Worker

Employer

Anonymised Parties

A Nurse

A Health Service

Representatives

Irish Nurses & Midwives Organisation (INMO)

Self-represented/internal

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 - 00001382

09/05/2023

This dispute relates to delays in processing a grievance pertaining to bullying and harassment, under the Dignity at Work policy, which the Worker submits was inordinate and excessive, and the very significant negative impacts that delay had on her personal, professional and family life.

The Employer does not dispute the timeline with respect to the dates, as set out, but offers by way of explanation the national circumstances of the Covid-19 pandemic and its impact on the provision of health services and a Cyberattack in addition to the circumstances of this particular case – the other party (who the Worker had complained) pulling out of mediation having initially indicated a willingness to participate, a delay in the agreement of the terms of reference between the parties, and the other party (who the Worker had complained) ultimately leaving the Employer’s employment.

The Worker brought a claim under section 13 of the Industrial Relations Act.

The Worker is a former employee of [Name Redacted] Healthcare Service. She commenced employment with the Employer on 2nd January 2018. She was assigned to [Name Redacted] Community Hospital, and worked  there in the provision of residential care for older persons.

The Worker alleges she was subjected to inappropriate behaviour from her line manager, Clinical Nurse Manager (CNM) 2 which was repetitive over a period of time in 2020. As a result, the Worker raised an informal complaint in August 2020 and requested mediation. However, this did not take place and a formal complaint was then lodged against her line manager on 2nd November 2020.

The Worker is seeking financial compensation for the failure of the employer to administer its own Dignity at Work Policy in a timely manner.

The Worker contends that the Employer failed in its responsibilities to ensure that adequate resources were made available to deal effectively with complaints of bullying and harassment in her case.

The matter only went to investigation stage in July 2022, when the Worker was interviewed. The investigation itself collapsed as the party against whom the complaint had been raised by the Worker left employment. The Worker contends that the Employer on multiple occasions failed to deal with the complaint effectively and as a result, she was left in limbo with the employer failing to administer the policy correctly. As a result, she submits that she was not afforded the opportunity to natural justice and to have her complaint addressed in a fair and timely manner.

Background:

The Worker was a nurse for over forty-four (44) years. She did her initial training abroad and worked abroad for approximately half of her career. She had worked as a staff nurse and nurse manager in theatres. On her return to Ireland, she worked for fifteen (15) years as a staff nurse and CNM 2 in Private hospitals. She then spent three (3) years in the UK before taking up the post, in which the subject matter of this dispute arose. The Worker completed a number of Diplomas throughout her career including perioperative nursing and management.

The Worker commenced employment in [Name Redacted] Community Hospital on 2nd January, 2018. The Worker commenced a period of sick leave on 24th August 2020 following a number of alleged incidents in the workplace involving her direct line manager, CNM 2. The Worker first raised concerns about her CNM 2 in [Name Redacted] Community Hospital informally at a meeting with the Director of Nursing MC in late August 2020.

Following this meeting, the Worker sought mediation between herself and the CNM 2. The Worker requested that this would be conducted by an external mediator. This request was agreed to following a discussion with the Director of Nursing, MC and the Worker’s representative on 31st August, 2020.

The INMO wrote to MD, the Employee relations Manager (ERM) of the Employer on 17th September requesting that matters would be progressed informally and through the use of mediation. It was noted that the Worker was fit to return to work on 18th September but was very apprehensive as the issue had not been progressed and/or the Employer had not put protective measures in place. (Copy of correspondence submitted.)

The Worker wrote to her Director of Nursing on 17th September in relation to concerns that were raised against her as per the Director of Nursing from another staff member. The Director of Nursing advised she would arrange a meeting on this issue on 23rd September with the staff member and the Worker via a phone call on 14th September. This meeting never took place. (Copy of correspondence submitted.)

The INMO wrote to MD, ERM on 18th September requesting in the absence of adequate protective measures in [Name Redacted] Community hospital and in the interest of the health, safety and welfare of the Worker, that she would be placed on paid leave, pending a mediation date. (Copy of correspondence submitted.)

On 21st September 2020, MD, ERM replied to the INMO advising that an identified mediator had been appointed and queried the INMO's request for protective paid leave, (Copy of correspondence submitted.)

The INMO responded on behalf of the Worker on 22nd September 2020 advising that the mediator assigned had not been in contact with the Worker. The INMO also sought again that paid leave would be considered or an alternative work location/working from home arrangement would be considered in the interim. (Copy of correspondence submitted.)

On 2nd October 2020, the Worker received a phone call from the Director of Nursing advising she had been rostered to return to work on 5th October in [Name Redacted] Community Hospital. The Worker was advised that she had been placed on three (3) weeks annual leave up until this point and was running a negative balance. The alternative offered by the General Manager was assignment to a hospital, which was located more than 60km away and would have necessitated a two-hour round trip. (Copy of correspondence submitted.)

On 9th October 2020, the INMO wrote again to MD, ERM advising that while a mediator had contacted the Worker on 28th September, the matter had not progressed and the Worker remained on leave. The INMO also pointed out that a risk assessment conducted by the Director of Nursing supported the Worker’s concerns that the parties could not be on duty together until matters had been concluded. The INMO sought three key clarifications within this correspondence;

·       A date when mediation would occur.

·       Provision of protected leave/working from home facility pending conclusion of mediation or

·       An offer of a reasonable alternative temporary work location close to the Worker’s [original] place of work.

·       A copy of the risk assessment completed by management to be sent to the Worker.

(Copy of correspondence submitted.)

The Worker received a copy of the risk assessment completed by her Director of Nursing, dated 18th September 2020 on 14th October 2020. (Copy of correspondence submitted.)

The Worker received a call from the appointed mediator on 13th October 2020 advising the party against whom the Worker had made the complaint had declined mediation.

The INMO responded to the Employer via MD’s office and copied the General Manager, BP, on said correspondence (15th October, 2020).

The INMO outlined its significant concerns of the ongoing delays on matters, the impact on the Worker, in terms of work-related apstress which led to a period of sick leave. The position of the Worker was reaffirmed regarding the request for reasonable alternative redeployment or protective paid leave. (Copy of correspondence submitted.)

On 16th October 2020, the Worker was offered an alternative work location in [Name Redacted] Community Hospital, located approximately 30km from the Worker’s original place of work.

On 2nd November 2020, the INMO corresponded with MD requesting that the issue of annual leave be addressed and converted to protective leave for the period between the Worker being declared fit to return to work and commencing work in the new location. The INMO sought that the Worker would not be disadvantaged due to her raising a workplace complaint. (Copy of correspondence submitted.)

The Worker submitted a formal written dignity at work complaint on 3rd November 2020 to her line manager. (Copy of complaint submitted.)

In the meantime, an agreement was reached between the parties on the issue of annual leave taken up until the point of our member returning to work in the new [Name Redacted] Community Hospital: 70% of annual leave was restored to the Worker’s annual leave balance going forward.

On 25th November 2020, the INMO wrote to MD, ERM & Head of HR seeking an update on the pre-screening process of the Worker’s complaint. The INMO advised that the party against whom the complaint was made should have responded to the complaint within a two-week time frame once the complaint had been received. (Copy of correspondence submitted.)

The INMO wrote to the Employer on three further occasions until the Employer via the commissioning manager, BP, advised that the Worker's complaint had only been sent to the national investigations' unit on 11th January 2021. (Copy of correspondence submitted.)

On 14th April 2021 following further requests from the Worker and the INMO for progression of matters, the Commissioning Manager wrote to the Worker advising of a 'human resources investigation' into the allegations contained in the complaint. Within this correspondence, an investigator was nominated. (Copy of correspondence submitted.)

The INMO raised concerns surrounding the proposed terms of reference and labelling of the investigation as a human resources investigation as this was at clear odds to the nationally agreed Dignity at Work policy on 21st April 2021. (Copy of correspondences submitted.)

During the period of April 2021 to 18th October 2021, various correspondences were exchanged between the INMO, HR and the Commissioning Manager owing to a dispute on the terms of reference on non-adherence to the standard terms of reference for Dignity at Work investigations contained within the policy and the Worker’s request for a second investigator. (Copy of correspondence submitted.)

Engagement had taken place between MD and the Commissioning Manager on the 26th August 2021 to attempt to address the differences between the parties.

It was not until 6th December 2021 before the Employer reverted to the nationally agreed Terms of Reference under the Dignity at Work policy. This was confirmed through MD's correspondence. Assurance was also provided to the Worker on the option of seeking an expert from the profession as required if the need arose. (Copy of correspondence submitted.)

The Terms of Reference were accepted between the parties. As matters had not progressed to investigation, the INMO again wrote to the Commissioning Manager on 20th May 2022. (Copy of correspondence submitted.)

The Worker was eventually interviewed by the appointed investigator on 19th July 2022.

Following growing concerns from the Worker that there had been no update on the progression of the investigation or contact from the investigator, the INMO wrote to the Commissioning Manager on 18th October 2022. (Copy of correspondence submitted.)

As no reply was received, the INMO wrote to the Commissioning Manager once again on 7th November 2022, citing the unreasonableness on the delays. (Copy of correspondence submitted.)

To the Worker’s shock, the Commissioning Manager responded on 9th November 2022 to advise that the person against whom the complaint had been made had left employment and is no longer participating in the process. Furthermore, the Worker was advised that the investigation would not proceed, and a final report would not issue. (Copy of correspondence submitted.)

The matter was further raised at local HR/IR engagements between the parties but [Name Redacted]’s position remained unchanged.

The Worker left employment with the Employer in May 2023 and moved to a completely different part of the country, as the ongoing redeployment was unsustainable.

The matter was referred to the WRC in May 2023.

The Worker has since retired in September 2023.

Argument:

The Employer’s Dignity at Work policy is a well-established policy and part of mandatory training for all employees. The policy covering this dispute was introduced in 2004 and reviewed in 2009 (Copy of the policy submitted.) Under this policy, the Worker notes that the Employer failed to adhere to the key objectives of the policy, as set out, in particular:

'A key objective of this policy is to ensure that all reasonable efforts are made by management to deal with complaints of bullying or harassment at local level.

In the event that the complaint cannot be resolved locally or through mediation, the procedure sets out an investigation process which is designed to deal with complaints expeditiously and with minimum distress for the parties involved. ' (Page 2 of the Dignity at Work Policy.)

It has always been the employer's responsibility to ensure adequate resources are made available to promote respect and dignity in the workplace and to deal effectively with complaints of bullying and harassment. (Page 9 of the Dignity at Work Policy.)

It is very evident in the Worker’s case, the Employer was tardy at best in terms of addressing the complaint at the informal stage and formal stage of the process. It is unacceptable to the Worker that a complaint initially raised in August 2020 was not progressed to an actual investigation until July 2022.

Under said policy, page 10 sets out clearly the responsibilities of Managers and Supervisors:-

·       'Managers and supervisors have an obligation to deal promptly and effectively with any incidents of bullying or harassment of which they are aware or ought to be aware...

·       Respond sensitively to any employee who makes a complaint of bullying or harassment...

·       Respond promptly and discretely to requests from employees to intervene and seek to resolve the matter informally where appropriate…

·       Ensure that an employee is not victimised for making a complaint of bullying or harassment in good faith... '

The Worker contends the manner in which she was treated by local management initially when raising a complaint was inappropriate. It is the Worker’s position that she was discouraged from escalating concerns and was faced with an alleged complaint from another staff member and a safeguarding concern. The Worker’s position is that both of these concerns are not co-incidental, and both were only raised with her after she made a complaint about the CNM 2 to the Director of Nursing.

The Worker claims there was no sensitivity or support provided by the Employer on making the complaint. Instead, the process was protracted, the Worker was misled in the fact that she believed the other party had agreed to mediation and a date was pending for this to take place.

The Worker was completely discommoded as a result of making a complaint against her manager in the workplace. The Worker was on a period of sick leave and received part of her annual leave that was taken pending a resolution to matters. In addition, it must be noted, that from the date of the informal complaint, the Worker never returned to work in [Name redacted] Community Hospital following periods of sick leave, redeployment and ultimately her resignation.

It is a very reasonable expectation that an employer with such a well-established policy and procedure for Dignity at Work complaints would have managed the Worker’s complaint in a more efficient and sensitive manner.

The onus is on the Employer to address and investigate complaints and ensure appropriate resources are in place. It is evident in the Worker's case that these resources were not readily available to progress the complaint informally through mediation or formally through investigation without inexcusable delays to the detriment of the Worker.

The Employer failed to adhere to the preliminary pre-screening timeframe of seven working days on receipt of the complaint as set out in page 15 of the policy.

The Employer also failed to furnish the reply of the party against whom the Worker raised a complaint and/or advise if they had responded. Again, there is a two-week timeframe set out within this policy.

There is no reasonableness shown by the employer to adhere to the policy and operate within appropriate timeframes.

The Worker suffered significant stress and hardship throughout the whole process and was left in her view completely unsupported and badly let down by the Employer.

The Worker’s view is that this experience would discourage anyone from making a complaint about their manager.

The manner in which the complaint was handled and abandoned only further demonstrates the clear failures of the Employer to administer this policy diligently, in a timely manner and to afford the Worker the opportunity to address Dignity at Work allegations that were of such concern that it led to an employee being absent from work due to work-related stress and their redeployment as a protective measure.

Precedent:

The Worker highlights a number of decisions in comparable circumstances were awards of financial compensation were made, in circumstances where the Employer failed to adhere to and implement their own procedures.

In ADJ-00037404, given the unique circumstances of the particular case, the Worker was awarded €7,500 in compensation for delays in procedure and deficiencies in applying the laws of natural justice.

In ADJ-00032945, the Worker was awarded the sum of €5,000 due to the employer clearly breaching their own procedures.

In ADJ-00018347, the Worker received compensation of €10,000 for the delay in processing their grievance.

In ADJ-00019674, the Worker was awarded financial compensation of €5,000 respectively whereby the employer breached the rights of the Worker under the Employer’s dignity at Work policy. [An argument the Worker is presenting in the dispute herein].

The Court further awarded compensation for the failure to investigate a complaint in a timely manner in line with the employer’s policies in LCR-22014.

At the hearing:

The Employee spoke on her own behalf, at the end of the hearing, outlining the devastating impact the events had on her. She explained that she had worked as a nurse for forty-four (44) years and this was the first issue she had ever experienced. She was absent from work due to work-related stress, then discommoded.

She outlined that she took a job in a different part of the country completely, working in theatre from June 21st to September 10th, prior to her retirement.

She outlined that when all of this happened, she felt ‘totally insecure’, that she ‘thought that I should have never been nursing’, that her profession was ‘gone’, explaining that she had been the sole breadwinner for her family since becoming a widow at a young age, and that she had always provided for her two (2) children. She said that ‘but for their support and a really good family around me, I don’t know what would have happened.’

She also outlined that a close family member who was elderly was in the community hospital, where she had been working when she raised the dignity at work complaint; and that she was nursing her. Both she and the family member took great solace in that. She outlined the devastating impact of having to move from that place of work having raised the complaint, and the compounding impact of not being able to get into/not being allowed into the community hospital to visit her family member, in the context of Covid-19 restrictions.

She explained that getting access was difficult and that she was forced to visit her family member from behind a pane of glass.

She also outlined that when that family member’s health deteriorated, she was not notified and was not told to attend at the hospital. She had been told her family member was fine when she was not.

She outlined the sequence of events which meant that it was only by sheer chance that the Worker just made it, at the last moment, to be present at her family member’s death. She found those events deeply distressing.

Preliminary Submission

The timelines associated with progressing a formal investigation procedure into a  workplace complaint as submitted locally by the Worker are a matter of fact and are not in dispute.

The Worker and her representatives will be aware of the circumstances which have informed the timelines in this matter, to include the length of time availed of by the Worker and her trade union representative and the other party to her workplace complaint, in agreeing both the membership of the Investigation Team and Terms of Reference in respect of the Worker’s workplace complaint.

The Worker has been afforded her terms and conditions of employment throughout this period and has been provided with access to the additional supports of the Occupational Health Department and the Employee Assistance Programme at all times.

The Employer has engaged fully with both the Worker and her trade union representatives in a fair and transparent manner and the Worker has been treated no less favourably than the employee against whom the Worker raised a complaint.

The Employer provided the Complainant with an interim alternative work placement from 27th October 2020 until her resignation on 23rd June 2021, in [Name Redacted] Community Hospital (located approximately 30km from her workplace) while the local workplace matter had been ongoing. The Worker continued to receive her full rate of remuneration relevant to her Enhanced Staff Nurse position to include incremental progression. In addition to the above, the Worker has had 70% of the annual leave she availed of between 18th September 2020 and 27th October 2020 reinstated to her i.e. 136.50 hours (3.5 weeks).

This interim alternative arrangement has ensured that the Worker did not suffer a loss of income while the matter was progressing through the formal procedure of the Dignity at Work Policy.

The workplace complaint as raised by the Worker was being dealt with under the nationally agreed Dignity at Work Policy, which forms part of the Worker’s terms and conditions of employment. (Copy of Dignity at Work Policy submitted.)

Cost-increasing claim

The claim for compensation as submitted by the INMO on behalf of the Worker is cost increasing in nature and as such, is precluded within the national Public Service Stability Agreement, of which the INMO are a party. In this regard, reference is made to Section 8.3.1 of the PSSA, which confirms: "The parties agree that there will be no cost-increasing claims for improvements in pay or conditions of employment by trade unions... .during the period of the Agreement." Section 5.6.1 of Building Momentum reiterates that the parties agree that there will be no cost increasing claims in pay or conditions of employment.. (Extract from PSSA 2018-2020 submitted; extract from Building Momentum 2021-2022 submitted;) It is the respectful position of the Employer that the claim for financial compensation, as submitted by the INMO on behalf of the Complainant could reasonably be viewed as an attempt to set aside the national agreement which relates to the Dignity at Work Policy and the Public Service Stability Agreement, both of which form part of the Worker’s terms and conditions of employment.

It is the position of the Employer that the Worker and her trade union representative are seeking financial compensation in circumstances where the Employer has adhered to the terms and conditions of employment relevant to the Complainants' contract of employment. It is the Employer’s respectful position that the claim for financial compensation is unfounded and is without merit having regard to the particular circumstances, which prevailed in this matter.

Substantive submission

The Worker commenced employment as a permanent Staff Nurse in [Name Redacted] Community Hospital with effect as and from 22nd December 2017.

The Worker was appointed to the post of Enhanced Staff Nurse, [Name Redacted] Community Hospital, with effect as and from 22nd December 2019.

The Worker, whilst awaiting an alternative work location, availed of annual leave for the period 18th September 2020 to 27th October 2020. Following engagement between management and the INMO, management agreed to re-instate 70% of the annual leave availed of during this period. i.e. 136.50 hours (3.5 weeks).

The Worker was appointed to the position of Clinical Nurse Manager 2 by way of a Temporary Higher Appointment for the period 11th February 2021 to 30th June 2021.

The Worker resigned from her post of Enhanced Staff Nurse with effect from 23rd June, 2021 (last day of service was 10th June 2021).

Dignity at Work Complaint

The Respondent has been advised that the issue before the Adjudicator relates to an allegation by the INMO Trade Union on behalf of their member wherein the Union is alleging that the Employer has failed to administer the Dignity at Work Policy in a timely manner. Such an allegation is strongly refuted by the Respondent.

While the timelines associated with progressing a formal investigation procedure into a workplace complaint as submitted locally by the complainant are a matter of fact and are not in dispute the Complainant and her representatives will be aware of the circumstances which have informed the timelines in this matter and in this regard, the following information is relevant.

The Respondent as the Employer recognises the right of all employees to be treated with dignity and respect in the workplace and is committed to ensuring that all employees are provided with a safe working environment which is free from all forms of bullying, sexual harassment and harassment.

The Dignity at Work Policy which took effect from May 2009, and which has since been revised (August 2022) was produced on a partnership basis by a working group comprising representatives from the [Name Redacted organisation], Voluntary Hospitals, and Intellectual Disability sectors, Health Service Unions, [Name Redacted organisation] Employers Agency and IBEC. A key objective of this policy is to ensure that all reasonable efforts are made by Management to deal with complaints of bullying or harassment at local and informal level.

The agreed procedures within the Policy promote the use of mediation as an alternative to formal investigation. In the event that the complaint cannot be resolved locally or through mediation, the procedure sets out an investigation process which is designed to deal with complaints expeditiously and with minimum distress for the parties involved.

All employees of the [Name Redacted organisation], to include the Complainant, are required to comply with the policy, which forms part of the employee's terms and conditions of employment.

The Complainant raised a complaint on 26th August 2020 under the informal stages of the Dignity at Work Policy. Management met with the parties on 9th September 2020 wherein both parties agreed to attend at mediation by way of trying to address matters.

Following agreement between the parties to attend mediation, the Employer engaged with National HR Mediation Services on 9th September 2020 requesting for a mediator to be assigned.

The Mediation Services reverted to Management on 14th September 2020 confirming details of the assigned mediator and requested confirmation from management that the assigned mediator was acceptable to both parties.

Management engaged with both the Worker and the person against whom she had raised the complaint, on 18th September 2020, providing them both with details of the proposed mediator.

Following contact being made by the assigned mediator with the relevant parties, the mediator contacted management on 20th October confirming that as one of the parties no longer wished to engage in the mediation process that unfortunately mediation would now not be progressing.

The Worker then submitted a written complaint dated 3rd November 2020 to management in relation to her line manager which was received on 4th November 2020.

Following the submission of the written complaint by the Worker and in accordance with the formal stages of the Dignity at Work Policy, a preliminary screening of the written complaint dated 3rd November 2020 was completed on 10th November 2020. The outcome of the preliminary screening advised that based on the details as set out in the complaint dated 3rd November 2020, that the issues raised came within the scope of the Dignity at Work Policy.

The person against whom the Worker had raised the Dignity at Work complaint was provided with the outcome of the preliminary screening on 16th November 2020 and was provided with a two-week timeframe to provide a response to the complaint. The Respondent to the complaint provided a response on 11th December 2020.

Management wrote to the INMO on 21st December 2020 stating... "As mediation is not agreeable to both parties to this complaint at this time, the Commissioning Manager will now refer the complaint to the Investigations Support Section of the National HR Workplace Relations Unit in order that the matter may progress to formal investigation and an Investigation Team established." (Copy of correspondence submitted.)

The Employer has established a centralised Workplace Relations Unit (WRU) to include an Investigation Support Section and this Department acts as a single point of contact for the Employer for information relating to Human Resources investigations. The focus of the Investigation Support Section is to provide a high quality independent and impartial investigation service and to ensure that the principles set out in the Employer’s Human Resources policies and procedures are adhered to, to include the Dignity at Work Policy.

On 11th January 2021, the Employer submitted the three forms required to the [Name Redacted organisation] HR National Investigations Unit:

·       Form 01 - Dignity at Work Complaint Notification

·       Form 02 - Dignity at Work Preliminary Screening outcome and

·       Form 03 - Dignity at Work Complaint Investigation Request Form

The Investigations Section of the WRU wrote to Management on 30th March 2021 identifying a proposed investigator from the national panel of Trained Human Resource Investigators to undertake the investigation under the Dignity at Work process for consideration by the relevant parties. In accordance with the Dignity at Work Policy which states that "the investigation will be conducted by person(s) who are acceptable to the parties and are not connected to the complaint in any way", management were required to provide details of the Investigation Team to both the Complainant and the Respondent.

In accordance with the Dignity at Work Policy, the Employer provided the relevant parties with details of the proposed membership of the Investigation Team and requested a response from the parties.

On 21st April 2021, the INMO, acting on behalf of the Respondent to the complaint, wrote to the Employer, expressing their objection to both the nominated investigator and the proposed Terms of Reference. (Copy of correspondence submitted.)

On 21st April 2021, the INMO, acting on behalf of the Complainant, wrote to the Employer, expressing their objection to the proposed Terms of Reference and also requesting that there would be two (2) investigators appointed, with one of the investigators requiring a nursing background. (Copy of correspondence submitted.)

Further correspondence issued by management to the INMO on 11th May 2021 concerning the outstanding issues raised relating to the proposed membership of the Investigation Team and proposed Terms of Reference.

On 4th June 2021, management wrote to the INMO advising that they had sought guidance from the WRU with regards to the parties' continual non-acceptance of the proposed membership of the Investigation Team and proposed Terms of Reference.

Multiple correspondence issued between the Employer and the relevant parties as a number of issues continued to be raised regarding the proposed membership of the Investigation Team and the proposed Terms of Reference. Agreement was ultimately confirmed on the membership of the Investigation Team and the proposed Terms of Reference following receipt of correspondence from the INMO on behalf of the identified Respondent dated 21st February 2022.

The Respondent wishes to confirm that notwithstanding the above referenced delays in agreeing the membership of the Investigation Team and the proposed Terms of Reference in this matter, the agreed Investigation Team commenced the investigation into this matter.

However, by this time the person against whom the Worker had raised the complaint was no longer an employee of the Employer and it is noted within the policy wherein it states... "that while non [Name Redacted] employees are fully expected to co-operate with the [Name Redacted] investigation process and can be invited for interview by the Investigation Team, they cannot be compelled to attend interview or to co-operate with the [Name Redacted] investigation process.”

Unfortunately, the person against whom the Worker raised the complaint, chose not to engage in the process following his resignation. It should be noted that his non-participation in the formal investigation process was outside the control of the Employer.

In Conclusion

It is the position of the Employer in this matter that it has engaged at all times with the INMO and the Worker in a fair, open and meaningful manner for the purposes of progressing her complaint as raised under the Dignity at Work Policy.

The Employer strongly refutes the claim herein that it acted in any other manner but appropriately and has at all times acted to ensure that the employees concerned were afforded due process and natural justice.

The complaint was initially dealt with in line with the informal procedures of the nationally agreed Dignity at Work Policy. However, the matter remained unresolved following informal engagement and the complaint then progressed to the formal procedures of the aforementioned Dignity at Work Policy.

It is the position of the Employer that the claim as presented by the INMO is cost increasing in nature and accordingly is precluded under section 8.3.1 of the PSA which confirms "the parties agree that there will be no cost—increasing claims for improvements in pay and conditions of employment by trade unions during the period of the agreement.” Section 5.6.1 of Building Momentum reiterates that "the parties agree that there will be no cost increasing claims...”

It is the respectful submission of the Respondent that the claim for financial compensation as submitted by the INMO on behalf of the Worker could reasonably be viewed as an attempt to set aside the terms of the Public Service Stability Agreement/Building Momentum.

As outlined above, the following is a summary of the challenges faced in progressing the formal investigation to conclusion:-

·       Requirement on the parties to exhaust local engagement options to include the options of mediation.

·       Detailed engagement with the parties to identify an agreed Investigation Team.

·       Detailed engagement with the parties to agree Terms of Reference.

·       Requirement of the Employer to re-focus its resources to respond to the huge challenges arising in the delivery of a safe & quality service during the Covid 19 Global Pandemic.

·       The Employer also suffered huge disruption as a result of the cyber-attack.

·       As identified above, the person against whom the Worker made the complaint has resigned from the Employer.

As stated under point 7 of Management's submission, on a without prejudice and without precedent basis, the Worker had 70% of the annual leave she availed of between 18th September 2020 and 28th October 2020 re-instated i.e. 136.50 hours (3.5 weeks).

In acknowledging the challenges experienced in progressing the formal investigation process and the other workplace matter, the Employer has sought at all times to uphold its obligations of trust and confidentiality in the context of its contract of employment with the parties concerned, notwithstanding the extraordinary circumstances which have informed the timelines associated with the formal investigation.

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

The impact on the Worker of having raised a complaint in good faith against her manager was devastating, both personally and professionally. She spoke very eloquently on that point, and I found her to be credible and cogent.

I find that the delays in this instance were excessive and hugely damaging in their effect.

I find that the impact on the Worker was egregious, both personally and professionally.

I find the Worker’s experience of raising a complaint against her manager (as opposed to as against a colleague) to be particularly troubling and I am struck by the failure of her employer to mind her through the process. I note the sequence of events which immediately followed thereafter and the Worker’s anguish in relation to same.

The Worker’s representative highlights that the policy requires promptness, discretion and sensitivity, and for the employer to support and encourage mediation. Once the Worker raised a formal complaint and the Employer submitted the complaint to the national investigations unit, it is submitted on the Worker’s behalf that an approach the Employer should have taken (which it submitted is common practice but was not offered in this case) is that if there is no availability for an investigator from that panel, an independent investigator can be appointed.

He further emphasises that the Worker consented to mediation; that there was also an issue regarding the terms of reference - that it was not a HR investigation, but rather pertained to dignity at work [Adjudication Officer’s Note: It appears there was an internal dispute within the Employer with regard to the terms of reference.]; that the Worker went to interview and nothing came of it (when an investigation did ultimately start).

I accept the INMO’s submission that it should not be the case that a worker who makes a complaint cannot return to the hospital where he/she made the complaint, which is what happened in this case. The Worker was significantly discommoded – she had to go to a different county for work.

The Worker went through a process with HR, whereby she was originally offered a place in a hospital 160km return trip from her home/prior place of employment. Then, she was given an alternative accommodation (more doable geographically but still a considerable distance). The Worker was on relief throughout Covid-19, she went into the most difficult settings, at the most difficult time. There were issues of short staffing. One of the community nursing homes in which the Worker worked has since closed.

I accept the INMO’s submission that the onus is on management to adequately resource the investigation.

I accept the INMO’s submission that the onus is on management to communicate, that it should not have to be ‘chased’, and that the Employer has an obligation to adhere to and apply its own policies. I find that it failed to do so, with disastrous consequences for the Worker.

I fully accept the view the Worker expressed that having been through the process, she thinks, anyone would be discouraged by the process from making a complaint about their line manager, whatever about making a complaint about a colleague, which I find is fundamentally unacceptable - the Worker cannot be left without a remedy by her Employer, in circumstances where she raised a Dignity at Work issue, as against her manager. She cannot suffer detriment as a result of having raised an issue in good faith.

For completeness, I do not accept the submission made by the Employer in relation to ‘cost-increasing claims.’ The net effect of the argument advanced, if accepted, would be that the WRC would have no jurisdiction to award compensation under the IR Act 1969, in a case such as this, producing a situation where an employer could circumnavigate both a worker’s right to avail of, and/or be subject to, the agreed internal applicable policies, as well as the worker’s right to natural justice and fair procedures, with no potential consequence for the employer. It would create a situation whereby an employer who is bound by national pay agreements would be free to breach its own policies in relation to its employees, with impunity. There is simply no legal reality to that line of argument.

I recommend the Employer pay the Worker €10,000 in full and final settlement of this dispute, within 42 days of the date of this recommendation.

Dignity at Work; Delays; Impact of delays; Complaint raised against line manager; Detriment suffered as a result; ‘Cost-increasing claim’;