FULL RECOMMENDATION
PARTIES : BEAUMONT HOSPITAL DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Recommendation No(s) ADJ-00029201, CA-00038767-001 2. The Independent Consultancy Report into Incident Two be completed in a speedy manner. 3. The Administrative leave be brought to an end as soon as possible - a further prolonged period of employment status uncertainty while the Report is being considered by both parties is to be avoided at all costs. Both the Union and Management to use their best efforts to achieve this. 4. The services of a Mediator be availed of to arrange a phased return to work after such a long absence, if this is the agreed outcome. 5. The delays in processing Incident One were unfortunate but understandable in the context involved. They were not of such a nature as to warrant a Recommendation of a compensation award". A virtual Labour Court hearing took place on 18 January 2022.
This is an appeal by the Worker from a Recommendation of an Adjudication Officer (ADJ-00029201, dated 26 July 2021) under section 13 of the Industrial Relations Act 1969. The Worker’s Notice of Appeal was received by the Court on 2 September 2021. The Court heard the appeal in a virtual courtroom on 18 January 2022. The Factual Matrix The Worker has been employed as a Chef by Beaumont Hospital (‘the Respondent’) at St Joseph’s Hospital in Raheny since November 2011. Regrettably, the events that give rise to the within appeal date back some time – to August 2019, in fact. The Worker had an interaction with a female colleague on 30 August 2019 which prompted that colleague to refer an internal written complaint against the Worker alleging that he had treated her in an inappropriate and aggressive manner on that date. (Issue 1) Management proceeded to attempt to deal with Issue 1 on an informal basis. The Worker was, accordingly, invited to put forward his version of the events that occurred on 30 August 2020. He declined to do so. He requested, through his Trade Union Representative, that the matter be the subject of a formal investigation. This was not acceptable to the Respondent. T he Worker was, instead, offered the option of engaging in a mediation process to be facilitated by an external, accredited mediator. He also declined to use the Respondent’s grievance procedure to address the issue of his dissatisfaction with the Respondent’s decision to deal with the originating complaint on an informal basis. The Worker initiated the within proceedings before the Workplace Relations Commission on 16 July 2020. Meanwhile, Management carried out a pre-screening exercise in relation to the complaint and determined that, on the face of it, the complaint did not come within the definition of workplace bullying. The Worker was advised of this by letter dated 9 October 2020. Both the Worker and his colleague who had made the complaint against him dated 2 September 2020 were offered the option of engaging in mediation to resolve any interpersonal difficulties. This offer was rejected by the Worker who insisted on his right to clear his name. Meanwhile, in mid-April 2020, four other individuals referred complaints alleging that the Worker had treated them inappropriately and in an intimidating manner. (Issue 2) The Worker was placed on administrative leave with pay, with effect from the date that he was notified of the details of this, second, complaint. He remains on paid administrative leave as of the date of the within hearing – almost two years later. Two members of management carried out a pre-screening exercise in relation to the four complaints that comprise Issue 2. They recommended that a formal investigation into the complaints be carried out. The Worker objected to members of management who conducted the pre-screening exercise, alleging that they were tainted and biased because of their involvement in Issue 1. The Respondent invited the Worker to avail himself of the grievance process if he wished to progress his complaint in this regard. He declined to do so. An external investigator was appointed and terms of reference for the investigation were put in place. The investigation did not actually commence until 4 December 2020 as the Worker insisted that all matters relating to Issue 1 should be dealt with before the investigation into Issue 2 took place. The external investigator issued his final report on 5 November 2021. He concluded that the Worker’s behaviour vis-a-vis the four complainants amounted to misconduct. On foot of that report, the Respondent notified the Worker that a disciplinary meeting would be held at which he would be given an opportunity to respond to the outcome of the investigation. Several dates in December 2021 and January 2022 were proposed by Management for this disciplinary meeting, however, either the Worker or his Trade Union Representative was unavailable on each of the proposed dates. At the within hearing, the Representative gave an undertaking that he and the Worker would be available on the next suitable date offered by the Respondent to progress the disciplinary hearing. The Worker submits that the Respondent’s handling of Issue 2 was taintedab initiodue to the involvement in the pre-screening process of members of Management who had been involved in considering Issue 1. Discussion and Decision The Court received very lengthy and comprehensive submissions from both Parties to this dispute. Having carefully considered the Parties’ written and oral submissions, the Court finds that the Worker was given a number of opportunities to address his concerns in relation to what he perceived to be the negative impact the complaints, the subject of Issue 1, had on his good name. He was twice offered the option of mediation which he rejected on both occasions. He was also invited to avail himself of the grievance procedure. He also declined to go down this route, choosing instead to refer the matter to the Workplace Relations Commission. The Court finds that the Respondent’s efforts to provide the Worker with an avenue to air his concerns about his reputation and good name were reasonable and fair. Accordingly, the Court decides that the Worker’s first complaint is not well-founded. In relation to the Worker’s submission that the process followed by the Respondent in dealing with the second set of complaints against the Worker was tainted by virtue of the involvement of certain members of Management, who had previously dealt with Issue 1, in the pre-screening stage, the Court finds that any detriment that may be perceived as arising therefrom was cured by the outsourcing of the investigation into the complaints that are the subject of Issue 2 to an external investigator who proceeded to investigate them on the basis of terms of reference agreed with the Worker. The Court, in making this finding, notes that the Worker chose not to avail himself of the Respondent’s grievance procedure, when offered an opportunity to do so, to air his concerns about the involvement of named members of Management in the pre-screening process. On the basis of the foregoing, the Court likewise finds that the Worker’s second complaint is not well-founded. The Court, therefore, upholds the Adjudication Officer’s Recommendation with the following amendment: the Worker should return to post from administrative leave with immediate effect with prejudice to the outcome of the pending disciplinary process which should be concluded as soon as is practicable. The Court so decides.
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