Worker

Employer

Anonymised Parties

Health Support Worker

Healthcare Organisation

Representatives

Ms. Áine Feeney, SIPTU

Ms. Jessica O'Mullane, 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

IR - SC - 00000490

25/07/2022

The Worker commenced employment on 18th September 2019. At all relevant times the Complainant was described as a “Health Support Worker”. The Worker’s resigned her employment, with the same terminating on 6th April 2022.

On 30th June 2022, the Worker referred the present dispute to the Commission. Herein, she alleged that a disciplinary process adopted by the Employer was fundamentally unfair towards her. In denying this allegation, the Employer submitted that the process was conducted in accordance with all of the Worker’s natural and contractual rights and that the sanction imposed was proportionate to the wrong-doing alleged.

Following the positive election on the part of the Employer, the matter proceeded to hearing on 30th June 2023. Both parties issued extensive submissions in advance of the hearing. Said submissions were expanded upon and contested in the course of the hearing.

On 29th December 2021, the Worker was called into a meeting and informed that she was to be suspended on foot of a series of allegations. Following the same, her representative began corresponding with the Employer in respect of the terms of reference in respect of the process to be adopted in investigation the alleged wrong-doing.

On 4th February 2022, the Employer responded stating that the terms of reference are an internal document to be used by the person conducting the investigation and would not be shared with the Worker. On 17th February 2022, some seven weeks following the suspension of the Worker, she received a copy of the specific allegations against her. Following receipt of the same, the Worker’s representative again issued correspondence, alleging that the Employer had not complied with their own internal policies. In this regard, they submitted that the relevant policy in this regard was the “Trust in Care” policy, adopted from a much larger organisation. This procedure mandates that allegation such as those levelled against the Worker should be subjected to a preliminary screening to determine what, if any, policy they relate to.  No substantive response was received to this correspondence and the matter proceeded to disciplinary hearing. Following the same, the Worker was issued with written warning, to be maintained on her file for a period of 6 months. As a consequence of the stress arising from the same, the Worker resigned her employment 6th April 2022. Notwithstanding the same, the Worker appealed the decision in an effort to clear her name. Following said process, the Employer elected to dismiss the appeal, and the sanction was deemed to stand.

In closing the Worker submitted that the Employer had failed to respect the Worker’s rights throughout the disciplinary process, with the direct consequence of the Worker resigning her position.

By response, the Employer denied the allegations raised by the Worker and submitted that they had respected all of the Worker’s rights throughout the process.

The Employer submitted that in late 2021, they became aware of concerning allegations regarding the Worker’s conduct. Shortly thereafter, the Worker was suspended on full pay in accordance with the relevant procedure in this regard. The Worker was then invited to an investigation meeting during which she was afforded all rights, including a right to representation during the investigatory process. While the Worker requested a copy of the terms of reference in relation to this investigation, this was not shared as it identified witnesses by name. During the subsequent investigation process, the Worker admitted to the substance of the allegations raised during the process. Given that the misconduct to which the Worker admitted was considered “major misconduct”, a sanction of written warning was applied, with the same deemed to have expired after six months. While the Worker did appeal this sanction in accordance with the internal policy in this regard, she resigned the same day. Notwithstanding the same, the Employer still considered the appeal, with the sanction being upheld at the end of this process.

By submission, the Employer submitted that the matter is one which is inappropriate for consideration under the present Act. In particular, they submitted that as the relevant disciplinary sanction is now deemed to be spent, the matter is moot and no recommendation should issue. Notwithstanding the foregoing, the Employer submitted that the process disciplinary procedures adopted were fair, transparent and conducted in accordance with the relevant contract of employment of code of practice.  

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

At the outset of the hearing, the Employer submitted that the present dispute is inappropriate for determination. In this regard, they submit that the sanction in question has expired and as a consequence of the same, the matter at hand is moot. In this regard, I note that it was within the power of the Employer to object to an investigation under the terms of the impleaded Act. Their failure to do so considerably undermines their application to dispose of the dispute in advance of a hearing. In addition to the foregoing, the present dispute was referred by the Worker following her resignation on foot of the allegations raised. As consequence of the same, the investigation will examine the pertinent question of the alleged procedural failures that led to the resignation of the Worker.

The present dispute involves an allegation that the Employer did not adhere to its own internal procedures in investigating an allegation of misconduct against the Worker. These allegations fall under two broad categories; that the Employer did not allow the Worker have sight of a terms of reference at the outset of an investigation, and that the Employer did not engage in a preliminary screening of the allegation upon receipt.

Regarding the first allegation, the general accepted purpose of a terms of reference is to set out the rules of engagement in advance of a formal meeting. In this regard, an employee engaging with a meeting will be aware of the identity of the chairperson of the meeting, the procedure be followed, the order in which events are to occur and the potential outcomes arsing from the meeting. Usually such terms of reference are agreed with the employee in question and their representative. Indeed, disputes relating to such terms are frequently the subject of trade disputes under the present Act. In the present case, at the outset of the process, the Employer refused to allow the Worker have sight of the terms of reference with the direct result that she could not make any representations in respect of the same and she did not have the benefit of the protections and assurances listed above. While the Employer stated the rationale for the same was to protect sensitive data of potential witnesses, there was nothing preventing the Employer from simply redacting this information and then sharing the document with the Worker.

Regarding the second allegation, the Worker has submitted that the Employer failed to adhere to its own procedures. In particular, they alleged that the Employer failed to undergo a preliminary screening of the complaint to determine what, if any, procedure the investigation would be conducted under. In this regard, I note that the procedure in question is adopted from a much larger organisation with significantly greater resources than the present Employer. Notwithstanding the same, the position here is relatively simple – if the Employer has set out policy, they are required to follow the same. While the Employer has suggested that the investigation followed the principles of natural justice in all other respects, this does not mean that they can simply abandon the parts of their policy that they deem overly onerous and time consuming. In addition to the foregoing, I note that business of the parties is health care. In such circumstances allegations of misconduct can have the extremely serious implication of a failure to provide adequate care. The purpose of the screening purpose is, in part, to segregate such allegations from other forms of misconduct. In this regard it is apparent that the Employer’s failure in this regard caused the Worker a great deal of unnecessary stress and uncertainty.

Having regard to the totality of the points above, I recommend in favour of the Worker. Regarding the most appropriate recommendation, I note that the parties no longer enjoy a working relationship, and consequently compensation is the most appropriate form of remedy.  In calculating the same, I note that breaches of policy listed above. In addition to the same, I note that the Worker broadly accepted the substance of the allegations made against her. In such circumstances, I recommend that the Employer pay the Worker the sum of €2,000 in compensation.

Terms of Reference, Preliminary Screening