FULL RECOMMENDATION
SUBJECT:1.Appeal Of Adjudication Officer Decision No ADJ-00012147. This is an appeal on behalf of the Health Service Executive (‘the Respondent’) from two Recommendations of an Adjudication Officer (ADJ-00012147/CA-00016105-002 and CA-00016105-003, dated 7 March 2019) under section 13 of the Industrial Relations Act 1969 (‘the Act’). The Respondent’s Notice of Appeal was received by the Court on 17 April 2019. The Court heard the appeal over three days: 15 June 2021 (in Dublin); 24 November 2021 (in Westport) and on 22 February 2022 (in Dublin) in tandem with the Respondent’s appeal of an award made by the Adjudication Officer in favour of the Worker under section 28 of the Safety, Health and Welfare Act 2005. The Court’s Decision in that case bears reference number HSC/19/8. The Complainant has worked as a Multi-task Attendant at Mayo University Hospital since 1997. He was made permanent in his post in 2001. The Complainant’s duties as a Multi-task Attendant include providing assistance with general tasks on the ward and delivering and managing supplies to the ward. He works under the supervision and direction of the Domestic Supervisor. When the events that gave rise to the within proceedings arose, the Complainant was assigned to the Paediatric Ward in Mayo University Hospital. Early in 2015, he experienced a series of inter-personal difficulties with a staff nurse (‘Nurse A’) also assigned to the Paediatric Ward. The Complainant brought this to the attention of his Supervisor and then subsequently formalised a complaint dated 29 July 2015 against Nurse A under the Respondent’s Dignity at Work Policy. The Complainant submitted as part of that formal complaint that he had been the target of bullying behaviour by Nurse A since late 2013. He requested a formal investigation be undertaken into his allegations. Mr Paul Hume (currently the Employee Relations Manager for the Saolta Hospital Group) was appointed to conduct an investigation into the complaints raised by the Worker against Nurse A. At that time, Mr Hume was a Manager in the Donegal, Leitrim and Sligo Region (‘CH01) of the HSE. He is an experienced and trained workplace investigator and has carried out some four hundred workplace investigations. He outlined in some detail to the Court the terms of reference for that investigation under the Respondent’s Dignity at Work Policy, his one meeting with the Worker and his trade union representative, his understanding that the Complainant – and subsequently Nurse A – had agreed to enter into mediation and his decision to step down as investigator in or around February 2017 because he felt at that stage that he was no longer sufficiently ‘untainted’ to carry on with the investigation. He also told the Court that an alternative investigator was appointed thereafter but his understanding was that the second investigator ultimately stood down his investigation also because of the Worker’s alleged failure to prosecute his complaint. Unfortunately, Mr Hume’s account to the Court of the aforementioned investigation was less than satisfactory as Mr Hume had to rely totally on his memory of events in circumstances where his file related to the investigation could not be retrieved. In response to many of the questions put to him, Mr Hume’s answers were often generalised in nature and based on his view of what he would do rather than what he actually did or said in this case. Although Mr Hume commenced an investigation into his complaints, only one meeting took place between Mr Hume and the Complainant who was accompanied by his trade union representative. That meeting took place in November 2015. There is a clear conflict between the Worker’s recollection of that meeting and Mr Hume’s. Mr Hume says that the Worker agreed to consider the option of mediation, subject to Nurse A’s agreement to mediation also being forthcoming. The Worker denies this and says that the meeting was abandoned when it appeared that Mr Hume was in possession of a counter-complaint raised by Nurse A against the Worker. Mr Hume denies this and told the Court that he had no recollection of having any such counter-complaint and if he had he would have adjourned the meeting to allow the Worker to consider it. Mr Hume proceeded to meet with Nurse A in January or February 2016. His recollection is that she was also agreeable to engaging in mediation with the Worker. Mr Hume says he advised his superior that both parties were agreeable to mediation and his understanding thereafter was that the mediation process was put in train and a mediator was appointed. Based on that understanding, he took no further steps to progress his investigation. As stated previously, when it came to his attention some months later that the mediation hadn’t progressed, he stepped down, in February 2018 from the investigation. The Worker submits that he never agreed to mediation and made it clear at all stages to Mr Hume that he wanted to progress with the investigation of his complaints. The Worker said that he had previously tried to resolve matters amicably with Nurse A but was unsuccessful in his attempts to do so. For that reason, he did not regard mediation as a viable option. It is submitted on behalf of the Worker that the Terms of Reference for the investigation to which he consented provided that the investigation would be completed in a period of six to eight weeks from the date of his agreement to them. This did not happen and therefore the Respondent breached its own terms of reference. The Worker also submits that a period of some eighteen months passed from the initial meeting with Mr Hume until Mr Hume eventually stepped down without preparing as much as a draft report into his complaints and this represented an inordinate and inexcusable delay in breach of the Worker’s rights to fair procedures and the right to have matters dealt with expeditiously. A second investigator was appointed but no meeting took place between the Worker and the second investigator as none of the dates suggested by the Respondent for such a meeting suited the Worker’s representative. Again, there is a conflict between the Worker’s understanding of the number of dates suggested for a meeting and that of the Respondent. The Court is unable to reconcile this conflict on the basis of the information and documents before it. What is clear to the Court is that the Worker’s Solicitors wrote to the Respondent on 9 September 2017 setting out the Worker’s concerns with the process. The Worker subsequently received a letter from the Respondent – dated 7 September 2017 but post-marked 10 September 2017 – informing him that the second investigator had been stood down and the investigation was being discontinued due to the Worker’s failure to prosecute his case. The Court has noted the first investigator’s inability to locate his file in relation to his investigation into the complaints raised by the Worker against Nurse A. The first investigator was severely hampered when it came to answering the questions put to him and in his recollection of the specifics of this case, as a result. This is a very significant factor the Court has had to take into account when seeking to reconcile the Worker’s much more definitive recollection of disputed events with the investigator’s far less precise and generally vaguer recollection. However, even if the first investigator reasonably believed that the Worker had agreed to enter mediation – which the Worker denies and which denial appears to be entirely consistent with his account of the history of his relationship with Nurse A prior to the initiation of his formal complaint against her – no credible explanation has been offered for the very protracted period that followed the investigator’s initial meetings with the parties to the complaint and his realisation some eighteen months later that no mediation had commenced, followed by his decision to step down from the investigation. Likewise, the Court has some difficulty in preferring the investigator’s recollection of the initial meeting that took place in November 2015 with the Worker and his representative in circumstances where his notes from that meeting are unavailable to him and he was unable to state unequivocally what, in fact, happened at the meeting from his perspective. The Worker, by contrast, had a very vivid recollection of an issue arising in relation to the investigator being in possession of information from Nurse A to which the Worker was not privy. The Worker’s position is that the meeting was adjourned for that very reason. Ultimately, the Workers’ complaint under the Dignity at Work Policy was not investigated by the Respondent. No doubt, the unavailability of the Worker’s representative on certain dates suggested by the Respondent for meetings was a factor that contributed to delay in the process. However, this in itself cannot justify the Respondent’s failure to comply with its own policy and its failure to afford the Worker the opportunity to have his complaints fully investigated in accordance with the provisions of that policy. It should also be added that the person against whom the Worker complained was also let down in this process in so far as she was denied the opportunity to defend her good name. Nevertheless, as the Court has already found in its determination in HSC/19/8, the Worker was severely discommoded for the lengthy period during which was relocated to other locations within his place of work, all the time anticipating an investigation into his complaints. However, no such investigation ever progressed. The Court finds that the Worker was severely let down by the Respondent in all of this having regard both to the protracted period of time that elapsed between the Worker’s initiation of his complaint in July 2015 and the decision by the Respondent to stand down the second attempted investigation in November 2017 and to the Respondent’s failure to follow its own procedures or any procedure, in particular its total disregard for the timeframes indicated in the terms of reference agreed for the investigation. The Court measures the appropriate redress in this case as compensation. It recommends payment of €5,000.00 to the Worker for the inordinate delays in the investigation process and a further €5,000.00 for the Respondent’s failure to follow its own procedures and the consequent unfairness this caused to the Worker. The Court so decides.
Enquiries concerning this Decision should be addressed to Shane Lyons, Court Secretary. |
