Worker

Employer

Anonymised Parties

Worker

Employer

Representatives

Barnaba Filip Dorda, SIPTU

Inhouse Employee Relations Representatives

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 - 00001503

30/06/2023

The Worker commenced work for the Employer in a Nursing Unit under a fixed-term contract on 1 April 2019. He earned approximately €1,315.28 gross per fortnight and worked approximately 39 hours per week. The Worker’s employment ended on 30 September 2021 when his contract was not renewed.

On 26 May 2021, a resident alleged that the Worker borrowed €500 from her. The same sum of money was never recovered. A preliminary screening was carried out under the relevant “Trust in Care Policy” which found that a formal investigation was warranted. The Worker was ultimately exonerated in the final Investigation Report dated 12 February 2024.

The Worker takes issue with:

1.                The fairness of the preliminary screening process;

2.                The time taken to produce the final Investigation Report dated 12 February 2024;

3.                His relocation from normal duties to laundry duty; and

4.                The Employer’s failure to renew his fixed-term contract.

The Worker filed his Complaint Form on 30 June 2023 and is seeking, inter alia, compensation for the distress caused. The Employer denies the allegations in their entirety.

The Worker provided detailed written and oral submissions.

The Worker outlined that the Employer failed to adhere to the principles of fair procedures as outlined in the “Trust in Care Policy” during the preliminary screening for, inter alia, the following reasons:

·             There was a “confusing and non-transparent presentation of allegations”;

·             There was an omission of basic evidence gathering during the preliminary screening;

·             There was a lack of disclosure regarding the specific actions undertaken during the preliminary screening from 27 May 2021 to the outcome on 21 September 2021;

·             There was a delay in providing the Worker with a copy of the complaint, which was received three and a half months after being informed of the allegation; and

·             The decision to initiate the preliminary screening was based only on a verbal complaint.

The Worker outlined that the Employer failed to hold a meeting with him to inform him that the matter warranted a formal investigation, pursuant to the “Trust in Care Policy”.

The Worker outlined that the Employer never conducted key interviews and never provided him with a copy of the statements gathered.

The Worker outlined that there was an “an unjustified and unreasonable delay in conducting not only the preliminary screening but also the formal investigation process.” He outlined that the preliminary screening took almost four months, and that there was a 24-month delay concerning the formal investigation. The Worker outlined that the Employer only concluded the formal investigation as he had filed a WRC Complaint Form in this matter. 

The Worker outlined that he was relocated from normal duties to laundry duty as a result of the allegation against him.

Finally, the Worker outlined that based on a flawed preliminary screening, the Employer decided to initiate a formal investigation without sufficient grounds and also failed to renew his fixed-term contract.

The Worker:

The Worker outlined that he was “never given the chance to respond” to the allegation against him. He outlined that the Employer failed to follow the procedures in place. He outlined that he was relocated from his usual duties before the allegation was verified and that he “never asked for laundry duty”.  The Worker later stated that on 27 May 2021, during his telephone call with his Line Manager, he said that he could undertake laundry duty.

The Worker outlined that he suffered from panic attacks. He said that when he returned from his annual leave, he attended a meeting on 26 July 2021. He said that due to a panic attack, he was advised to take a break and get some chocolate. He said that, instead, he searched for his (then) union representative. He said that his Line Manager refused to speak with his (then) union representative. He outlined that there was a verbal altercation between them. The Worker outlined that the meeting did not reconvene. He later stated that the meeting did reconvene but that he could not continue with it. He outlined that he “has no recollection of being told that there would be a formal investigation” at any point during that meeting.

The Worker outlined that as a result of this experience, his mental health has suffered and he became an alcoholic. He outlined that he is now sober. He further outlined that due to the nature of the allegation, he now has no relationship with his father.  

The Employer provided detailed written and oral submissions.

The Employer outlined that following the resident’s allegation on 26 May 2021, the Gardaí and another body were notified in accordance with its Safeguarding Policy. The Employer outlined that it also acted in accordance with its “Trust in Care Policy” and that the preliminary screening found that a formal investigation was warranted.

The Employer outlined that the matter was then logged with its National Investigations Unit on 11 August 2021. The Employer outlined that there was a delay in dealing with the matter due to the Covid Pandemic and a cyber security attack. The Employer outlined that as a result, a decision was taken to outsource the investigation in June 2023 when it became clear that this could not be conducted internally. The final Investigation Report was issued on 12 February 2024.

Finally, the Employer outlined that the Worker was on a temporary contract which could be terminated by either party with two weeks’ notice. The Employer outlined that the Worker’s contract was not renewed and that there was no obligation on it to extend the contract. The Employer further outlined that posts were filled from a permanent panel.

The Senior Staff Member:

The Senior Staff Member outlined that all safeguarding concerns come to her and that she notifies the Gardaí and the appropriate authorities where necessary. She outlined that when an allegation is made, such as in this matter, it is necessary to separate the resident and the worker.

She outlined that following the resident’s allegation, the Worker was asked to go home. She outlined that this was an error and that at the time, she apologised to the Worker for this error.

The Senior Staff Member outlined that once on notice of the resident’s allegation, she took, inter alia, the following steps:

·                  She spoke with the Worker’s Line Manager.

·                  She spoke with the resident who made the allegation.

·                  In line with the “Trust in Care Policy”, she asked an Occupational Therapist to engage with and assess the resident who had mild dementia. The Occupational Therapist found that the resident could retain memory of money and counting.

·                  She met with the Worker and his (then) union representative and his Line Manager on 25 June 2021. During that meeting, the Worker was given the opportunity to respond to the allegation. She also offered him all the support she could, including the use of Occupational Health and the Employee Assistance Programme.

·                  She informed Senior Management.

The Senior Staff Member outlined that the Worker undertook general duties routinely. She outlined that staff were rotated onto laundry duty. She outlined that following the resident’s allegation, she tried to provide a roster which would ensure that the Worker and the resident in question would be kept separate. The Senior Staff Member further outlined that on 27 May 2021, the Worker asked his Line Manager to move him onto laundry duty.

The Senior Staff Member outlined that upon the Worker’s return from annual leave on 26 July 2021, she and his Line Manager met with him. She outlined that the Worker was informed that the preliminary screening found that the matter warranted a formal investigation. She said that the Worker became upset. She outlined that the Worker was then afforded a break and that the meeting later reconvened. She outlined that there was no record of the Worker being advised of his right to be accompanied, but that this is usually standard procedure. She outlined that she had no recollection of a verbal altercation between the Worker’s (then) union representative and his Line Manager.

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

During the Hearing, it appeared that the Worker sought to revise his position regarding a number of issues. I explained that I had concerns regarding the accuracy of the Worker’s account of events.

I note that the following facts were ultimately confirmed by the Worker:

·             On 27 May 2021, during his telephone call with his Line Manager, the Worker stated that he could undertake laundry duty.

·             On 26 July 2021, upon his return from annual leave, the Worker had a meeting with his Line Manager and the Senior Staff Member. However, the Worker stated that he did not have “any recollection” of being told during this meeting that the preliminary screening found that the matter warranted a formal investigation.

·             The Worker was provided with all statements gathered during the course of the investigation when they were appended to the Investigation Report dated 12 February 2024.

·             The Worker did not read the Investigation Report dated 12 February 2024. Instead, the Worker relied on his union representative and his aunt to tell him what was in the Investigation Report.

·             The Worker’s personal email address used by the Employer, to which the Employer sent correspondence regarding this matter, was correct. The Worker stated that he did not access this personal email address frequently.

On the basis of the information before me, I note the following:

·             On 28 May 2021, the Employer wrote to the Worker and outlined the allegation against him. The Employer also informed the Worker that that a preliminary screening of the allegation dated 26 May 2021 would be conducted. The same letter referred to the Employer’s Safeguarding Policy and the Employer’s “Trust in Care Policy”.

·             The Senior Staff Member outlined how, once on notice of the allegation, she took a number of steps in terms of gathering evidence. These steps included: speaking with the Worker’s Line Manager and with the resident; engaging an Occupational Therapist to assess the resident; and meeting with the Worker (outlined below).

·             In June 2021, the Senior Staff Member met with the Worker and his (then) union representative and his Line Manager. The Senior Staff Member outlined that during that meeting, the Worker was given the opportunity to respond to the allegation. He was also offered the use of Occupational Health and the Employee Assistance Programme.

·             On 26 July 2021, a meeting was held with the Worker, during which he was told that the preliminary screening found that a formal investigation was warranted. It is not possible to ascertain exactly what was said during the meeting. However, I prefer the Senior Staff Member’s account of events, which was detailed and consistent.

·             On 6 September 2021, the Employer wrote to the Worker and confirmed that the preliminary screening indicated that a formal investigation was warranted.

·             On 7 September 2021, the Employer wrote to the Worker and provided a copy of the original incident report and a copy of the complainant’s statement.

·             On 25 October 2023, the Employer wrote to the Worker and stated that an external investigator had been appointed to deal with the matter. The same letter noted “We have communicated with you by email on a number of occasions advising you of this fact and of the process by which we would proceed to undertake the investigation. To date you have not responded to these emails.”

·             The final Investigation Report dated 12 February 2024 indicated that all statements gathered during the course of the investigation, were provided to the Worker for comment in advance of his meeting with the Investigation Team on 29 November 2023.

Conclusion:

The Worker takes issue with:

1.                The fairness of the preliminary screening process;

2.                The time taken to produce the final Investigation Report dated 12 February 2024;

3.                His relocation from normal duties to laundry duty; and

4.                The Employer’s failure to renew his fixed-term contract.

I will address these matters in turn:

1.                The Worker has failed to show how the preliminary screening was not conducted in accordance with the “Trust in Care Policy”. I have outlined above, in chronological order, the steps taken by the Employer. In the circumstances, it does not appear that the Employer acted unreasonably.

2.                The resident’s allegation was made on 26 May 2021. The final Investigation Report was not provided until 12 February 2024. While I accept that the Covid Pandemic and a cyber security attack were contributory factors, this was still a lengthy delay. However, I also note that the Worker contributed to the delay insofar as he provided an email address which he did not access frequently and so he failed to engage with investigation-related correspondence. In the circumstances, I recommend that the Employer pay the Worker €2,640 (approximately one month’s salary) by way of compensation.

3.                The Worker was rotated onto laundry duty like other staff members. The Worker confirmed that on 27 May 2021, he indicated to his Line Manager that he could be placed on laundry duty. I note that it was incumbent upon the Employer to separate the Worker from the resident while the investigation was ongoing. In the circumstances, it does not appear that the Employer acted unreasonably.

4.                The Worker’s fixed-term contract was not renewed. There was no obligation on the Employer to renew the contract. It does not appear that the Employer acted unreasonably.

In conclusion, I find that only the delay element of the Worker’s dispute has merit, and in this regard, I recommend that the Employer pay the Worker €2,640 (approximately one month’s salary) by way of compensation. I find that the remaining elements of the Worker’s dispute are without merit and I recommend that the Worker accepts that he has had a full hearing regarding the same.

Industrial Relations Act 1969.