Complainant

Respondent

Anonymised Parties

A Worker

A Health Service Provider

Representatives

Vernon Hegarty SIPTU

 Paul Hume

Act

Complaint/Dispute Reference No.

Date of Receipt

Industrial Relations Act 1969

ADJ-00044739

14.03.2023

The claimant submitted that she had made complaints against 2 of her colleagues about inappropriate and abusive behaviour. She submitted that the respondent failed to conduct an impartial objective enquiry into the complaints. She contended that she was not afforded natural justice and that the respondent was relying upon unrecorded statements that were not referred to her. She asserted that the respondent was seeking to protect her colleagues from being accountable  for their conduct because they were higher graded staff, The claimant said that she was off work for stress and that the employer’s actions had a profound effect on her .The respondent denied that they had been in breach of procedures and submitted that the claimant had access to 3 stages of their grievance procedure but her complaints had not been upheld. It was submitted that the respondent had a right to engage with any employee on matters of performance or conduct.

Introduction

1       Adjudication Officer, the case before you today concerns a claim of the Complainant- Ms. A that her employer, the respondent, failed to adhere to the provisions of their own Grievance Procedure – in particular, in respect of ensuring that the fundamental requirements of natural justice be fully observed in their application of that Procedure - in respect of Grievances raised against the conduct of two colleagues and in which Ms. A was the Complainant.

2       We submit that these failures have led to Ms. A being subjected to effective denial by the Respondent to the protections which the Procedures are intended to provide, this leading to substantial financial loss, and loss of entitlement to Sick Pay Benefits in consequence. The Complaint is referred under the Industrial Relations Act.

Background

3       Ms. A commenced employment with the Respondent on 05/03/2014. She is employed on a Contract of Indefinite duration as a Health Care Assistant and at the time of the incidents which gave rise to her submission of Grievances she was working in the Hospital Radiology Department.

4       On or around the 1st of December 2021 a work colleague asked Ms. A if she would take his blood pressure. Though this was not part of her normal duties in the Department, as a colleague had asked and she had been previously qualified in taking blood pressure, she obliged the request. Nothing further was said of this, by either other staff or Management at that time.

5       On December 15 2021 Ms. A asked her colleague in Radiography, Nurse D where the Dinamap (used in taking blood pressure) was. The exchange that ensued led to a Ms. A raising a grievance in relation to being spoken to by Nurse D, “…in a completely unprofessional and disrespectful way on the day, and in a manner and tone that was offensive, demeaning and degrading to me,’” and ‘with such contempt and disdain by a colleague.’   

6       Later, in the afternoon of the same day, Ms. A met with her manager Ms. B and Assistant Manager- Mr. X   and the interaction at that meeting led to Ms. A raising a grievance that Ms. B’s- actions had been, “…disrespectful, dismissive, abusive, and most hurtful.”  

7       Ms. A had been instructed by Ms. B to meet with her on the following day (16 December 2021), to discuss (as Ms. A thought) the unpleasant events of the 15th. At this meeting Ms. B accused Ms. A of having ‘forged’ the signature of the complainant’s newly appointed Assistant Line Manager at that time) on a ‘CT Order Book.’ Deeply upset that she was being accused of a crime of some sort, and pleading her innocence of any such thing, Ms. B then presented Ms. A with a ‘Pre-Counselling’ Disciplinary Notice’ and instructed her to sign it. This meeting gave rise to second and third grievances being submitted by Ms. A in respect of her treatment by Ms. B.

8       On 2 February 2022 Ms. B wrote to Ms. A advising that she was “…required to attend a Stage 1 disciplinary hearing,” the reason given being, “…the recent forging of a colleague’s signature on a stores request book.”  

9       Ms. A’s grievances were submitted on the 10th of February, 2022 and a further notice of a re-scheduled date for a Disciplinary Hearing issued from Ms. B on 17 February 2022.

10    On 18 February 2022 SIPTU, on Ms. A’s behalf, objected to Ms. B hearing any disciplinary matter arising from the incidents, she having been both ‘accuser/complainant’ in the disciplinary matter and also the subject of three grievances raised by Ms. A. Mr. H, for the Respondent, replied to the effect that while no prejudice arose in the circumstances (in his view), he would assume the role of decision maker in the matter.

11    On 21 February 2022 we requested all relevant documentation in respect of the disciplinary matter, most particularly; a copy of the Complaint; a copy of the alleged ‘forged’ document, and an outline of precisely how and on what basis an act of ‘forgery’ had been presumed.

12    On 28 February 2022 Ms. B responded advising that, “The complaint was made by the Clinical Specialist Radiologist in CT.” SIPTU responded reiterating that we needed the documents requested nonetheless and that whomever may need to be called as a witness would be a matter for the Decision maker conducting the investigation of the matter on behalf of the Respondent.

13    It had been agreed that the matters of both grievances and disciplinary might be most usefully dealt with together and, with that in mind, a rescheduled hearing of the matters was proposed. It took place on March 4 2022 and Ms. A cooperated fully at the hearing, including indicating that she was open to considering a mediated resolution. SIPTU submitted that they had yet to see any written response from the two employee respondents in the grievance issues. From 4 April SIPTU continued to seek copies of all documents requested. We received a copy of an email from      the supposed ‘complainant’ (Mr. X) in the disciplinary issue dated 16 December 2021, by email on 4 May 2022, but could not get a legible copy of the ‘Order Book’ entry.

14    We received a written response from Ms. B (dated 30 May 2022) to the Grievances submitted by Ms. A (on 10 February 2022), on 1 June 2022. This is the only response to the Grievances submitted ever received from the Respondent employees. No response was ever received from Nurse D.

15    SIPTU again requested all relevant documentation in the matters (20 June 2022) – whether disciplinary or grievances – including any witness statements, minutes or meeting notes, so that Ms. A could consider the content, as appropriate. Ms. A then responded to Ms. B’s statement, in writing, on 26 June 2022.  

16    Following a further meeting at Stage 1 on 28 July 2022, where the possibility of a Mediated resolution was again explored, the outcome of all matters, disciplinary and grievances, was communicated by email from Mr. H dated 2 August 2022. It was held that Ms. A had no case to answer in the Disciplinary matter – so that was considered closed – but that the grievances would be ‘paused’ to offer mediation. SIPTU rejected this aspect of the Stage 1 outcome as we had been given to understand that the Respondents had already declined the Mediation option. We requested contact details for whomever would be assigned to hear the grievances at Stage 2 of that Procedure.

17    SIPTU continued in its efforts to have Ms. A’s grievances heard at Stage 2 through September (8, 15, 15, 23), but to no avail. In the course of that same period (in which our correspondence was not being responded to), and much to her distress, Ms. A received a registered letter from Ms. B asserting that she was in breach of the employers Management Attendance Policy. This caused Ms. A great distress at the time as she had followed the same sick cert process as she had ever done in respect of her absence due to illness.

18    The action of Ms. B was submitted as an additional grievance to be heard at Stage 2, it being associated with the previous conduct complained of. The additional grievance, with supporting documentation, was submitted to the Respondent by email on 4 October 2022, at which time we also, again, urgently requested hearing of the grievances at Stage 2.

19    The Respondent assigned the hearing at Stage 2 to Mr. Y in November 2022, and the meeting took place with Ms. A  on 9 November 2022. SIPTU later forwarded further requested documentation to Mr.  Y and he afterwards intimated that he had met with other parties on Friday 2 December 2022. We never received any minute, note, statement or any other record of those meetings from the Respondent.

20    We received the Respondent’s outcome at Stage 2 on 14 December 2022 in which the grievances were not upheld, this on the basis that the decision maker was satisfied with responses from the accused employees which Ms. A had no sight or knowledge-of or access-to. The outcome was appealed to Stage 3 of the Procedure on 22 December 2022.

21    Following correspondence through January 2023 it was established that Ms. C would hear the appeal to Stage 3 on 30 January 2023. SIPTU submitted the appeal grounds in writing on the day of the meeting and Ms. A clarified an error in her statements on 14 February 2023.

22    The outcomes under Stage 3 of the Grievance Procedures issued on 21 February 2023. In determining that the grievances were not upheld the decision maker, in her report, confirms the following;

a.     That she had interviewed or met with the Respondents, the named witness and an unspecified number of ‘relevant managers’, the CT Manager and the Assistant Manager – as in each of the preceding stages no note, minute or other record of these meetings was ever shared with Ms. A so that she might consider and address their content

b.     That she relied heavily (almost exclusively) on these undocumented submissions in arriving at the conclusions reached in outcome

c.     That, in proceeding as outlined in her report, she failed to adequately test and weigh the evidence being presented to her – either in Ms. A’s direct assertions as to what the Respondents had said or done on the dates in question (the substance of the complaints), or in checking the veracity of the accounts being presented by the Respondents.

23    The matter was referred to   the WRC on the 14th of March 2023 under the Industrial Relations Act.gan

Complainant’s case

24    We submit that the Respondent completely failed in its duty under the agreed Grievance Procedure to afford Ms. A, an employee, even the minimum protections of natural justice in fair procedures as are implicitly provided for in the Procedure.

25    The procedure expressly commits to its terms being “…in accordance with the Labour Relations Commission’s Code of Practice on Grievance and Disciplinary Procedures,” (SI 146 of 2000) in which the requirement of procedural fairness is a fundamental one.  

26    The procedure further expressly commits to the principle of addressing complaints ‘fairly,’ and in a timely fashion, and that these elements are clearly absent in the above factual background outlined.  

27    In Georgopoulus v. Beaumont Hospital [1998] 3 IR 132, Hamilton C.J. stated that in the case of employment investigations the facts upon which allegations are based do not have to be established beyond all reasonable doubt and can be dealt with on the balance of probabilities ‘bearing in mind that the degree of probability required should always be proportionate to the nature and gravity of the issues to be investigated’ We submit that this long established principle applies across all considerations of what is required in investigations, be they disciplinary or of grievance origin – the principle is the same as it addresses fairness.

28    On this (above basis), we submit that, the allegations being raised in grievance in this case being of the most serious nature (potential serious inappropriate and offensive behaviour toward an employee and colleague by two others) the nature and extent of the enquiry into the matter by the Respondent was required to be of more than a nominal ‘fact-checking with the accused’, this to be conducted behind a veil of confidentiality attaching to whatever submissions they might make.

29    The inadequacy of the enquiry in this regard, and its inherent unfairness, is illustrated by the most basic few examples;

a.     The Stage 3 outcome record allows for a confused factual chronology of events which potentially alter the implied sequence and flow of events – Ms.  A took a colleague’s blood pressure on the 1st of December, not 15 minutes before Nurse D went to speak to Ms. B on the 15th. This could easily have been established, on a demonstrable and factual basis with reference to the hospital’s own records .

b.     The statements of Ms. B dated 15/12/21 and 16/12/21 (which we had first sight of when we received the Respondent’s submissions) are self-contradictory, and inconsistent with her submission of 30 May 2022. Had Ms. A had sight of this she would have been in a position to draw attention to these facts, an opportunity denied to her in the procedure followed.

30    We submit that, given the seriousness of the respondent’s total disregard of the core principles directed at ensuring that fair procedures and  natural justice are observed in all Grievance and Disciplinary matters, only full restoration of loss of earnings in this case might hope to have an appropriately dissuasive effect against similar misapplication of the Procedure in the organisation generally.

31    We further submit that, but for the denial of the protections of the procedure Ms. A would not have been off on sick leave, and respectfully request that her full sick leave entitlement be restored; an outcome where the employee is placed back in the position she would have been in, had the Procedure been appropriately applied from the outset, is just and equitable in all the circumstances.

32    Given that the substantive grievances raised by Ms. A under agreed procedures still remain to be objectively and effectively heard and considered, we request that the hearing of these grievances be referred to an independent, qualified, professional adjudication agreeable to both parties.

Conclusion

33    We submit that the complaint is well founded and respectfully request you find in favour of our member’s claim.

At the hearing the parties were asked if they were amenable to mediation as a process to normalise relations between the parties – the union indicated they had always been open to mediation but it had been declined by the respondent. As far as the union was concerned , the matter at issue was the respondent’s failure to apply the employer’s grievance procedure and it was asserted that there had been no attempt on the respondent’s part to investigate the facts .It was contended that the respondent’s submission to the WRC merely amounted to a restatement of their position and that it read like a complete justification of Ms.B’s position. It was advanced that managements right to manager was  not being disputed. It was submitted that the procedures had been set aside and unrecorded statements had been taken as presumed truth.

The Respondent’s  Position:

1.     Background

 Ms. A has been employed at the  Hospital at a Healthcare Assistant since October 2014 on agency and then as an employee since 2017. She is a permanent member of staff working as 0.8 WTE. Ms. A currently works as a Healthcare Assistant assigned to work in the Radiology Department of the Hospital. Ms. A’s duties include rotation through various imaging modalities within the Radiology department and is supervised by the Clinical Specialist Radiographer in the designated area, and reports to the Radiology Services Manager, Ms. B Since 13th September 2022 Ms. A has been on sick leave and her certs have indicated acute stress. Ms. A has been off pay since 29th January 2023.

2.      Claim

The claim as outlined in the referral is that the complainant has raised two grievances against two colleagues of alleged inappropriate and dismissively abusive conduct towards her. Ms. A has alleged in her complaint that the employer has failed to conduct an appropriately thoroughgoing, impartial or objective inquiry into the complaints, effectively denying Ms. A the protections of the internal procedure. Ms. A feels that her employer has acted in a way that seeks to protect the accused colleagues from being properly answerable for their conduct as they are seen as a higher grade in the employment (a nurse and her supervising manager), and this is a misuse of the procedure.

3.      Respondent’s  Position

 The employer refutes the claims of Ms. A and has adhered to the EMPLOYER Grievance Policy 2004. Stage 1, 2 & 3 of the Grievance Procedure has been completed by parties external to  the  Hospital. (Appendix 9)

Stage 1 Grievance- completed by Mr. H – not upheld

 Stage 2 Grievance-completed by Mr. Y– not upheld

 Stage 3 Grievance- completed by Ms. C 14/02/23 – not upheld

4.     Record of events

 15/12/2021

Nurse D presented to Ms. B’s office to inform her of two issues. Firstly, that 2 Healthcare Assistants (HCA’s) working within the Radiology department were taking blood pressure (BP) readings on staff, secondly, to make Ms B aware that there was a negative interaction in CT earlier with HCA Ms. A  re the location of a Dinamap and the questioning by the nurse re Ms.A ’s ability to interpret blood pressure readings. The nurse was concerned that HCA’s were taking BP readings and that they cannot interpret the findings. There is no scope of practice under which the HCA can take readings as they do not come under the governance of nursing while working in Radiology. An example was given of a previous event when Ms.A  had taken a BP reading and phoned the nurse with an incorrect reading with serious error/misjudgement.

When a complaint is made against any employee Ms B must advise and speak with the employees. In this instance two HCA’s were engaged with individually so that the employees can give their opinion and address any concerns they may have. Ms B engaged with two HCA’s in the same manner but received two very different responses. Ms B presents the same information to both HCA’s and one HCA acknowledges that taking BP is not part of her role, apologises and thanks Ms B for the advice and support.

 During discussions with Ms. A  her hands were gripping the desk, her body was leaning forward towards Ms B and Ms. A  raised her voice during this interaction. Ms. A  was immediately defensive, aggressive, and shouted loudly and angrily across the desk at Ms B. Ms. A makes derogatory comments and remarks towards the nurse who had brought this to the attention of Ms B. The comments are disrespectful and not in keeping with good relationship practices which is vital for delivery of safe patient care.

 Ms B advised Ms. A  that she should not be taking blood pressures as it was not within her scope of practice in the Radiology department and explains that there was no clinical supervision or governance around this practice.

On the 15/12/21 Ms B suggests that Ms. A  go and have some tea, go home early and discussions can resume the next day when people have had some rest and a clearer head, as Ms. A  had become very irrational and upset. Please note that Ms. A’swritten complaint re Ms B was changed at a later date as she stated that Ms B told her to go home and have a glass of wine which was untrue and was later amended.  Ms. A stated that she had many problems and nowhere to go, I said I am here to listen and support and there are services available to you such as EAP and OH.

Appendix 1 & 2 – Copy of Ms. A’s Grievances

 Ms B as the service manager of Radiology has the responsibility to act on any complaints that arise against employees or service users. Mr. Z  was a witness to this conversation and Ms B did seek advice from HR and IR on the matters detailed here.

 16/12/2021 – Appendix 3 & 5

 The acting CSR who is in charge of Computed Tomography (CT) arrived into Ms B’s  office to express his concerns re a HCA who had wrote his name unauthorised on an order book. His name was written on the line where it stated Department manager and he stated that he did not write his name. The CSR was annoyed that Ms. A  had written his name under department manager signature when he had not signed the book. He explained that he had spoke with Ms. A  re this practice and would put it in writing to me what had happened, he was concerned about the event and unhappy that this had happened.

Ms B met with Ms. A  on the 16/12/21 to review the events of the previous day. Ms B was accused of taking sides with the nurse which was not true and Ms B continued to re-iterate that Ms. A  was not to perform any blood pressure monitoring as it was not within her scope of practice in the Radiology department and Ms. A  agreed.

After this discussion Ms. A  was asked about the CT order book and asked if she had put anyone else’s name on the book. Ms. A  stated that she had wrote the CSR’s name  in the book under department manager. Ms B asked Ms. A to sign a document to state that this conversation had taken place, the document is only a record that pre counselling has happened in line with the employer’s Disciplinary process and is used for all employees during discussions re performance/conduct issues and is for record keeping purposes only. This was explained to Ms. A  at the time.

 Ms B was requested by SIPTU not to be present at this hearing as MsA  had made a formal complaint through the grievance procedure about Ms B and Nurse D. Appendix 4

04/10/2022

 A further grievance (Appendix 1) is lodged against Ms B for communicating with Ms. A re registered post. All letters sent from Ms B to any staff member is sent by registered post to ensure GDPR compliance as letter contents are private and confidential in nature and ensures it reaches the correct person.  Ms. A breached the managing attendance policy on three counts, Ms B as her line manager has a duty to communicate this to any employee and did so only after seeking advice from HR. (Appendix 6)

5.Response from Radiology services Manager Ms. B.

  There has been disengagement from Ms. A with her line manager since the first discussion on the 15/12/2021, refusal to talk, acknowledge or greet although several attempts have been made by Ms B within the Radiology department, by letter and by telephone.

 On the 16/02/2022 Ms B met Ms. A on the corridor and greeted her but there is no engagement again from Ms. A. This nonengagement continues each time she sees Ms B and until Ms. A went off on sick leave.

 On the 20/01/23 Ms B approached Ms. A at work and invited her to talk. Ms B attempted to enquire about her wellbeing but she refused to meet her line manager, Ms B offered a third party to be present but Ms. A would not engage. Ms B was attempting to offer support to Ms. A.

An accusation of harassment was made by Ms. A during a phone call made by Ms B when Ms B was attempting to engage with Ms. A and enquire about her welfare. Ms B attempted to discuss services available to the employee such as Occupational Health and Employee Assistance. Ms. A stated that she will never make contact with Ms B again or engage with her again. A further accusation of harassment was made.

This was the third time Ms B had tried to enquire about Ms. A’s welfare and advise Ms. A re support services such as Occupational Health and Employee Assistance Programme, the first call was on the 23rd of September 2022.

 The alleged issues of mis-conduct with M.A, threatening accusations, refusal to communicate and non-engagement during this whole process has been challenging for Ms B to manage. It is important to maintain good working relationships within the Radiology department and the 7 HCA’s that currently work in the Radiology department are integral, respected members of the team. There are processes which must be followed to ensure good governance and delivery of high quality safe patient care.

 Ms B absolutely refutes the claims that she was abusive to Ms. A and did not dismiss or not listen to Ms. A  - notes were recorded at the meetings. Ms. A  had difficulty accepting that her role in Radiology did not require BP monitoring nor should she sign another colleagues name under department manager. This situation could have been reflected on as learning opportunity for everyone and better communication to all staff working within the CT department

Conclusion

 Ms. A has had access to 3 stages of the EMPLOYER Grievance Procedure. At each stage her grievance has not been upheld. An employee may not be happy with the outcome but they have had due access to the grievance procedure. Any employer reserves the right to engage with any employee on matters of performance or conduct. This is what the respondent  did here. Ms. A may be unhappy with this but any employer is required to deal with such matters. We respectfully request that you find in our favour.

Appendices

 1) Grievance 1 & 2 from Ms. A  re Ms.B

 2) Grievance from Ms. A  re Nurse D

3) Surgical Stores complaint

4) Invite to Stage 1 Disciplinary meeting and SIPTU objection

 5) Notes of meeting with Ms. A  PH & SIPTU re Surgical Stores complaint

6) 19.9.22 Letter f rom Ms. B to Ms. A  re managing attendance

7) Stage 2 Report & Appeal of Stage 2 Grievance

 8) Correspondence between PH and Ms. A’s GP

 9) Stage 3 Grievance Reports carried out by Ms.C

 10)Correspondence between AMcD ann Ms. A

The respondent’s representative asserted that when you strip it all away , the elephant in the room was can the claimant return to work.It was submitted that there was no requirement under existing procedures to exchange notes , statements or interview notes  in the course of an investigation. It was asserted that for the investigator , it was a judgement call on the balance of probabilities. The respondent indicated that they were amenable to mediation The respondent was adamant that the claim for loss of earnings by the union should not be acceded to.

I have reviewed the respective submissions and presentations by the parties. The employers Disciplinary Procedure provides that the purpose of the procedure  “ is to ensure that all employees adhere to the required standards by making them aware of any shortcomings and identifying how the necessary improvements can be achieved .It provides that “ the key objective is to assist the employee to maintain the required standards , rather than impose penalties”.

My reading of the submissions and actions by the parties indicates that these principles were not observed which is particularly regrettable in circumstances where it was acknowledged in the outcome of the stage 3 grievance process that the claimant “ was acknowledged by colleagues interviewed as being very good at her job and having a good way with patients attending the department “

Fundamental to a grievance / disciplinary procedure is an imperative that fairness is observed throughout the process. I have concluded that fairness was not observed in the following respects :

The conduct of the pre-counselling process fell short of the steps set out in the respondent’s disciplinary procedure specifically with respect to the provision that “the employee shall be given an opportunity to respond to complaints and careful consideration shall be given to any explanations given”. No evidence of compliance with this provision was presented at the hearing.

The conflation of the dispute regarding HCA’s taking blood pressure with the surgical stores ordering issue was unjust and unfair to the claimant.

No explanation has been offered by  the respondent as to why the surgical stores ordering  matter was escalated to a Stage I Disciplinary issue in February 2022 having been processed at informal counselling level in December 2021.

The characterisation of the A/CSR ‘s memo of the 16th.Dec. 2021 regarding ordering arrangements as a complaint of forgery was unfair to the claimant and lacking in objectivity.

The failure to furnish the claimant with copies of the order book as requested by the union was unfair to the claimant.

I consider that the union’s assertion that unrecorded statements were taken as presumed truths during the Stage 2 and Stage 3 process  is valid and constituted a fundamental flaw in both procedures.

The outcome of the Stage 3 process makes no reference to the claimant’s grievance about the remark “ If I had wanted to be a Nurse why did I not go on and become one” being put to the line manager – this raises questions about  how comprehensively the  investigation was conducted.

No reasoning was advanced by the Investigators at Stage 2 and Stage 3 procedures for preferring the managers’ versions of events over that of the claimant’s. The failure to do so constitutes a fundamental flaw in the procedure and restricted the claimant’s capacity to further challenge the matters through the appeals process.

In light of the foregoing I am upholding the complaint.

I do not believe any purpose would be served by  referring the  claimant’s grievances  for  any further  investigation – in my view this would exacerbate the already  fractious  and fragile relationships between the parties .I recommend that the parties engage as a matter of urgency on the initiation of a mediated process conducted by an agreed third party with a view to normalising relations between the parties and with a view to facilitating the claimant’s return to work. In this regard it is essential that the claimant accept that for mediation to have any   prospect of a successful outcome the claimant will have to engage with her managers.

As regards the claim by the union for recoupment of loss of earnings of €8,254.20 , I cannot recommend in favour of this claim given the significant repercussive effects it would have for the wider cohort of health service workers. However , I accept a compelling account of the distress suffered by the claimant throughout the process has been advanced and recommend  that the respondent pay the claimant a compensatory sum of €5,000  for the distress so arising and for their failure to observe their own procedures.