Worker

Employer

Anonymised Parties

Staff Nurse 1

Health Service Provider

Representatives

Mary Fogarty INMO

 HR Business Manager

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 - 00000299

24/05/2022

The Worker referred his dispute to the Director General of the WRC on 24 May 2022 alleging the Employer’s failure to adhere to the agreed procedures within the Employer’s Trust in Care Policy, and the delays by the Employer in investigating the allegations.

The INMO, on behalf of the Worker seeks an apology and compensation of no less than €10,000 for an absolute failure to adhere to the agreed procedures within the Employer’s Trust in Care Policy, and the delays by management in investigating the allegations.

Background to the claim

On 8 August 2019 the Employer received a written complaint alleging serious physical and verbal abuse perpetrated by unnamed staff on or about 22 or 23 September 2018. Two nurses who were rostered on duty on the dates and cared for the complainant became aware of the allegations when the Gardai contacted the Staff Nurse 1 on his personal mobile phone and called twice to the home of the Staff Nurse 2 in August 2019. At this stage neither nurse nor any other staff member on the unit was advised by the Employer of a complaint submitted related to their unit on the dates cited.

Both nurses immediately notified the Employer about the contact from the Gardai and management indicated at this time that a complaint had been received that fell under the Trust in Care Policy, requiring an investigation. As limited information was forthcoming to the Workers, at their request the INMO contacted the Employer on 20 September 2019 seeking the details of the proposed investigation. The response from the Employer advised that “if/when a Trust in Care investigation is commissioned, that the parties will be contacted”.

No further information was forthcoming until the complainant wrote again to the Employer on 2 February 2020, this time naming both Workers and two witnesses. Management again advised the Workers informally of an upcoming investigation prompting the INMO to write on 25 February 2020 requesting details of compliance with the Trust in Care Policy, in particular adherence to the Trust in Care preliminary screening process. In responding the Employer advised they were “linking with the [Employer’s] National Investigations Unit regarding the queries raised and will contact you upon return following leave”.

Six months later, in August 2020, a full year on from receipt of the original complaint and the self-declaration to the Employer by the Workers of the contact from the Gardai in the previous August, no communication whatsoever was received so the INMO wrote again to the Employer on 28 August 2020 seeking answers to the queries set out in the original correspondence in February 2020.

The Employer responded advising that any interactions on the matter “are in compliance with the Trust in Care Policy 2005”, that they were awaiting the Terms of Reference and the nominees to investigate.

The INMO wrote a third time on 6 October 2020 again seeking answers to the queries in relation to preliminary screening, leading to further exchanges of letters and emails as it became clear that the Employer was not adhering to the procedures set out within the Trust in Care Policy.

In correspondence from the Employer to the INMO dated 29 October 2020 it advised that preliminary screening took place in August 2017, a date that was prior to any complaint being submitted and a copy of an incomplete preliminary screening form dated 27 August 2019 was received.

Terms of Reference were agreed in December 2020, 16 months post receipt of the complaint by the Employer. An independent investigation by the National Investigations Unit  (NIU) commenced in April 2021. The report issued in February 2022 and the Workers were completely exonerated.

The Investigators from the National Investigations Unit made numerous references to serious matters of concern in respect of the process undertaken by the Employer from the outset and throughout the investigation.

At the request of the INMO a meeting with the Employer management was held on 19 April 2022 to discuss the findings of the NIU investigation report. Both Workers were met separately, and each raised significant concern regarding the process since August 2019 up to the receipt of the investigation report, as set out in subsequent INMO correspondence to the Employer dated 19 April 2022.

A claim for an apology and financial compensation for the impact of the failures on the Workers was lodged. The Employer responded advising that it was prepared to issue an apology for the distress, incredulously however it advised that the “Trust in Care policy was adhered to in line with information available at the relevant timelines”.

The union position

The Employer failed to take appropriate measures to safeguard the Workers as required under section 1 of the Trust in Care Policy. No process was established to gather the facts surrounding the complaint. Neither of the Workers were invited to meetings with their union representatives to discuss the matter at preliminary screening stage. Neither of the Workers were invited to a meeting with their union representative to advise of progression to a full investigation. This constitutes open breach of the Trust in Care policy.

The Employer failed to conduct a preliminary screening process in compliance with the Trust in Care Policy. There was gross maladministration of the compliant and abject failure to offer protection to the Workers in moving swiftly to establish facts.

The Employer unnecessarily, in the INMO’s view, wrote to the Gardaí twice seeking out if there was any impediment to the progression of an investigation when the Policy states that “even where the alleged abuse could potentially constitute a criminal offence, the health care agency must conduct an internal investigation into the allegation and take appropriate action in the context of the employer/employee relationship”.

Despite the Employer being notified by the Workers of allegations communicated to them by the Gardaí and the Employer being in receipt of a written complaint of alleged abuse since August 2019 a copy of the complaint was not received by both Workers until August 2020 as confirmed to the INMO in the Employer’s correspondence dated 11 May 2022.

An investigation under the Trust in Care Policy was commissioned by the Employer 12 months after the receipt of allegations of abuse and the self-disclosure by the Workers. This is an unacceptable delay in any circumstance but is particularly concerning given the nature of the complaint.

It is unacceptable that the Employer failed to ensure that all supports were made available to the Workers for obvious reasons, but again given the nature of the allegations no supports were offered or followed up. The nurses were humiliated when contacted by the Gardaí, including calling to the home twice of one Worker, causing embarrassment with family and neighbours.

Conclusion

The failure to adhere to the procedure from 8 August 2019 resulted in a protracted process over two and a half years that was more than probable unnecessary. This failure caused distress and loss of trust in the system where the right to fair procedures of employees were set aside along with their health and well-being in a difficult work environment and through Covid 19 pandemic.

Absence of any semblance of preliminary screening process to establish the facts led to significant distress for the Workers. The absence of supports while knowing that the Gardaí had contacted the Workers in August 2019 onwards and the Employer wad notified by the Workers of same should have led to an immediate and vigorous preliminary screening process.

The Employer failed in their duty of care to the Workers, there was no evidence of a commitment to protect the staff. A full apology and appropriate compensation is the minimum required for the Employer to begin to make amends for its failures.

The Employer provided a comprehensive written submission which is summarised below.

The Employer outlined in detail the timeline of the events.

The Employer noted that it was 13 months from the date the Lead Investigator confirmed receipt of the investigation file on 11 January 2021 from the Commissioner of Investigations, to the date of final report 11 February 2022. It is noted that 27 months in total, contained 24 months of delays that would be unusual in the context of complaint management.

In relation to the Worker’s claim, the Employer submits as follows.

Failure of the Employer to comply with the agreed procedure Trust in Care

The Employer is satisfied that the Trust in Care Policy was implemented appropriately and was compliant with same as demonstrated above.

Failure to conduct preliminary screening in compliance with the procedure

The Employer is satisfied that a preliminary screening was conducted with the facts available in the initial complaint as per the Trust in Care Policy. On receipt of the addendum to the complaint which identified the respondents, Nursing Management were advised by the NIU that there was no requirement to submit a follow up second preliminary screening as that step had already been undertaken. This was communicated to the INMO in a letter. It must be noted that there is no provision in the Trust in Care Policy for a second preliminary screening.

Due to the serious nature of the information provided in the complaint letter received, and in order to objectively address same on behalf of the patient and the staff working in the organisation a decision was made by management that the matter warranted investigation.

Complaint in process for an excessive and unnecessary period of time

A number of key factors as outlined above contributed to  the timeline of the management of the alleged complaint. It is noted that it was 13 months from the date the Lead Investigator confirmed receipt of the investigation file on 11 January 2021 from the Commissioner of Investigations, to the date of final report 11 February 2022. It is noted that 27 months in total, contained 24 months of delays that would be unusual in the context of complaint management. While there were delays in the management of this case, a number of these delays were outside the control of the Employer with the exception of the Admin Support Person (approx. 6 weeks.

The Employer is satisfied that on review of the initial complaint and the information contained within, the correct policy was implemented and followed accordingly. The Employer is aware of the impact of the complaint on the Worker and is thankful for the robust processes that is in place to manage such sensitive matters. It is regrettable that the process took a considerable period of time to conclude, however, it resulted in a favourable outcome for the Worker.

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

For the most part the facts of the case are not in dispute. The dispute arises from an investigation of a complaint that was made by a patient against the two Workers. The Employer, as per advice from the National Investigations Unit (NIU) proceeded as per national policy. This resulted, some 16 months post receipt of the complaint in an investigation by the National Investigations Unit which commenced in April 2021 and concluded in February 2022. The investigation was an independent review to which both parties agreed and in respect of which terms of reference were agreed in advance.

I note from the redacted parts of the report that were exhibited at the adjudication hearing that the National Investigations Unit, while not upholding any of the allegations against the Workers, made a number of findings and references to a number of shortcomings in respect of the process undertaken by the Employer from the outset and throughout the investigation itself, for example-

·       delays in conducting  the investigation and compiling the Report;

·       failure to inform the staff on duty on the night of the alleged incident of the complainant’s concerns;

·       inadequacies in respect of the preliminary screening process;

·       absence of evidence regarding availability of EAP or occupational health supports to the Workers;

·       failure to provide Staff Nurse 2 with a copy of the written complaint;

·       failure to inform the Workers of the complainant’s several visits to the home of a staff member’s sister (Witness 01) in an attempt to speak to a named witness;

·       breach of confidentiality by the Employer in providing an alleged witness with details of the allegations without checking the roster.

At the adjudication hearing the Employer disagreed with some of the findings of the NIU report and asserted that, as the process does not envisage the opportunity to appeal the findings, it had no opportunity to address these.

In LCR22783 Health Service Executive v a Worker,  the Labour Court held as follows;-

“It is difficult to see how the resolution of the dispute could be assisted by the Court recommending anything other than that both parties should accept the results of a review to which they had both agreed. Any practical difficulties, such as those outlined to the Court, with the implementation of any recommendations ought, in the view of the Court, to have been made explicit to the reviewer at the appropriate time. It would border on the unthinkable for the Court to attempt in any way to second guess the outcome of a such a review, which is considerably more comprehensive than any exercise that the Court is capable of carrying out, other than in obviously extreme circumstances.”

In the within dispute, the National Investigations Unit, having conducted a thorough investigation into the matter issued its report. Both parties confirmed that they had an opportunity to contribute to the investigation. In line with the Labour Court recommendation cited above, it is not the role of the Court or an Adjudication Officer of the WRC to reinvestigate the matter.

I therefore recommend that the Employer honour the findings of the NIU investigation that it commissioned by agreement with the Union. The findings demonstrate that there were a number of shortcomings in how the Employer handled matter. Quite apart from potential reputational damage, it is clear that the manner in which the Employer dealt with the complaint caused the Worker serious distress and upset.

Having considered the submissions of both parties to this dispute, Irecommend in favour of the Worker’s claim as submitted. I recommend that the Employer pay the Worker a sum of €10,000 in compensation in full and final settlement of this dispute for the distress arising from the manner in which the Employer dealt with the matter.

Investigation – delay - shortcomings