Worker

Employer

Anonymised Parties

A Porter

A Hospital

Representatives

Martina Weir Siptu - Workers Rights Centre

H R 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 - 00001479

22/06/2023

The claimant is employed as a porter with     respondent    since  1999.He attended a disciplinary meeting with     respondent    in February 2021 following a complaint having been made against him – in his complaint form the claimant complains that the outcome of the disciplinary hearing was never communicated to him despite pursuing it relentlessly. The claimant submitted that he needs to have his name cleared  and wants the outcome on record .It was submitted that arising from this the claimant has been off  from work on  for almost 3 years  stress related sick leave .The claimant is seeking to have the outcome of the disciplinary process issued and is seeking compensation for the failure of the employer to adhere to its own procedures , for bringing about his absence on sick leave and for his associated loss of earnings.    respondent    rejected the complaint and set out their efforts to resolve the dispute and submitted that the claimant’s response to being informed of a complaint was to go off on sick leave despite a number of proposals to resolve the matter including an offer to set aside the process and remove it from the record.

The claimant’s representative submitted as follows: I

Introduction:

1.     This case is taken by SIPTU on behalf of our member the complainant 

2.     The claimant was issued with notice of a complaint against him in August 2020. [p9-10]

3.     He attended a disciplinary investigation meeting with management in early February 2021, supported by SIPTU.

4.     The outcome was to issue within the week. It did not issue and despite relentless pursuance of an outcome by the claimant he has still not been notified of this.

5.     He needs to have his name cleared and believes that the outcome needs to be on record.

6.     The whole issue has resulted in the claimant being absent from work on stress related sick leave, for almost three years.

7.     He initially received sick pay, but he has now exhausted this and is struggling financially as his D.S.P. payment has not yet been approved but is under appeal.

8.     He is seeking to have    the  respondent     issue the decision from the process initiated by them and is seeking compensation for the failure of the    respondent     to adhere to its own procedures and for bringing about his absence on sick leave and associated loss of earnings.

Background General:

9.     The claimant commenced employment with the     respondent   Hospital  A on 18 March 1999. [24 years]

10.   He works as a Hospital Porter/Multitask Attendant and he, with two others, cover the 8pm to 8am night shift.

11.  He is a Band 3, General Support Grades, point 9 of the consolidated Porter PayScale-€38,940.00 Payslip [p11]

12.  However, he has been on sick leave since 20 August 2020 and has exhausted the     respondent’s    Sick Pay scheme, leaving him without income.

Background to Claim:

13.  On Thursday 20th August 2020, on his arrival at work at 8pm, The claimant was handed a letter, dated 15 August 2020, in which he was notified of a Q-pulsed incident which allegedly occurred at 04.35am on the morning of 10 August 2020. [p9]

14.  It was being alleged that the claimant was the bleep holder for the emergency bleep 118 and that he did not respond when bleeped.

15.  The claimant was required to attend a Stage 1 Disciplinary Meeting on 22 September 2020 at 11am, to afford him the “opportunity to discuss and respond to this complaint”.

16.  On receipt of this the claimant was alarmed to the extent that he began to feel chest pain and dizziness and was physically sick, after which he had to go home.

17.  His condition worsened over the next few days, and he required medical intervention.

18.  By the 22 September 2020 the claimant was still on sick leave, but responded to say that he could not attend until he had made contact with his local union representative, who it seems was himself on sick leave at this time. [p12]

19.  In or about that time the claimant was referred to Occupational Health for review which resulted in a report which strongly recommended that the     respondent     meet with the claimant and also deemed him fit to attend a meeting to address the allegations against him. [ p14]

20.  Many Occupational Health assessments have taken place since with a common theme running through the reports that followed the being the need for the     respondent      to meet with the claimant to explore work-related concerns. [p14-22]

21.  The claimant emailed Mr H on 4th and 13th January 2021 and again on 13th February 2021 in order to set up a meeting to get the issues resolved.

22.  Responses came to two of his emails and these offered nothing definitive only excuses and apologies for the delays.

23.  Eventually on the 10th of February 2021,  the HR Manager, emailed the claimant inviting him to a Disciplinary /Fact Finding Meeting on 15th February 2021-This was 6 months after he was issued with notification of the complaint on the 15 August 2020.

24.  The claimant was represented by SIPTU at this meeting on 15 February 2021 and in attendance for    the respondent      were Head of HR and  Ms.A

25.  The claimant was asked to outline what had happened on the on the morning of 10 August 2020.

26.  He clearly explained his position refuting the allegations, stating that no delay was caused by him, that he answered the bleep straight away and went to where he was told to go. 

27.  No evidence or witness statements was put forward by     the respondent      management at that time- or since.

28.  He also raised concerns around what he saw as false allegations being made against him and stated that this had happened before, and he now felt unsafe returning to work until this was addressed.

29.  He requested that the issue to be dealt with speedily so that he could return to a safe working environment.

30.  He was assured by the HR Manager  that the outcome would issue no later than 1 week.

31.  The claimant  heard nothing until 3 March 2021 when  the HR manager  emailed apologising for the delay but said that due to annual leave and rosters, she was having difficulty confirming meetings with relevant parties, and she expected meetings to be held in the next week.

32.  The claimant heard nothing from the HR manager since that date, despite emailing her on a number of occasions without response.

33.  Neither did any notes or minutes issue from the 15 February 2021 meeting.

34.  The claimant was now in limbo as he had no outcome from the     respondent     to what he adamantly believed were false allegations and his health was being impacted by this worrying and stressful situation. [OH, Reports p14-22]

35.  He felt that he could not return to work until he had received this outcome which he firmly believed would clear him of any wrongdoing but if it did not then at least he knew there was an appeal process which he could avail of and proceed to an external third party if necessary.

36.  He was now being prevented from achieving closure on this and his mental health began to suffer further.

37.  Having failed to get a response from the HR Manager and becoming consumed by the worry of the situation, our member again contacted Mr. PH- Group Employee Relations Manager on 12 April 2021 and was given a commitment that the matter would be followed up and he would be contacted.

Rather than go through each of the many contacts [phone & Email] made by SIPTU and by The claimant directly we have a large number of these attached [p23-37] of this submission.

38.  In July 2021 the     respondent    advised that the outcome from the February 15th Disciplinary/Fact finding meeting was that the claimant had been issued with a Stage 1 Disciplinary warning. [p24]

39.  This was questioned but responses to emails [p25] were not forthcoming.

40.  SIPTU eventually did get a date for a meeting with Mr H for 13 October 2021, which the claimant says took place in a car park as no meeting room had been booked in the hospital.

41.  However, this was abandoned as the matter had already been subject to a Stage 1 hearing and only the HR manager  could issue findings. [p31]

42.  The charade continued with the claimant pursuing an outcome and none materialising, [p30] until February 2022 when the     respondent     said that the matter had been escalated to MrEM, which seemed to suggest movement but again this never materialised. [p33].

43.  Then accepting that the procedural timelines had been breached without justification, it was suggested in June 2022, that the matter would be dealt with by Informal Counselling as opposed to a Stage 1 and a date was offered for this to take place. [p34]

44.  The claimant had already engaged in good faith with the Disciplinary process attending a Disciplinary /Fact Finding Meeting on 15 February 2021, so he was not agreeable to accept a sanction, when no findings had issued against him.

45.  Advising management of this, resulted in the claimant being deemed in breach of his contract for failing to engage in formal counselling and his sick pay threatened. [p35]

46.  This after 17 months of     respondent      failings and breaches of their own procedures.

47.   Management was now threatening the claimant for his failure to engage, while providing no basis or evidence to support their decision, to sanction him.

48.  When all hope, of sanity prevailing, was eventually lost the complaint was submitted to the Workplace Relations Commission and copied to     respondent    on 22 June 2023. [p36]

49.  Following this referral on the 26 June 2023, SIPTU received an email from MrPH advising that the Stage 1 Hearing relating to The claimant was considered set aside and removed and expunged from his file. [p37]

50.  This was not a resolution as setting the Stage 1 Hearing aside was, from the claimant’s perspective, leaving him with no record of exoneration, or the ability to feel vindicated in his challenge to what he saw as false and damaging allegations.

51.  This was all about exoneration and the fact that any sanction issued would have expired by now was not relevant.

Case:

52.  Chair: There is a dual component to this complaint from the claimant’s perspective.

53.  First the     respondent      failed to adhere to their own procedures in respect of time frames and second the removal from  the claimant of the opportunity to clear his name from the false allegations he believes were made against him.

54.  The issues of concern were brought to the claimant’s attention in August 2020, and it was 6 months later before the Stage 1 meeting took place and it was almost three years later when the matter was deemed set aside.

55.  This is a clear breach of the disciplinary procedures.

56.  The setting aside of a Hearing is not even possible. The fact remains a Stage 1 Hearing took place in February 2021.

57.  The disciplinary investigation process is for the purpose of establishing the facts, but it is also the only means of clearing one’s name.

58.  While [after almost three years] the Stage 1 hearing has been set aside, The claimant was denied opportunity to clear his name.

59.  The claimant was ignored, his concerns disregarded and his efforts to have his name cleared frustrated by his employers, who later moved to threaten him with breach of contract when he rejected the idea of accepting a disciplinary sanction in the absence of any evidence or basis for same.

60.  The cavalier attitude taken by management, to procedures which both staff and management have an obligation to uphold is not acceptable.

61.  The claimant needs confirmation that the allegations levelled against him in that document of 15 August 2020, have not been upheld, and he has been cleared of any wrongdoing.

62.  The claimant may then begin the process of recovery which will hopefully enable him to return to his job of 24 years.

Conclusion:

63.  Chair, we are seeking a favourable recommendation which directs the     respondent      to issue the claimant with a letter confirming that the allegations levelled against him in that document of 15 August 2020, have not been upheld, and he has been cleared of any wrongdoing.

64.  That he is awarded maximum financial compensation for the blatant breaches of procedures by the     respondent    , who initiated a disciplinary process which they failed to complete or provide opportunity for closure while at the same time threatening our member with sanctions.

65.  The claimant should also be financially compensated for losses incurred by his absence on sick leave while the     respondent    ignored the Occupational Health reports which repeatedly identified the need for the     respondent      to meet with him.

At the hearing , he claimant’s representative clarified that the claimant had been paid 3 months full pay and 3 months half pay under the sick leave Scheme – thereafter he was in receipt of Social Welfare payments – retrospection with respect to same was currently under appeal. It was submitted that     respondent    had not acted reasonably – the claimant had cooperated fully with what was asked of him – it was submitted there was no evidence presented to support the complaint and the claimant was denied an opportunity to appeal the outcome as an outcome never issued following the disciplinary hearing. It was submitted that the complainant got no comfort from an assurance that the record would  be expunged given the    respondent   ’s invocation of a 2017 complaint in their submission .It was submitted that the matter should have been prioritised in 2020 when the incident happened .It was contended that the delay was inexcusable , that the removal of disciplinary references from the file constituted a solution that suited     respondent    and that the interests of     respondent    did not outweigh the interests of the claimant.  It was submitted that one of the meetings took place in a hospital car park which was a poor reflection on the priority the dispute was receiving from management – it was submitted that the claimant was seeking an outcome that would tell him the allegations were unfounded. It was advanced that claimant could not move forward  while being deemed responsible for something he had not done. It  was submitted that the claimant had to be cleared of the allegation.

The    respondent   representative submitted as follows: It was submitted that at this hearing the allegation was put to the claimant that he had delayed in answering a bleep which was reported on the respondent’s pulse system.

In August 2020 , the claimant was the subject of a complaint by a manager at Hospital A. This was during the height of COVID’s first wave. Following receipt of the complaint the claimant went off sick and has remained off since despite a number of interventions by the employer to assist his return.

It was submitted that the incident was screened and it was decided that it should be dealt with under the respondent’s disciplinary procedure at stage 1 with a hearing scheduled for the 22nd.Sept. 2020.The claimant objected to the Services Manager chairing th hearing on the basis that she had chaired a disciplinary hearing for a similar complaint in 2017.The HR manager chaired the stage 1 hearing in February 2021.

It was submitted that at this hearing the allegation was put to the claimant that he had delayed in answering a bleep which was reported on the respondent’s pulse system. The alleged incident occurred in ICU which would be considered a priority bleep.IT was submitted that the claimant refused to give an account of why there had been a delay in answering the bleep.No outcome to the stage 1 heariing was issued and the matter was escalated to Mr.PH.

It was submitted that on hearing that no outcome to the stage 1 hearing had issued by mid July 2021, Mr.PH decided that the best way forward was  to deal with the matter  by an alternative method.

Mr.PH wrote to SIPTU in July 2021 saying that any warning would have expired by now and no lnger on the claimant’s file and that therefore the respondent now considered the matter closed and expected an early return to work by the claimant.

The union challenged the assumption that a stage 1 warning had issued and it was jointly decided that a meeting would be scheduled with the claimant for the 13th.Oct. 2021 to hear the matter again.On the morning of the meeting , the SIPTU official stated that a previous hearing had taken place with no outcome issued and asked for the entire matter to be set aside due to this. This was conveyed to the local HR manager who had chaired the original hearing.

On the 22nd.June 2022, Mr.PH met again with SIPTU and proposed that the stage 1 hearing be set aside and the matter be dealt with by an informal counselling / pre disciplinary process. This was an effort to move forward and deescalate the matter , to get closure and bring the claimant back to work.

It was submitted that the claimant refused this option. According to the respondent’s representative , the claimant “ was now clearly frustrating the employer’s efforts to deal with the matter in hand. “It was advanced that this was a breach of contract by not engaging in the respondent’s internal processed.Mr.PH advised SIPTU that this refusal to engage would be escalated to stage 1 of the respondent’s disciplinary procedure as a separate charge.” It was simply unacceptable that an employee would on one hand complain about delays and then refuse to engage in proposals to resolve the issue .On the 22nd.Jun 2023 Mr.PH wrote to SIPTU to the effect  “ that having reviewed this case in detail the stage 1 hearing that was held regarding the claimant is now considered set aside and removed from his file  .Even if an outcome had been issued at that time it would now be considered ‘spent’ and removed from his file however I am now formally stating that this hearing has been expunged from the cliamant’s record. I trust that this now closes this case and clears the way for an early return to work for the claimant”.

In conclusion , it was submitted  that in August 2020 the HSE received a complaint about an employee not answering a bleep to the critical area of ICU. This was the second type of incident in 3 years. An employer reserves the right in these situations to review any such case and take appropriate action. That is what the employer did in this case. The claimant went off sick in response and other than attend a Stage 1 hearing in Feb. 2021 has refused to return to work or engage in a number of options offered by the employer. This is clearly a frustra The claimant’s response to being informed of a complaint was to go off sick and remain off since despite a number of proposals to resolve the matter. Even an offer to set aside the process and remove it from the record has been rejected. The employer respectfully asks that you find in our favour

At the hearing , the representative said the reference to the 2017 incident was being presented as a campaign against the claimant and the representative said all he was doing was correcting the record. The reference to a meeting in the car park was highly offensive. It was acknowledged that guidelines had been breached and when it came to finding a solution he wanted to set aside the backdrop and deal with the matter through informal counselling.  But this was not acceptable to the claimant. The representative asserted that he made 3 different attempts to resolve the matter with 3 different offers -  an offer to remove references  from his file was made and this was a reasonable attempt to move forward. It t was submitted that the claimant’s refusal to engage amounted to a breach of contract. I t was argued that     respondent    cannot remove the fact that a complaint had been made – a paper trail was required and the representative referenced HIQA in this regard. References  to disciplinary proceedings could be removed.   The   respondent    strongly objected to payment of compensation or any sick pay.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties. I note that no minutes of the Stage 1 hearing issued and note  that the claimant is disputing that any evidence of shortcomings on his part with respect to the allegation against him was  presented at the Stage 1 hearing. 

 I note the respondent’s offers to set aside the Stage 1 hearing– given that no minutes of this meeting were made available by the respondent and no outcome to the Stage 1 hearing  was in fact recorded   or issued  I recommend that the claimant accept the respondent’s offer to set aside the disciplinary process   and the respondent  expunge any references to the allegation  from  the claimant’s file . I find  the union’s contention that the respondent was  in breach of their own procedures given the delay in processing the allegation, the failure to issue  any finding  and in their failure to implement the numerous recommendations issued by Occupational Health to engage with the claimant , to have merit.