ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969
Investigation Recommendation Reference: IR - SC - 00001515
Parties:
| Worker | Employer |
Anonymised Parties | Social Care Worker | Health and Care Service Provider. |
Representatives | Diarmuid Long SIPTU | Sophie Crosbie IBEC |
Dispute:
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 - 00001515 | 05/07/2023 |
Workplace Relations Commission Adjudication Officer: Thomas O'Driscoll
Date of Hearing: 13/12/2023
Procedure:
In accordance with Section 13 of the Industrial Relations Act 1969 (as amended)following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any information relevant to the dispute.
Background:
The Worker was subject to a complaint by a colleague of abuse against a client, which the Worker maintains was a vexatious complaint. The Employer is obliged to investigate such complaints under a Trust and Care Policy (TIC) which it adapted from the HSE overarching policy (HSE policy). This Employer is an organisation funded by the HSE under section 38 of the Health Act 2004. The Employer adhered to an adapted internal screening policy, which amends the HSE policy, and found that, no formal investigation was required but found that: "Abuse could have occurred but the matter is capable of being dealt with at a local level.” The Worker claims that the process was inherently flawed and that the issue was never subsequently dealt with at local level. The Worker submits there is now uncertainty hanging over her regarding an allegation of abuse which is having a detrimental effect both in her present employment, and in her future career. The Worker submits that she fully utilised the internal grievance procedure, but the matter was not resolved to her satisfaction. The Worker is seeking a declaration that she was treated unfairly and to be appropriately compensated. The Employer rejects the Workers claim and submits it followed its collectively applied TIC policy to the letter where it is obligated to protect its vulnerable clients and where there are also built-in protections for the workers. The Employer makes the point that it is not the function of the Workplace Relations Commission (WRC) to re-investigate the abuse complaint nor is it within its power to alter the outcome of the screening process. |
Summary of Workers Case:
The Worker submits that her primary concern is that the HSE's policy was incorrectly amended by the Employer in drafting its own TIC , resulting in an unjust 'abuse' verdict against the Worker without the Worker having had the opportunity to defend herself. The Worker argues that the HSE policy places great emphasis on safeguarding the rights of staff members, including the principles of natural justice and the presumption of innocence, while also prioritising patient welfare. However, the TIC procedure fails to uphold the presumption of innocence, as demonstrated by the verdict against the Worker. The Worker contends that this misrepresentation and failure to uphold fair procedures and principles of natural justice warrant the dismissal of the verdict against the Worker. Additionally, the TIC does not adequately address the handling of malicious allegations, unlike the HSE policy which places significant emphasis on protecting staff members from such claims. |
Summary of Employer’s Case:
The Employer is required to align its national procedures with the HSE Trust in Care (2005) policy and later HSE Safeguarding Procedures, which both involve preliminary screening stages and local resolution for potential abusive outcomes. The Employer asserts that it adhered to these procedures in this particular case. Although there have been claims that the initial safeguarding allegation was made with malicious intent or was vexatious, the Employer argues that no evidence has been provided to support these claims. The Employer emphasises its duty to take every allegation seriously and handle them in accordance with relevant policies to protect vulnerable individuals. The Worker's attempt to draw conclusions from the Employer's delayed report is countered by highlighting the Worker's own 12-month delay in raising a grievance. Both Trust in Care and safeguarding procedures allow for the local resolution of minor issues, which was the case in this instance. The Employer asserts that it made every effort to address the worker's grievances fairly and at the lowest possible level. Despite the 12-month gap between the initial safeguarding report and the grievance, the Employer submits it diligently followed its procedures. The Employer argues that the purpose of the WRC under section 13 of the Industrial Relations Act 1969 is to determine whether it followed its grievance procedure, rather than to investigate the original safeguarding allegation. Therefore, it requests the dismissal of the claim based on these grounds. |
Conclusions:
In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties. I made it clear to both parties that I was not in a position to recommend a different verdict, nor could I recommend a rewriting of the TIC because it is collectively applied, albeit not collectively agreed with the on-site trade union. However, I do make the observation that when the HSE policy was transposed and customised, ostensibly to suit a smaller organisation, the presumption of innocence of an employee as explicitly referred to in the HSE policy was lost in the transposition. Moreover, the wording of the section for the initial screening of complaints was amended in such a way from the original HSE policy, that it diluted core principles of employee protection leading to the patent unsatisfactory conclusion whereby the Worker was left “in limbo” with regard to an abuse allegation. Contrary to its own conclusion, the matter was not followed up by the Employer at local level, thus exacerbating the situation whereby the allegation of potential abuse continues to cloud the Worker’s reputation.
I am satisfied that the Worker endured an unjust initial complaint screening process, which was further aggravated by a significant oversight on the part of local management in resolving the issue, despite their obligation to do so. |
Recommendation:
Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.
I find for the reasons above that the Worker was subjected to unfair treatment by the Employer and I recommend that the Employer pay the Worker €5000 for the effects of that treatment.
Dated: 18/01/2024
Workplace Relations Commission Adjudication Officer: Thomas O'Driscoll
Key Words:
Section 13 of Industrial Relations Act 1969, Unfair Treatment. |