ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969

Investigation Recommendation Reference:  IR - SC - 00002193

Parties:

Dispute:

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Date of Hearing:             22/10/2024

Procedure:

In accordance with Section 13 of the Industrial Relations Act 1969 (as amended) following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any information relevant to the dispute.

The matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the WRC as a body empowered to hold remote hearings.

Background:

The Worker referred a dispute concerning an investigation process which was found to be flawed.

Summary of Workers Case:

The Worker contends that she was not afforded access to due process and fair procedure and that she was subjected to a Disciplinary Procedure that was flawed as a result of being commenced on the basis of a flawed Investigation.

On the 5th December, 2022, the Worker received a telephone call and was informed that she was being suspended for two weeks on foot of a series of allegations.

On the 6th December, 2022, the worker received correspondence from the CEO, stating that “I wish to confirm that you are off duty with pay pending the outcome of the investigation and that this is a protective measure. This is not a disciplinary sanction measure and therefore not suspension, it is a precautionary measure”.

On the 29th December , the worker received a WhatsApp message from the Operations Manager, querying whether the worker could cover a waking night, as a result of staff shortages, despite the fact that she was suspended.

On the 16th January, correspondence issued from the CEO with an amendment to the Terms of Reference for the investigation. At this juncture the Preliminary screening had still not been furnished to the worker, nor indeed the original Terms of reference.

On the 26th January, the Operations Manager remitted the Terms of Reference, the Preliminary Screening, the notes of the meeting with the CEO and the worker on the 6th December and the Final Report. Therein it was confirmed that they could not provide the service users care plans, contrary to best practice in the conduct of Investigation of this nature.

The union official again corresponded on the 27th January, setting out the ongoing deficiencies with the process. This was followed by correspondence of 1st February in response to a request by the Operations Manager to meet the worker with regard to the content of the Final Report. The union official indicated that they would meet on receipt of all outstanding matters being addressed.

On the 3rd February the Operations Manager furnished, the safeguarding report, the behaviour support plans & psychologist report, the daily notes, the report to HIQA and the notification to the HSE.

The Union official responded on the 8th February, setting out 14 items in dispute and of concern in relation to the process.

On the 17th February, the operations manager responded to the worker and indicated that this now concluded the work of the investigation team and that a copy of the report would now be sent to senior management.

A disciplinary Hearing was convened for the 7th March, 2023.

At the Disciplinary Hearing, the party charged to hear the matter clearly indicated that he has received direction with regard to the outcome and read from a pre prepared statement. 

On the same day note of the meeting, purporting to be minutes, issued from the HR manager, which noted that “In light of these findings being partially upheld within the report of the organisation has deemed the circumstances to be exceptional as set out in the key principles of the disciplinary code of practice and therefore a written warning would be issued” This clearly confirmed that the meeting was not a Hearing to afford the worker an opportunity to make representations in relation to the matter, but instead a meeting to deliver a predetermined decision. It was indicated in the meeting that the appeal of the outcome could be directed to the CEO, who has been involved in the process throughout. The outcome of a written warning was appealed and Concordia Consulting was appointed by the CEO, after representations by the Union.

The Investigation of the matter was concluded in July 2023 and his Report confirmed that the Appeal of the worker be upheld and the written warning was rescinded, under cover of correspondence of the 26th July 2023.

We submit that the entire process was driven from the outset with the intention to find against the Worker and left the Worker in a position whereby she had absolutely no faith in the procedures in place and the processes arising from those procedures for a period of almost 8 months.

It is contended that the foregoing is unacceptable behaviour from an Employer of the size and import as the Respondent. Further we contend that the Respondent has available to it resources far in excess of many employers with regard to Policies on which it can rely and indeed with regard to Personnel who could be charged to investigate the matter and deal with same, in the interests of the Workers it employs. This is further compounded by the fact that this employer is state funded and is charged with the care of the most vulnerable of our citizens. This is a clear breach of fair procedures and the Workers right to natural justice.

The provisions of S.I 146/2000 are well established and discussed. “This corpus of law sets out the proper standards to be applied to the handling of grievances, discipline and matters detrimental to the rights of individual employees..”

This was not afforded to the Worker herein. Worryingly when issues of concern were raised with the persons charged with the investigation of the matter, they did not seek to right the wrongs, which were apparent, but instead pushed forward with an investigation contrary to all best practice and in flagrant disregard for the rights of their employee.

We submit that while the warning was no longer active, there is precedent to make a recommendation (LCR 21972 and also Whelan v Irish Wheelchair Association UDD1436/2014 and DHL Express v Coughlan UDD1738/2017).

In the case of An Employee v An Employer ADJ00034360 the AO stated “Having considered all the written and oral evidence, I am not satisfied that the disciplinary process was flawed in itself but it appears to me that the investigative process was not fluid enough to permit other relevant information to be taken into account. This resulted in a flawed disciplinary process and accordingly resulted in an unfair decision.” In that case he recommended that the Disciplinary Sanction which had elapsed be expunged from the Employees record. We submit that a similar set of circumstances pertain in this case.

In the case of HSE West and A Worker the Court “having considered the detailed submissions of both parties and the oral Submissions made on the day finds that when it was agreed that the report was flawed nothing further should have emanated from that Report” and recommended that the Report be set aside and further recommended compensation in the amount of €12,500 in the matter. We submit that a similar set of circumstances pertain in this case.

The Worker herein was a valued member of Staff of the Respondent Company and was subjected to a process was also entirely flawed from the outset. The entire process took a considerable toll on the Worker herein resulting in a period of work-related stress leave and ultimately leading to her being moved to a different location.  We are therefore seeking that the process would be confirmed to have been flawed from the outset, such as to compromise the workers right to due process. We are seeking that all members of staff charged with the handling on any aspect of the Safeguarding Policies and Procedures would receive appropriate training to include training in the HSE Trust in Care Policy, in the interests of the workers employed and in the interests of the service users of the Respondent.  We are seeking compensation for the Worker herein, for the distress that this entire matter has caused her and continues to cause her, as a result of the failure of the Respondent to follow its own procedures, and for the repeated breach of its own policies. This should take account of the loss of earnings for the period the Complainant was suspended. This is to include sleepovers, premiums and double time.

Summary of Employer’s Case:

In the claim form lodged with the WRC the Claimant alleges that: “I was the subject of a flawed investigation which was ultimately found to be significantly in breach of due process and the procedure of the company, however I suffered financial loss and distress as a result and upon my return was redeployed under the guise of service needs, however I believe the same was a sanction consequent of the process. I reserve the position with regard to raising further matters at the Hearing of the matter and in my Submission to the Commission”

The Respondent disputes this claim in its totality. In particular, the Respondent contends that there was absolutely no financial loss, that the right to move the Complainant from one community home to another was allowed for within her terms and conditions of employment and that this move in and of itself was in no way punitive and therefore not a sanction.

The Respondent company currently provides a comprehensive quality service to people with moderate, severe and profound intellectual disabilities and their services benefit in excess of 200 people including their Special School. The Service predominantly collaborates with parents and families of clients to ensure the needs of those clients are prioritised and that the principle of person-centred planning is embraced throughout the organisation.

The Complainant commenced employment with the Respondent on the 27th of August 2013 as a Support Worker. She was then offered a Fixed-Term Contract as a Care Assistant for one year from the 2nd of January 2015 to the 2nd of January 2016.  The Complainant was then offered a permanent position as a Support Worker from the 1st of February 2018, which is her current role.

On the 3rd of December 2022 a complaint was made to the Point of Contact of the community home in which the Complainant was working, by a family member of the service user. A preliminary screening was carried out on the 6th December 2022 by the Point of Contact who deemed the allegation serious enough to warrant placing the Complainant on protected leave, in line with the Respondent’s Trust in Care Policy pending an investigation. The investigation then commenced on the 8th of December 2022 and was carried out by two Managers. It concluded on the 19th of January 2023 and found that the Complainant had a case to answer. The report was shared with the Complainant and progressed to a disciplinary hearing where the Complainant was issued with a First Written Warning on the 15th of March 2023.

On the following date, the 16th of March 2023 the Complainant appealed the sanction on the basis that the process was flawed. The Respondent employed Concordia Consulting to carry out the appeal investigation. The Complainant’s appeal was successful, and the Written Warning was removed from the Complainant’s file.

On the Complainant’s return to work, there was an urgent need for staff with the Complainant’s skillset in another community home; she was therefore placed in this community home on her return to work. This would be usual within the Respondent company and it did also consider the inappropriateness of returning the Complainant to the previous care home in light of the complaint by the family of the service user.

As an urgent vacancy had arisen in another community home prior to the Complainant’s return to work and taking the service user’s complaint into consideration, the Respondent made the decision to place the Complainant in that community home on her return to work. This was therefore a decision based on business needs along with considering both the service user whose family had made the complaint and in consideration of the Complainant herself. Regardless, this is the Respondent’s right, it is common practice within the organisation and is allowed for within the Complainant’s terms and conditions of employment.

The same opportunities to work additional hours were available to the Complainant in the new community home as in the previous community home. It was at the Complainant’s discretion to make herself available for those hours if she so wished and she has availed of those additional hours on a regular basis, both in the previous community home but also, significantly, in the new community home. However, it does happen on occasion when no employee is on leave and all roles are employed, that there are no additional hours available. This could happen at any time. Those additional hours are completely dependent on other employees not being available due to their leave or a vacancy and therefore cannot be assumed to always be an option; they are very much available on an ad-hoc basis, and, when available, the Complainant did avail of these hours on a regular basis throughout her 11 years of employment with the respondent, having covered leave in all of the Respondents’ residential community homes, including the home she currently works in. Therefore, the Complainant’s terms and conditions were fully complied with and there was no actual financial loss to the Complainant. We are at a loss to understand what the Complainant is referring to in this regard and can only assume it was in relation to her being unable to avail of those additional hours while on Protected Leave. If this is the case, then naturally it would be absurd to consider that the Complainant would be unable to carry out her actual role while on Protected Leave, while then simultaneously carrying out additional available hours in other home, or indeed in that home, seeing as there was a vacancy there due to her absence. This would completely undermine the reason for placing an employee on Protected Leave.

Also, there were several delays with regard to the Complainant returning to work which were on the whole, not attributable to the Respondent. The Complainant was put on protected leave on the 6th December 2022.  There were a number of delays caused by unavailability and requests for documents between then and the issuing of a report.  On the 26th of January a Final Conclusions Report was issued and the investigation team offered to meet with the Complainant to discuss the conclusions.  As the investigation report found the Complainant had a case to answer, a disciplinary hearing was held on the 15th March 2023 and the Complainant was issued with a First Written Warning. The outcome letter stated: “Should you wish to appeal this decision, please do so in writing within one week of receipt of this letter to the CEO”.

The Complainant delayed in appealing this decision, but once lodged, it was accepted by the Respondent.

The Respondent employed Concordia Consulting to carry out the appeal investigation; again there were delays with the Complainant’s availability. The report was concluded in July 2023. The sanction was not upheld and was immediately removed from the Complainant’s file by the Respondent. However, it is vital to note that the report concluded that :

“notwithstanding the obvious failings in relation to the conducting of the Preliminary Screening process, the Investigation does not accept “Redacted” contention that, had the Preliminary Screening been completed correctly, the matter in question would not have proceeded to investigation”

And that :

“Having carefully considered the matter, the investigation is of the view that it is not unreasonable to conclude that, had a full and proper Preliminary Screening process taken place, it could have resulted in the same conclusion being reached”

It also stated that:

“In concluding its deliberations with regard to the submissions made in relation to the Preliminary Screening as a ground of appeal, the Investigation find that while the Preliminary Screening process, which was carried out, was not fully in line with the Trust in Care policy, it does not mean that the outcome would have been any different”.

Therefore, it can clearly be seen the Respondent had no option but to place the Complainant on Protected Leave in order to carry out an investigation into the complaint. Even if the Complainant had not been on Protected Leave at this time, additional hours may not have been available and, even if they had been, there was no onus on her to take them, and indeed they may have been covered by another staff member.

The sanction was removed from the Complainant’s file in line with the appeal outcome.

The Complainant was not “redeployed under the guise of service needs” as she states in her complaint form to the WRC.   The community home in which she was placed on her return was one in which there was a serious and urgent need to fill a vacancy due to understaffing issues which, as the Complainant is fully aware, is currently still the situation.

In conclusion, due to the sensitive nature of the work that is carried out by the Respondent, it has provided for the right to move employees from one community home to another as business needs dictate, within their contracts of employment. This was necessary in this case due to a serious and urgent understaffing issue in another community home and the Respondent’s duty of care to both the service user and the Complainant. The Respondent’s action were at all times within the parameters of that contractual relationship.

Conclusions:

Recommendation:

Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.

I recommend That Managers in the Respondent’s company be given training in workplace investigations and that the Worker be compensated for the distress caused in the sum of €2,000.

Dated:   18/12/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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