Complainant

Respondent

Anonymised Parties

A Worker

Health Service Provider

Representatives

Maura Cahalan Forsa Trade Union

 Paul Hume HR Director

Act

Complaint/Dispute Reference No.

Date of Receipt

Industrial Relations Acts

CA 00044459

3rdJune 2021

In her complaint form which was received by the WRC on the 3rdJune 2021, the claimant complains that the respondent failed to afford her fair procedures in the conduct of an investigation into a complaint made against her .It was submitted that the respondent had breached the terms of reference for the investigation and had delayed the issuing of the final report. The respondent denies the assertions by the claimant and submitted that they had dealt with the case in a fair, transparent and measured manner.

T1.0       The claimant’s representative submitted as follows:

1.1         The case before the Adjudicator today arises as a result of Hospital X’s failure to afford the complainant natural justice and fair procedures under their own internal policies. They refused the complainant the final report of an investigation undertaken by management against Ms.A  and concluded same without her involvement.

1.2         That management breached their own policy and terms of reference by not dealing with the issue in a timely manner. Fórsa had no option only to refer this matter for Adjudication as the internal process was concluded and management disengaged.

2.0         BACKGROUND

2.1         On 25th, 26th and 27th May a Consultant and his team (4 people in total) used the secretarial office to discuss patients using their charts for reference.  They were not socially distanced or wearing masks.  Never before has this office been used for this purpose.

              On each occasion the complainant left the office to inform her supervisor/s.   By the time the complainant returned to the office with a supervisor, the Consultant and Team had left.

2.2         On the 28th May 2020, a meeting took place again in the secretarial office and the complainant had concerns over senior management, mainly a Consultant was not adhering to Covid-19 guidelines of social distancing, at which stage the complainant left the room and asked administrative management to deal with same. The complainant took a photo to prove the non-compliance. This incident was reported to the Consumer Affairs Dept. by   Clerical Supervisor and signed off by the Assistant General Manager. 

              On 28th May a meeting was set up with Personnel to discuss this action.  It was advised by     the HR Manager that the complainant delete the photograph               in the presence of a supervisor and send an apology.             

2.3         On the 4th June 2020, theGeneral Manager, wrote to Ms. Y, Consumer Service Officer requesting her to review the incident and draw up a terms of reference for her consideration. That staff should be interviewed and the review to be concluded within a two-week period or as early as possible thereafter.  (Appendix B)

2.4         On 9th June 2020, Data Protection Commission acknowledged receipt of complaint and sought “a full update on the respondent’s ’s investigation into this incident.” (Appendix C)

2.5         On 16th June 2020, Forsa wrote to management requesting

              “ (a) The policies/procedures which you are conducting the investigation      under.

                 (b)  A copy of the complaint.

                 (c) A copy of all correspondence and statements to date. “ 

2.6         On 17th June 2020, the complainant and Forsa received a copy of a transcribed complaint from the Hospital General Manager, commissioner which was forwarded to the investigator, relevant polices and terms of reference.  

2.7         On 19th June 2020, the complainant and Fórsa received statements from colleagues who were interviewed as part of the process dated from 11th to 16th of June. Dr. D’s statement clearly states that he received an email from Ms. A on Friday 29th May at 15.10hrs offering an apology which also confirmed that the photograph had been deleted. In addition, Ms. Z  stated “on Friday 29th May 2020 at approximately 12.15hrs, Ms. A  presented to the Clinical Admin Officer. She confirmed that HR Manager,  told her to delete the photo which she took the previous day of Dr. D and his team…” “As I was the only supervisor there I agreed. Ms. A  put the phone on the desk and I viewed the photo (of Dr. D plus 3 others), and checked photos either side of this photo, and I watched Ms. A delete it.   I can confirm that there was only 1 photo on the phone.”

2.8         On 23rd June 2020, Forsa wrote to management requesting the cessation of the investigation on the following grounds

              - That the complainant had not received the complaint until Forsa wrote to management on the 17th June seeking same which in fact was a transcribed email from the General Manager, commissioner to the investigator.

              - That the investigator had already interviewed colleagues prior to the complainant receiving a copy of the original complaint (not received to date), terms of reference which was not consulted with the union or relevant policies from management.

2.9         On 24th June 2020, Forsa received a text message from the General Manager at 11:28 stating “if I amend ToR to take out disciplinary procedure but add in data protection legislation, will this get review process progressed from your end and concluded from my end??”

              Followed by “any thoughts on my text??” 17:44

              In response, Fórsa wrote to the General Manageron 25th June 2020, stating “it would be totally wrong for us to agree to a change in your “Terms of Reference” regarding our member Ms. A, at a point where the investigation is almost finished.”

              Forsa again sought the termination of the investigation due to breach of process and offered a “without prejudice basis” meeting with management to find a solution.

2.10       On 26th June 2020, Forsa received a response from the General Manager stating they were proceeding with the process. “If Ms. A  is not agreeable to meet with  the investigator, then I will be advising the investigator to complete the investigation process, noting this matter in the report and to issue me with a report before 3rd July.(Appendix I)

2.11       On 11th November 2020, the Administrative Manager   informed the complainant verbally that she was to receive a verbal warning and complete an online course concerning GDPR. On advice from Forsa the complainant wrote to the Administrative Manager asking for clarification on the matter. The complainant never received a response. (Appendix J)

2.12       On 21st January 2021, Forsa wrote to management seeking “the current status of this investigation”

2.13       On 18th February 2021, Forsa received a response from the General Manager reverting back to the correspondence date 26th June 2020 from herself.  

 2.14      At which stage Forsa had no option but to refer the matter to the WRC for adjudication.

UNION CASE

3.1         It is Fórsa’s position, that management breach the complainant’s rights by not forwarding her the original complaint, Ms.A  only received a transcribed email from the  Hospital Manager which did not state who actually lodged the complaint. Please note that the General Manager was also the commissioner of the investigation and this was a conflict of interest.

3.2         It is Fórsa’s position at no stage throughout the process did management afford the complainant fair procedures and natural justice. That the breach in procedure and the prolonged process without a final report been published caused the complainant to be highly distressed seeking counselling and she was consequently unable to draw a line over a traumatic time or be vindicated because management withheld the outcome. 

3.3         It is Forsa’s position that management did not consult with Forsa or the complainant on the initiation of the investigation or the terms of reference. That the complainant did not receive the written complaint, policies and terms of reference per point 4 of their own terms of reference and before colleagues were interviewed on 11th June 2020 up to 16th June 2020. At which stage the complainant or Forsa was unaware management had initiated the investigation. Forsa wrote to management on the 16th June seeking a copy of the complaint, relevant policies and terms of refence.  This is in complete breach of the complainant’s rights as outlined in legislation and WRC code of practice.

3.4         Forsa requested the investigation to be ceased as management had completely failed to abide by the concept of natural justice as the four fundamental factors for fairness in investigations and disciplinary processes are every employee must be made aware in writing of the allegations including all relevant documentation. The employee should be allowed to respond to the allegations and the employer must give fair value to the employee’s explanation. The code of practice in disciplinary matters (S.I 146 of 2000) clearly states that the employee is entitled to representation. Management insisted in progressing with the investigation without the complainant participation and at no stage was the complainant advised by management that she was entitled to representation as they did not even share the complaint with her before initiating same.  

3.5         Fórsa believes that management concluded the process without affording our member the right of reply and they did not share a draft report or the final report of the investigation with the complainant.

3.6         It is Fórsa’s position, at no stage was the complainant shown any duty of care by management in relation to resolving this issue. Fórsa’s position is that management did not show any duty of care under S.8-(2)-(b) of the Safety, Health and Welfare at Work Act, 2005 an employer is required to manage and conduct work activities in such a way as to prevent, so far as is reasonably practicable, any improper conduct or behaviour likely to put the safety, health or welfare at work of his or her employees at risk. That the final response from the commissioner was completely unacceptable and the breach in covid 19 social distancing placed the complainant in an clinically unsafe environment during the pandemic.

3.7         Forsa’s believes that management completely ignored due process and refused to meet with the union to resolve the matter. That they breached the code of practice on disciplinary procedures (S.I. No 117 of 1996) and their own policy by not following due process. That by verbally informing the complainant that she will receive a verbal warning is unacceptable and cause great distress to the complainant.

3.8         Forsa’s believes that management withheld the final report from the complainant under a Data Access request.  

3.9         Forsa believes that the General Manager, commissioner to the process interfered with due process my writing to Forsa stating “If Ms. A  is not agreeable to meet with  the investigator, then I will be advising Ms X to complete the investigation process, noting this matter in the report and to issue me with a report before 3rd July.

4.0               CONCLUSION

4.1         Fórsa, respectively requests that the Adjudicator considers the significant deficits identified in this submission on the part of the hospital relating to the manner in which the respondent have abdicated its responsibilities towards Ms. A. Especially on breach of her right to fair procedure and natural justices. That management had a duty of care to protect her from improper behaviour within the work place especially during a pandemic.  

4.2    The union believes management’s treatment of Ms. A is shameful and grievous to her professional reputation.

4.3         The union believes and respectively requests that the Adjudicator considers a significant financial remedy as a reasonable and justified appropriate compensation for the breach in fair procedure and natural justices.  I refer to the WRC case ADJ00011109.

The union’s representative submitted that the union had never been furnished with the final report or the report of the Data Protection Commissioner. The union complained that the claimant had been instructed by the HR manager to destroy the evidence and submitted that there had been a failure on the part of the respondent to engage meaningfully with the union. It was submitted that the claimant had never been given access to the actual complaint. Reference was made to the strained   relationships in the office – and the distress and anxiety this caused the claimant. The union had advised the claimant to write to the administrative manager but she received no response. It was reiterated that the union was not consulted on the terms of reference and that any reference to disciplinary procedures would have been challenged by the union. It was contended that the employer had proceeded with an investigation because the complaint had been made by a consultant – it was advanced that the minute he complained – it became an issue. The claimant’s local  representative  stated that when he got a call from the General Manager, he told her ye have already started the investigation and ye need to stop .He reported that the General Manager said , if I withdraw the reference to disciplinary proceedings – would it be acceptable -the representative replied that it would not be acceptable as the process was up and running. The representative contended that the General Manager was going to proceed anyway.

The respondent’s representative submitted as follows :                                

·       On the 28th May 2020 the Complainant in this case, Ms. A , a clerical officer based at  hospital X, took an unauthorised photograph of several colleagues. The alleged purpose of this photo was to demonstrate to senior management that Covid 19 safety regulations in relation to social distancing were not being adhered to. This photograph resulted in a complaint being made by one of the persons in the photograph. Following this complaint and on the same day as the alleged incident, a meeting between the HR manager   and the complainant took place and she was asked to delete the photograph and offer an apology. This was a timely response from management.

·       The General Manager of the hospital referred the matter to, Consumer Services Officer in the hospital on the 4th June 2020 and asked that the matter be reviewed.

·       Following this referral, Terms of reference for an investigation were drawn up. Forsa were consulted on the TOR in line with established practise. It is important to note that Management are not obliged to get agreement on TOR with a trade union but are at the very least obliged to consult on the matter. This took place in this instance. A decision to investigate the matter was made at this point despite FORSA concerns that the matter should not proceed due to alleged procedural deficiencies.

·       On the 26th June 2020 following several over and back correspondences between the GM and FORSA the GM confirmed that the investigation was proceeding and that if the complainant did not engage in the process the matter would be concluded without the benefit of her having given her side of the story. This is in line with due process in reviews and investigations.

·       Relevant parties were interviewed as part of this investigation and a report was finalised by the Investigator around October 2020 and forwarded to the Commissioner of the investigation. Included in the report were a number of recommendations, one regarding the complainant which recommended completion of online training in GDPR.

Conclusion

·       Chairperson, the Complainant in this matter took an unauthorised photograph of colleagues.

·       This was an extremely serious matter. It was a breach of the respondent’s staffs right to privacy in the workplace. It was taken without their consent and stored on a personal phone. This was a breach of the respondent’s mobile phone policy and wrong. A number of the principles of Data protection (as set out below) were breached by the complainant.

·       Principle 1 – Fair and lawful. ...

·       Principle 2 – Purpose. ...

·       Principle 3 – Adequacy. ...

·       Principle 4 – Accuracy. ...

·       Principle 5 – Retention. ...

·       Principle 6 – Rights. ...

·       Principle 7 – Security. .

·       If the Complainant felt that her Health Welfare or safety at work were being compromised or breached she could have followed procedures. Indeed, a number of options were open to her including lodging a formal complaint to the hospital or to the Health and Safety authority. She also had access to the respondent’s Grievance procedure which also covers such matters. Instead she took matter into her own hands.

·       A complaint was subsequently received. The employer is legally obliged to look into all complaints and decide on the merit of same. It was decided that this matter warranted review /investigation. This was carried out by Ms. Y of consumer services in the hospital.  As a result of the outcome of this investigation, on the 11th November 2020, the Complainant met with PD who manages the clerical family in the hospital and was asked to complete an online course in GDPR. This was the end of the matter. Contrary to union assertions the complainant was NOT disciplined on this matter and does not have (or never had) a disciplinary sanction on her record in relation to this matter.

·       Despite union protestations that the investigation process was flawed it is important to highlight that the complainant did not suffer an adverse outcome to her from an employment perspective. Her HR file remains intact and her reputation professionally has not suffered. She did not even receive informal counselling which is the pre disciplinary stage of the respondent’s  Disciplinary procedure 2007.

·       Chairperson, the employer believes that it has dealt with the matter in a fair, transparent and measured manner and respectfully asks that you find in our favour.

The respondent’s representative undertook to furnish the report from the Data Protection Commissioner as well as the Investigation outcome to the union and the WRC. He said the actual complaint was contained in the text of the General Manager’s document. He stated he was unaware as to whether any investigation ensued with respect to a breach of COVID guidelines. He agreed to furnish the WRC with the complaints procedure being relied upon by the respondent  While he admitted that the claimant had been requested to delete the photograph , he said the employer totally refuted the allegation of the destruction of evidence. The representative undertook to furnish the complaints procedure to the union and the WRC.

I have reviewed the evidence presented at the hearing and the submissions furnished post the hearing and noted the respective positions of the parties. I fully acknowledge the imperative on respondents to balance the rights of staff in circumstances of conflict where one staff member makes a complaint against another  and note that at the time of the incident during the early days of Covid , the respondent and its entire workforce were under enormous pressure arising from the challenges  placed on an already stretched system owing to  the pandemic.

Notwithstanding the foregoing I find the claimant is this case was denied her rights under natural justice and that the respondent failed to meaningfully engage with the trade union on resolving the matter Justice must not only be done but must be seen to being done.

The claimant was not furnished with the complaint made against her until well into the investigation - there was no advance or meaningful consultation with the complainant or her  trade union on the terms of reference for the investigation .When the union challenged the procedures their position was not taken on board by the respondent. The respondent failed to furnish the claimant with all relevant documentation – as specified in their terms of reference – in advance of the investigation. The respondent failed to clarify the status of the  referral or otherwise of the case to the Data Protection Commissioner. The investigation was conducted under the respondent’s disciplinary process without first giving the claimant an opportunity to give her response to the complaint – this was unfair and prejudicial to the claimant. The respondent’s representative was unable to clarify at the hearing if any investigation was carried out into the alleged breach of Covid guidelines by the other party to the dispute. No plausible explanation was advanced with respect to the inordinate delay in the completion of the investigation. The time frames set out in the terms of reference were not observed. The claimant was advised by her union to refrain from participating in a flawed investigatory process and her decision to abide by the advice was not unreasonable in circumstances where basic fundamentals of natural justice were not observed.

Recommendation

In all of the circumstances I am upholding the complaint of unfair treatment. I recommend in full and final settlement of  this dispute  that the respondent pay the claimant a compensatory sum of €5,500 for the distress arising for the claimant. This recommendation is based on the unique circumstances pertaining in this dispute and should not be invoked or relied upon in any other forum.