Worker

Employer

Anonymised Parties

A Worker

A Health Service Provider

Representatives

 SIPTU

 HR Specialist

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00037865-001

22/03/2022

The dispute concerns the manner in which an allegation against the Worker was dealt with by the Employer in 2021.

The Worker was employed by the Employer since 9 February 1992 and worked in various locations in a local hospital in her role as a Multi Task Attendant. In May 2021, the Worker was advised that the Employer’s “Trust in Care” procedure had been invoked on foot of an allegation against her and she was removed from her normal duties during the process – though in fact the Worker availed of sick leave during this time.

The Worker outlined her complaints as regards how the allegation was dealt with by the Employer. In this regard, the Worker stated that following an allegation of 4/5/2021, she was invited to an initial meeting on 10/5/2021 but she was not appraised in advance of the nature of the meeting nor furnished in advance with the complaint or copy of the relevant “Trust in Care” policy/procedure. A further meeting took place on 12/5/2021. The Worker stated that on 13/5/2021 she was advised that a preliminary screening had concluded “that an abusive interaction could have occurred” and that this outcome was being furnished to her General Manager. Thereafter, a Stage 3 disciplinary hearing was held on 7/10/2021. However, the Worker stated that at that meeting she was obliged to seek all of the documentation related to the matter as this had not been furnished to her in advance. The Worker stated that additional documentation was received by her on 8/10/2021 – ie after the disciplinary hearing was concluded - which was prejudicial to her case. In relation to the documentation, the Worker stated that the Employer did not take on board discrepancies in witness statements furnished and that she did not have adequate opportunity to challenge these.

It is the position of the Worker that she was subject to a flawed investigation and disciplinary process, that her right to fair procedures was breached and that the Employer did not adhere to its own “Trust in Care” policy/procedure.  In particular, the Worker submitted the matter should not have been escalated to the disciplinary procedure but instead that a proper investigation should have taken place under the “Trust in Care” policy/procedure. The Worker also maintained that the sanction of a 12 month final written warning – which was upheld on appeal – was not well founded and was neither warranted nor fair. 

As a consequence the Worker stated she suffered detriment and distress. She has since retired. The Worker is seeking a recommendation that the sanction imposed upon her was incorrectly applied.

The Employer stated that during the Covid-19 pandemic its staff – including the Worker - was redeployed to carry out activities of daily living within its residential service. The Employer stated that an incident occurred on 4 May 2021 involving the Worker which was reported to the Person in Charge (PIC) and was witnessed by a number of employees. The Employer stated that the incident involved a vulnerable adult.

In relation to its investigation, the Employer stated that its Director of Nursing conducted a preliminary screening under its “Trust in Care” policy/procedure to establish the facts. The  Director of Nursing contacted the Worker on 10 May 2021 and advised that a meeting was being conducted on that day under the “Trust in Care” policy/procedure. The Employer stated that the Worker was advised to bring a colleague or trade union representative to the meeting which she did. Two other persons were in attendance including the PIC. The Employer stated that the Worker was given a copy of the complaint at this meeting, that the “Trust in Care” policy/procedure” and the timeline was outlined and she was advised that minutes of the meeting would be issued to her. The Employer stated that the Worker was advised she had a right to respond to the complaint in writing but that no written response was received.

The Employer stated that a further meeting was held on 12 May 2021 and that the Worker was given further written witness statements. The Employer stated the Worker was again advised she had a right to respond to the complaint in writing but that this was not received.

The Employer stated that the Worker was issued with minutes of the meeting of 12/5/21 and with the outcome of the preliminary screening on 13 May 2021 which established “that an abusive interaction could have occurred”. The Employer stated that the Worker was advised the matter was being forwarded to the General Manager as provided for in the “Trust in Care” policy/procedure. The Employer stated that the Worker was advised on 4 June 2021 that the matter was being addressed under the disciplinary procedure and that by agreement, the disciplinary hearing took place on 7 October 2021. Thereafter the sanction of final written warning was unsuccessfully appealed.

It is the position of the Employer that the allegation against the Worker was handled correctly, that given the outcome of the preliminary screening the referral to the General Manager was correct, that the invocation of the disciplinary procedures was equally appropriate and that the Employer followed its “Trust in Care” and disciplinary policy/procedure. The Employer also submitted  that fair procedures applied and that throughout the Worker availed of representation, that she was appraised of the allegation, was furnished with the relevant witness statements considered at the disciplinary stage and was afforded the opportunity to respond and the right of appeal.

Section 13 of the Industrial Relations Act 1969 provides that ".... Where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended….., a party to the dispute may refer it to a rights commissioner [ie Adjudication Officer]".  

In conducting my investigation into this dispute, I have taken into account all relevant submissions, documentation and information provided by the parties and have come to the following conclusions: 

·        I am satisfied that the “Trust in Care” policy/procedure provided for a preliminary screening to be carried out and that there were two meetings with the Worker on 10 and 12 May 2021 prior to the written outcome being issued on 13/5/2021. From my consideration of the information and statements provided to the Worker in the course of those meetings, I am satisfied she had sufficient information to enable her understand what was occurring and for her to provide a written response should she so wish. I am further satisfied that the information and statements provided at that stage were sufficient to facilitate a preliminary screening – which in any event was not determinative of whether or not wrongdoing had occurred but rather whether it “could have occurred”;

·        Whilst the “Trust in Care” policy/procedure provides for an investigation, I am of the view that the decision to proceed with any such investigation is at the behest of senior management. In that regard the “Trust in Care” policy/procedure states that “If the preliminary screening indicates that an abusive interaction could have occurred then the matter should be referred to senior management who will decide whether the employee has a case to answer or whether the matter is capable of being dealt with at local level”. Whilst the Worker clearly disagreed with the decision to escalate matters to a disciplinary hearing –nonetheless, I am of the view that senior management – as per the policy – was entitled to make this decision;

·        It has been well established in case law that it is beyond my scope as an Adjudication Officer to re-investigate workplace complaints or to re-assess the merit or otherwise of witness statements or to substitute my view for that of the appointed decision maker. Accordingly, I do not propose to comment on the conclusions reached at the disciplinary and appeal stages or on the sanction issued;

·        The Worker has argued she was not afforded fair procedures particularly in terms of not receiving all of the relevant documentation in a timely manner. Whilst fair procedure is not an exact science, I am of the view that an essential hallmark of fairness is transparency. In that regard I consider the Employer could have been more transparent regarding the process. For example, I consider there should have been prior written notification of the preliminary screening meetings and there should have been greater advance clarity as regards the documentation - including witness statements – being considered at the various stages. Whilst the Employer stated that additional information provided on 8/10/21 was not relied upon – nonetheless this documentation was in existence. Further, I am of the view that the Worker should have been afforded some explanation and/or reasoning as to why matters were escalated to the disciplinary process. That being said however, I am also of the view that the application of fair procedures by the Employer in this instance, was by and large sufficient – in that the Worker was afforded representation throughout, she was furnished with the relevant information/witness statements at the disciplinary and appeal stages, she had ample opportunity to respond or seek adjournments to further consider and/or challenge information and she was granted an appeal.

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute. In light of my conclusions I make the following recommendations:

1.      That in the interests of greater transparency, the Employer review its guidelines on dealing with its “Trust in Care” and Disciplinary policy/procedure;  

2.      That the Worker be compensated €500 for the stress she suffered as a consequence of less than ideal transparency in aspects of the process – subject to such statutory deductions as may apply.

Fair Procedures