting should not have occurred any complaints raised at that meeting should be set aside.

The Court is of the view that the procedural issues raised about the 2016 meeting do not take away from the fact that formal complaints were made against the Worker which the employer has an obligation to investigate. The Court notes that the 2016 meeting was the subject of a separate referral to the WRC (ADJ-00010879) and the Adjudicator in that case clearly recommended that the Dignity at Work investigation should proceed. While the Worker may have sought to engage with the Employer about this recommendation, she did not appeal its finding.

The INMO submits that, if so required, the Worker will cooperate with a formal investigation, but the terms of reference should be expanded to reflect her concerns about the process. The HSE submits that any investigation will be conducted thoroughly and objectively by trained investigators, with due respect for the rights of all parties concerned. The Court notes that no issues have been raised with how the nationally agreed Dignity at Work policy has been applied in this case.

Having carefully considered the extensive submissions of both sides, the Court is of the view that the terms of reference for the Dignity at Work investigation do not need to be expanded. Any concerns the Worker has can be ventilated through the investigation process. Furthermore, in the absence of the parties seeking resolution of this longstanding issue through mediation, the Court recommends that the formal investigation into complaints against the Worker commences as soon as possible in line with the Dignity at Work policy.

The Court finds that the worker’s appeal fails, and the recommendation of the Adjudication Officer is upheld accordingly.

The Court so recommends.

NOTE

Enquiries concerning this Decision should be addressed to Cathal Nurney, Court Secretary.