Worker

Employer

Anonymised Parties

Service Manager

Health Service Provider

Representatives

Michelle Connaughton Forsa Trade Union

Head of HR

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 - 00001108

14/02/2023

The claimant has been employed as a Service Manager with the respondent since 2016.He submitted that he was aggrieved with the manner in which the respondent had failed to observe their own procedures in initiating a Stage 1 disciplinary process .It was submitted that this matter was incorrectly conflated with a complaint from the family of a service user .It was submitted that this action by the respondent contravened the claimant’s rights to fair procedures and natural justice. The claimant was moved from his substantive position and  he maintained that his colleagues were aware of him being the subject of a formal investigation. The claimant submitted that the respondent’s actions impacted negatively on his health , reputation and well being.

The respondent rejected the complaint and maintained that they had at all times followed their procedures and engaged with the claimant and his union.It was advanced that no compensation was warranted as the claimant had maintained his existing terms and conditions of employment  and had been assigned to an alternative role in accordance with its disciplinary process. It was submitted that the complaint had no merit and should be denied.

The claimant’s representative submitted as follows :

The complainant lodged a complaint to the Workplace Relations Commission on 14th February 2023, under Section 13 of the Industrial Relations Act, 1969.  This is due to the failure of the employer to follow its own Policies and Procedures in relation to a Disciplinary process which was instigated by the employer against the complainant.  All attempts to try to resolve the issues of the breach of policy by his trade union failed, and the complainant felt that he had no alternative but to lodge the complaint with the Workplace Relations Commission.  The complainant states on his Complaint Form:

“It is my view that my employer's failure to follow their own policies is a breach of my right to natural justice and fair procedure.  I have been moved from my role to an administration role, and the staff in the service in which I work are very aware of this investigation process. This has had a negative effect on my health and wellbeing, and on my reputation within the service.  I am seeking the intervention of the Workplace Relations Commission in relation to this breach of procedure”. 

1.         BACKGROUND TO DISPUTE

 The claimant commenced employment with the respondent   in 2016 in various roles.    He was made permanent on 11th November 2021 as a  Co-Ordinator, Grade VI .   As per national agreements between  the respondent and Forsa in October 2019, the  Co-Ordinator role was regraded to Grade VII and re-named  HSR  Manager, back-dated to October 2019. 

Chronology of Events:

26th October 2021 - The complainant’s line manager, Ms.C  met with staff working within his remit/department while the complainant was on leave. 

5th November 2021 - The complainant was not aware of any issues having been raised with his line manager until MsC first made him aware of issues raised against him at a meeting on the 05/11/2021.

 The claimant had worked in the  Service for five years prior with no issues raised against him.

The issues raised were in relation to operational and other issues arising within the department which needed to be addressed.  Timelines were agreed by MsC and  for responses to the issues raised. 

It should be noted that this was in the height of the covid pandemic and it was a very stressful and pressured time for all those working in the Health Services. 

2nd December 2021 – Email received from  line manager Ms.C  invoking Stage 1 of the Disciplinary Procedure. 

The issues relating to the Stage 1 were quoted as:

1.     Attendance

2.     Non-compliance with sick leave policy (relating to covid leave)

3.     Failure to complete requested response to emails

4.     Ongoing operational issues.

This email is attached as Appendix 1.  A hearing date was set initially for 13th December 2021 but was deferred due to unavailability of a union representative.

The Forsa official had verbal conversations with the Industrial Relations Manager who was in post at that time, Ms.R, regarding the upcoming Stage 1 hearing.  Forsa raised concerns that the “informal counselling” stage of the respondent ’s Disciplinary Policy had not taken place.  It was agreed to proceed with the meeting on the scheduled date, and discuss the issues being raised and discuss and agree any performance improvement plan that may be required, as per the informal counselling stage of the policy.   

21st December 2021 - Hearing took place via Zoom call.  It was agreed at the meeting that the claimant   would comply with the request for responses to emails by 7th January 2022.  He would also provide evidence in the form of screenshots from the respondent   regarding covid isolation periods, in response to the sick leave issues.  A performance improvement plan would be agreed at a further meeting scheduled for 10th January 2022.

At the end of the hearing, Ms. C stated that this concluded the Stage 1 of the Disciplinary Procedure in her view.  This was somewhat surprising to the complainant and the union officials/representatives present based on the discussions at the meeting.

21st December 2021 – Forsa wrote to Ms. C to raise concerns in relation to this parting comment at the meeting, and the failure to carry out the informal counselling stage of the Disciplinary Procedure. 

22nd December 2021 – Letter received from Ms.C  with final report and decision of Stage 1 Disciplinary Hearing (Appendix 3.) The complainant was not given an opportunity to review/amend a draft report prior to the issue of the final report.  The letter stated “As you will note on the attached the Decision following the hearing is to issue a Verbal Warning which will remain on your record for the next 6 months”. 

Note – This verbal warning was never issued as per the  Disciplinary Procedure.

11th February 2022 - The meeting scheduled for 10th January 2023 did not go ahead, and a draft performance improvement plan was sent by Ms. C for review. Appendix 4.

3rd March 2022 -  Forsa wrote to Ms. C and made recommendations in relation to the draft performance improvement plan.  This correspondence is attached as Appendix 5.  Forsa also suggested that, as the Industrial Relations Manager was off on sick leave, that we would await her return to discuss the plan. 

A meeting was scheduled for 1st April 2022 to finalise the Stage 1 Disciplinary and to agree the performance improvement plan. 

In the intervening period, a complaint was received by the employer in relation to an incident with a client/service user. 

16th March 2022 - When the notification of the meeting scheduled for 1st April 2022 was received, on the agenda for same was:

1.     The performance improvement plan following on from to the Disciplinary Procedure

2.     Engagement with  to discuss a particular family in his service and his responses to issues concerning that family or service. 

This correspondence contained a report of a meeting held with the family involved. 

1st April 2022 – The meeting did not take place as scheduled. 

4th April 2022 – Forsa raised concerns regarding the inclusion of the service user incident in the Stage 1 Disciplinary Procedure that was ongoing, and that any such incident would need to be investigated under the correct  respondent   procedure.  Forsa also raised concerns in relation to a potential GDPR breach in sharing the family details with Forsa in this correspondence. 

4th April 2022 – Letter dated Friday 1st April 2023 is received via email on 4th April 2023, from Ms. C stating that due to the complainant’s non attendance at the above meeting, it was proposed to “review your file in full”.  This correspondence is attached as Appendix 8.

4th April 2022 (Monday) – Letter received from Ms. C to state that a full review of the files had been completed and a decision had been made to commission a “National Investigation”.  The letter also stated that  the claimant  was being redeployed to another office as a protective measure.  This letter is attached as Appendix 9.

4th April 2022 – Forsa wrote to Ms. C seeking clarity on the content of the letter .  Forsa sought to establish what exactly was being referred to the National Investigations Unit for investigation, under what policy this referral was being made, and why the employee was not receiving copies of all correspondence as per  the respondent’s   procedures. 

19th April 2022 – Forsa wrote to the employer again, due to lack of response to previous email.  It was highlighted again in this correspondence where it was felt that the employer had failed to follow procedure. 

19th April 2022 – Correspondence received from Ms. C with responses in red to the questions put to the employer .

11th May 2022 – Correspondence from Forsa to the employer, again highlighting concerns regarding breach of process in relation to the referral to the National Investigations Unit and lack of any detail in the answers provided in the email of 19th April 2022. 

18th July 2022 – Forsa Official spoke to  the Head of HR in relation to the disciplinary process and lack of procedure. She  undertook to review with Ms. C and revert back. 

No further response was received from the head of HR  as she referred the matter on to Mr.C  GM.   

21st October 2022 – Correspondence received from Mr.C, , who had been assigned as Commissioner of the investigation by the National Investigation Unit, with Draft Terms of Reference for the proposed investigation.  This documentation is attached .

28th October 2022 – Forsa letter to Mr. C relating to the Terms of Reference.  Appendix 15  This correspondence included again email stream in relation to breach of process for the attention of Mr. C. 

7th November 2022 – Forsa wrote to Mr. C re breach of process. 

7th November 2022 – Response from Mr. C

28th November 2022 – Correspondence received from Mr. C, with letter from Ms. C Line Manager, regarding disciplinary process. 

12th December 2022 – Email from Forsa to Mr. C re breach of process and objection to inclusion of incident with the service user as it did not form part of the initial disciplinary process.

Forsa stated “Forsa has sought information on the process followed in relation to this incident with the G. family, and the decision-making process that resulted in escalation to an NIU investigation under Stage IV of the Disciplinary Procedure.  This appears to be without any evidence or documentation of the outcome of an investigation or systems analysis review of the incident, that resulted in a recommendation for disciplinary action against our member under the respondent  Disciplinary Procedure”. Appendix 19

22nd February 2023 – Letter and revised Terms of Reference received from Mr. C 

8th March 2023 – Forsa response to revised Terms of Reference and objection to point 2 in the terms of reference.  This correspondence also highlighted some inaccuracies in the information contained in the correspondence of 23rd February 2023.  .

16th March 2023- Correspondence received from Mr. C to confirm that the employer was proceeding with the investigation.  Appendix 22.

The Complainant made a referral to the Workplace Relations Commission on 14th February 2023, due to lack of process, lack of progression of investigation hearing, continued damage to ’s reputation due to being reassigned from his substantive role to an admin role pending the outcome of the hearing. 

Current Status – Still awaiting investigation by the National Investigations Unit.  Employee is still reassigned to an admin role pending the investigation.   

UNION ARGUMENTS

As evidenced in the correspondence between Forsa and the employer, Forsa has attempted to highlight the flaws in the procedures in relation to this Disciplinary Procedure that began in November 2021.  While it is not Forsa’s intention to overload the Adjudicating Officer with such a large volume of correspondence as part of the written submission, we feel that it is important to show the attempts made to seek the information that our member is entitled to in a process such as this and the importance of fair procedures.  Clear information has not been forthcoming from the employer.

A process that began as a Stage 1 Disciplinary Hearing was escalated to a Stage IV investigation being commissioned to the National Investigation Unit.  It was never clear what exactly the complaint that was sent to the National Investigation Unit contained.  A copy of  THE RESPONDENT  Disciplinary Procedure – Gathering of Preliminary Facts Outcome was eventually received following an FOI request by the employee, and again appeared to have very little information contained within it and there is no supporting documentation provided. 

This investigation would appear to be an investigation of the incident with the service user, but under the Disciplinary Procedure as per the description on the form referred to above.  Forsa has tried on many occasions to state that this cannot be the case as per the respondent’s  procedures, however this correspondence has been ignored by the employer. 

The respondent’s   Disciplinary Procedure is attached as Appendix 24.  It details 4 stages of the disciplinary process from Stage 1 to Stage 4, and outlines the process and appropriate warnings at each stage. 

“Issuing Warnings Under the Disciplinary Procedure

The primary purpose of a warning under the disciplinary procedure is to give the employee an opportunity to make the required improvements whilst making clear the consequences of failing to do so. A warning (including an oral warning) should convey the following information:

• the stage of the disciplinary procedure which has been invoked

• details of the unsatisfactory attendance, conduct or work standards

• details of the improvements required and timescale for improvement

• measures to assist the employee (e.g. training or coaching)

• duration of the warning

• what further action will be taken if the employee does not make the

necessary improvements or if there are further instances of unsatisfactory

attendance/work/conduct during this period (taken from Page 17 of the respondent’s   Disciplinary Procedure).  Appendix 24

The employer would state that at Stage 1, the complainant  was issued with a verbal warning on 22nd December 2021.  This was stated in an email from Ms. C to senior management and HR dated 22nd December 2021:  “The outcome of this hearing is that I issued a verbal warning” (Appendix 25).

Both the employee and his union dispute this statement, as  was never issued with a verbal warning as per the policy.

No such warning was issued to  following the Stage 1 disciplinary hearing on 21st December 2021.  Forsa sought a copy of what is contained on ’s file in relation to the “verbal warning”, however no documentation has been provided.

The employer also states in subsequent correspondence that the complainant  failed to adhere to the performance improvement plan.  Again this is in dispute as despite a draft performance improvement plan being discussed, a final plan was never agreed and signed off by both parties.  As per the attached correspondence the employer escalated the grievance to investigation by the National Investigation Unit and engagement ceased in relation to the performance improvement plan. 

The respondent’s  Grievance & Disciplinary Procedure states:

“In all cases of alleged serious misconduct, a full investigation will be carried out to establish the facts in accordance with the following principles:

• The investigation will be conducted thoroughly and objectively and with due respect for the rights of the employee to natural justice, including a presumption of innocence.

• The investigation will be governed by clear terms of reference”.

Types of alleged serious misconduct are listed as:

·       Theft

·       Deliberate damage to property

·       Fraud or deliberate falsification of documents

·       Gross negligence or dereliction of duties

·       Gross insubordination

·       Incapacity to perform duties due to being under the influence of alcohol,

·       unprescribed drugs or misuse of prescribed medication

·       Serious breach of health and safety rules

·       Serious abuse of telephone, e-mail and other facilities

·       Serious breaches of confidentiality

·       Serious bullying, sexual harassment or harassment against a member

·       of staff

·       Violent behaviour towards a member of staff, client or member of

·       the public

·       Sexual assault

·       Downloading/disseminating pornographic material from the internet

·       Circulation of offensive, obscene or indecent e-mails or text messages

It would appear that the employer is alleging gross negligence or dereliction of duties, however as previously stated, no evidence has been provided of a formal investigation of the incident with the service user under the respondent’s   policies such as Your Service your Say, Trust in Care or a review under the respondent’s   Incident Management Framework, which resulted in a recommendation of disciplinary action against our member. 

The correspondence received from the respondent on 16th March 2023  states that a comprehensive review would be commissioned in relation to the complaint from the client family.

The respondent’s  ’s Incident Management Framework and Guidance, 2020 document states: 

“All reviews are required to be carried out in keeping with the principles of fair procedures and natural justice (IMF Guidance Section 12).

A terms of reference (TOR) (IMF Guidance Section 11) must be developed. The TOR must set out the following detail; background to the incident, Review Commissioner, purpose, scope, membership of the Review Team, timeframe, the delivery of a report setting out findings and recommendations and detail of service user/relevant person(s) and staff designated support person(s)

The availability of terms of reference is required for all comprehensive reviews and is recommended as best practice for concise reviews, as it clearly sets out the scope and governance of the process. The TOR must set out the following detail; background to the incident, Review Commissioner, purpose, scope, membership of the Review Team, timeframe, the delivery of a report setting out findings and recommendations and detail of service user/relevant person(s) and staff designated support person(s)

IMF Guidance Section 11 and Section 12 are attached as Appendix 26 and Appendix 27

Despite numerous attempts by Forsa on behalf of the complainant to get copies of all documentation relating to this comprehensive review, none has been forthcoming that in our view meets the obligations of the employer under their own policies. 

On 6th April 2022,   the claimant was re-assigned from his managerial, Grade VII role to an admin role within the HH Admin Office.  The complainant is aware that colleagues were informed that he had been moved and would not be returning.  This would appear to pre-empt the outcome of any investigation and indicates a presumption of guilt rather than a presumption of innocence as stated in the policy. 

It is Forsa’s view that from the outset management were over eager to escalate the disciplinary process, and documentation between management and the then Head of HR Mr.M , also received under the FOI request, details the clear intention to escalate the disciplinary process and the advice of Mr. M in relation to the procedures surrounding same.  Ms. R “….Unfortunately it’s as I thought we have to start at stage 1 disciplinary initially”. This documentation is attached as Appendix 28.

In a further email, Ms. C asks of the Head of HR “When the facts have been gathered and it is decided that it warrants a Stage 4, who then commissions the investigation requested from the National Investigation Unit….”  Again this would indicate that a decision had already been made as to the outcome of any fact gathering process.  This email is attached as Appendix 29. 

This “full review” of  the file was completed, as per correspondence from Ms. C (Appendix 9) between Friday 1st April 2022 and Monday 4th April 2022, yet no documentation in relation to the findings of this file review have ever been provided by the employer.   

It is the role of the union to ensure fair procedures and natural justice for our members during such procedures.  It is our view that this is sadly lacking in this instance. The claimant   has suffered a great deal of reputational damage due to the handling of the disciplinary procedure and subsequent complaint regarding an alleged client incident.  This has been ongoing since November 2021, and over 12 months after the referral was made to the National Investigation Unit, little or no correspondence has been received from either the National Investigation Unit or Management in relation to the progress of the investigation. The claimant   remains redeployed to the admin post with this investigation hanging over him. 

SUMMARY & CONCLUSION

The complainant is of the view that the employer has breached the Statutory Code of Practice on Grievance and Disciplinary Procedures S.I. 146 2000 (Appendix 30).  Section 4 General Principles states:

“The essential elements of any procedure for dealing with grievance and disciplinary issues are that they be rational and fair, that the basis for disciplinary action is clear, that the range of penalties that can be imposed is well-defined and that an internal appeal mechanism is available.”

It is also the view of the complainant that the respondent   is in breach of its own   Disciplinary Procedure for Employees of  2007.  He believes that he has not been afforded natural justice and fair procedures in relation to the disciplinary action instigated by the employer.  At the best of times being involved in a disciplinary procedure is stressful for any employee.  The handling of this disciplinary process by the employer has resulted in reputational damage in the intervening 18 months and potential damage to career opportunities into the future. 

The complainant is seeking redress in the form of compensation for reputational damage for this failure on the part of the employer to follow their own procedures in relation to this Disciplinary Procedure.

We ask, with respect, that having considered the contents of this submission that the

Adjudicator recommends in favour of our member.

Subsequent to the hearing on the 11th.Nov. 2023 , the complainant submitted a record of (4) informal supervision meetings with Ms.F which took place between the 16th.May 2017 and the 25th.April 2018.The claimant said that he had been unaware of the handwritten notes pertaining to the last meeting in April 2018 until he submitted an FOI request for his file.

The union made the following submission on the 11th.Jan. 2024:

The complainant has reviewed the documentation forwarded by the respondent , which was shared on 18th December 2023 following request for a copy of same.

In relation to the “Final Terms of Reference” included in this documentation, Forsa response is as follows:

We draw the adjudicator’s attention to the following appendices in the original submission:

Appendix 21 when Forsa wrote to the commissioner, Mr. C , identifying the points in said Terms of Reference that we were objecting to and reasons for same.  The contain a bullying allegation where there is no formal complaint, and as previously stated they reference the incident with the G family. 

Forsa also wrote concerning the draft terms of reference in appendix 15 and 16. 

Page 43 of Appendix 16 raised the issue that the detail of the referral to the NIU was never shared with either the complainant or the union.  This was only made available following an FOI request by the claimant . 

Forsa has no further comment on any of the other additional information sent by the employer, as it does not change the material content of Mr. Redacted complaint which is summarized below:

·       The employer has instigated an investigation through the National Investigations Unit under Stage IV Disciplinary Procedure, following a “review”. 

·       It is Forsa’s contention that this review was not carried out as per correct procedures, and there is no documentary evidence of

(a)   Who carried out said review,

(b)  Terms of Reference for same and

(c)   Written detail of outcomes, in particular any outcome that dictated that Mr. Redacted should be subject to a Stage 4 Disciplinary procedure.  

Appendix 26 and 27 refer to development of terms of reference for an incident review and principles of natural justice and fair procedures, taken from the respondent’s own Incident Management Framework document. 

·       While the employer has since stated differently, the NIU referral which was eventually received via FOI Request very clearly states that it is an investigation under the disciplinary procedure, and correspondence from Ms. C to Forsa confirms this in Appendix 12. 

It is our view that  the claimant has no alternative but to partake in the investigation, as to refuse would likely result in further disciplinary action.  However it remains the union position that the employer has not followed procedures in relation to this disciplinary investigation, therefore not affording him fair process and due procedure as per SI No 146/2000, appendix 30.  This has caused reputational damage to the claimant .

At the hearing, the union reasserted that while it was the intention of the respondent to issue a verbal warning to the claimant – that never happened .It was asserted that it was never made clear by the respondent why the case was escalated to a Stage 4 of the disciplinary procedure .It was  advanced that details of the review conducted by the line manager was never disclosed. It was submitted that there was a gap in information throughout the entire process. It was submitted that the complaint from the family of the service user was not appropriate to a disciplinary procedure. It was submitted that the union did endeavour to exhaust all internal procedures but had been unable to get answers from the respondent .It was submitted that when the union accompanied the claimant to the meeting on the 21st.Dec. 2021 they assumed they were attending at the pre counselling stage provided for in the procedures.It was submitted that the performance improvement plan was never concluded .

The respondent’s representative submitted as follows :

Introduction

 The referral to the WRC was made by  the claimant v. the respondent  as a complaint seeking adjudication under Section 13 of the Industrial Relations Act, 1969 – 1990. The nature of the complaint is understood to broadly relate to a series of matters connected with the application by the Employer of a number of HR policies and procedures, notably the respondent’s  Grievance and Disciplinary Procedure and respondent’s  Trust in Care Policy and initiated by the Employer from December 2021. More specifically the referral to the WRC by the complainant alleges the following: · The complainant believes the respondent  breached the respondent ‘s Disciplinary policy and procedure by not completing an “informal counselling” stage.

 · A complaint from a client’s family to the respondent should not have been included in any meeting between the employer and the complainant while dealing with the Stage 1 disciplinary procedure.

 · That the employer breached GDPR by sharing details of the service users name with the Union representing the complainant.

 · The referral of the service user complaint by the Employer under Stage IV of the Disciplinary procedure for investigation was incorrect.

· That moving the complainant to an administrative role as a protective measure during the investigative process was incorrect. The employer submission in this case is defined in that context.

Background

 The complainant is employed as a  Co-ordinator in the Older Persons Service. The claimant’s  contract of employment is attached as Appendix 1.2. The role involves the provision of services to approximately 180 service users across the  area and the direct line Management to approx. 50 HCS Assistants.

 The Employer in December 2021 initiated a stage 1 disciplinary process. A copy of the respondent’s  Disciplinary Policy and Procedure is attached as Appendix 1. An invitation to attend the  meeting was extended to the complainant on 16th December 2021 (Appendix 2). The meeting was attended by the complainant and their Union representative.

Appendix 3 outlines the background as to why the disciplinary process was initiated by way of a meeting note. This meeting note was issued to the complainant and their Union representative. No concerns or dispute was raised by the complainant or their Union rep following receipt of same from the employer. The disciplinary process attempted to address a number of issues which had been brought to the attention of the Employer, which were of significant concern (Appendix 4, 4.1 and 4.2) including:

 · Lack of adherence to the  respondent’s  Attendance Management Policy including requirement to submit medical certs

· Lack of responses to line management in relation to attendance at work

· Lack of responses to line management in relation to Occupational Health referrals

· Operational issues from staff in area of responsibility to include client concerns

This Stage 1 disciplinary was initiated as the complainants line manager was approached by members of the complainants team highlighting issues of concern as set out in the enclosed. (Appendix 4). The complainant did not disagree or refute any of the significant operational issues which were raised in the correspondence from the line manager of the 8th November. No response was received by the line manager until Mid-January 2022 and the response was insufficient to provide clarity on the serious issues raised. The communication to the complainant in November also indicated that the team had attempted to resolve these issues with him, but that they were not addressed.

Page 2 of the Disciplinary policy states as follows: “The purpose of this disciplinary 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. The key objective is to assist the employee to maintain the required standards, rather than impose penalties”. The Disciplinary Procedure is attached as Appendix 1.

The complainants line manager had previously arranged a meeting with him on the 19th October (Appendix 5) and the 5th November to enable completion of a workplace stress risk  assessment which had been recommended by Occupational Health as being required. The complainant was absent for a period of 12 weeks and work place stress had been cited as a factor in his absence from work.

So as to ensure the most appropriate care plan was in place for the complainant following their return to work, this workplace stress risk assessment and Occupational Health’s guidance was followed. The complainant’s line manager at this meeting also spoke informally to him around the operational matters that had become evident during a period of his annual leave. Both the complainant and the line manager had agreed a further follow up meeting on November 9th would be beneficial, to assist in formulating a plan to address / resolve same. The complainant’s line manager sent a summary of the discussion and actions agreed at this meeting. The complainant went on a further period of sick leave for the period 8th November to 19th November 2021.

On the day following the complainants return to work, he submitted a Dignity at Work complaint against the clerical officer in his office. He advised that he would no longer work from his designated office alleging inappropriate behaviour. He subsequently sent in a formal complaint alleging harassment and bullying at the hands of his clerical support.

Owing to annual leave, the complainant’s line manager arranged a Return to Work meeting for the 24th November. Also due to the serious nature of the allegations made by the complainant against the clerical officer in his office , this meeting also required an evidentiary summary to pursue a formal investigation of the alleged abuse, should this be required. This meeting took place on the 24th November. The complainant was asked what a reasonable time frame may be to submit the requested responses to the emails already sent to him requesting clarity on a numbers of matters but he indicated that he was unable to commit, citing other work priorities on his return from sick Leave. It was agreed with his line manager that protected time of two full days of paid administrative leave on the 25th & 26th November would be made available so that the complainant could provide the information requested. (Appendix 6, 7, 8, 9)

 The complainant did not provide the information requested on his return to work on the November 29. The complainant has not provided any information to his line manager on what tasks he completed on the two days of protected time given on full pay to him, ie the 25th and  26th November. The complainant indicated that he would seek union advice as to how to complete the tasks requested at the meeting of 24th November

. A number of attempts were made to meet with the complainant and his Union representative. (Appendix 10) Three meeting dates were set. On the third attempt to agree a meeting date, the complainant and his Union Representative met with the line manager on the 21st December 2021. The purpose of the meeting was again reinforced and communicated to the complainant. At this meeting the background to the need to initiate a formal Stage 1 Disciplinary process was outlined, alongside the attempts made to engage with the complainant to agree a plan to deal with the matters raised in the correspondence. Several communications were attempted with the complainant and no response had been received and this was outlined at the December 21st meeting.

 Line management outlined the key areas of concern to the complainant and their Union representative:

· the reasoning provided by the complainant was not sufficient and did not outline satisfactorily the reasons why instructions provided by the line manager had not been followed and tasks as delegated not completed.

· It had been evident that numerous attempts had been made to communicate and engage with the complainant on an informal basis in a solution focused and supportive framework. The complainant could not provide any explanation as to why all such communication had not been responded to line management.

A series of recommended actions were agreed with the complainant and their Union representative including the following: 

· The complainant agreed to provide responses to all outstanding emails (with support from their Union rep) from their line manager.

 · It was agreed that the matters pertaining to the allegations of bullying and harassment by the complainant would be deal with separately. At the meeting on the 24th November, the complainant advised to his line manager that he had interpreted the Dignity at work policy incorrectly and no longer wished to proceed with the complaint.

· The complainant agreed to provide screen shot evidence of texts from Public Health in relation to absence from work.

· The complainant agreed that he would familiarise himself with the respondent’s  policies related to Absence Management Policy, Dignity at Work Policy and Disciplinary Policy.

 A further meeting was agreed with the complainant and his Union rep on the 10th January 2022. It was agreed that this meeting would provide an opportunity to review the documentation provided by the complainant to his line manager and that this would inform an agreed performance improvement plan going forward. This meeting didn’t go ahead as the complainant and their Union rep indicated they were not available.

 A follow-up meeting was arranged with the complainant for the 1 st April 2022. This meeting was arranged to discuss the performance improvement plan and sanction applied under the respondent’s  Disciplinary policy. The performance improvement plan had been submitted prior to the 1st April 2022 to the trade union and complainant and was not accepted. The complainant and their Union rep advised that they wanted more details and intense support. It is respondent’s  position that this would not reflect the earlier discussion on this matter.

 In February 2022 a complaint was received from the family of a service user in relation to the management by the complainant of a serious incident whilst care was provided by a HCSA under the line Management of the complainant. It was proposed that the pre-arranged meeting of the 1st April 2022 would also provide an opportunity for the line manager to outline to the complainant the details of this complaint and how it would be dealt with. A copy had been forwarded to the complainant on the 16th March 2022 fully outlining the complaint from the family. The family provided consent for all such details to be shared given the seriousness of the issues being raised.

Where a complaint is received from a service user, there are a number of requirements on the employer in relation to reporting and also on the employee. It appears from the initial information gathering that occurred, that the complainant did not comply with his responsibilities to report an incident which was deemed Category 1 ie of a serious nature. This is a requirement of all employees in their terms and conditions of employment, and is emphasised through initial induction and ongoing training. The employer takes our responsibilities regarding the safeguarding of all service users and appropriate recording and reporting of incidents very seriously, and any omission of same by an employee would be  considered a matter of utmost seriousness. Email thread regarding same attached as Appendix 12.

It is the employer’s position that the disciplinary policy provides a mechanism to seek an initial response from the complainant. The matters which were raised in the complaint received by management were of a serious nature and warranted early and immediate engagement with the complainant. The complainant refused to attend the meeting of the 1st April 2022 and they and Forsa cancelled the meeting at very short notice, directly impacting on the ability of line management to manage matters of considerable concern. The line manager outlined to the complainant via letter following the confirmation that they were not going to be in attendance that a full review of the file would now need to take place and the outcome would be communicated in the coming days. . In conjunction with HR, GM OPS and Line Management it was decided to commission a National Investigation under alleged Gross Negligence on the part of the complainant. (Appendix 14)

 Forsa indicated in correspondence to management that this incident required appropriate investigation under the respondent’s Policy and could not be part of the disciplinary procedure that was ongoing at Stage 1. It is line management’s position that there was no impediment to the matters which had been raised being discussed at the meeting of the 1st April where the complainant and their Union rep were in attendance. The processes were dealt with separately and it was essential that the complainant engaged with line management on what were deemed very serious allegations from a service user.

The outcome of this review was sent to the complainant on the 4 th April 2022. The complainant was advised that engagement with the National Investigations Unit would commence as the information which had been gathered pointed to the need for a formal investigation to be conducted. The Investigation is proceeding and is entirely independent of the earlier processes which are set out above.

 It was also stated by management that in line with the provisions of the Disciplinary policy, as a protective measure, the complainant would be redeployed to the HC Services Office  at another location  commencing on 6th April 2022 with all terms and conditions of employment remaining the same.  It was outlined that this was not a disciplinary action but a protective measure which is in line with the Disciplinary policy and procedures.

 The disciplinary policy and procedure provides for a formal procedure to be initiated in circumstances where a matter is consider serious in nature as follows:

 Formal Procedure

 Where an employee’s conduct, attendance or work does not meet the required standards despite informal counselling, the matter will be dealt with under the disciplinary procedure. While the disciplinary procedure will normally be operated on a progressive basis, in cases of serious misconduct the manager may bypass stages 1, 2 and 3 of the procedure. (Appendix 1: Page 3)

 The complainant when redeployed to another role did not raise any objection to this assignment as a protective measure. He has continued to work in this area for the period April 2022 to date.

 Management Position

 It is  the respondent’s position that at all times the complainant was treated fairly and appropriately. There were many attempts made to engage and meet with the complainant on an informal and formal basis as evidenced above. A meeting was held on the 21st December and the outcome of this meeting was communicated to the complainant and his Union representative.

 The complaint did not at any stage dispute any of the matters which were being raised of concern to  management in relation to the discharge of his duties and role. Issues of significant concern were shared with the complainant in email dated 8th November  and no disagreement or objection was raised by him to same.

 The complainant did not seek to appeal the sanction of a verbal warning which was imposed at the meeting on the 21st December and was fully aware of the opportunity to do so. He was also provided with a copy of the employer’s  Disciplinary procedure where the appeals mechanism is also clearly set out. The verbal warning which was issued was for 6 months, this time has now lapsed and the verbal warning from stage 1 removed.

 On several attempts, the complainant refused to co-operate with the processes which line management were seeking to conclude. It is stated in the complainant’s terms and conditions of employment contract that all staff must co-operate fully with any investigative processes which are ongoing. Paragraph 18 in  the claimant’s  Contract of employment states the following–

Disciplinary Procedure

 The  employer  requires that you conduct your duties in such a way as to achieve high standards of work practice and patient/client care. In the event of your failure to achieve those standards the disciplinary procedure will be invoked.

 It is the respondent’s   position that the duty of care to service users was discharged appropriately. Any allegations made by a service user must be dealt with immediately by the employer. Protective measures were deemed required and were put in place. There was no objection raised by the complaint to the alternative assignment which was put in place on the 6 th April 2022. The  Disciplinary policy states as follows

 “ ii) Protective Measures: Pending the outcome of the investigation, management may take whatever protective measures are necessary to ensure that no patient/client or employee is exposed to unacceptable risk. These protective measures are neither disciplinary measures nor an indication of guilt and may include:

· reassigning the employee to other duties

· providing an appropriate level of supervision

 · putting the employee off duty with pay.

The views of the employee will be taken into consideration when determining the appropriate protective measures to take in the circumstances but the final decision rests with management.”

These HR policies are agreed and endorsed by the Staff representative bodies.

 No satisfactory explanation has been provided by the complainant as to why he would not engage with line management at various stages when requested. Line management remained available at all times to meet with the complainant and their representative should they wish to do so. Line management made several attempts to engage with the complainant in an effort to address and resolve the issues which were emerging.

Several attempts were made to engage by phone, email and in writing to work with the complainant on a performance improvement plan with the complainant and their staff representative. This area remains outstanding as the complainant has refused to engage with line management on same.

 The complainant alleges a breach in GDPR. The family involved gave full permission to share details.

 A request has been made to commission an investigation via the National Investigations Unit. Line management are fully engaged in this process and have appointed a commissioner. All details concerning the investigation have been shared with the complainant and their Union representative .

 The Complainant and their Union representative are asserting that processes initiated by the respondent are joined up. This is not the case. The Employer is progressing the serious matters raised by the service user under the appropriate National Investigations Unit process. This matter has been dealt with separately to the Stage 1 Disciplinary process which had already commenced in advance of this matter being raised.

  Conclusion

 In conclusion, with regard to the substance of the complaint under consideration, the employer asserts that there is no reasonable basis on which the claim presented can be sought or granted. The employer is compliant with the respective respondent’s  policies and procedures and has engaged at all times with the complainant and their Union rep. The Employer does not accept that any compensation arises as the complainant has at all times remained on his current terms and conditions and the employer has reassigned the complainant to alternative duties as provided for under the  Disciplinary process. On the basis of this submission and related documentation, the employer respectfully suggests that the complaint before the WRC has no merit, and should be denied.

The following supplementary submission was received from the respondent on the 4th.Dec.

 Further to the previous  submission  and following on from the WRC hearing on 6th November 2023, I include the supplementary information which you requested.

There were many attempts made to engage and meet with the complainant and his union representative on an informal and formal basis throughout 2021  and throughout 2022 . A number of meeting dates were set. No satisfactory explanation has been provided by the complainant as to why he would not engage with line management at various stages when requested.  Line management remained available at all times to meet with the complainant and their representative should they wish to do so.  Line management made several attempts to engage with the complainant in an effort to address and resolve the issues which were emerging.

The complainant and his Union Representative met with the line manager on the 21st December 2021. The purpose of the meeting was again reinforced and communicated to the complainant. At this meeting the background to the need to initiate a formal Stage 1 Disciplinary process was outlined, alongside the attempts made to engage with the complainant to agree a plan to deal with the matters raised in the correspondence.  Several communications were attempted with the complainant and no response had been received and this was outlined at the December 21st meeting. The outcome of this meeting was communicated to the complainant and his Union representative. The complainant did not at any stage dispute any of the matters which were being raised of concern to the employer’s management in relation to the discharge of his duties and role. The complainant did not seek to appeal the sanction of a verbal warning which was imposed at the meeting on the 21st December and was fully aware of the opportunity to do so .  He was also provided with a copy of the employer’s  Disciplinary procedure where the appeals mechanism is also clearly set out. This was sent to both the complainant and the claimant’s  Fórsa representative  on 22nd December 2021.  Mr M,  Mr C  as well as the Previous Head of HR –  were also notified of this Verbal warning on 22nd December 2021 and asked to revisit the possibility of a reassignment to another service which the claimant  had requested previously.

The verbal warning which was issued was for 6 months, has now lapsed and the verbal warning from stage 1 removed from the claimant’s file. As requested by Fórsa at the hearing, a letter has been sent to the claimant  dated 22nd November 2023 to confirm this also.

The claimant  at the hearing on 6th November disputed that he had submitted all responses to the emails that Ms C had sent him prior to the Stage 1 Disciplinary. I don’t believe he has included this in his additional information and these responses remain outstanding to the respondent.

I have included a summary timeline of the claimant’s  file from commencement in HCS  until 4th April 2022 .The claimant  was provided with a copy of this summary.  The information submitted by the claimant  is outlined in this document. 

I also attach the finalised Terms of Reference which has been agreed for the Investigation. and a letter from Acting GM who is the Commissioner of the National Investigation.  This letter provides an update on the status of the National Investigation .

Finally   with regard to the substance of the complaint under consideration, the employer asserts that there is no reasonable basis on which the claim presented can be sought or granted.  The employer is compliant with the respective policies and procedures and has tried to engage at all times with the complainant and their Union rep with little to no responses from the complainant and their union rep.  The complainant has at all times remained on his current terms and conditions and the employer has reassigned the complainant to alternative duties as provided for under the respondent’s  Disciplinary process.

On the basis of this additional information to the submission and related documentation, the employer respectfully suggests that the complaint before the WRC has no merit, and should be denied.

At the hearing , the employer advised that Mr.C  - the Commissioner for the Investigation – was absent through illness and was unavailable to attend. It was submitted that the investigation was proceeding at Stage 4 level of the disciplinary procedure – it was submitted that numerous attempts had been made to engage with the claimant but that he had failed to respond. It was submitted that the incident forms had been completed incorrectly by the claimant and that the claimant was disputing who had the role of Local Accountable Officer. It was submitted that the claimant failed to respond to the family’s complaint at the preliminary screening stage. It  was submitted that the complaint had met the threshold for  a formal investigation. The respondent’s representative rejected the allegation by the union that there was a predetermined outcome to the investigation and contended that the respondent had been acting in good faith .It was submitted that the claimant never submitted a grievance regarding his redeployment. It was advanced that management had not in any way created reputational damage .It was submitted that it had been exceptionally difficult and challenging to engage with the claimant and it was contended that the respondent had attempted to engage informally with the claimant  and some of the matters raised with him still remained outstanding.

The respondent said that a meeting had been scheduled for the 10th.Jan. 2022 to issue the warning to the claimant.It was submitted that no issue was raised about the verbal warning and no appeal had been made. The line manager asserted that when she attempted to establish preliminary facts with respect to the family’s complaint , she could not get any information from the complainant .

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

 The claimant asserts that the respondent initiated  Stage 1 of their disciplinary process in December 2021 and contends that this was in breach of the employer’s own grievance and disciplinary procedure which provides for an informal counselling stage prior to the initiation of the formal disciplinary procedure.

I note that one of the key objectives set out in the policy is

“to assist the employee to maintain the required standards , rather than impose penalties” .I further note that while the policy references the procedure operating on a progressive basis , the dispensing of an escalating process is limited only to  cases of serious misconduct.

It is accepted by both parties that a decision was taken at the meeting of the 21st.December 2021 to issue the claimant with a verbal warning . However , the union has argued that this warning was never issued – this would appear to be supported by the trail of correspondence  submitted by the respondent – while the letter to the claimant of December 2021 references a decision to “ issue a verbal warning” – no evidence has been presented to support the respondent’s contention that  the stage in the process to deliver that warning did in fact  happen. Had it happened the claimant could potentially have  exercised the right of appeal set out in the policy.

I note that at the second hearing the claimant refuted the allegations by his line manager that he was being evasive and would not engage  with her in relation to her concerns about his performance. He undertook to submit evidence in support of this contention.

The claimant submitted records of supervision meetings with his former line manager from 2017 – 2018 .However , no supporting documentation in relation to his denial of being evasive or refusing to engage with his current  line manager was submitted. I note that the claimant states in his submission “ I have never received any formal performance review by my line manager “.It is evident  from the documentation that the claimant submitted on his supervision meetings with his former  line manager that his performance was being monitored and reviewed on an ongoing basis by his  line manager during that period.In the  circumstances I find that the  supporting documentation   indicates  an  unwillingness by the claimant to engage with his current  line manager and  consequently  I find that the claimant’s evasiveness contributed to this element of the  dispute .

However , notwithstanding this,  I am obliged to accept the union’s contention that there was a procedural deficit on the respondent’s part in bypassing the informal counselling stage and in failing to deliver the verbal warning. As the procedure currently stands , there is no provision contained therein for bypassing the informal counselling stage – the provision regarding same states  “… in cases of serious misconduct the manager may bypass stages 1,2 and 3 of the procedure”. I note that in the employer’s letter to the claimant of the 22nd.Nov. 2023  - it is stated  “ the verbal warning issued on the 21st.December 2021 has now been removed from his personnel file”. I do not accept that any objective / reasonable explanation for omitting the pre-counselling stage was advanced by the respondent .

In all  the circumstances, I am upholding the complaint regarding the failure to invoke the informal counselling stage - I recommend that all references to the stage 1 procedure be expunged from the claimant’s records .

The second element of the claimant’s grievance relates to the respondent’s processing of a complaint from a service user’s  family via the disciplinary process .The claimant contended that this was an inappropriate procedure and was incorrectly being invoked when the matter should have been dealt with through the respondent’s other policies for dealing with  service delivery complaints. The matter was referred by the respondent to stage IV of the respondent’s disciplinary procedure for investigation by the NIU.The claimant asserts that this is a breach of the respondent’s own policies and in breach of his right to natural justice and fair procedures. The claimant asserts that his move from his substantive post  was well known amongst his staff  and that this has had a negative effect on his health and well being and on his reputation.

I have considered the voluminous documentation submitted by both parties  which charts their respective positions on the claimant’s second  complaint – ultimately I have to determine if the threshold of fairness set  out in the respondent’s procedures and in S.I.146/2000 has been met.

 Underpinning these principles are the general principles of natural justice –

 *The fair examination and processing of a claimant’s grievance

* The putting of the detail of allegations or complaint to the employee

* The affording of an opportunity to respond fully to any such allegations or complaints

* The affording of the opportunity to  avail of the right to be represented

* The upholding  of the rights of the employee to a fair and impartial determination of the issues.

The purpose of the disciplinary procedure set out in the respondent’s procedure is “ to ensure that employees adhere to the required standards by making them aware of any shortcomings and identifying how the necessary improvements can be achieved …the key objective is to assist the employee to maintain the required standards rather than impose penalties”.

In the instant case , despite numerous requests from the union for the detail of the original  complaints /allegations being made by the service user , the respondent repeatedly failed to furnish the claimant with such documentation. The claimant was furnished with his line manager’s account of a meeting with the family of the service user dated the 17th.Feb. 2022.This did not meet the requirements of the respondent’s policy which requires that an employee “ is given copies of all documentation prior to and during the investigation process” .

 The claimant was invited to a meeting on the 1st.April 2022 to agree a performance plan and record

his response to the family statement which had been compiled by the claimant’s line manager –

1.At this point the claimant had not been  given sight of the original complaint from the family .

2.The backdrop of a previous verbal warning - which was the subject of dispute between the parties at this time- was conflated with the service user’s complaint in circumstances where the respondent did not furnish the claimant with the   family’s original complaint to the respondent .This conflation of both matters was ill judged and unfair to the claimant.No compelling explanation has been proffered by the respondent to the legitimate enquiries by the union as to why Trust in Care  or your Service  your Say  was not invoked at this time and in advance of any decision to embark down the disciplinary route.

At this time the claimant had not responded to the family’s allegations – the union had sought the full detail of the allegations against him and had not received them.

The line manager’s account of her meeting with the family included the following  references:

“The Generic Preliminary Screening documents the background to the incident and records all the actions taken locally by the manager to address the issue and mitigate further risk. The information is then reviewed at a Serious Incident Management Meeting and the decision is made if there is any further action necessary. If so then a plan is developed , if not the reason is recorded “……The line manager “ indicated to the family that none of the above appeared to have been carried out from the records she received from the local office .The line manager apologised profusely on behalf of the respondent  for the inactions of the claimant and said this was neither the practise that the respondent promotes nor indeed Home Care Services “.

This indicates a potential negative predisposition on the part of the claimant’s line manager and jeopardises meeting  the threshold of an impartial determination of the issues. This negative predisposition on the part of the line manager is further evidenced in the Line Managers correspondence of the 30th.March 2022 to the Commissioning Officer for the Investigation Mr.C in which the line manager states “When the facts have been gathered and it is decided that it warrants a Stage 4”.This comment was pre-emptive  , prejudicial and unfair to the claimant .As the claimant’s line manager was directly involved in the processing of the complaint by the family and directly involved in the conduct of the “review” that led to escalation of matters , it is not unreasonable to deduce  that an impartial determination of matters could  have been  compromised.

On the first of April 2022 , the claimant received a letter from his line manager wherein it is stated “ Given the serious nature of concerns raised to date in relation to your performance and the non attendance at today’s meeting , I will now review your file in full and communicate the outcome of this review with you early next week”.  On the 4th.April the claimant was notified by the line manager that a decision had been made to commission a National Investigation. “This decision was made in consultation with the Human Resources Dept.”

In the respondent’s submission to the WRC, it was submitted that “ in conjunction with HR, GM OPS and Line Management it was decided to commission a National Investigation under alleged Gross Negligence on the part of the complainant”.

The claimant had not been furnished with the reasons for escalating what initially were indicated to be performance deficits to alleged gross negligence. The document submitted by the union in their booklet “  Disciplinary Procedure – Gathering of Preliminary Facts Outcome “ which was completed by the claimant’s line manager fails to enlighten the claimant with respect to what exactly was referred to the National Investigations Unit or with respect to what were “ the preliminary facts” and fails to provide any reasoning for an allegation of gross negligence. This part of the process breaches  the provisions of the respondent’s policy in terms of notifying the employee of the allegation(page 8) and   Appendix 3 of the respondent’s disciplinary procedure.  Additionally, it is evident that the respondent failed to observe the provisions of the policy regarding protective measures -  “The views of the employee will be taken into consideration when determining the appropriate protective measures”. No evidence of having engaged with the claimant to take account of his views on the protective measures was presented

It appears that the representations by the union with respect to the families allegations being dealt with in the first instance under Trust in Care or an alternative policy were ignored by the respondent. I note that the respondent’s policy specifically references Trust in Care in the context of examples  of conduct which may lead to disciplinary action on page 2.

While I acknowledge the respondents assertions regarding the evasiveness of the claimant in engaging with his line manager, this does not excuse the catalogue of procedural breaches set out above.

In all of the circumstances I must conclude that the processes embarked upon by the respondent is flawed with respect to the   matters set out above and consequently I am upholding the complaint.

I recommend that the parties reconvene as a matter of urgency with view to agreeing upon a fresh investigation under an agreed procedure that has the confidence of all parties and that is in compliance with the respondent’s own procedures. Given the length of time that has elapsed since the dispute was initially raised I recommend that the parties agree a time frame of 3 months from the date of this recommendation to complete this fresh investigation.

At this point, I do not propose to make any recommendation in relation to the matter of compensation for alleged flawed procedures or for alleged inappropriate/protracted protective measures. This can be dealt with at the end of the above process through direct discussions between the parties and can be referred back to the WRC for a definitive recommendation  if the parties fail to agree a settlement.