Worker

Employer

Anonymised Parties

A Nurse

A Hospital

Representatives

 Peninsula Business Services Ireland

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 - 00003076

03/09/2024

Initially, the complainant in this case was, herself, the subject of a complaint by one of her managers for allegedly making discriminatory remarks on the race ground. Two out of three of these were upheld and on appeal by the original grievant all three were upheld. The investigation was undertaken by an independent third-party company.

The complainant then raised a grievance against those who had been required to participate in the investigation, (some eighteen of her co-workers) necessitating a second investigation, which by the time of the referral had not been concluded.

The complainant alleges that the respondent has breached its own policy and procedure in relation to various processes in which she was involved, both as a respondent in a grievance and as complainant herself in a subsequent grievance.

She alleges that she was bullied by management  and singled out for adverse treatment.

However, she did not submit any grievances or complaints to her employer about these, and she confirmed at the hearing that the internal process of appeal had not been concluded by the time she referred the matter to the WRC.

The respondent made an extensive submission which charted the history of the issue.

The complainant has been employed by the respondent for twenty-six years as aStaffNurse.Thiscomplaintis largelybasedonthefact that agrievancewasfiledagainstherbyanothermemberofstaff, and shethen pursuedgrievancesagainstthoseemployees who had been witnesses in the ensuing investigation, simplyonthebasisthattheyparticipatedinthisprocess.

Of course, as current employees, they were expected by their employer to participate in the process.

The respondent denies all allegations in the complaint andsubmits that it actedingoodfaithandinaccordancewithfairprocedures, as it hasadutytoaddressgrievancesfiledbyothermembersofstaff pertainingtotheconductof thecomplainant,orindeedanyemployee.

Addressing these grievances in line with fair procedures should not be the basis for a complaint to be upheld against the respondent. In order to ensure fair procedures and impartiality throughout, the respondent outsourced this investigation, and the investigation into the grievance filed by the complainant, to an independent third party.

Notably, the internal grievance process has not concluded in this matter.

The grievance against the complainant was largely substantiated. She appealed this finding and filed the WRC complaint while the appeal was ongoing. The appeal has since been completed and did not overturn the findings upholding the grievance against her so her complaint was premature.

On February 26th, 2024, the respondent’s Assistant Director of Nursing (ADON) submitted a written complaint to the respondent about remarks made by her. That complaint was later broadened to include the complainant’s subsequent dissemination of the original complaint amongst eighteen members of staff.

The ADON’s grievances were summarised in the subsequent Grievance Investigation Findings Report as follows:

i.TheADONallegedthe complainantmadearacialcomment withintheworkplacethe24thofFebruary2024.Furtherparticularsitwas allegedthattheADONoverheardComplainantsaying,“theIndiansare taken over.”

ii.              The ADON alleged the Complainant stood in the hallway and prevented her access to the staff canteen and shouted at her on the 24th of February 2024. Further particulars it was alleged that Complainant shouted at the ADON “the carers are on break.”

iii.     The ADON also alleged that Complainant was in breach of confidentiality by sending the ADON’s formal complaint to 18 other colleagues on the 14th of March 2024.

On May  7th, 2024, the respondent engaged the services of a third-party company to investigate the ADON’s complaint and an investigation tool place incompliance with all relevant fair procedure requirements. On two occasions the complainant declined to attend investigation meetings for various reasons, but she eventually did so on June 7th, 2024.

In due course, the Grievance Investigation Findings Report was issued on July 5th,  2024 and found that the first two allegations were substantiated and the third was not, (on the grounds of mitigation, that the complainant had not been aware of the requirement no to circulate the complaint).

Both parties appealed. The ADON’s appeal of the finding that Allegation Three was unsubstantiated was successful. Thus, ultimately all three allegations were substantiated. By the date the complainant filed her complaint with the WRC, the appeal process for Complainant’s appeal against this report was underway but had not yet concluded.

The complainant’s WRC Complaint form asserts, “I have taken part in the investigations for [ADON’s] grievance, and they have been substantiated against me. I have applied to appeal this.”

This appeal had not concluded by the date of Complainant’s WRC complaint and she had not exhausted the grievance procedures available to her, while simultaneously attempting to pursue a WRC complaint on the same issues.

As of the date of this submission, this appeal has concluded, and did not overturn the findings substantiating the grievance against the complainant. Another appeal filed by her remains ongoing. Accordingly, this complaint is pre-lodged.

In the course of the grievance process and the investigation stemming from the ADON’s complaint, various meetings were held, and witnesses were interviewed. She  has now issued separate grievances against the majority of employees involved in this process, including two witnesses. 

On  June 28th, 2024, she sent a letter to the Chairman of the Board, raising grievances against the Director of Nursing, the HR Administrator, a Healthcare Assistant and a second Healthcare Assistant

The complainant appears to allege that an employee’s cooperation with a grievance investigation into her conduct is a form of bullying and harassment on behalf of that employee.

It is noted that employees are expected to cooperate with their employer’s investigations into grievances.

Notably, the grievance process is currently underway for these grievances as per our policies and  procedures. Even the complainant’s Complaint form states, “I am in the process of following the grievance procedures by taking part in the investigations” and “I have applied to appeal, and I am waiting for a date with a new investigator”.

Therefore, she is availing of the internal grievance procedures, and these grievance procedures are currently ongoing and the internal grievance procedures have not yet been exhausted.   This also applies to the other grievances against Management and the other people referred to above. (Further detailed argument was made on those complaints to the effect either that they were made prematurely, or were vexations and lacked a prima facie breach, and  which it is not necessary to replicate here. For example, the complainant also appears to take issue that DON carried out her required duties with regards to discussing an incident form with Complainant about an incident involving a patient.

Any grievance procedures that were undertaken that involved the complainant properly stemmed from the specified grievance and had no connection whatsoever to the conduct of a former employee who was no longer employed by Respondent at the time the grievance was filed.

The respondent complied in good faith with its policies and procedures for all grievances involving the complainant, both those issued by her and concerning her. The conduct of the DON and HR Administrator was at all times fair and reasonable and the. respondent denies any bullying or harassment.

In addition, her grievances that the cooperation of her co-workers in an investigation resulted in them making allegations against her is unacceptable

One of those complained about merely provided a brief recollection of the incident, which was consistent with the allegation in the grievance which was substantiated in the Report following the investigation by the third party. An employee providing a brief, factual recollection of events which occurred at work when specifically requested by their supervisor does not amount to bullying or harassment.

In conclusion, all claims in the WRC complaint which complainant chose not to ventilate in the course of issuing her multiple other grievances should not be upheld as she did not exhaust internal grievance procedures in relation to them.

Nevertheless, the respondent denies that any of these events alleged, to the extent any of them are accurate, could amount to bullying or harassment.

In summary,  as of the date of her WRC claim, while the complainant remains an employee, she has been on sick leave since March 15th, 2024.

The appeal of the Report substantiating the ADON’s three grievances was ongoing as of the date of her WRC complaint, although this appeal has been completed since then. This appeal did not overturn the findings substantiating the ADON’s grievance against Complainant.

Her appeal of the Investigation Outcome Report into her own grievances in the June 28th,  2024 grievance letter was ongoing as of the date of Complainant’s WRC complaint, and remains underway, so again her WRC complaint is pre-lodged, as it was lodged while her two appeals, concerning the subject matter of her WRC complaint, were ongoing.

She has not exhausted the grievance process available to her prior to filing her WRC complaint. Indeed, as the process is ongoing, it is possible that the appeal could ultimately find in her favour.

Accordingly, we ask that the WRC Adjudication Officer to recommend that the complainant should complete the ongoing appeal process to its conclusion and accept its results.

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

The facts are as set out above. It is a sorry story.

It started with the complainant making an allegedly racist remark which was the subject of a complaint by her manager, and which was upheld following an independent investigation.

She might have left it at that.

But, instead of taking stock of the implications of where she stood at that stage and demonstrating some greater insight than she has to date and take steps to repair the situation, she did not do so.

So far she has made a situation that was not too bad to begin with a good deal worse in the most extraordinary way by engaging in the pursuit of those who participated in the investigation into the conduct; something they were obliged to do.

For reasons that will be clear from the submission of the respondent (and the oral submissions of the complainant herself)  I have no jurisdiction to interfere in it. The complainant justified her premature referral of the matter to the WRC on the basis of the need to do so within the six-month deadline.

However, there are no time limits under this legislation, so her attempt to seek the interventions of the WRC was premature.

Indeed, insofar as she articulated specific new complaints in the course of the hearing, none of those had been the subject of any processing at the level of the workplace.

It is a cardinal principle that the ‘jurisdiction’  (used loosely) of the WRC will only be triggered when local machinery has been fully utilised and exhausted, or when there has been some unacceptable failure to do so.

The complainant has indicated a desire to put all this behind her and move on.

It is time she did and just about better late than never.  Although it will be difficult to retrieve this situation it will not be impossible.

She has shown a quite remarkable lack of insight in this matter so far and she has put the respondent to an extraordinary level of inconvenience and expense quite unnecessarily. The making of complaints against co-workers participating in the investigation is especially deplorable.

But a starting point will be that the complainant begins to show some insight into her actions. takes responsibility for them and begins to repair the damage that has resulted from her actions.

In the circumstances I make no formal recommendation of the matters that were referred to the WRC for the reasons set out above

Exhaustion of workplace procedures