ADJ-00027991

Complainant

Respondent

Anonymised Parties

A Worker

A Health Service Provider

Representatives

Maura Cahalan Forsa Trade Union

 HR Director

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-00035975-001

01/05/2020

The complainant has been employed with the respondent since the 4th.October 2000.The complainant lodged a complaint against her line manager under the respondent’s Dignity at Work Policy in October 2016. After a protracted process including a referral to the WRC under the Industrial Relations Acts regarding the delay in processing the complaint, the union was notified by the Investigation Team on the 2nd.Oct.2019 that “the final report will be posted out tomorrow”. The union responded to the Investigation Team on the 3rd.October to the following effect:

The complainant has still” to submit her response to the Draft Preliminary Report. I understand there is also some medical context to the delay .You are requested not to issue the final report and I will ask the complainant to make further commentary to this fact today”.

The chronology of correspondence indicates that the complainant issued a” Rebuttal Response “ to the report in October 2019 .The respondent was requested to refrain from issuing a final report until the claimant’s rebuttal was considered .All documentation setting out the rebuttal was furnished to the Commissioner appointed by the respondent on the 24th.Oct. 2019 .The Commissioner issued her response to the rebuttal on the 7th.Nov. 2019 stating that the complaint was not upheld and advising that “ all indicators have been met by the Investigation Team within the parameters of a reasonable time frame”.

This was rejected by the union who submitted that the respondent had denied the complainant a right of reply and had breached her rights under natural justice. The respondent submitted that their Dignity at Work Policy provides for feedback to the report, “not rebuttal and inclusion of that rebuttal in the Final Report , as sought in the Complainant’s submission”. It was further submitted that while the union had sought an extension of time on the 13th.August 2019 to the end of September 2019 to submit a response to the preliminary report, the “Panel noted that no further extensions were sought or comments received from either the Respondent or Complainant “against that new extended timeline”. It was submitted that it remained the position of the respondent that the time period from July to the end of September was sufficient time to provide a response”. It was submitted that the Commissioner could not reinvestigate a process that had been managed under the remit of the Dignity at Work Policy framework. It was contended that the complainant was seeking more than an opportunity to comment – that she was seeking an opportunity of rebuttal and inclusion of that rebuttal in the Report. It was submitted that this went beyond the respondent’s Dignity at Work Policy to give feedback on the Final Report. It was submitted that “the complainant’s difficulty is that she didn’t take up that opportunity to reply within the time provided. Congruent with this, the complainant seeks to have a facility afforded to her that is outside the Policy and thereby skew the principle of fairness to all parties in her favour.”

A number of attempts were made to settle the dispute but it was not possible to reach a mutually acceptable settlement.

Voluminous correspondence was submitted by both parties in support of their respective positions – I don’t believe that any purpose would be served in documenting them in explicit detail as they contain significant amounts of information that is not germane to this specific complaint - and I propose to focus on what will hopefully amount to a settlement formula that is acceptable to both parties.

The union submitted that the dispute arose as a result of management’s failure to adhere to the terms of reference in conducting the investigation into the claimant’s dignity at work complaint. It was advanced that the refusal by the respondent to include the claimant’s rebuttal before the publication of the final report on her complaint had a negative effect on the complainant and was unfair to her. It was advanced that the union had option but to refer the dispute to the WRC as there was no appeals mechanism internally.

It was submitted that when the union received the draft preliminary report in July 2019, the union (13.08.2019) sought an extension of the deadline for a response to be prepared to compose a rebuttal  , owing to the sheer volume of the report  and owing to the fact that the complainant had  booked 3 weeks annual leave. The union set out a chronology of the exchanges between the investigation Unit and Forsa  commencing with an email from the Investigator dated the 2nd.Oct. 2019 at 19.47 stating “ the final report will be posted tomorrow to the same work address as per previous” and that “ the Commissioner has been awaiting receipt since the Interim Report was sent to you on the 22nd.July and gave a final date of the 7th.October to obtain same” .The union responded on the 3rd.October asking that the final report would be put on hold as the complainant had still to submit her response to the Draft Preliminary Report  and referenced a medical context to the delay – which according to Forsa , was known by the respondent. The complainant had been ill from the 26.08.2019 to the 30th.Aug.2019 and from the 1.10.2019 -14.10.2019.On the 7th.Oct the Investigator replied  to the union to the effect that they were unaware that the complainant was preparing  a rebuttal notwithstanding that a right of reply had been a feature of the terms of reference , that an extension to the end of September had been sought and this extension had been again requested on the 3rd.Oct. 2019. It was submitted that the respondent had failed to comply with the provisions of SI146/2000 in failing to “give fair value to the employees explanation or comments”.

It was submitted that the respondent/Commissioner was aware of the claimant’s 2 periods of illness from the 26/08/19 to the 30/08/19 and from the 01/10/19 – 14/10/19.

It was submitted that the Commissioner received the rebuttal documentation on the 24t.Oct. and the Commissioner responded on the 7th.Nov. 2019 advising that the complaint was not upheld and “the commissioner’s view was , under the principles of natural justice , that all indicators have been met by the Investigation Team within the parameters of a reasonable time frame”.This was rejected by the union and as there was no appeal route the matter was referred to the WRC.

It was further submitted that management had failed in their duty of care to the complainant. It was advanced that the complainant cannot have closure “ if she fundamentally disagrees with the draft preliminary report and that she must be allowed the opportunity to respond. It was contended that the complaint had been protracted – going on for 4 years ; the respondent had attributed the delay to the unexpected sick leave of one of the initial investigation team but at the same time refused the same respect for the complainant  when she was ill at the time her response to the preliminary report was due.

It was submitted that any advice sought by the Commissioner should have been referred to the national HR Director and was inappropriately referred to the Investigations Unit Manager.

The union set out a chronology of the claimant’s health challenges – it was submitted that she incurred overwhelming psychological distress on receipt of the draft report necessitating 2 weeks certified sick leave for ‘severe work related stress’. In the 3rd. week in August the complainant had to attend a Dublin Hospital for investigation following the discovery of a lump on her breast. In October 2019 her GP advised the respondent that “noting that due to psychological stress his patient would require another 2 weeks for Full Rebuttal”. It was advanced that the Commissioner was notified of all 3 incidences. It was submitted that at no stage did the Commissioner ever advise the union that the Commissioner had instructed the investigators to submit their final report by 7th.Oct. 2019.

The union asked that the final report be recalled,” that an external independent  investigator be appointed  to redress the preliminary draft report and the rebuttal to produce a fair Final report “and that “ a new Commissioner be appointed to said investigation as there is an existing conflict of interest for the current commissioner”.

The complainant in her rebuttal contended that the investigation process was seriously flawed ; that the Investigators assigned statements to the complainant which were never made and were not in the transcripts ; the Investigators had alluded to the claimant’s personal life – in complete breach of the claimant’s rights; the Investigators had assigned statements to at least 4 witnesses which were never made and were not in the transcripts ; the investigators had made false accusations against the complainant , the Investigators had failed to investigate elements of the complaint which was pertinent to the escalation of bullying and harassment of the complainant by the respondent ; the Investigators had used a Methodology called “Thematic Analysis” which was not a governance tool used by the Unit and was not approved by the HSE Ethics Committee or agreed with the union .It was further contended that the investigators had ignored complaints of misconduct and malpractice made by the respondent against the complainant; that the Investigators had wrongly accused the complainant of having bullied staff  and that they had asserted that the complainant was the source of difficulties in the Unit since 2011.

It was submitted that the Commissioner was unavailable from the 16th.September to the 7th.Oct. 2019 for any engagement to discuss an extended timeline prior to publication of the report and that the complainant was not advised by the Commissioner who was looking after her case during the said period of absence. It was submitted that immediately on receipt of notice that the final report was being issued, the union immediately requested management not to publish the final report owing to medical reasons (3.10.2019) and wrote again the following day stating that the claimant’s GP was corroborating the claimant’s inability to meet the deadline.

In a further submission on the 25th.March 2021, the union referenced ICTU Guidelines on the Prevention of Bullying and Harassment and referred to  the following : 

“ In addition, I attach a newly published documentation from the Irish Congress of Trade Unions with special reference to 8.3.4 Appeals which states

“Within the formal system, an appeals process for both parties should be in place. The reason for the appeal

should be outlined in writing to management if such an option is being taken.

The appeal should be heard by another party, of at least the same level of seniority as – but preferably more senior than – the original investigator. This party should have had no involvement in the investigation. The appeal should focus on the conduct of the investigation in terms of fair process and adherence to procedure. The outcome of the appeal shall be final.”

It was advanced that this was in line with Fórsa request that an external independent investigator is appointed to redress the preliminary draft report and the complainant’s response to produce a fair Final report. 

The union took issue with the legal submissions made by the respondent and asserted that this was an industrial relations dispute. It was advanced that the claimant’s core complaint is that management did not include the complainant’s response to the draft report which it was argued was in complete breach of the terms of reference. It was submitted that the complainant did not want a fresh investigation    and that she wanted her rights under the terms of reference as set out under the policy to be honoured and that her response to the draft report be included. 

 The union submitted that the dispute arose as a result of management’s failure to adhere to the terms of reference in conducting the investigation into the claimant’s dignity at work complaint.

The respondent confirmed at the most recent hearing that the investigation was conducted in accordance with the respondent’s Dignity at Work Policy and disputed the unions invocation of SI 146/2000.The respondent submitted a chronology of engagement between the parties between April3rd.2019 and the 2nd.October2019 and asserted that this illustrated the many opportunities afforded to the complainant that were not availed of. It was submitted that the action of the Investigating Party was “in good faith to the revised time limit sought by the claimant”. It was submitted that the complainant had a total of 49 working days to respond to the interim report – 16 of which were recorded as sick leave leaving a total of 33 days to prepare the relevant response. It was submitted that on receipt of a large volume of documents with an attached letter from the complainant, the Commissioner sought the advice of the Investigation Unit.

The respondent disputed the union’s assertions with respect to rights to rebuttal and advanced that the relevant point was the WRC Code of Practise on Bullying in the Workplace and specifically the provision that “Both parties should be given an opportunity to comment on the findings before any action is decided upon by management”. It was submitted that the claimant’s rebuttal request went beyond the WRC Code of Practise and the respondent’s Dignity at Work Policy. It was submitted that the nature of the claimant’s response to the report was to seek to reopen the Investigation Report on the basis of a rebuttal and a complaint that insufficient time had been provided to the complainant to make her response to the draft Report. It was submitted that the principle in law of ‘res judicata ‘was relevant – “Continuing the prosecution of a complaint by another means , when that complaint is already decided , is not in the public interest .Should that eventuality come about, it could reasonably be viewed as an abuse of process”. It was advanced that the complaint was contrary to legal principle, was misconceived and that the respondent was not in breach of the agreed policy or the WRC Code of Practise.

It was submitted that the employee was asking the WRC to make a recommendation that there was a breach of Employer policy and direct the employer to resile from its acceptance of the Final Investigation; perform a new investigation through a new Investigator and appoint a new Commissioner. The respondent went on to invoke a number of employment law cases where employees succeeded or lost in gaining an injunction against an employer. It was submitted that the instant dispute had no parallel in existing case law and that there was no case law where a complainant “to a workplace allegation succeeded in their petition for a mandatory or prohibitor injunction”. It was advanced that what was being sought by the claimant overreached the bounds of existing jurisprudence. At the final hearing it was submitted that in the instant case, the doubt rested on the claimant’s side, that the contra preferentum principle should apply and that the recommendation should uphold the respondent’s position.

The respondent submitted that the chronology of correspondence between the Lead Investigator and FORSA supported their contention that the complainant failed to meet her own deadline and did not submit any further extension request before the 30th.Sept.2019.It was advanced that had the union made contact before the end of their deadline, an alternative expected date for the final report would have been considered.

It was submitted that the electronic report was issued via email on the 2nd.October2019 and a scanned read was completed as of Friday 4th.October by the Commissioner. The hard copy version arrived by registered post as of Monday 7th.October and the Commissioner “handled and read again on Monday 7th.October2019.

It was submitted that while the Commissioner agreed at the request of the union to consider a submission from the complainant, 4 bundles of documents arrived to her on the 24th.October “seeking a full rebuttal of the final report dated 2nd.October 2019 and by default, sought a new investigation”. It was submitted that the Commissioners engagement with the National Investigation Unit about this matter was to ensure that the role of the Commissioner was not compromised and that these exchanges were to safeguard the integrity of the process for all parties. It was denied that the NIU exercised any control or undue influence over the decisions of the Commissioner.

It was advanced that the Investigation Chairperson  Ms.X was retired and that consequently the respondent was unable to clarify if she responded in writing to the union’s request for an extension of time on the 13.08.2019.It was submitted that the Ms.X wrote to the Commissioner on the 30th.Sept. advising that no response was received  before the expiry of the deadline “ and if none by COB I will write to the parties indicating the Draft report circulated on 22nd.July should be made the final report”. It was submitted that the claimant’s complaint seeks to give the complainant “second bite of the cherry “ and that there was no such provision in the policy or the WRC Code of Practise.

I have considered the voluminous documentary and verbal submissions made by both parties. I acknowledge that the respondent is obliged to have regard to the rights and interests of both parties  in dignity at work complaints . I have considered if the actions of the respondent in refusing the claimant an opportunity of rebuttal as a result of missing the deadline for the submission of same was fair and/or reasonable.  I have also had regard to the fact that notwithstanding the reasons being advanced for not meeting the 30th.September deadline, the claimant’s side must accept some responsibility for having missed the timeline. Additionally I have had regard to the arguments advanced by the respondent to the effect that the claimant’s input to the draft report would be confined to a commentary as opposed to a rebuttal as sought  by the claimant’s side.

On the matter as to whether there was a compelling reason for the delay in meeting the deadline, I consider it pertinent that the extension to the 30th.September was never confirmed in writing to the union. I further note that the main investigator Ms.X did correspond with the other party to the following effect ….” It now looks like it will be early October before the Report is finalised. If there is no response by the end of September, the Interim Report becomes the Final Report “. The respondent has been unable to produce any evidence to confirm that the same communication was issued to the union – the union has vehemently asserted that no written communication was received on the matter. The union has further asserted that they were never informed that the Commissioner had sought a deadline of the 7th.October to issue the report and no evidence of having issued any such communication was presented by the respondent. The email from the Commissioner to the Investigator dated the 12th.Sept. 2019 refers. When questioned at the final hearing as to why the Commissioner did not copy the union into her email to the investigators asking that the report be issued on her return from annual leave during the week of the 7th.October – the Commissioner responded that it was a matter for the investigators to communicate with the parties and not a matter for her as Commissioner.

 I accept the union’ s assertion there clearly was a medical dimension to the delay and this was acknowledged in correspondence between the investigators and was also known to the commissioner given the medical reports submitted on behalf of the claimant. The post hearing documents submitted by the respondent included an email between the Investigators in which the Principal Investigator states to her colleague investigator …” I got a phone call yesterday at 9.00a.m. from the complainant to say that she had read the Interim Report and she was not angry but she was devastated. I missed her call but she left all this on my voicemail. Union Rep is back from A/L on the 8th.August and she had recently agreed to have feedback by 18th.August but said yesterday (via voicemail) that she was going off sick and did not know when they would revert. I sent her back a text with good wishes and expressing concern that she was unwell. I also said that we are amenable to considering their feedback, that’s all I felt I could do. If they don’t revert at all, say after a couple of months the Interim Report automatically becomes the Final Report and I have notified this to the Commissioner who of course has not seen the Interim Report”. This document suggests that there was some latitude around the timeline for submission of the union’s response to the Interim Report. It   supports the union’s contention that the respondent and the Investigating Team were aware of the claimant’s health challenges. Additionally it serves to undermine the credibility of the Ms.X’s assertion to the union official in an email dated the 7th.Oct. 2019 in which it is stated by Ms.X  “ the Investigation Panel were certainly not aware that you are formulating a rebuttal to the Interim Report that was released on the 22nd.July”.  This assertion by the Investigator is difficult to comprehend in circumstances where the Union Official stated in his email to the Investigator dated the 13th.August 2019  that in order to review the draft preliminary report “ we are going to need a significant extension of time due to the sheer volume of the document and owing to the fact  that I am simply catching up and the complainant has  3 weeks leave booked .To that end , we are going to need an extension to the end of September in order to consider the document and provide a meaningful response”.

I consider it of further significance that the respondent did not dispute the union’s assertions that it had repeatedly failed to meet time frames with respect to the investigation – all be it for what may have been compelling reasons. Additionally the sensitivity of this case and the backdrop of delays was acknowledged and highlighted by the Commissioner in her email of the 5th.June 2018 where the Commissioner highlights the following background issues  as

“Investigation initiation delays from 2016 which were outside the NUI control and process at the time.

The change in Commissioner in September 2017

The change in investigators from September to March 2018

Other objections as referenced to an FOI process”.

 It is apparent that at this point in time the Commissioner was conceding to the appointment of an external investigator. It is reasonable to infer from the above that the Commissioner had accepted that some latitude would be appropriate in this case given the backdrop and delays in the process as acknowledged above by the Commissioner.

I note that the Commissioner’s deadline for the release of the report of the 7th.October 2019 was not communicated to the union. The Commissioner it would appear was operating on the assumption that the Investigators would have communicated this to the union. The union has categorically denied that it was communicated to them by the Investigation Team.  In these circumstances, I consider that the haste of Ms.X ‘s action in giving the union 24 hours’ notice of publication of the report and ignoring the appeal from the union to desist from doing so until the complainant had an opportunity to reply, to be unreasonable. Given the foregoing I find the actions of the respondent in failing to respond positively to the request of the union to suspend the issuing of the final report to have been unfair to the claimant and inconsistent given the backdrop of delays on the respondent’s part in processing this complaint.

As regards the limitations around the claimant’s response to the Interim Report  as set out  by the respondent  , it would appear that  the respondent has  conflated the Dignity at Work Policy with the WRC Code of Practise to support  its contention  that the claimant had no entitlement to a rebuttal. I consider this to be inappropriate given the respondents confirmation that the investigation was processed in accordance with the respondent’s Dignity at Work policy which specifically and unequivocally refers to a right of parties adversely affected by a finding to “challenge the evidence”.

The union has clarified to the WRC and the respondent that they are not seeking to reopen the investigation .Taking account of all of the circumstances and the submissions of both parties and the imperative to bring closure to this process for everyone ,  I am recommending in full and final settlement of this dispute that  given the unique circumstances pertaining in this case and in light of the absence of an appeals process in the respondent’s Dignity at Work policy,  both parties sign up to applying , adhering and implementing   the following review  provision which is a feature of Dignity at Work policies applying in the Civil Service.  

“If either party is dissatisfied by the conduct or outcome of an investigation, they can apply for a review to assess :

*If policy and procedures have been followed correctly

*Whether the conclusions reached by the Investigator can be validly drawn from the evidence on the balance of probability

*The review will be conducted by a Senior Officer from another organisation”.

I recommend the parties meet as a matter of urgency with a view to agreeing   a party to conduct this review and a timeframe for completion of the process.

Dignity at Work / Appeals Process/Time Frames