Worker

Employer

Anonymised Parties

Clerical Officer

A Hospital

Representatives

Colleen Minihane SIPTU

Lisa Moloney IBEC

Act

Dispute Reference No.

Date of Receipt

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

CA-00045309

22/07/2021

The Employee is a senior clerical officer who commenced work with the Employer on 10 December 1979. She submits that the Employer mishandled a grievance around a matter involving alleged senior management interference in a job interview process at the hospital. She is seeking the appointment of an independent investigator to investigate the grievance in a fair and impartial manner. The Employer rejects the claim and submits that it always accorded the Employee full and fair procedures and found no evidence of any untoward interference.  The Employer does not accept that an independent investigation is warranted in this matter

The Grievance:

The Employee was part of an interview panel conducting interviews in April 2017 for a temporary post at the hospital. The Employee maintains that a fellow panellist sought to pressurise her into changing the results of the interview process in favour of a senior manager’s preferred candidate. The Employee states that she resisted this request because she believed the interview process had been carried out fairly. The Employee claims that on return to her office, she was immediately summoned to a meeting with the senior manager in charge of her department where she asserts she was pressurised to change her decision in a meeting that lasted 50 minutes. The Employee submits that her colleagues witnessed her shock and upset when she returned to the office following this meeting. The Employee contends that three senior managers subsequently sought to interfere and undermine the interview process. The Employee submits that she had to take sick leave and while attending counselling sessions, she found the strength to pursue the issue through the grievance procedure.

The Grievance Procedure:

The Employee raised the issue with the HR manager in a meeting in January 2019 and submitted a detailed account on 6 February 2019. She did not receive a response until 31 July 2019 where the HR Manager stated that she established ‘beyond reasonable doubt’ that there was no request to change the outcome of interviews. The Employee submits that she had to resort to Freedom of Information requests to see the statements of the managers involved in the grievance investigation due to the refusal of the Employer to release the documents. The Employee further submits that the Employer refused to call two witnesses who had observed her distressed demeanour after exiting the manager’s office on the day of the interview.

To appeal the matter further the Employee was then required to elevate the matter to what was termed a ‘stage 3’ step in the grievance procedure on 10 October 2019. The Employee submits that this was a flawed and delayed process. The new investigator refused to supply witness statements and the Employer’s report, rejecting the Employee’s allegations, did not come out until 25 September 2020.

An appeal was submitted to the hospital CEO, but the CEO initially deemed that the matter was closed. The Employee submits that the CEO later acknowledged the appeal but three months later the Employer stated that there was no further internal appeal opportunity available.  

This grievance relates to events that occurred more than 5 years ago. Even if an independent investigation was appropriate or necessary, which is disputed, there is little chance of any or all parties having an accurate recollection of a disputed incident that took place over 5 years ago.

Grievance Procedure:

In line with the Grievance Procedure, a fair and unbiased Grievance Hearing was conducted to establish the facts of the grievance submitted by the Employee and she simply has not liked the outcome of same. The Grievance Procedure does not provide for an investigation to be carried out into a grievance.

As per the Grievance Procedure, section 7.4 states that:

Before invoking the grievance procedure, the employee should raise the matter informally with his or her immediate Supervisor/Line Manager

This was not done by the Employee as she took the grievance informally directly to the Human Resource Manager.  

 The formal Grievance Hearing was conducted by an unbiased employee who had not been previously involved in the grievance procedure. The Employee raising the grievance was not the person against whom allegations were made. The parties against whom she made the allegations were entitled to reply to her allegations but as no counter allegations were raised against the Employee, and as it was a Grievance Hearing rather than a Dignity at Work investigation process, there was no requirement for the Employer to provide a right of reply to the Complainant. The simple reality was that the two other witnesses to the event did not support the Complainant’s version of events. Furthermore, the Complainant did not submit any informal allegations concerning the interview process that took place in April 2017 until the start of 2019, nearly two years after the fact. Within this timeframe, the fixed term maternity cover for which the interview process took place, had been filled by the successful candidate and subsequently due to the nature of the role being a fixed term contract, concluded. Nonetheless, the Hospital attempted to deal with the matter fully and in accordance with the informal stage of the Grievance Procedure. The other parties did not support the Employee’s version of events     A formal Grievance was submitted more than 2.5 years after the events. Notwithstanding this, the grievance was fully examined by a member of management who had not been previously involved with the events surrounding the allegations.

Due to the time that had passed between the event and when the grievance was raised, the recollections of witnesses were lacking details. However, regardless of this lapse in time between the event and grievance procedure, the direct witnesses did not support the Employee’s version of events.

The named witnesses of the Employee were not called because they did not witness the actual alleged incidents. Furthermore, there is no written requirement within the grievance procedure to provide documents related to an investigation, to an employee taking the grievance.

In conducting my investigation, I have considered all relevant submissions presented to me by the parties. The Employer makes a case that five years have passed since the actual alleged event and in doing so suggests that the passing of time somewhat relegates the grievance to one that that cannot again be re-opened or investigated. I disagree. It transpires that there exists extensive documentation covering the alleged incidences, and such was the seriousness of the allegations. I cannot accept that any individual would have a lack of recall in the face of serious allegations, to the extent that any re-investigation would be ineffectual.

The Employee did not raise the grievance immediately in 2017 but a convincing account was made on her behalf that such was the distress she suffered at the time that it was only through counselling she finally had the strength to raise the issue. Since 2019, the Employer can clearly be held accountable for delays in the procedure. The grievance procedure is peppered with references to seven working days as time limits for responses, but in essence, these limits were never adhered to by the employer.  The culmination of such delays, even at the end of the purported procedure illustrated a process that was not smoothened by the Employer. At the end of what transpired to be a two-year process, the Employee was advised that could she appeal the matter to the CEO, but then inexplicably was told after three months delay, that no such appeal was being afforded.

The fundamentals of any effectual grievance procedure is that there is consistency, transparency and fairness. Unfortunately, the Employer could not show that any of these principles formed the basis of its actions. The fact that the Employee had to utilise the Freedom of Information Act to access the statements of witnesses is a clear reflection of a lack of transparency. The Employer rightly says that there is no expressed right for access to documents in its grievance procedure, but such access is the cornerstone of transparency and is always implied in a fair procedure. When an employee brings a grievance through a process that purports to be fair and transparent then there is a legitimate expectation that the employee receives all documents relating to her grievance.   Witnesses were interviewed by the Employer but, strikingly, witnesses requested by the Employee were not.

The Employee’s grievance was not about her personal pay and conditions of employment, as can be described as the norm in such instances, but about treatment that was allegedly meted out to her with regard to carrying out what she believes was her lawful role. She is not seeking compensation of any sort.  I note that at no stage did the Employer allege that the grievance was in any way taken in bad faith nor was otherwise vexatious. The Employer is a very important player in the very accountable field of providing healthcare. The serious nature of the allegation imposes a responsibility upon it to ensure that a grievance of such a nature is investigated promptly, fairly and in a transparent manner. Unfortunately, I find that these principles were not adhered to in this case.

I recommend that the Employer would immediately engage an external, independent investigator to re-investigate the grievance of the Employee. Such an investigation should conclude no more than three months from receipt of this recommendation. The Employee should have access to all documentation being considered in the investigation. Furthermore, the two witnesses requested by the Employee should have access to the investigator for the purpose of giving statements in the investigation, which should be considered together with any other statements received.

Grievance Procedures