Worker

Employer

Anonymised Parties

Staff Nurse

Healthcare Provider

Representatives

Mr. David Miskell, The Irish Nurses & Midwives Organisation

Self-Represented

Act

Dispute Reference No.

Date of Receipt

Dispute seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00043637-001

17/04/2021

The Worker has been employed as a Staff Nurse with the Employer for over 15 years. On 17th April 2021, the Worker referred a dispute within the meaning of the Industrial Relations Acts with the Commission. Herein, the Worker alleged that she had been subjected to adverse treatment by management at her place of employment. Further to the same, she alleged that the Employer failed to properly investigate her complaints in respect of the adverse treatment suffered. 

In the absence of any objection by the Employer, the dispute was listed for hearing on 15th October 2021. In advance of the hearing, the Employer issued a written submission. Herein, they partially denied the allegation- in particular the Worker’s complaints regarding adverse treatment. The hearing was finalised on 15th October 2021. This was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing. No issues as to my jurisdiction to hear the dispute were raised at any stage of the proceedings.

The Worker is engaged as a staff nurse at a regional hospital. In addition to these duties, the Worker is a union representative as part of an agreed framework between the Employer and a trade union. Part of these duties involve attendance at certain management meetings whereby industrial relations issues are discussed.

At one such meeting, on 8th July 2020, the Worker was subjected to a considerable degree of hostility and an inappropriate line of questioning from the management team. Shortly thereafter, the Worker submitted a grievance in respect of the adverse treatment she received from members of management. A meeting in relation to the same was convened on 14th October 2020. In advance of this meeting, the Worker set out the difficulties she had experienced in her role as union representative within the hospital. These included a hostile tone from management, meetings being arranged off-site against her wishes, difficulties in securing agreed time for union activities and issues regarding the provision of PPE equipment, amongst others.

Ultimately, the Worker was not satisfied with the outcome of the investigation. An appeal was referred to the General Manager on this basis. Despite numerous further requests from her representative, this appeal was not convened and the matter was not resolved by the date of the hearing.

In summary, the Worker submitted that the Employer’s failure to process the appeal constituted an unacceptable breach of the Employer t’s procedures. It was further submitted that this failure was the cumulation of the Employer’s failure to properly investigate and address the Worker’s concerns. These concerns were of a serious nature, and the manner in which the Employer processed, or more accurately failed to process, the same led to a significant degree of difficulty on the Worker’s behalf. In conclusion it was submitted that the manner in which the Worker was treated was profoundly disrespectful and was not befitting of a management team that claimed to be committed to harmonious working relationships.

In answering the claim, the Employer partially disputed the Worker’s complaint. They submitted that the Worker’s role as a union representative inevitably led to a degree of contention between the parties. While parties might have opposing views, and put forward their point of view in a robust manner, management is careful of maintaining a culture of respect at all times. It was submitted that the Worker’s contention that she was submitted to adverse treatment during the call of 8th July 202 has no foundation. Rather what occurred was a somewhat tense atmosphere created by the challenging positions adopted by the parties.

On receipt of the Worker’s grievance, the Employer sought to investigate the same by engaging the services of an independent third party. Following a full investigation, the independent third party concluded that while a difference of opinion existed regarding the issues and interactions between the parties during the call, no evidence existed of a concerted campaign against the Worker.

The Worker appealed this outcome, in line with the Employer’s internal policies. Unfortunately, at this point the General Manager had moved on and it proved difficult to retrieve the correspondence. When same was located, the Employer had difficulties securing a suitable person to chair the appeal. This difficulty was compounded by the resurgence of the Covid-19 virus and the new restrictions imposed on foot of the same. This lockdown was followed by a significant and well publicised breach of the Employer’s systems. Unfortunately, in light of the foregoing issues, the appeal was not processed in a timely manner, or at all.

In summary the Employer submitted that on receipt of the Worker’s grievance, they arranged for an independent third party to investigate the same. They submitted that following a thorough investigation, these grievances were not upheld. They accepted that the Worker’s appeal was not processed and further accepted that this represented a breach of their procedures. Nevertheless, the Employer requested that I be cognisant of the difficulties facing the organisation at the relevant time.

The present dispute primarily involves the Worker’s contention that the Employer failed to properly investigate an allegation of adverse treatment directed towards her as a result of her role as union representative within a hospital. The first point that must be noted is that this is a significant allegation. The Worker, as a union representative, fulfils an important role within the agreed industrial relations framework of the Employer. The adverse treatment alleged by the Worker could have the effect of impeding her in these duties and may have the effect of serious matters not being brought to the attention of management.

At the outset, it appeared that the Employer treated this matter with due consideration. On request from the Worker’s representative the Employer engaged the services of an independent third party to investigate the grievance. Following a meeting in this regard, a report was issued in good time. While the Worker clearly did not agree with this outcome, it is apparent that the process thus far had been processed broadly in line with the Employer’s own procedures.

The procedural difficulties in this matter arose with the appeal. The Worker submitted the appeal in the correct timeframe and to the correct person as set out in the procedures. Thereafter the Employer simply failed to process the same and ignored their obligation under the policy in this regard. This failure cannot be seen as anything other than a significant breach of procedure and an abdication of their responsibility to the Worker. In this regard, the Employer has asked that I consider the difficulties it was facing at the time, i.e. the renewed restrictions arising from the Covid-19 pandemic and the third-party data protection breach. Regarding the first point, I do accept that the service was under a historic level of strain at this point. However, I also note that the Worker, as a front-line healthcare worker, was herself working in extremely challenging circumstances. The Employer is one of the largest employers in the state with extensive human resources and legal functions. I also note that the initial meeting was conducted remotely, and any subsequent appeal would surely be convened in a similar manner. In light of the foregoing, I find that the Employer’s failure to process the appeal is not excused or explained by the difficulties they were experiencing at time.

Notwithstanding the same, I note the Worker’s representative wrote to the Employer on two separate occasions enquiring as to the status of the appeal.  At this point any reasonable employer would surely have corresponded with the employee concerned setting out the reasons for the delay and giving comfort that the matter would be dealt with as soon as is practicable. The Employer’s failure to do so left the Worker in a limbo situation whereby the process was not finalised and appeared to have been abandoned.

Having regard to the foregoing, I find that the Employer is clearly in breach of their own procedures and I recommend in favour of the Worker. Regarding settlement, I canvassed the Worker’s view regarding a recommendation arranging a belated appeal to her grievance. Given the passage of time, the Worker understandably did not wish for the matter to continue. In the circumstances monetary compensation is the most suitable form of remedy. In circumstances whereby the grievance raised by the Worker was significant and the Employer was in clear breach of their own procedures regarding the same, I recommend that they pay her the sum of €5,000 in settlement of this dispute.

I recommend that the Employer pay the Worker the sum of €5,000 in settlement of this dispute.

Grievance, Appeal, Covid-19, Cyber Attack