Worker

Employer

Anonymised Parties

Clinical Facilitator

Health Service

Representatives

Irish Nurses and Midwives Organisation

Self-Represented

Act

Dispute Reference No.

Date of Receipt

Dispute under the Industrial Relations Act, 1969

CA-00045007

04/07/2021

The Worker commenced employment on 1st October 2010. At all relevant times the Worker’s role is described as that of “clinical facilitator”.

On 4th July 2021, the Worker referred the present dispute to the Commission. Herein, he alleged that the Employer failed to properly investigate complaints made against him, and thereafter failed to properly progress his grievance in relation to the same. By response the Employer denied this allegation, stating that the complaints against the Worker were withdrawn and that the matter was closed.

As the Employer positively elected to engage with the dispute, a hearing was convened for, and finalised on 14th July 2022. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing.

Both parties exchanged substantial submissions in advance of the hearing. These submissions were expanded upon during the hearing and contested by the opposing party. No issues as to my jurisdiction to hear the dispute were raised at any stage of the proceedings.

In 2020 two complaints were made against the Worker by two doctors with whom he interacted. One of these complaints accused the Worker of harassment on the grounds of race, with the other alleging that he was engaged in behaviour that may be considered as bullying. On receipt of the same, the Worker responded in detail to the allegations. Herein, he clarified that his role involved occasionally addressing the shortcoming of the complainants and that this function had been misconstrued as inappropriate behaviour on his part. He was adamant in his denial of any inappropriate behaviour in the performance of this function, and in particular vehemently denied the allegation of racism.

Following three months of inactivity, the Worker raised a grievance in respect of a lack of transparency and delay on the part of the Employer. In addition to the foregoing, the Worker alleged that the matter was carelessly distributed amongst staff. Thereafter, the Employer determined that the initial complaint did not meet their internal threshold for investigation and consequently, the investigation was finalised. The Worker’s grievance was not upheld in these circumstances.

By submission, the Worker alleged that he was accused of serious wrongdoing that fundamentally offended his personal beliefs. He stated that in such circumstances the Employer has a duty to fully investigate the complaints and consequently allow him an opportunity to defend himself and clear his name. He submitted that the Respondent failed to perform any form of investigation and that the complaints remained on file without his ability to contest the same.

Having regard to the foregoing, the Worker has requested that his grievance be investigated professionally, that the initial complaints be withdrawn and that the Employer issue a letter of apology.

By response the Employer denied the Worker’s allegation. They submitted that on receipt of the two initial complaints, they were “screened” in accordance with the Employer’s internal policy. This process involves examining the complaint to determine whether the allegations contained therein could constitute the wrong-doing alleged. While the complaints did not pass this initial process, they were deemed to be of serious concern and were referred to local management for resolution.

A meeting in this regard was convened for 19th October 2019. Following this meeting the complaint was screened in respect of the allegation of racism, again the initial complaint did not pass this process.

On 17th November 2020, the Complainant raised a grievance in respect of a number of matters. This grievance requested a retraction of the complaints and an apology from the complainant. The Worker further alleged that the initial allegation was carelessly passed to persons that were not involved in the investigation. By correspondence dated 29th January 2021, the Employer confirmed that the complaints against the Worker were not upheld and that the complainant had been informed of said outcome.

The outcome to the Worker’s grievance was issued in February 2021. In circumstances whereby the initial complaint against him was not upheld, the matter was deemed to be closed by the Employer. Regarding the allegation in respect of the improper distribution of the complaint, an apology was issued from the General Manager. The Worker duly elected to appeal this outcome. Following said appeal, the outcome was upheld.

By submission, the Employer stated that all employees must be permitted to raise concerns regarding their colleagues with management. In such circumstances they submitted that the rights of the respondent to the complaint must be respected and a thorough investigation undertaken. In this particular situation, the complaints fell at the first hurdle of this process and no wrongdoing was found on the Worker’s part. They submitted that they fully investigated the Worker’s own grievance. Following said investigation, they found partially in favour of the Worker and apologised any difficulty experience. Nonetheless, the Employer submitted that they cannot insist that an employee withdraws a complaint. In these circumstances they can simply investigate the same and issue their finding. In this particular instance, the matter concluded at the preliminary stage and no wrongdoing was found on the Worker’s part.

The present dispute relates to two serious complaints made against the Worker by colleagues. The Worker has contended that these allegations are without substance and are in fact vexatious. He has submitted that the Employer has both failed to properly investigate these initial complaints and thereafter failed to investigate his complaint regard the vexatious nature of the same and the Employer’s conduct.

In this respect, I note that the Respondent’s internal procedures state that such complaints, when received, should be subject to a screening process to determine whether they meet the threshold for progress under the internal dignity at work policy. The first complaint made against the Worker did not meet this threshold and the allegations were deemed to be not upheld. Regarding the second allegation, following an examination of the same, it was deemed to be an expression of concern rather than an allegation of misconduct against the Worker. Having regard to the same, it is apparent that neither of the allegations has led to any adverse finding against the Worker and, as far as the Employer is concerned, the matter is closed. In this regard, it can be broadly said that while the Worker had no difficulty with this outcome, he has a difficulty with the manner in which it was achieved. At all times he has sought an investigation into the complaints, and later the genesis of the complaints, so as to prove his innocence regarding the allegations. 

In considering the same, I am conscious of the Employer’s internal procedures. The purpose of the screening process is to examine complaints as received to determine whether they fall within the agreed internal definitions of bullying or harassment. While many complaints may make such allegations, these terms are somewhat narrowly defined and the use of this language by a complainant will not necessarily invoke the lengthy, and costly, internal procedure for investigation under the dignity at work policy. In this case it is apparent that neither complaint made against the Worker reached the threshold. In essence, while (at least one) of the complaints alleged harassment, the substance of the complaint did not meet the Employer’s definition of the same. In these circumstances the matter was dealt with locally rather than under the dignity at work policy.

Having regard to the foregoing, it is apparent that the Employer has followed its own internal policy regarding the complaints. The Worker’s has submitted that the Employer is obliged to investigate the dispute further, however in the event that they find that the complaints do not meet the threshold there is no requirement to do so. While I appreciate the Worker’s concerns regarding the nature of the complaints made against him, and his wish to prove his innocence in respect of the same, it is apparent that the Employer has found that he has not engaged the conduct alleged and any further investigation (under the Dignity at Work policy) is not required.

Regarding the Worker’s subsequent grievance, the bar for establishing that a complaint is vexatious is quite high, particularly in respect of a single complaint. In this regard, the Employer has a duty to create a working environment whereby employees feel that they can raise complaints about management or their colleagues without fear of repercussion. A finding that the complainants be required to apologise to the Worker for raising issues in the first place would be an extraordinary finding, and would no doubt be subject to challenge by the complainants themselves.

Having regard to the totality of the foregoing points, I do not recommend in favour of the Worker.

I do not recommend in favour of the Worker.

Dignity at Work, Screening