Worker

Employer

Anonymised Parties

A Theatre Attendant

A Health Service Provider

Representatives

SIPTU

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-00041318-001

30/11/2020

The Worker is employed as a Theatre Attendant within the Employer organisation. 

The Worker referred her dispute to the Director General of the WRC on 30th November 2020. The Worker is aggrieved at the manner in which the Employer dealt with the complaints raised by the Worker and her co-worker.

SIPTU on behalf of the Worker submits as follows:

The dispute relates to the failure of the Employer to appropriately deal with a complaint that was made by the Worker’s colleague in which she alleged that the Worker had threatened to “kick the head off her”.  She also alleged that the Worker was creating  “a toxic work environment”. SIPTU contends that management failed in their obligations to investigate a very serious allegation and denied the Worker her entitlement to vindicate her name and reputation.

The Worker is employed as a Theatre Attendant. She is a long-standing member of the staff with 17 years’ service. She has an exemplary employment record.

On 9th June 2020, the Worker was required to attend a meeting with her direct line supervisor (LS). She was accompanied to the meeting by one of her colleagues. At the meeting the Worker was advised that management had received a written complaint from one of the Worker’s colleagues who alleged that the Worker had threatened her with assault and was creating a toxic work environment. The colleague in question had only recently been assigned to the Theatre area. The Worker was allowed to read the complaint but was not furnished with a copy of same. The Worker was extremely upset by the nature of the complaint, which she believed was completely unfounded. The meeting ended without any indication as to how the issues would be progressed.

Following discussions with her trade union, the Worker reverted to her supervisor with a request that the complaint be subject to a formal investigation. 

SIPTU submits that between June and August 2020 the Worker contacted the HR Department on numerous occasions seeking an update regarding the progress of the investigation. On 17th August 2020, the Worker was advised by the Hygiene Services Manager that the matter was being closed as her colleague did not wish to pursue the matter further. The Worker could not understand or accept that allegations of such serious nature could be closed off without giving her the opportunity of addressing same.

On 2nd September 2020 the Worker wrote to the Group Service Manager setting out her concerns as to how the issues had been dealt with and requesting that a full investigation be conducted. On 3rd September 2020 the Service Manager sought clarification as to the nature of her grievance. On 4th September 2020 the Worker confirmed that her issue was with the complainant.

On 7th September 2020, the Service Manager responded that despite the content of her email of 2nd September 2020, the Worker would be required to set out her grievance in writing and attached a copy of the Grievance Procedure.  Having reviewed the documentation the Worker responded to the Service Manager raising questions regarding the appropriateness of the process suggested and sought clarification as to what additional information was required by management in order to progress matters. In response, the Service Manager advised that, in conjunction with the HR Department, they would further engage with the Worker’s  colleague and then would arrange a meeting with the Worker. On 8th September 2020 the Worker confirmed that she would be happy to meet with management in order to seek a resolution. Having had no further updates from management, the Worker wrote again to the Service Manager on 28th September 2020 seeking an update. This email resulted in management convening a meeting that morning where the option of mediation was put forward by management. By email that afternoon the Worker confirmed that she was prepared to proceed with mediation. The Service Manager confirmed that she would discuss same with the HR and revert to her. The Worker did not hear any further from management for over a month and requested SIPTU to  contact HR to seek an update on her behalf. In a subsequent telephone conversation at the end of October 2020 between a SIPTU Official and the HR Business Manager the union was advised that the Worker’s colleague (the complainant) did not wish to participate in mediation, but that management would revert regarding the requested investigation.

As no further communication was received by either SIPTU or the Worker by the end of November 2020 SIPTU deemed that the procedure had been exhausted and referred the matter to the WRC.

SIPTU argues that the Worker was the subject of a very serious allegations contained in a written complaint issued by one of her colleagues. These allegations, as presented, were an absolute afront to her good name and professional reputation. In addition, if proven the allegations would constitute ground for the Employer to initiate a disciplinary process on the basis of gross misconduct. These are not trivial matters. The Worker had every right to defend her good name by insisting that the allegations would be the subject of a formal investigation.

SIPTU contends that the Employer had a clear obligation to ensure that the Worker was given every opportunity to defend herself. SIPTU does not accept that, given the serious nature of the allegations, they could simply be dispensed with as a result of a decision taken by the Worker’s colleague not to pursue her complaint. The principles of natural justice would determine that the Worker had every right to respond and be given the opportunity to rebut these allegations. The Worker made every reasonable effort to avail of her entitlement to a fair hearing. However, it would appear that her Employer’s only response was to seek to protect the interest of the colleague and close the matter as speedily as possible.

SIPTU submits that the complaint against the Worker remains on her file.

SIPTU is seeking that the Employer conducts a full and thorough investigation of the complaint against the Worker. In addition, SIPTU is seeking that the Worker is compensated in line with the recommendations of the Labour Court determination in South Tipperary County Council v A Worker AD1135 and the WRC in ADJ-00011109 A Worker v Health Service Provider.

The Employer submits as follows:

A complaint was made regarding the Worker by her colleague (CG) in May 2020. The complaint was subsequently withdrawn. In the absence of a copy of the complaint, it is difficult to clarify which process was being progressed to manage this complaint. The process for dealing with complaint of bullying falls under the scope of the Employer’s Dignity at Work Policy and grievances under the Grievance Procedure.

The Employer submits that the original complaint by CG was withdrawn and therefore there was no case to answer on the part of the Worker. Whilst there was a delay in communicating the withdrawal of this complaint, there was no failure in compliance with the management of same.

The Employer confirms that there is no complaint on file and that the Worker has no case to answer regarding the original complaint.

The Employer submits that the Worker lodged a separate complaint dated 2nd September 2020 regarding how the original complaint was handled. This was acknowledged by the Service Manager on 3rd September 2020 who requested a signed copy and clarification if the complaint was against her colleague (CG) or the process. The Worker responded to the Service Manager to advise that her official grievance was with the colleague CG.

A meeting was arranged on 28th September 2020. A number of parties were present at the meeting, notably the Service Manager (Line manager), HR Business Manager and the Worker. Email correspondence in that regard was exhibited at the adjudication hearing. While there is no official record of this meeting, the Employer noted that the Worker accepted the offer of mediation as a workable solution to resolve this complaint which she outlined in her email of the same date and this was acknowledged by management. The grievance procedure advises mediation as the recommended option where possible when dealing with complaints under this process.

The Worker issued correspondence dated 29th October 2020 to her Line Manager and the HR Business Manager which was copied to her SIPTU representative and other members of management. It appears that the Worker appeared to be uninformed regarding the status of her complaint following the meeting on 28th September 2020.

The HR Business Manager responded by forwarding this communication to SIPTU on 29th October 2020 referring to the meeting on 28th September 2020 and the next steps that were agreed.  This correspondence reaffirmed that CG was not willing to participate in mediation, and that the Worker was aware of same. It is noted from the correspondence that the HR Business Manager was awaiting further correspondence from SIPTU on the Worker’s behalf in order to progress the matter. To date the management are not aware of any further correspondence from the Worker or SIPTU in that regard since 29th October 2020.

The Hygiene Service Manager (HSM) returned to work in January 2021 and raised the matter with the General Manager of Operational Services and the new HR Business Manager. HR advice was to meet with the Worker to discuss the issues. Subsequently, HSM advised HR that the original complaint by CG was withdrawn in August 2020 and a letter was provided at the time.  Written correspondence dated 31st May 2021 from CG was provided to outline same.

In order to close the matter in its entirety, HR advice in June 2021 was to communicate this in writing to the Worker. This was to ensure that clarity was provided that no complaint was on file and that the Worker had no case to answer. Regretfully, due to the cyber-attack of May 2021 there is no correspondence on file to indicate that this action occurred. This was confirmed in writing to WRC on 22nd February 2021 when the HR Business Manager advised that the matter would be closed using local engagement as not all local options had been exhausted.

The Employer submits that there was no further correspondence from SIPTU as per the HR Business Manager’s email of 29th October 2020 and the matter did not progress. The next correspondence on record following that meeting was a referral to the WRC dated 30th November 2020. The Employer noted that, following the return of the HSM to the workplace in 2021, there is no records of her being informed of the outstanding grievance as lodged by the Worker. At the point of closure of the original complaint by CG there was no mention or correspondence regarding progression of the Worker’s grievance.

The Employer submits that the preferred option by the Worker to resolve the grievance she lodged was to avail of mediation which could not progress as the other party did not wish to participate. It is important to be aware that mediation is a voluntary process and parties must be willing to participate in order to proceed.

It is noted that following the meeting on 28th September 2020 and email of 29th October 2020 that the correspondence was awaited from SIPTU which to date does not appear to have been received. The Employer is willing to engage and believe that local options had not been exhausted.

The Employer would like to apologise to the Worker for the lack of communication and the fact that the closure of this matter was not issued in a timely manner due to a change in management structure.

In relation to the within dispute I find as follows.

There was no dispute that two separate complaints had been lodged with the Employer. The first complaint was made on 29th May 2020 by the Worker’s colleague (CG) who raised very serious allegations against the Worker including a threat of physical assault. This complaint was subsequently withdrawn by CG in or around August 2020.

The second complaint was raised by the Worker on 2nd September 2020 against CG. The Worker raised another complaint on 29th October 2020. I note that in her email she stated: “I am now left with no option but to escalate this matter further and to expand my complaint to include how my complaint has been dealt with by HR, yourself [Service Manager] and the hospital.”

I find that it is the Employer’s responsibility to investigate a complaint or a grievance. This obligation does not vanish in circumstances when a party to a complaint declines a mediation offer and the Employer’s policies and procedures clearly outline the appropriate steps to follow.

In relation to the initial complaint against the Worker, I note that the Worker is seeking that this complaint is fully and thoroughly investigated. In that regard, I find that the complaint was withdrawn without, it appears, the initial complainant (CG) substantiating any of her allegations. As it was withdrawn, the matter is moot. I note that the Employer confirmed that the complaint was removed from the Worker’s file. I am cognisant of the distress this matter caused to the Worker and I emphasise that this complaint should in no way impinge on the Worker’s standing and good reputation.

In relation to the Worker’s complaints both against the initial complainant (CG) and in relation to the manner in which the Employer handled the matter, I find that it was the Employer’s duty to fully investigate same. It is my view that the Employer did not handle the matter appropriately. Some 17 months have elapsed since the Worker brought the matter formally to the management’s attention. I am of the view that the investigation has taken an unacceptable length of time which resulted in unnecessary worry and stress for the Worker. Nevertheless, I note the Worker’s keenness to have the matter investigated. Accordingly, I recommend that the Employer conducts a full investigation into the Worker’s complaints as soon as possible but, in any event, to be completed within three months from the date of this recommendation. In addition, I recommend payment of €5,000 to the Worker in compensation for the delays in the investigation process.

Having considered the submissions of both parties, I recommend as follows:

·       In relation to the initial complaint by CG, I note that the complaint had been withdrawn and removed from the Worker’s file. Therefore, the matter is moot. I recommend that this complaint should in no way impinge on the Worker’s standing and good reputation.

·       In relation to the Worker’s complaint against CG, and with respect to the manner in which the Employer handled the matter, I recommend that the Employer conducts a full investigation into the Worker’s complaints as soon as possible but, in any event, to be completed within three months from the date of this recommendation.

·       In addition, I recommend payment of €5,000 to the Worker in compensation for the delays in the investigation process.

Investigation delay- industrial relations-