Worker

Employer

Anonymised Parties

A Worker

{A Health Service Provider

Representatives

  The claimant represented himself

Fiona Maguire EMPLOYER Corporate Employment Relations

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 - 00001981

24/10/2023

The claimant is aggrieved with the manner in which his grievance was processed following an incident with his line manager on the 8th.February 2023 .The claimant had originally sought an apology from his line manager  but following the processing of the grievance through the employer’s procedure  his referral to the WRC sought  answers to a number of questions raised about the manner in which the grievance was processed. The respondent asserted that the complaint was not well founded and should be dismissed.

In his complaint form the claimant submits that he wanted answers to the following questions : “Stage 1 Grievance Hearing held by Ms.NG – this grievance was not upheld .NG gave evidence in my Stage 2 hearing .Is this not a conflict of interest ? Please explain

Stage 2 Grievance hearing held by Ms.MK who states “ during my meeting with your supervisor she informed me that a fellow staff member was present in the front foyer during this time “ and she requested that I speak with them .To obtain all the facts I spoke with this staff member who states , as she recalls that “ no aggressive tone or manner was used by the supervisor”.

Who is this staff member ?I need evidence to prove that this staff member was working that day.

Stage 2 Grievance  Hearing with Ms.MK – this grievance was not upheld.At this meeting with Ms.MK on the 23rd.May I put more evidence to her but MK did not want to hear or read it .Please explain.”

He went on to state that “ I am no longer looking for a letter of apology from my supervisor….what I do want is a clear explanation of how the decision was made regarding my grievance hearing .. This is causing me great stress and anxiety…”

The claimant submitted extensive documentation between the parties which arose from  an incident (8th.Feb.2023)  between the claimant and his line manager during the course of which he alleged that his manager verbally attacked him with an aggressive tone.

The documentation charts the chronology of the grievance process – the stage 1 section was investigated by the Director of Nursing at the hospital  who found as follows:

“ I have considered the witness interviews and statements from both parties and have found inconsistencies within both .In  light of this , I have made the decision to not uphold your grievance due to the insufficient evidence “. 

The Director went on to encourage mediation .Stage 2 of the grievance process was set out and the grievance was not upheld “ due to the conflicting written statements”. The claimant subsequently complained about a conflict of interest in the process as the Investigator at Stage I – who had found against the complaint – was a witness in the Stage 2 hearing. Again , mediation was recommended.

The complaint progressed to Stage 3 .The grievance was not upheld “ due to lack of sufficient evidence as 2 accounts of the alleged incidents state ‘ Aggressive tones were used ‘ while 2 others state  “ no aggressive tones were use”.

In August 2023 the complainant referenced the provisions of the employer’s Dignity at Work policy and sought “ the evidence that has been gathered in the investigation”.At this point the claimant reiterated that he was still traumatised from the incident and it had affected his mental health.The respondent referred the claimant to Occupational Health and advised that his complaint had been submitted as a Grievance and not as a Dignity at Work complaint.

The complainant wrote to the respondent  on the 10th. October 2023 and invoked the provisions of the grievance procedure which reference “ Where a complaint is not upheld , the employee is entitled to a clear explanation as to how the decision was reached.” The claimant submitted his complaint to the WRC on the 24th.October 2023.

In  the course of the hearing , the claimant  complained about the delay in the processing of his grievance and took issue with the definitions contained in the Dignity at Work Policy which provides  that  once off incidents do not meet the definition of bullying.. The claimant questioned if his Supervisors witness was on duty on the 8th.February at all and asserted  that the name of the witness should be disclosed to him. The claimant said he was never told that a training course  would  commence at 2.00p.m.  on the day in question and he asserted that he did not see his line manager’s witness on the day. The claimant asserted that the inclusion of the DON as a witness at Stage 2 hearing amounted to a conflict of interest.The complainant asserted that the same principles should apply to grievances as apply to Dignity at Work complaints. The claimant sought to introduce a grievance regarding events involving a colleague in 2022 and was aggrieved that it was not considered by the Investigator.

The respondent’s representative submitted as follows :

Introduction

The referral to the WRC was made by Mr. F v. the respondent as a complaint seeking adjudication under ADJ-00048875, Complaint Ref: CA-00059581. The nature of the complaints as submitted by  the claimant  state; CA-00059581-001 Industrial Relations Issues – Under Section 13 of the Industrial Relations Act, 1969 the employer’s submission in this case is determined in that context.

Respondent’s Submission :

 Below snippets as per WRC Complaint detail submitted by Mr.F

Respondent’s Submission

As per Claimant’s letter to the WRC on the 24th October, 2023 the claimant  has stated;

My grievance that I have taken against my Supervisor MsGK has been conducted unprofessionally by management who I thought were there to protect me.

*Not following Time Procedure

*Conflict of Interest

*Withholding of Evidence

*Not allowing new evidence to be added by the plaintiff

“ I need your help to get me a clear explanation to the answer to these 3 questions – I have already tried unsuccessfully

Stage 1 Grievance Hearing held by Ms.NG – this grievance was not upheld .NG gave evidence in my Stage 2 hearing .Is this not a conflict of interest ? Please explain

Stage 2 Grievance hearing held by Ms.MK who states “ during my meeting with your supervisor she informed me that a fellow staff member was present in the front foyer during this time “ and she requested that I speak with them .To obtain all the facts I spoke with this staff member who states , as she recalls that “ no aggressive tone or manner was used by the supervisor”.

Who is this staff member ?I need evidence to prove that this staff member was working that day.

Stage 2 Grievance  Hearing with Ms.MK – this grievance was not upheld.At this meeting with Ms.MK on the 23rd.May I put more evidence to her but MK did not want to hear or read it .Please explain.

In the claimant’s letter to the WRC on the 24th.October  ,  2023 he states I am no longer looking for an apology from my supervisor .What I do want is a clear explanation of how the decision was made regarding my grievance hearing.This caused me great stress and anxiety and affected my mental health.

   Employment Summary

Mr. F commenced employment with the respondent  on the August, 1998 and was made permanent in July 2005. Claimant transferred from a HCA to a Domestic Attendant. In 2017, Claimant submitted a flexible working application to reduce his hours to 15 per week .

Respondent’s response to the Complaints as outlined above;

 The employer  wish to provide context to the matter that led to Claimant raising a formal grievance  - The service had mandatory face to face training arranged on the 8th February, 2023.

 - All staff were given an allocated time slot and cover was arranged as needed

 - Claimant did not attend the mandatory training as assigned

 - Claimant’s supervisor approached him querying why he didn’t attend

 - Claimant alleges that his supervisor spoke to him in an aggressive tone

 If an employee fails to complete mandatory training this is recorded as non-compliance with HIQA regulations and can have serious consequences for the service. In addition, failure to follow a reasonable instruction by management is an example of conduct that may lead to disciplinary action under the  respondent’s Disciplinary procedure – to note this process was not initiated at the time by management.

.

Statement below as provided by Ms.GK ;

· Claimant was given a timeslot to attend the scheduled training and at 14:00  Ms.GK found Claimant washing the corridor and so his supervisor reminded him that he was expected to attend the mandatory training as arranged.

· A work colleague was requested to finish cleaning the corridor on Claimant’s behalf.

· At 15:00 it had come to Ms.G.K’s attention that Claimant had not attended the mandatory training.

· Ms.GK  was walking up the corridor at 15:10 and Claimant was walking towards her.She  asked Claimant why he hadn’t attended the training as requested too. Claimant responded that he had to wash the corridor to which his supervisor had advised that she already had this covered with his work colleague.

 · Claimant got annoyed and stated to Ms.GK  that we will take this to(Director of Nursing (DON)) office, to which Ms.GK walked with Claimant to the DON’s office. Claimant stated to the DON that Ms.GK had shouted at him and was aggressive towards him.

· We walked up to DON ’s office and he insisted that I shouted at him and was aggressive towards him even though DON s office door was opened and she didn’t hear any raised voices and another member of staff was carrying out her work on the corridor cleaning the toilets and stated that I didn’t raise my voice or get aggressive at any stage

 · Ms.GK denied raising her voice or that she was aggressive towards Claimant.

As per Claimant’s grievance  he has advised that his colleague Ms.AG had witnessed the aggressive tone used by his supervisor towards him. However, when management spoke to Ms.GK’s  witness they advised that Ms.GK  did not speak in an aggressive tone towards him.

 8th February, 2023 – Following the alleged incident management met with Claimant and Ms.GK  to address the incident. As this meeting, Ms.GK responded to Claimant’s accusation and denied speaking to him in an aggressive tone. In an effort to resolve the matter as swiftly as possible, management offered both employees an opportunity to engage in Mediation. In addition, a written response from Ms.GK  was also shared with Claimant . In the context of the responses received, the DON  felt the matter was closed at that time.

 13th February, 2023 - However, following on from the above, Claimant submitted a formal Stage 1 Grievance to management - steps that followed are outlined in the ‘Grievance Overview’ table below.

At the time of compiling the WRC submission, the employer wishes to confirm that Claimant has been provided with further detailed responses to the questions he raised (Appendix 4 (A) and Appendix 4 (B)).

Claimant has not engaged with management on receipt of the above nor accepted an invitation to meet with management to discuss his concerns.

 In reviewing the WRC complaint submitted by Claimant, It is noted that he continues to reference sections of the ‘Dignity at Work’ policy and managements non-adherence with same. Management have clarified with Claimant on multiple occasions that he had raised a formal grievance and this process was followed.

However, In preparing for the WRC submission, the Industrial Relations Officer Ms.FG completed a ‘Preliminary Screening’ of the Grievance detail submitted by Claimant as per the Dignity at Work Policy Dignity at Work Policy - Revised 2022 (employer.ie).

 8.1.1. A key objective of this Policy is to ensure that all reasonable efforts are made by health sector employers to deal with complaints of bullying, harassment or sexual harassment at local level. The Policy emphasises the importance of early intervention and an informal approach, offering as it does the best possible potential for a good outcome, particularly regarding restoring workplace relationships. An informal approach may effectively address the unwanted behaviour without recourse to any other action.

 8.7. Preliminary Screening

8.7.1. If efforts to resolve the complaint through the first stage of the informal procedure have not resolved the matter, or if the initial informal stage is considered inappropriate given the seriousness of the matter, the complaint can be addressed through the secondary informal stage.

 8.7.2. Preliminary screening should be undertaken to ascertain whether the alleged behaviour which is the subject of the complaint, falls within the definition of bullying, harassment or sexual harassment as outlined in Section 4 of the Policy. The rationale for this provision is that some complaints of bullying, harassment or sexual harassment referred under the Policy do not fall within the definition of bullying, harassment or sexual harassment, and should be addressed through another procedure (e.g. Grievance).

 8.7.4. The preliminary screening will be carried out by a member of the Human Resources Department who will decide whether or not it is appropriate to progress the complaint under the Dignity at Work Policy. This assessment will be based exclusively on a desk based review of the written details of the complaint. It is not intended to establish whether the behaviour actually occurred and therefore there are no meetings with the parties to the complaint or other witnesses during the preliminary screening process.

 8.7.6. The parties to the complaint should be actively encouraged to avail of mediation, as appropriate, regardless of the outcome of the Preliminary Screening.

 8.1.3. Mediation is an essential tool in the complaints management process, which parties can enter voluntarily into at any stage, including during or after investigation. It is important that employees are made aware of mediation, how it operates and potential benefits, to inform their decision on whether to participate. Managers will actively encourage parties to use mediation from early on in the complaints management process where appropriate. It is recognised that in many cases mediation is most likely to resolve complaints when parties engage at an early, informal stage.

;6.1 Workplace bullying definition Workplace bullying is repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual’s right to dignity at work. An isolated incident of the behaviour described in this definition may be an affront to dignity at work but as a once off incident is not considered to be bullying.

6.1.8. Examples of behaviours that are not bullying include:

 · Ordinary performance management.

 · Offering constructive feedback, guidance, or advice about work-related behaviour which is not of itself welcome.

· Expressing differences of opinion strongly.

 · Appropriate engagement on service and role change.

 · Reasonable corrective action taken by an employer or supervisor relating to the management and direction of employees. For example managing a worker's performance/conduct/attendance, taking reasonable disciplinary actions, or assigning work.

 · Workplace conflict where people disagree or disregard the others’ point of view.

 “In reviewing the Grievance submitted (Appendix 2) by Claimant, I  have found that the referred incident on 8th February, 2023 does not meet the definitions of the Dignity at Work policy. If this screening had been completed at the time, management and the complainant would have been advised of the Grievance procedure and the importance of engaging Mediation services in a timely manner”.

 November 2021

 RE: Team meeting held in November 2021 – alleged incident with Claimant’s colleague Mr.C

Unconnected to the Grievance submitted by Claimant, he had written to DON  in February 2023 requesting a “response in relation to the letters that I handed to Ms.LM (Appendix 5) and Ms.GK  (Appendix 6) in October and December 2022.

 The DON  had written to Claimant on the 30th January, 2023 (Appendix 7) offering a date to meet with him to discuss current issues, however, Claimant had not confirmed a date to meet

. · The incident referenced in the letters refers to a team meeting held in November 2021 where it has been alleged comments were made by the Domestic Supervisor to Claimant’s colleague Mr.C.

 · Claimant was not present at this team meeting

 · Claimant had written to management requesting a response to the alleged comments made to his colleague

 · The matter Claimant is questioning is confidential to his colleague

· There had been a change in DON’s over the course of the alleged matters and it was the understanding of the DON Ms.NG that these matters were addressed at the time. However, during the Stage 2 Grievance hearing, Claimant had sought to include the alleged incident that occurred for his colleague in 2021, to which  management advised that these were historical matters and were related to his colleague and not part of Claimant’s grievance.

As defined in the EMPLOYER Grievance procedure (Appendix 8);

 A grievance may be defined as a complaint which an employee(s) has concerning his or her terms and conditions of employment, working environment or working relationships.

 ‘Most routine complaints are capable of being resolved on an informal basis without recourse to the formal grievance procedure. Before invoking the grievance procedure the employee may raise the matter informally with his or her immediate supervisor/manager. If the complaint relates to the immediate supervisor/manager, the employee may discuss the matter informally with another manager. If the matter has not been resolved satisfactorily through informal discussions, the employee may raise a formal complaint under the grievance procedure.’

  Below legislation citied by Claimant in his complaint; CA-00059581-001 – Industrial Relations Issues – Under Section 13 of the Industrial Relations Act, 1969 On the complaint form - Claimant has ticked ‘Bullying and Harassment procedures’. No specific detail provided in the complaint form under this complaint Under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 On the complaint form - Claimant has ticked ‘I am a fixed-term employee and have, in respect of my conditions of employment, been treated less favourably than a comparable permanent employee (protection of Employees (Fixed-Term Work) ACT, 2001)’ No specific detail provided in the complaint form under this complaint

Grievance overview

 8 th February,2023

 · Informal meeting held locally with Claimant and his supervisor Ms.GK following the alleged incident.

· Ms.GK denied speaking to Claimant in an aggressive tone.

 · Management offered employees Mediation in an effort to progress the matter.

 13th February, 2023

 · The claimant  lodged a formal Grievance  to the Director of Nursing (DON) Ms.NG  at the hospital  in relation to “an incident that happened on Wednesday 8th February 2023 at 3:15pm when my supervisor Ms.GK stopped me on the corridor and with an aggressive tone verbally attacked me”.

22nd February, 2023

 · The claimant provided the DON with a Grievance statement (Appendix 9)

 23rd February, 2023

 · Stage 1 Grievance hearing took place, heard by the  DON-  minutes attached (Appendix 10).

 30th March, 2023

 · DON wrote to the claimant advising of a delay due to his identified witness not reverting back to arrange a date to meet (Appendix 11).

 26th April, 2023

 · The claimant wrote to management to advise if no outcome was forthcoming that he wanted to move to the next stage within the Grievance procedure (Appendix 12).

4 th May, 2023 · Stage 1 Grievance outcome issued to  complainant  (Appendix 13).

 · Grievance not upheld due to ‘Insufficient evidence’.

· Mediation was offered again to Claimant in an effort to restore relationships

. 10th May, 2023

 · The claimant  appealed the outcome of the Stage 1 Grievance to Ms. MK –Service Manager, Older persons and provided a “Stage 2 Grievance Hearing Statement”

 In Claimant’s appeal – he referenced letters (Appendix 5 & 6) that he had sent his supervisor and Assistant DON in October/November 2022.

23rd May, 2023

· Stage 2 Grievance hearing held by Ms. MK  Service Manager with claimant

. · At the hearing, Claimant raised the letters dated 2022, to which Ms.MK advised Claimant that she could only deal with the Grievance submitted.

 6 th June, 2023

The claimant was provided   with an outcome to the Stage 2 Grievance hearing (Appendix 15)

· Grievance not upheld due to conflicting written statements obtained.

 · Mediation was again offered to Claimant in an effort to restore relationships.

 12th June, 2023

· Claimant  appealed stage 2 outcome to HR Manager,  (Appendix 16).

 29th June, 2023

 · Stage 3 Grievance hearing held by HR Manager with claimant

12th July, 2023

 ·Ms.H  provided the claimant with an outcome to the Stage 3 Grievance hearing (Appendix 17).

 · Grievance not upheld due to the lack of sufficient evidence .Mediation was again offered to Claimant in an effort to restore relationships.

10th August, 2023 the claimant  wrote to HR Manager  (Appendix 18) following the meeting held on 29th June, 2023 – citing that under the ‘Dignity at Work Policy’ - 8.8.4 Principles Governing the Investigation and 8.8.5 Conducting the Investigation’ - he wanted to see the evidence that was gathered in the investigation.

 14th August, 2023

 Claimant wrote to Service Manager Ms GK  (Appendix 19) following the meeting held on 23rd May stating under the ‘Dignity at Work Policy’ Policy’ 8.8.4 Principles Governing the Investigation and 8.8.5 Conducting the Investigation’ - he wanted to see the evidence that was gathered in the investigation.

 23rd August, 2023

 Service Manager responded to  claimant’s letter (Appendix 20) and advised that the matter had been dealt with under the  Grievance procedure and not under the Dignity at Work Policy.

 · Claimant had also stated in his letter (14th August, 2023) that he was ‘still traumatised from this incident that has happened. It has affected my mental health’

· Ms.GK advised Claimant that she would arrange for the current DON of  the Hospital  to submit a referral to Occupational Health to ensure he receives the supports he requires

 6. th September, 2023 –

 Ms. S  –  DON- met with Claimant (Appendix 21 (A)) to complete the required Occupational Health referral forms.

 27th September, 2023 - Occupational Health Report received stating the below; (Appendix 21 (B))

“ Based on today’ s assessment , it is my medical opinion that the claimant  is fit for full duties and no accommodations are necessary. I have given him the details of EAP.

I anticipate he  will  manage well going forward.As such no further appointments have been scheduled with Occupational Health however we can review again if required in the future with a new referral.

10th October, 2023  the claimant  sent a follow up letter (Appendix 22) to HR Manager Ms.H as he had not received a response to his letter dated 10th August, 2023.

10th October, 2023 the claimant responded (Appendix 23) to Ms. K’s letter dated 23rd August, 2023 – stated that ‘as per the respondent’s Grievance procedure that he was entitled to a clear explanation as to how the decision was reached’ and subsequently asked for a response to the following 3 questions; Stage 1 Grievance Hearing held by Ms.NG – this grievance was not upheld .NG gave evidence in my Stage 2 hearing .Is this not a conflict of interest ? Please explain

Stage 2 Grievance hearing held by Ms.MK who states “ during my meeting with your supervisor she informed me that a fellow staff member was present in the front foyer during this time “ and she requested that I speak with them .To obtain all the facts I spoke with this staff member who states , as she recalls that “ no aggressive tone or manner was used by the supervisor”.

Who is this staff member ?I need evidence to prove that this staff member was working that day.

Stage 2 Grievance  Hearing with Ms.MK – this grievance was not upheld. At this meeting with Ms.MK on the 23rd.May I put more evidence to her but MK did not want to hear or read it .Please explain.

12th October, 2023

  Service Manager responded (Appendix 24) to the claimant’s letter dated 10th October, 2023

“In relation to your queries outlined in your letter

*As part of my due diligence in hearing the Stage 2 Grievance Ms.G was identified as a contact person for me to speak with.As  per my letter dated he 6th.June 2023 I have outlined the reasons why I spoke to Ms.G and based on this I do not believe that there is a conflict of interest.

*As part of my due diligence in hearing the Stage 2 Grievance , I have clarified that all staff members whom I spoke with were on duty on the day in question.

As per my grievance letter dated 6th.June 2023 , the issues raised in your grievance letter related to an incident which took place on the 8th.Feb. 2023.In your grievance letter you outlined that your Supervisor “ stopped me on the corridor and with an aggressive tone verbally attacked me”.The Stage 2 Grievance hearing was to discuss the matters raised in your Grievance letter.

24th October, 2023 - Claimant submitted his complaints to the WRC.

11th December, 2023 (Appendix 25)

Ms.MF  Head of HR CHO1 had written to Claimant advising that Ms.H has been on unplanned leave from work since September, and regrettably this led to an oversight in responding to his letters. She  offered to arrange for Ms.K Service Manager to respond to his grievance queries or alternatively if he wished to escalate his grievance that Ms. F would hear same.

 14th December, 2023 (Appendix 26)

Claimant responded to Ms.F requesting a copy of the evidence that has been gathered in the investigation of his grievance hearings.

 21st January, 2024

 · Ms.F Head of HR provided Claimant with further information as provided from Ms. K–A/ General Manager / Service Manager in relation to the queries raised.

· Claimant was also offered Mediation services, and

· Advised that a meeting could be arranged with Ms.K– A/ General Manager to discuss his concerns.

The claimant has not responded to Ms.F’s letter where a detailed response was provided to the queries raised specifically in his WRC complaint.

 Conclusion

 As evidenced throughout this submission, there was no unfair treatment of the claimant. With regard to the substance of the complaint under consideration, the employer asserts that;

· Claimant was requested to attend mandatory training as part of his role

 · Claimant refused to obey reasonable instructions as provided by his supervisor

 · Claimant failure to complete the required mandatory training is recorded under HIQA regulations and results in non-compliance by the service

 · Claimant grievance was handled as per the employer’s  Grievance procedure

 · Detailed explanations were provided to Claimant at the outcome of each stage

 · Claimant was provided the right to appeal as per the procedure

· The claimant  sought to include an alleged incident that occurred for his colleague in 2021 as part of his Stage 1 grievance appeal to management

 · Management were following process when informing Claimant that the grievance submitted was the current matter been dealt with at that time.

 · Claimant continues to cite the ‘ Dignity at Work Policy’ throughout his correspondence to management and his complaints to the WRC, stating that the employer / management has not adhered to this policy in dealing with the matter.

 · As clarified on numerous occasions to Claimant, the alleged incident was been dealt with under the employer Grievance procedure and so the principles of conducting an investigation under the Dignity at Work policy are not applicable in the circumstances.

 · Employer  IRO carried out a preliminary screening under the Dignity at Work policy based on the detail submitted by Claimant and found the alleged incident does not meet the definitions of the policy.

 · A further detailed response to Claimant’s three queries was arranged by the Head of HR and provided to Claimant

· Claimant remains unsatisfied with the outcome, and to date as per the employers records has not agreed to participate in an independent Mediation process in an effort to resolve matters with his supervisor

 · Claimant has declined management’s offer to meet with him to discuss his concerns

 · Occupational Health and Employee Assistance supports have been offered throughout this process to Claimant. On the above basis, the conclusion must be that the complaint is ill founded and should be dismissed.

At the hearing the respondent’s representative said that the delay in carrying out the investigation arose from delays in agreeing  a date for a meeting with the claimant’s witness .The staff member proposed by the Line Manager as a witness did not want her name to be disclosed – the roster had been checked and she was working. It was submitted that mediation had been offered with a view to resolving the conflict but had not been taken up. It was submitted that ultimately the investigation was inconclusive and management could not uphold either side .It was submitted that the respondent could not compel someone to apologise. It was submitted that the claimant’s complaint would not have passed the preliminary screening for a Dignity at Work complaint. It was submitted that the historical complaint raised by the claimant with respect to his colleague  was not considered as it was not referenced in the original grievance.The matter was closed and it would have been inappropriate to raise it.