Complainant

Respondent

Anonymised Parties

A Psychologist

A Health Care Provider

Representatives

 FÓRSA

Internal Employee Relations Department

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00027348-001

28/3/2019

This referral was received by the Workplace Relations Commission on 28th March 2019 and was assigned the complaint application number CA-00027348. The employee has also submitted further complaints to the WRC which are being addressed by another Adjudication Officer. This recommendation will relate only to the issues that pre-dated the referral of this complaint.

The essence of the within referral is the manner in which the employer dealt with a complaint that was submitted by the parents of a child who was in the care of the employee in his capacity as a Senior Clinical Psychologist and the subsequent effect that the employer’s alleged failings, in how the complaints and review process was managed, and the effect this has had on the employee both personally and professionally.

The employee outlined a significant number of procedural shortcomings in respect of how two complaints against him were handled, a review report of same and how the entire process has affected his personal and professional life and greatly affected his health. The employee is also dissatisfied with the employers handling of grievances he raised in respect of the original complaints and review process.

The four main aspects to the employee’s complaints are as follows:

1.       The review of the complaints report and how this was addressed. The employee contends that the method by which the review was carried out, resulted in a report that was inconsistent with the facts, and that he himself was never given any opportunity to respond to either complaint made against him. The employee’s position is that this has damaged his good name within his profession and has personally caused him significant stress, humiliation and embarrassment. The employee contends that the report fails to exonerate him of any wrongdoing and that the employer has failed to “right this wrong”.

2.       The employee contends that his exclusion from the review report process denied him access to fair procedures and natural justice and that instead of following its own procedures and statutory frameworks, the employer acted in an “arbitrary and capricious manner”.

3.       The employee contends that the review report and process is biased and one sided and is supportive of the complainant’s position and gives credibility to the complaints lodged against the employee which is unfair and is based on inaccurate and factually incorrect information.

4.       In respect of his grievances, the employee contends that there was no meaningful attempt on the part of the employer to respond to the issues he had raised, and that the employer failed to adhere to its own policies in their management of the process.

Redress

The employee is seeking that the original record of the complaint report should clearly state that the complaints made against the employee were not upheld. The employee is also seeking the withdrawal of the review report, and a further report that exonerates the employee of any wrongdoing. The employee is also seeking compensation to include all pension payments that were missed during his sick leave, the shortfall in earnings as a result of being in receipt of a temporary rehabilitation rate of pay, the return of all lost wages and the reinstatement of his sick leave entitlements. The employee quantifies his level of compensation at €160k. The employee is also seeking an apology in respect of his treatment by the employer.

The employer’s position in respect of the original complaint submitted by the parents of a service user was that the complaints report and subsequent review report were carried out in accordance with the appropriate policies and frameworks and that neither of the reports made adverse findings against the employee or in any way questioned his professionalism or standing within the organisation. The employer contends that throughout the process, it addressed the concerns of the original complainants and the concerns of the employee in relation to the grievances he raised in relation to his subjective view as to how he perceived he had been treated.

The employee’s grievance

The employer stated that in respect of the grievance lodged by the employee on 10th May 2018, a grievance report issued on 16th November 2018. The employee’s grievances in relation to the complaints report and the review report were not upheld. The Chief Officer, in his report, stated that the complaint report was completed in line with the provisions of the relevant policy and the review as sought, was conducted as intended; to review the initial report and to make further recommendations if it were deemed necessary. The review was never intended to be a de novo review of the initial complaint. It was also repeatedly clarified to the employee that neither the complaint report or the review report included any adverse findings in respect of the employee or that his character, professional standing or reputation were in any way in question. The grievance report also addressed the integrity and validity of the review report and noted that it had been accepted by the original complainants in respect of the service they received. The grievance report also did not accept the assertion of the employee that there was a lack of transparency and fairness in the process and that the reports provided a one-sided misleading narrative in respect of the employee’s reputation, conduct and professional practice. The employee was provided to appeal the grievance report but did not do so. Instead, the matter was referred to the WRC on 28th March 2019.

Firstly, I note the delays in bringing this adjudication process to a conclusion. The matter was initially heard in December 2019 and the parties agreed to meet to discuss the possibility of finding a resolution to the issues raised by the employee. Further delays ensued due to the Covid 19 pandemic, and the redeployment of staff during that time. This complaint was also deemed unsuitable to be heard remotely and was scheduled to be heard  in December 2022 in the offices of the WRC in Lansdowne Road, Dublin 4.

I further note the bona fides of all parties in their attempt to resolve the issues contained within this referral both in advance of and at the adjudication hearing on 1st December 2022. I also empathise with the employee in relation to the stress and upset caused to him as a result of the unfortunate delays that have occurred.

In relation to the within referral, it is not the role of the Adjudication Officer to reinvestigate matters that were raised by the original complainants, or to investigate the issues that were raised by the employee in his grievance to management. The role of the AO is to look at the procedures followed by the employer, and having considered all of the information, to make a recommendation that is fair and reasonable and will assist the parties in moving forward with the employment relationship.

Having listened to both parties to this dispute, I fully appreciate the dissatisfaction and the upset that the employee must feel as a result of being mentioned in such a negative way in a complaint in respect of the service a family received and his perception of how this was handled by the employer and how it has affected his career and how others view him as a result. However, in circumstances where the complaints report and subsequent review addressed the service the family received, and made no findings in respect of the complainant, I do not accept the employee should be compensated at the levels he has sought.

I do accept that replicating the initial accusations against the employee in the review report would have been distressing for him and even though there were no findings made against him, the accusations remain in the document and in circumstances where the employee’s opinion or rebuttal had not been sought or addressed, it is understandable that the complainants receiving an apology would add credence to their accusations and leave the employee in a situation where there is a suggestion that those accusations were accepted as fact.

I also find that there were a number of shortcomings in how the employer handled matters including the failure to notify the employee of a second complaint that was made against him and affording him the opportunity to respond. The manner in which the employee found out about the second complaint obviously caused him serious distress and upset.

 In relation to the review report, while it may have been argued that informing the employee of the original review was unnecessary as there were no findings made against him in the complaints report, in my opinion, the employee should have been made aware of both complaints and given an opportunity to respond. Basic fairness and transparency would require that the employee be given an opportunity to respond to such allegations. It also appears that the employee did not receive any determination in respect of his 2nd grievance process of 1st March 2019. It also seems to be the case that there was no official correspondence from the employer in relation to resolving the employee’s issues in the two years after the employee first raised his concerns in relation to the complaint report and subsequent review and in respect of the second grievance process in 2019. This became clear to the employee in records he received following an FOI request made in April 2019.

From the employer’s perspective, it is accepted that the complaint report process was not perfect  and that the review process could also have been done differently but, in the main, the employer’s position was that it acted in good faith in addressing the complaints of the parents and the employee’s subsequent grievances.

Having considered the submissions of both parties and all of the documentation and case law submitted relating to this dispute, I make the following recommendation in an attempt to assist the parties in moving forward.

In all of the circumstances of the dispute I recommend as follows:

1.       The employee accepts the offer to write a statement of rebuttal to be placed on file in respect of the issues that led to the complaint report and review report.

2.       The employee accepts that the review report, compiled by independent reviewers, cannot be nullified, and remains the official record of the review of the complaints report.

3.       The employer ensures that in future, an employee who is named in a complaint, is informed and given an opportunity to respond before any investigation process is concluded.

4.       The employee be paid €20,000 in compensation in respect of the errors and shortcomings of the complaint investigation and review process and the way the employee’s grievances were subsequently dealt with.

Complaints process, grievance procedures,