Worker

Employer

Anonymised Parties

A Healthcare Worker

A Hospital

Representatives

  Irish Nurses and Midwives Organisation

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-00048782-001

24/02/2022

The worker submits that the employer failed to employ due process and procedure in their attempts to discipline the worker.  The employer submits they acted appropriately in the circumstances.

The worker required leave from the employer as her child suffered a violent assault resulting in life altering injuries.  The worker availed of force majeur leave, annual leave and other available leave for a period of time in Oct/Nov 2021.  The worker suffered ill health following the trauma of her child’s attack and was certified sick by her Doctor from November till January 2022.  The worker works for the employer in a part-time capacity and also works for another organisation (Organisation X), which the employer had knowledge of.

On November 22nd, the worker received a phone call from another employee saying that the Director Ms A was making enquiries into whether the worker was continuing to work for Organisation X while out on sick leave.  On November 29th the worker received a phone call from a worker at Organisation X, saying the Director contacted her asking if the worker was working there while out on sick leave. On December 6th the worker received a letter while on sick leave from Ms A stating “while you have been on sick leave from xxx you have continued to work as a xxxx in a private capacity” and requested to meet with the worker the following day. 

The worker’s union representative made enquiries as to the reason for the meeting at such short notice when the worker was on sick leave in such difficult circumstances and was informed that the matter would be addressed informally.  The worker advised that she was not available at such short notice but would be available for a telephone call and this call took place on December 8th 2021.  During the telephone conversation, the worker advised Ms A that she had carried out a handover with both her current employer and Organisation X while on sick leave.  Various correspondence and communication followed which included advising the worker to cease any private work she might be engaged in while on sick leave.  The worker was further advised on 16 December 2021 by Mr B, Employee Relations Manager, that the matter would be escalated to a formal disciplinary hearing at Stage 1 on the worker’s return to work and this was followed by notification of a Stage 1 disciplinary meeting to take place February 10th 2022.  The worker requested further information including evidence relied on to make a decision to proceed to disciplinary and this was not furnished despite repeated requests.

It was submitted that the employer failed to address their allegations in a private and confidential manner and failed to advise the worker of the specific allegations.  It was submitted that the employer was in breach of the laws of natural justice, that the employer was hostile, failed to handle the absence in a fair and sympathetic manner which is a set out in their policy, pursued allegations without foundation and the employer failed to the worker with the specific evidence to support such allegations.  It was submitted that the employer had no objection with the worker continuing with a handover while out on leave but initiated a disciplinary investigation against the worker for doing the same with Organisation X.  The employer had proceeded to contact an employee in organisation X to get information, in breach of the worker’s GDPR, to ascertain whether the worker had worked there during sick leave from the employer.  There continued to be lack of clarity over what exactly were the specifics of the allegations against the worker in breach of her rights and the employer continued to leave this cloud hanging over the worker which left the worker with no alternative but to refer the matter to the WRC. 

It was submitted that despite repeated requests by the union, the employer had still not closed out the matter.

On the first day of the hearing Mr B, Employee Relations Manager sought an adjournment as Ms A, the worker’s Director was not in attendance.  Mr B then withdrew his request for the adjournment and submitted that he was happy to proceed.  No written submission had been sent in and Mr B proceeded with an oral submission. 

As the hearing progressed, Mr B submitted it would be more beneficial if Ms A was indeed in attendance.  A further adjournment was requested and this was granted.

During the hearing Mr B submitted that there has not been any investigation or disciplinary of the worker.  It was submitted that all the employer had wished to do was meet informally with the worker following an allegation that the worker was working elsewhere while on sick leave.  Mr B said that this may have gotten out of hand but it was fair and reasonable in the circumstances and that the first letter issued to the worker clearly enquired into her health.  Mr B said that if the worker was not fit to attend the meeting requested, owing to ill health, then that would have been acceptable.  However, the worker would not attend the meeting as she wanted her union representative in attendance and this was not the norm.  The worker was, therefore, advised that she was in breach of the attendance policy.  The worker was thus advised that the employer would consider withdrawing her sick leave and a disciplinary meeting was set up for 10th February 2022.  This was later adjourned and it was regrettable that the matter had not progressed further. 

At the first day of the hearing Mr B advised that the employer was not pursuing any disciplinary matter against the worker and that he would write to the worker by October 10th 2022 confirming that the employer now considered the matter closed.

At the second day of the hearing Mr B confirmed that he had not written to the worker by the agreed date of 10th October 2022 to confirm that the investigation was now closed.  He acknowledged that he never advised the worker there was a delay in meeting the agreed date, that the union had written to him on a number of occasions looking for the letter and that a final letter confirming closure of matters was issued on November 23rd 2022. 

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

At the hearing of 7/10/22 the employer initially requested an adjournment owing to the unavailability of Ms A but withdrew this request and Mr B submitted that he was satisfied that he could proceed.  As the hearing progressed Mr B advised that there were aspects of the dispute that he could not respond to and requested a further adjournment as he deemed the presence of Ms A important for the hearing to proceed.   This was agreeable to all parties and the hearing adjourned. 

Mr B advised the worker on conclusion of the first day of the hearing that there was no disciplinary investigation currently being pursued against the worker and that he would write to the worker by October 10th 2022 confirming same.  At the next day of the hearing on 3rd February 2023, Mr B confirmed that he had not followed up with the worker, by the date he had committed to but that this had now been done.

I note that the worker was out on leave for a period of time following her child’s life altering injuries following a criminal attack.  The employer was aware of this and facilitated her with available leave including certified sick leave.  The employer had known that the worker worked in a private capacity for another employer which was not in breach of any policy.  Ms A then received information that the worker was working for Organisation X while out on sick leave.  It would appear that Ms A made further enquiries about this, both within the organisation and outside the employer’s organisation; prior to making contact with the worker.  The worker became aware of Ms A’s inquiries from workers at both employments.

It is further clear that the employer may have the right to inquire into such matters, in an appropriate manner.  However, it would appear that considering the extenuating, difficult circumstances regarding the worker’s absence, there were more fitting ways that the employer could have dealt with such concerns, if indeed such rumours were in fact genuine concerns.  I note also that the worker provided an explanation for the allegation very shortly after she received contact from the employer, namely that she engaged in a handover with both organisations.

Matters then appear to have escalated and become somewhat nonsensical as the employer commenced a disciplinary investigation into the worker’s request to have her union representative at a meeting.  The employer then abandoned this investigation, without telling the worker, and reverted to a disciplinary investigation regarding whether the worker was working elsewhere while on sick leave.  Then it would appear that the employer abandoned all investigation/disciplinary matters but extraordinarily never advised the worker.  The worker only found this out at the first date of the hearing.  Finally, in a further addendum of what appears to be failures layered upon failures; the employer committed to confirm there were no disciplinary matters being pursued, within an agreed time line but did not do so.  These time lines had been agreed with the employer.

It is set out in Statutory Instrument 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 notably Section 3.1

“Procedures are necessary to ensure both, that while discipline is maintained in the workplace by applying disciplinary measures in a fair and consistent manner, grievances are handled in accordance with the principles of natural justice and fairness. Apart from considerations of equity and natural justice, the maintenance of a good industrial relations atmosphere in the workplace requires that acceptable fair procedures are in place and observed.

The employer’s Managing Attendance policy sets out that

“… managers will act responsibly in managing attendance in a reasonable, fair and consistent manner”

The employer was aware that the worker was out sick and going through a very traumatic, personal event.  An allegation was made and yet the employer appears to have pursued this allegation, in an extraordinary, and quite often unexplainable manner.  While mindful of the employer’s right to enquire, where there is a legitimate concern; the employer in this case, would appear to have taken an allegation, treated it as fact and then steamrolled ahead without full consideration of the “principles of natural justice and fairness”.   This included failing to make the worker fully aware of all the allegations against her, failing to give her an opportunity to respond to specific allegations and failing to deal with the matter in a timely manner. 

The worker was advised of a disciplinary meeting to be held on 10th February 2022 but yet by the first date of the Adjudication hearing on 7th October 2022 there had been no progression of the “disciplinary” and this ‘cloud’ of disciplinary remained hanging over the worker.  Furthermore, despite agreeing at the hearing to formally advise the worker by 10th October 2022 that all matters were now closed; the employer failed to honour that agreement and once again failed to provide explanations that might explain or excuse such delays in dealing with this matter.

Owing to all the unique circumstances of this dispute including the unnecessary delays, failure by the employer to deal with the matter, in line with their own policies and procedures and breaches of Statutory Instrument 146/2000, I recommend as follows:

The employer should acquaint themselves, as a matter of urgency, with the employer’s policies and procedures around grievance and disciplinary which should be in keeping with Statutory Instrument 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 notably Section 3.1 which sets out :

Apart from considerations of equity and natural justice, the maintenance of a good industrial relations atmosphere in the workplace requires that acceptable fair procedures are in place and observed.

Secondly, parties should engage together to pro-actively promote and maintain a “good industrial relations atmosphere”.

Thirdly, the worker should be paid compensation of €7,500 for the extraordinary and quite often unexplainable delays and failures sustained by her in the manner of the investigation and deficiencies in applying the laws of natural justice.

Owing to all the unique circumstances of this dispute including the unnecessary delays, failure by the employer to deal with the matter, in line with their own policies and procedures and breaches of Statutory Instrument 146/2000, I recommend as follows:

The employer should acquaint themselves, as a matter of urgency, with the employer’s policies and procedures around grievance and disciplinary which should be in keeping with Statutory Instrument 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 notably Section 3.1 which sets out :

Apart from considerations of equity and natural justice, the maintenance of a good industrial relations atmosphere in the workplace requires that acceptable fair procedures are in place and observed.

Secondly, parties should engage together to pro-actively promote and maintain a “good industrial relations atmosphere”.

Thirdly, the worker should be paid compensation of €7,500 for the extraordinary and quite often unexplainable delays and failures sustained by her in the manner of the investigation and deficiencies in applying the laws of natural justice.

Industrial relations act, fair procedures