Worker

Employer

Anonymised Parties

A Worker

A Healthcare Provider

Representatives

Niall O Sullivan Psychiatric Nurses Association (PNA)

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 - 00000454

12/07/2022

This trade dispute relates to the Worker’s grievance regarding alleged bullying and harassment by two members of staff who he worked with. 

The Worker had initially raised a grievance related to excessive micromanagement and bullying which resulted in severe workplace stress. He sought a change of supervisor and was reassigned to a different site.

The person he had raised complaints about was then also transferred to his new work location. Soon after she approached the Worker and alleged that he had been seen in a state of undress and distress. The Worker was confused by this and it then emerged that she was referring to him being in a state of undress in the bathroom.

He discovered that this manager had spied on him. He was pressured to sign an occupational health referral form which he refused to do without further consideration. He was extremely distraught by the whole episode.

He has a medical condition related to his workplace stress which resulted in frequent use of the bathroom. He was never naked in the bathroom.

Following this incident the Worker referred a detailed bullying grievance. This was in late 2018. The Employer did not proceed to issue terms of reference or a commencement of investigation until February 2020. They did not interview him until December 2020. He received the other parties’ interviews in June 2021 and responded to these in detail. He then received a draft report on the 6th of October and was given a 10-day deadline to make further submissions. He requested an extension but received none. He made submission on the 20th of October which he believes were ignored when the final version issued on the 24th of January 2022.

The Worker was shocked to discover that this report failed to address the issue of him being spied upon in the bathroom.

The Employer disputes much of the Worker’s case.

They argue that there were legitimate performance issues which required that his supervisor manage him closely.

In October 2018 there had been an incident where an invigilator attending on students had believed someone to be distressed in the bathroom. The bathroom is normally used for patients and is designed to be not as entirely private as a normal workplace bathroom would be. It has a quite a large gap between the door and wall which a person is partially visible through.

A member of management was notified and went to find out what was happening and believed they saw the Worker naked in the bathroom. This was treated as a welfare matter from the outset. The Worker was not spied upon. While accidental, the manager’s discovery had to be followed up on from an occupational health point of view. There was no intention to embarrass or upset the worker.

When the Worker’s bullying complaint was submitted it was comprehensively investigated. Despite the Worker’s assertions the Report does address the “toileting incident” as it refers to the matter as. 

After the publication of the Report the Worker issued a separate grievance, also involving the member of staff who reported them in the bathroom as being naked. This was looked into, and HR visited the site. They were able to establish that a person could be partially visible from the corridor in the way that was alleged.

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

The primary concern that the Worker has, that is that the “toileting incident” to use the Employers terminology, was not investigated nor findings made regarding it. This aspect of the dispute is not well founded. While the conclusion section of the report does not explicitly deal with this incident an earlier section of the report does and makes findings regarding it. The Worker may disagree with these but they are there.

There are issues highlighted by the Worker which have not been adequately addressed by the Employer. It is not clear whether or where his submissions and responses to the interviews were considered by the investigators. They are mentioned in the final report but there is no engagement with their substance.

I do understand that when investigating a bullying complaint there is a pressure on investigators to  conclude matters. Particularly, as in this case, the matter becomes historic, and the parties no longer work together. I do not believe it is necessary to take an overly restrictive view of the terms of reference and I certainly do not believe that the WRC should be addressing minor breaches in the terms of reference by way of recommending compensation. They remain internal guidelines for internal processes.

In this case the investigators found roundly against the Worker and in favour of the people he complained about. In some cases, there were witnesses to assist them and their findings are understandable. In other cases, such as the series of specific complaints regarding one member of staff’s alleged statements to the Worker, there was no witnesses, no explanation why the other employee’s version of events was preferred over the Worker and even a lack of clarity as to findings. It is not readily understandable whether the alleged comments were found not to have occurred or whether they were found to have occurred but were not considered inappropriate in the context of performance management.

While I am critical of the aspects of the Employer’s report, at this point there are few recommendations that I can make that can be of any assistance to the parties. The Worker has moved on from these issues and the Employer has facilitated his transfer despite this having budget implications for them. I am also acutely aware that if the report had not been deficient in the ways I have pointed out it would likely have had no tangible impact of the employment relationship. This report issued 4 years after most of the alleged incidents.

In the circumstances and noting the stress this whole matter put on the Worker I recommend that the Employer pay the Worker €850 in compensation.