Worker

Employer

Anonymised Parties

A Senior Clinical Psychologist

A Health Service Provider

Representatives

Self-represented 

Michelle Ní Longáin, Byrne Wallace LLP

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 - 00000613

31/08/2022

The worker commenced with this employer in January 2003.  He is now in the role of senior clinical psychologist and he has specialist expertise in diagnosing children who may be on the autism spectrum.  Arising from his employer’s handling of a complaint regarding his assessment of a child for autism spectrum disorder (ASD), the worker claimed that his place of work was unsafe and, from January 2019 until September 2020, he was absent due to depression and anxiety.  In April 2021, when he had been back at work for seven months, a risk assessment was carried out which, the worker claims, identified risks to his safety in the workplace and hazards which impacted on his mental health.  He asked for a safety statement to be developed in response to these risks.  Despite multiple requests between April 2021 and April 2022, a safety statement was not issued by the employer.

A grievance process commenced on April 14th 2022, with a meeting of the worker with his line manager.  His complaint was not upheld.  He appealed the outcome to the next senior manager and on June 10th 2022, his grievance was again not upheld.  The worker was concerned when, following a request under the Freedom of Information Act 2014, he discovered that two versions of the outcome from this stage of the grievance procedure were on his file.  The first document states that the resolution of the worker’s grievance was not within the authority of the disability service to resolve and some commentary was included concerning the lack of fairness in the process.  The second version of the outcome made no reference to this issue and stated that the worker’s grievance was not upheld.

On June 29th 2022, the worker appealed to the head of HR against the outcome of stage 2 of the grievance process.  On the date that he submitted this dispute to the WRC, no outcome had been issued from stage 3.  From June to August 2022, the worker asked to be placed on special leave until the hazards he identified in his workplace were removed.  He said that he got no response to this request.  On August 31st, he referred this dispute to the WRC for investigation.

In October, the worker said that his doctor advised him to take time off to cope with his stress.  During his absence, he submitted a complaint to the employer under the organisation’s Dignity at Work Policy. 

This dispute concerns the worker’s grievance at how his complaints have been dealt with and his case that his employer has failed to adequately respond to his concerns about the risks to his health and safety.

At the hearing, the worker identified the cause of his grievance as the placing into the public domain of a report that fails to exonerate him from the criticisms of the parents of a child he assessed for ASD.  He claims that the objective of the reviewers was to “quell the criticism” of the complainants.  He said that any employee would be concerned about an investigation into their conduct which is carried out without their knowledge.  The worker said that his substantive issue is his employer’s failure to respond to a risk assessment carried out by his line manager on April 21st 2021.

The worker said that in earlier discussions at the WRC, the former head of ER “held up his hands” and conceded that the review of the response to the initial complaint was flawed.  He claims that the head of HR also made some concession regarding his criticism of the contents of the review report.  He said that the complaint should have been upheld in whole or in part, or not upheld.  He said that he is simply asking for the employer to follow procedures.  He said that he is entitled to an explanation for what he claims are significant errors in the report.

The worker referred to a letter to a senior manager on March 11th 2022, in which he requested a safety statement and for the complainants to be advised that their complaints against him were not upheld.  He referred to a meeting of his line manager, the local HR manager and the disability manager in his area on April 5th at which they concluded that it was not appropriate to commence an investigation into his grievance at the level of local management.  The view of this group of managers was that the control measures identified in the risk assessment could not be implemented at local level.  This was confirmed by the worker’s line manager in her response to the first stage of his grievance on April 28th 2022.

Following the outcome at stage 1, the worker claims that managers hearing his grievance liaised with one another.  When the outcome at stage 2 was that the worker’s grievance was not upheld, on June 29th 2022, he attended a meeting with the head of HR, to appeal against the stage 2 outcome.  The head of HR asked for time to consider the worker’s grievance, but by August 22nd, she had not responded and he sent her a letter of complaint and asked to be placed on special leave.

When there was no reply to this request, on October 21st, the worker submitted a formal Dignity at Work complaint to the person in the organisation with overall responsibility for HR.  On October 28th, the head of HR in his area of administration wrote to the worker in response to his stage 3 grievance meeting.  She proposed that the following actions were taken:

1.      An independent reviewer to be appointed to examine the worker’s case concerning the unfairness of the review report of March 2017;

2.      A review of the risk assessment of April 2021 to be carried out by the head of service, quality and risk;

3.      The head of HR did not agree to special leave as the worker requested, but recommended a priority occupational review and, with his agreement, a rotation for the worker out of his current role for a maximum period of two months.

On November 24th, the worker replied and requested that the complainants be advised that the complaints against him were not upheld and for details of how this is to be reflected in the organisation’s formal response.  He received an acknowledgement of his letter, but no response of substance.

Summarising his grievance, the worker said that he wants a safety statement put in place in response to the risk assessment of April 2021.  He wants the review report of March 2017 to be withdrawn and he wants the parents who submitted the original complaint to be informed in writing that their criticisms of him were not upheld.

For the employer, Ms Ní Longáin said that the worker’s grievance has been considered and an outcome has been issued.  She claims that he has “gone back again” each time that the outcome isn’t what he is seeking.  The head of ER said that the organisation relies on previous submissions made at the WRC in December 2019.  He said that the response from the head of HR of October 28th 2022 is the answer to the worker’s grievance and no further response will be issued.

The genesis of this dispute goes back to 2017 and it is not my role to investigate every piece of correspondence and the outcome from every engagement between the worker and his employer that led to him referring this dispute to the WRC on August 31st 2022.  My role is to come up with a recommendation that will end the dispute in a way that might be acceptable to both parties.

In response to the employer’s assertion that the worker continues to submit the same grievance, he argued that the former head of ER and the head of HR in his area gave him the impression that they shared his concerns about the March 2017 review report.  At the hearing of this dispute on June 20th 2023, the current head of ER agreed that the organisation “could have done better” but that the investigation into the complaint was done “substantially in line with the policy.”  He said that the offer to review the March 2017 response is still on the table.  The head of ER said that many offers have been made to the worker to resolve his concerns.  However, at the hearing, referring to his request for the report to be withdrawn and for a safety statement to be issued, the worker said, “I will accept nothing less than this.”

The worker said that his concern is that the same thing could happen again and that he might be criticised in the response to a complaint of a service user.  He said that he worries that the report contains findings that are factually incorrect.  He said that he cannot accept its conclusions.

From the information provided to me at the hearing, it is apparent that the report of March 2017 made no adverse findings against the worker.  The head of ER said that there was never any question that the worker had to be exonerated, because he was not accused of any wrongdoing.

It is apparent that the report issued in March 2017 repeated, unnecessarily, the details of the original complaint.  It seems to me also that there was an inherent unfairness in the issuing of the report without giving the worker an opportunity to respond.  It is my view that it is not reasonable or realistic to expect the report to be withdrawn, and that such as request, even in the early days after it was issued, was not reasonable or realistic. 

Based on what was presented to me at the hearing, it is my view that the offer of rebuttal to be appended to the March 2017 report would go some way to addressing the worker’s concerns – in that the organisation would have on file the worker’s response, which was denied to him when the report was issued.  I think also that the proposal of the head of HR on October 28th 2022 to appoint an independent person to review how the initial complaint was responded to will provide a mechanism to ensure that the organisation learns from what occurred.  The drafting of a safety statement is a technical job and must be done by the people with the relevant skills and expertise.   The worker’s concerns about ongoing risks to his health and safety must be addressed by the people in the organisation with responsibility for health and safety.

I recommend that the worker re-considers the offer of writing a rebuttal to be appended to the review report of March 2017.  For the employer, I recommend that the policy for managing complaints from service users is amended to include a provision that, where an employee is named in a complaint, that they are informed, given an opportunity to respond to any criticism and that their response is included in the communication issued to the complainants.

Complaints procedure, health and safety