Worker

Employer

Anonymised Parties

Worker

Employer

Act

Dispute Reference No.

Date of Receipt

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

IR - SC - 00000426

04/07/2022

The dispute referred to the Workplace Relations Commission was detailed as the employer’s refusal to hear grievance procedure.

The employer raised a preliminary issue at the hearing on 24 January 2023 concerning the worker’s written submission to the Commission, which had been received shortly prior to the hearing and which the employer submitted referred to additional allegations and an enlarged dispute.  The employer maintained that the additional allegations should not be admitted as part of the dispute, that the employer was not in position to deal with the additional allegations at the hearing due to the date of receipt of the worker’s written submission and further that the worker had not utilised or exhausted internal procedures in respect of all of the issues raised prior to referral of the dispute or the hearing.

The worker’s dispute was outlined on the first hearing date and the hearing adjourned to enable the employer to present its response.

The worker submitted that his employer had refused to process and adequately address a legitimate grievance raised by the worker and subsequently acted against him for his disclosure of a serious health and safety concern.

The worker has worked for the employer for over 30 years and is an experienced health care worker and clinical nurse specialist.

The worker raised concerns with his line manager in October 2021 and January 2022 in relation to, amongst other things, a colleague’s adherence to the employer’s mask-wearing policy.  The worker invoked the employer’s grievance procedure on 18 February 2022 regarding a change to his clinical nursing practice and queried the basis for same including whether it was because of him having made complaints about the colleague.  The worker’s line manager advised the worker on 13 April 2022 that his grievance fell outside the scope of the grievance procedure and that the procedure was not an appropriate mechanism in circumstances where the line manager could not resolve the worker’s issues. The worker’s union representative communicated with the line manager thereafter on the worker’s behalf setting out his view that the issues raised by the worker properly fell within the scope of the grievance procedure and requesting a rescheduled grievance meeting.  The employer maintained its position in response advising that the change in nursing practice was a clinical prerogative.

The worker was verbally told by his line manager on 3 May 2022 that his grievances would not be heard by the employer and that he was to be redeployed to another work location on his return from a week’s annual leave.  The worker found distressing and unnecessary the way he was treated by the employer in relation to the redeployment and the arrangements put in place for the worker to clear his office space which included being accompanied by a security guard from the premises. 

The worker does not dispute the employer’s right to rotate him or to put in place security at a premises for which it is responsible.  However, the worker does not accept that the decision to rotate him was taken objectively and for reasons unconnected to complaints he had previously raised.  Issue was also taken with the employer’s assertion that the presence of a security guard on the day the worker was clearing his office space was because of recent events at the workplace and unconnected to the worker.  It was submitted that this did not explain the conduct of the security guard vis-à-vis the worker packing up his belongings and the instruction that other staff members do not communicate with the worker while he was doing so.

The worker did not accept as genuine the employer’s reliance on clinical prerogative to justify its decision not to address the worker’s grievance through the grievance procedure.  It submitted that the decision to change the worker’s work practice was not exercised for clinical reasons or in discharge of clinical and professional responsibilities but was done to marginalise the worker by reason of the worker having previously raised concerns about the third party.  It was further submitted that the employer’s reasoning for refusing to address the worker’s grievance through the grievance procedure is not sustainable in circumstances where the grievance procedure does not discount clinical matters from its scope.  The worker progressed his dispute to the Workplace Relations Commission because he was informed by the employer’s employee relations office that it would not hear his grievance and did not consider a subsequent offer to hear the worker’s grievance to have been made in good faith. 

Preliminary Issue

The worker’s dispute was not properly before the Workplace Relations Commission for investigation on the basis that:-

(i)                  internal mechanisms to resolve the worker’s dispute had not been availed of or exhausted by the worker,

(ii)                the written submission submitted on behalf of the complainant on 19 January 2023 refers to an enlarged dispute to that originally referred to the Commission for adjudication. 

The employer referred to two different invitations to the worker and the worker’s representative to meet and discuss the situation with a view to resolution.  It submitted that neither invitation was availed of or responded to by the worker or on his behalf and that the worker’s progression of his dispute to the Workplace Relations Commission demonstrates that the worker did not exhaust the internal mechanisms available to him.

Substantive issues

Management reviewed the subject matter of a grievance lodged by the worker with his line manager on 18 February 2022 and deemed that the complaint could not be addressed through the grievance procedure by reason of the matter being rooted in clinical imperatives.  The worker’s line manager informed the worker of the foregoing on 13 April 2022 and advised that informal discussions by way of a line management meeting would be an appropriate route map for dealing with the matter and to discuss the worker’s clinical brief.

The employer submitted that to accept a grievance and progress same to a hearing, it must be within the gift/authority of the person hearing the grievance or the employer to be able to uphold same and remedy the wrong, should they agree with the facts presented to them.  It further submitted that the grievance in this case, which related to perceived changes in nursing practice, stemmed from a clinical decision and direction that is autonomous in nature and which the employer has no jurisdiction to counter.

The worker attended a meeting with his line manager on 28 April 2022 however the meeting concluded without acceptance by the worker that the grievance procedure could not address the issue raised by him.

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

Preliminary issue

The dispute referred by the worker to the Workplace Relations Commission was expressed as “refusal to hear grievance procedure”.

The material issues presented on behalf of the worker at the hearings can be summarised as follows:-

1.       the reasoning behind the change in the worker’s nurse practice as instructed to the worker by a clinical lead in or around January 2022; 

2.       the reasoning behind the decision to redeploy the worker communicated to him in May 2022;

3.       the manner in which the worker was treated when he attended his former workplace in May 2022 to pack up his belongings in the context of his redeployment.

I have carefully considered the preliminary issue raised by the employer.

It is common case that the worker sought to invoke the employer’s grievance procedure in his email of 18 February 2022 to his line manager.  On review, the issues raised by the worker in that email correspond to (1) above in that they concerned a change to his nurse practice and attributed the change to complaints the worker had previously raised concerning a clinical lead colleague.  It is also common case that the employer declined to process these issues pursuant to its grievance procedure.  There can be no doubt, having regard to emails between the parties, that internal mechanisms to resolve this aspect of the worker’s dispute were availed of and exhausted by the worker and/or his representative.

I note that an email from the worker’s union representative to employee relations in May 2022 raised the issue outlined at (2) above and sought to progress this with employee relations.  The response from employee relations indicated its views on this aspect of the grievance.  I am also satisfied that the offers referred to by the employer to meet to resolve the situation were included in communications to the worker or his representative confirming the employer’s position on not admitting the grievance to the grievance procedure and its views on the rotation.  Any offer made after the referral of the dispute to the Workplace Relations Commission is not relevant to the preliminary issue. 

Accordingly, I am satisfied, based on the information before me, that the issues at (1) and (2) above were raised by or on behalf of the worker at local level and that the dispute referred to the Workplace Relations Commission concerned the employer’s refusal to process these issues pursuant to its grievance procedure.  

I am not however satisfied that the matter outlined at (3) above was raised at local level and I accept the employer’s submission that this did not form part of the original dispute regarding refusal to hear grievance, referred to the Workplace Relations Commission on 4 July 2022.  Therefore, I am not prepared to accept jurisdiction in relation to this particular issue.

Substantive issues

The worker remains in employment with the employer and is currently working at the location to which he was rotated in May 2022.  It was accepted that the employer had a general right to redeploy or rotate the worker. 

I am concerned in this dispute with the application or non-application of the employer’s grievance procedure.

The worker sought to invoke the employer’s grievance procedure in his email of 18 February 2022 to his line manager.  The issues raised by the worker in that email concerned the change to his current clinical nurse practice and attributed the change to complaints the worker had previously raised concerning a clinical lead colleague.  The employer ultimately declined to process these issues pursuant to its grievance procedure. 

I note that the worker’s line manager initially responded to the worker’s email of 18 February 2022 advising of a hearing of the worker’s grievance on 25 February 2022.  The hearing did not take place on that date at the worker’s request due to the unavailability of his union representative and the worker’s work commitments on that date.  At some point thereafter management reviewed the subject matter of the worker’s grievance and deemed that it was not one that could be addressed through the grievance procedure.  This was communicated to the worker by his line manager on 13 April 2022.  The employer’s reason for declining to address the worker’s grievance pursuant to its grievance procedure is because the grievance was rooted in a clinical decision relating to patient/client care, in respect of which the clinical lead has full professional autonomy, and the employer would have no authority to counter that or change the outcome for the worker. 

The worker’s union representative raised this matter with the employer’s employee relations department on 5 May 2022 along with the decision to redeploy the worker to another work location. This communication sought immediate intervention and communicated a wish to progress the grievance on the worker’s behalf.  The response from employee relations agreed with the original decision not to hear the grievance outlined by the worker in his email of 18 February 2022 and conveyed local management’s position that there was no alignment between the redeployment and the issues raised by the worker.

The employer does not contend that the worker did not follow the grievance procedure in relation to the issues raised in his email of 18 February 2022 but rather that such issues could not be addressed through the grievance procedure as they were rooted in clinical prerogative. 

Whilst I accept that it may be appropriate for management to examine issues raised by a worker for the purpose of ensuring that they come within the scope of a particular procedure, I am not satisfied that this is what occurred in the present case.  The issue raised by the worker in his email of 18 February 2022 concerned a change in work practice which he believed was because of complaints he had made about the clinical lead.  I note that the employer’s grievance procedure expressly includes relationships with work colleagues and organisational change/new working practices as the type of issues within the scope of the procedure.  I further note that initially, on receipt of the worker’s email, arrangements were put in place for a grievance hearing.  A subsequent review by management of the issues raised by the worker was done without affording the worker or his union representative the opportunity to input.  Furthermore, I am of the view that the outcome declining access to the grievance procedure and subsequent emails between the employer and union representative in April and May 2022 are more indicative of a determination by management/employee relations of the issues raised as opposed to a screening exercise.

It is my view that the worker raised a grievance within the scope of the grievance procedure in his email of 18 February 2022 and that that grievance was not fairly examined and processed by the employer in accordance with its own grievance procedure and the Code of Practice on Grievance and Disciplinary Procedures, SI 146 of 2000.  I am further of the view that the employer did not respond in a fair and objective manner to the grievance raised on the worker’s behalf in May 2022 concerning the decision to redeploy him.

In the particular circumstances of this dispute, and notably the involvement of the principles of natural justice and fair procedures, I consider that an award of compensation is appropriate.  I recommend the employer pay the worker €6,000.00 compensation in full and final settlement of the dispute.    No element of this compensation is in respect of pecuniary loss. 

Preliminary issue – Jurisdiction – Grievance Procedure – Natural justice and fair procedures