Worker

Employer

Anonymised Parties

CEO

A Charitable Organisation

Representatives

  Solicitor

Self-represented

Act

Dispute Reference No.

Date of Receipt

s. 13 Industrial Relations Act 1969

CA-00053700-001

14/11/2022

The Worker, with an extensive background in healthcare, was delighted to be appointed to the role of CEO of s.39 service (funded by the HSE but run by the Respondent charitable organisation), which ran three services for service users with disabilities, two residential and one day care.

She outlined that a man, MM, who had been very closely aligned with the founding of the organisation, had previously been CEO, was Treasurer at the time she took up her role and had been interim CEO immediately prior to her taking up the role, actively thwarted and undermined her in the carrying out of her duties and the discharge of her responsibilities.

She particularly highlighted a number of areas of concern in relation to him - including a lack of promised support or “handover” to her in her new role as CEO, his withholding key information from her, his withholding information from the Board, aggressive and intimidating behaviour at meetings, a failure to comply with governance and management requirements despite giving undertakings to HIQA to do so, meddling and interfering with staffing matters (rostering; and the awarding of Time-Off-in-Lieu;) which fell outside his remit, and purporting to over-rule the Person-in-Charge (PIC) and the CEO in relation to same despite having no such authority.

She also raised safeguarding concerns, and management and governance concerns in relation to a service which deals directly with people with particular vulnerabilities, on foot of their disabilities.

The Worker submits that she was delighted to be offered the position of CEO with the Employer, a charitable organisation funded under section 39 by the HSE; that as discussed in her interview for the role, she had planned that this would be her final period of employment before retirement in approximately 10 years’ time.

She submits that MM was the interim CEO before she took up her position on 7th March 2022, and was also the Treasurer on the Board of Management, and for all intents and purposes her line manager.

The Worker submits that during her interview for the job, she discussed that even though she had years of experience in healthcare management and the skill set to do the job, she felt that she would require a period of support during her probationary period. She submits that she was assured by the interview panel that MM would be there to guide and support her, and that they would have regular meetings during her probation period.

Within a short time, however, she submits that she realised that MM would not be available to support her. She said that she was given no handover from the Interim CEO, MM, on any of the three (3) services that she was expected to manage. She submits that information that was necessary for her to carry out her role effectively was withheld from her by MM. She submits that she was given no induction into the role of CEO even after specifically requesting this at interview and being promised it.

She submits that she received no support from the Board of Management and in July 2022, she was made aware by some members of the Board of Management that they were also not receiving information that they should have which in turn led them to be unaware that she was not receiving the level of support required to carry out the functions of the role of CEO. She submits that the Chairperson of the Board of Management, MD, had informed her that his position was as a figure head and that he had taken it as a favour to MM, whom he had considered to be a friend.

She outlines the sequence of events as follows:

On 25th May 2022, she was called to her first official Board meeting and asked to submit a manager’s report on this occasion, and she did as requested.

On 30th May 2022, she was called to a meeting with the Chairman and the Treasurer to answer questions in relation to recent events that had occurred within the services. She submits that she suspected at that time that MM was not happy with some of the information that she had shared in her manager’s report to the Board of Management on 25th May 2022.

Having reflected on the information provided on May 25th and May 30th, she wrote to both the Chairperson and the Treasurer to express her concerns. She submits that she received a written response from the Chairman and Treasurer to which she responded in writing. The Chairman asked her to another meeting "to sort things out and move things forward." She agreed and this meeting was held on 2nd June 2022.

MM, the Treasurer, and MD, the Chairman attended this meeting. The Worker submits that she took the opportunity to raise some concerns that she had in relation to the management of the services. She submits that MM, the Treasurer, responded to her in a verbally threatening and aggressive manner. She submits that MD, the then Chairman intervened and took control of the meeting, the outcome being that MM agreed to give the Worker the support promised to enable her to carry out her role effectively. The Worker submits that this support did not come - in fact, she submits that MM would actively avoid her if he was on site, he would not respond to her emails and the promised "weekly meetings" did not happen.

She further submits that MM withheld information in relation to service users that she feels he should have shared with her, e.g. an incident that occurred on a Thursday morning coming to her attention the following Tuesday, despite MM knowing about it on the Thursday. She submits that rather than supporting her to deal with the incident which could have been considered a significant risk to the service, MM tried to use the incident against her in the presence of the Chairman of the Board.

The Worker submits that MM continuously undermined her position by communicating directly with parents of the service users and with staff working in the services, gaining and sharing information that was not within his remit as a Board member.

The Worker further submits that she contracted Covid in July 2022 and following her Covid leave of one (1) week, she was invited to meet the Board of Management on 21st July 2022 to discuss "some areas of concern."

On 18th July 2022, the Worker submits that she asked the Chairman of the Board to meet her and the Person-In-Charge (PIC) of the two (2) houses to raise concerns they both (the CEO and the PIC) had in relation to the behaviour of MM during her period of Covid leave. She submits that she had been made aware of this information during a handover from the Person-In-Charge following her Covid leave.

The Worker submits that the Chairman felt that it would be appropriate to invite MM to this meeting, something to which the Person-In-Charge and the Worker agreed. She submits that they planned to meet on 19th July 2022. She submits that she had a number of concerns to be addressed at the meeting. She submits that during the meeting MM became verbally aggressive, banging the table with his fist and throwing a chair on the floor. She submits that for the second time, the Chairman of the Board had to take control of the meeting, and this meeting terminated when MM packed up and left the room. The Worker submits that MM again agreed that they would meet weekly, specifically on a Monday morning at 10.30am, but these meetings did not happen.

The Worker submits that, as previously arranged, she met with the Board members on 21st July 2022 (MM and MD did not attend this meeting). The three (3) Board members and the Worker discussed the situation to date and the Worker agreed to furnish a full written report to the Board by 25th July 2022. The Worker submits that the Board members in return promised that they would do all in their power to support her; and they apologised for the fact that she had not been supported to date. She further submits that it was during this meeting that they informed her that information had been withheld from them as Board members by MM, the Treasurer.

HIQA (Health information & Quality Authority) inspected one of the residential services on 23rd August 2022 and raised a number of concerns, in particular in relation to the governance and the management of the service. The Worker submits that in a HSE Disability services (Service Level Agreement) meeting held on 1st September 2022 following the HIQA inspection, the then CHO1 Disability Services Manager, BD, stated that MM "actively" prevented her from doing her job as CEO.

This information was outlined in a "notice of proposed decision" delivered by HIQA on 19th September 2022, following the inspection on 23rd August 2022. The Worker submits that the behaviour of the outgoing Interim CEO, MM, prevented her from supporting the newly appointed Person-In-Charge to manage the residential services effectively. The Worker submits that his behaviour had a direct impact on the services provided. She submits that he overruled decisions taken by the Person-In-Charge and by the Worker. She submits that he visited the houses out of hours and communicated directly with the staff working there - this was not within his remit as a Treasurer of the Board.

The Worker submits that in her absence, one weekend he instructed the Person-In-Charge to let a male member of staff work in a female house [Adjudication Officer’s Note: The chief concern in this instance was for the wellbeing of the male staff member, as the female service user developed fixations in relation to males, due to the nature of her disability.]. He refused to listen to the concerns of the Person-In-Charge and this decision resulted in the health and wellbeing of a resident being negatively impacted. The Worker submits that she discussed all her concerns with the Board of Management but she was informed that they were powerless as each Board member had been hand-picked by MM and that they did not have the knowledge relevant to the role to support the Worker effectively.

The Worker also submits that she had done quite a lot of HR in her previous role, and when she came to this role, she found big HR gaps, including but not limited to employees without signed contracts (including herself for quite a while), employees whose probationary periods had not been signed off and employees doing the same job on different rates of pay. She also particularly emphasised the bad feeling and ill will MM had created with staff by overruling the PIC (and CEO) in relation to the awarding of TOIL (time off in lieu) – the staff expected and had been informed that of the applicable policy/approach, and then MM interfered, directing the implementation of a policy which was less favourable to staff, before the end of the financial year, which caused ill will as it contradicted what the staff had already been told, and what they expected would be occurring.

The Chairperson of the Board, MD, resigned his position on 19th August and the Secretary, FM, has being Acting Chairperson since this date.

The Worker submits that she had worked under HIQA regulations for fifteen (15) years in the capacity of Person-In-Charge. She submits that she was concerned that her reputation would be affected by a situation that was beyond her control. She submits that she is an honest, hard-working, healthcare professional, who just wanted to do a job to the best of her ability. She submits that she was not supported to do her job; and she submits that she feels that she was actively prevented from doing it by MM. [By way of background, MM retired as CEO of the Respondent organisation, in 2019 and since then, three CEOs have taken the position and left it.] The Worker submits that MM used his knowledge of the organisation to undermine, influence and intimidate.

She submits that within the company's Governance Policy, it is clearly stated that Directors have no role in the day-to-day running of the company, but this was not upheld by MM. The Worker submits that she felt that she was left with no choice but to resign from the position, as CEO. She gave the company one (1) month's notice, as she wanted to finish tasks and complete a handover for her successor, in the hope that the next person to take on the position would have this information, at least. The Board of Management accepted the Complainant’s resignation, and she submits that it was with deep regret, that she finished up on 4th November 2022.

At the hearing, the Worker set out the broad facts, as per her submission, and also expanded on her experience, at the Respondent organisation, as follows:

After the report, there was an interim Chairperson and an acting Secretary, and MM was the Treasurer. After July 25th, the Worker submits that it “all fell apart”, that she wrote to the HSE and wrote to Disability Services but there was “no resolution.” She said that she “couldn’t move things forward.” She explained that “you couldn’t recruit (nurses etc.) without a signature – you needed a board signature.” There was no Board to sign at that stage. The Worker said that she resigned, and that it was “with regret.” She said: “I felt I’d no choice. It was impacting my home life.” She said: “It felt like a failure. I regretted ever going there.” She expressed the view that as long as “MM is going to be there, it’s never going to change.” The Worker outlined that MM told the Disability Services Manager that he had no key when in fact he had keys, and used to come in and out of the houses, at will (entirely inappropriately).

She said that once she gave her one (1) month’s notice, “MM didn’t come near me then.” She said that “we couldn’t do any of the board stuff [due to the lack of Board members, at that point.]”

She said that she detailed all of what occurred because she wanted the Board Members to know everything.

She said that she finished up on November 4th. She said that “it was a very lonely day.” She said that she was given a bunch of flowers.

She explained that she required an ear surgery and that she was in receipt of illness benefit for four (4) weeks, in respect of that, from approximately, 21st November, 2022 – 18th December, 2022.

She said that she applied to HSE panels, that she had a son in University and needed to earn. She received a letter of offer on December 22nd, 2022 and started work on January 2nd, 2023 as a Clinical Nurse Manager.

The Worker explained that in her previous role, she was earning €2,561 gross per fortnight; and, in this new role, she is earning €1,341 gross per week.

She outlined her nett losses as being €12,702 (€44,271 – minus her current employment and social welfare received), and that is the amount of the award she is seeking in this recommendation.

She also emphasised that the organisation required clarity around the roles in the organisation, and expressed the opinion that ‘CEO’ is not actually the appropriate title for the role she held, and that ‘Operations Manager’ would be a more appropriate title. She emphasised that the organisation is in receipt of €8 million per year, from the HSE, and the importance of it being run properly for the benefit of the service users, and in compliance with the requirements of safeguarding, good management and good corporate governance.

MM attended the remote hearing putatively on behalf of the Employer, said that the Employer was declining to participate and then left the Webex call.

Before he exited, the Adjudication Officer clarified that the Industrial Relations investigation had not been objected to, within the prescribed legislative timeframe, and therefore she had jurisdiction to hear the case.

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

[Adjudication Officer’s Note

A CRO search indicates that a new Secretary has since been appointed to the Board – no-one was occupying that role, at the time of the hearing. This Recommendation has been sent c/o Secretary of the Board of Management, as the contact point for communication with the Board of Management of the Respondent organisation.

A CRO search further indicates that, since the hearing, MM has resigned as a Director on the Board of the Respondent organisation.

I find the Worker to be cogent and credible.

She outlined clearly a picture of a charismatic figure (MM) associated with the Respondent organisation since its inception, who failed to comply with the basics of safeguarding, reporting structures or the requirements of good governance in line with the applicable legislation and the requirements of the service level agreement with the HSE. She outlined how his overstepping and inappropriate involvement in a whole range of areas sought to undermine and undermined other roles within the organisation and the Board and the people doing those roles, including her, in particular in relation to the management of staff (rostering, TOIL, assigning a male staff member inappropriately, having direct contact with service users’ parents, having a key to the houses when he has no right to any access unless expressly invited in by the PIC who has the authority and responsibility etc.), the management of information and information sharing, and the consequent failure/inability to comply with the mandatory regulatory, accounting, governance and safeguarding requirements.

She said it was her understanding that her previous role had (recently) since being recruited for.

She emphasised that her chief concern was that she wanted everything out in the open, that she wanted the Board members and new person in her role to be made fully on notice of the pre-existing problems, in particular in relation to MM, his conduct, and the consequences of his conduct for the service.

I find that the Worker was constructively dismissed. I find that her employer committed a repudiatory breach of her contract of employment through its accumulative conduct. The Worker raised the issues actively, and engaged fully. There was no more that she could reasonably do given the presence of a charismatic character with a “finger in every pie”, and I accept that it was reasonable for her to resign.

I find that there was no appropriate delineation between the different roles in the organisation, as is required in order to have a proper reporting structure and proper Board oversight, both of which are required. I also draw the Board’s attention to the fact that employees, including the Worker are entitled to fair procedure and natural justice as set out in S.I. 146/2000.

I find for the Worker.

I recommend that the Employer pays the Worker €12,702 in full and final settlement of this matter.

I recommend that the Board of Management examine its reporting structures, to ensure that it is compliant with the legal requirements of good governance and management.

I recommend that the Board give particular consideration to compliance with best practice with regard to safeguarding and, in particular, ensures on an ongoing basis that no-one unauthorised has a key to any of the residential houses, which are providing services to vulnerable persons – this is incredibly important, and is a basic legal, governance, compliance and safeguarding requirement.

I recommend that the Board implement best practice with respect to HR/employment law, that it conduct a review of HR/employment law compliance within the organisation, with respect to staff, to be completed within three (3) months of the date of this recommendation, including but not limited to:-

-          Do all employees have signed accurate employment contracts, that meet the requirements of current employment law?

-          Are employees doing the same work on the same pay/scale?

-          Have probationary periods been signed off?

-          Is there a grievance procedure and a disciplinary procedure, which is up to date with the requirements of current employment law, and compliant with the requirements of fair procedure and natural justice (and in line with S.I. 146/2000).

Constructive Dismissal; Governance; Safeguarding; s. 39 Organisation; Disabilities; Vulnerable persons;