Worker

Employer

Anonymised Parties

Health Care Assistant

Health Services Provider

Representatives

SIPTU

 Employee Relations Section

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 - 00002029

04/12/2023

The Worker is employed as a Health Care Assistant and commenced her employment with the Employer in January 2015.

The Worker referred her dispute to the Director General of the WRC on 4 December 2023 pursuant to Industrial Relations Act, 1969.

SIPTU on behalf of the Worker, submits a s follow.

On 23 October 2019 the Worker was handed a letter from the Director of Nursing. The letter referred to "the enclosed complaint" which was received from a coworker, Ms. A on 12 April 2019 (six months earlier). The letter went on to state that a preliminary screening was carried out and the complaint was being investigated under the Employer’s grievance policy. No complaint was attached to the letter. This letter issued to eight other staff members on that date, none of whom received the actual complaint. The matter did not progress in any way at this stage.

SIPTU is at a loss to understand how a preliminary screening was carried out as there is no provision for a preliminary screening under grievance policy.

On 6 October 2021 the Worker received a letter from the A/Director of Nursing “regarding a complaint made by [a named employee, Ms. A] under the [the Employer] 2009 in which you have been named". The letter goes on to say "Employee Relations Manager carried out a Preliminary Screening in accordance with the [Employer’s] Dignity at Work Policy 2009 and has established that the alleged behaviour which is the subject of the complaint does fall within the definition of bullying, harassment or sexual harassment as per Dignity at Work Policy. The outcome of the Preliminary Screening will be forwarded to the [Employer’s] Workplace Relations Unit and a formal investigation will be commissioned".

SIPTU submits that the complaint letter does not name the Worker therein. SIPTU understands that the complaint may relate to a document signed by nine staff relating to the manner in which off duty was handled. Only two of the staff (one of which is the Worker) who signed this document received a complaint.

On 14 October 2021 the Worker’s SIPTU representative emailed the A/Director of Nursing and stated that she could not understand how a preliminary screening had taken place when the Worker had not received a copy of the complaint referred to in the letter of 23 October 2019. She stated that the complainant was dated 12 April 2019 but the Worker heard nothing about this until 6 October 2021. She also requested a copy of the outcome of the preliminary screening. This email was forwarded to the Manager for Older People Services. The Manager for Older People Services confirmed that the complaint was pre-screened following a "formal meeting with WRC and SIPTU on 29 September”. SIPTU again requested a copy of the complaint dated 12 April 2019 and sought confirmation of the dates and actual complaints received. The Manager for Older People Services replied and attached a copy of the complaints (two emails from Ms A to her Union representative) and the outcome of the preliminary screening which was carried out by the Employee Relations Manager at the request of the HR Manager on 30 September 2021.

On 15 November 2021 the Worker’s representative emailed the Director of Nursing advising that the Worker still had not been furnished with a copy of the complaint. On 16  November 2021 the Worker’s representative emailed the Director of Nursing inquiring how the Worker was now the subject of a dignity at work complaint as she was not even named in the complaint. Furthermore, she stated that the Worker was not named in the email of 24 February 2021 from Ms. A to her Union representative. She stated that the email of 4 March 2021 was not an actual complaint in line with the Employer procedures and called on same to be withdrawn. The Worker’s representative also stated that in relation to the complaint raised by Ms. A in April 2019 nine members of staff were named. She sought confirmation as to only why the Worker and one other colleague were singled out.

Reminder emails were sent to the Director of Nursing on 5 February 2022. On 19 February 2022 the Worker’s representative emailed Employee Relations Manager and a former Investigator in the Investigations Unit seeking his assistance in finding out where the cases were at.

On 28 February 2022, the Worker’s representative emailed the Director of Nursing and the A/Director of Nursing seeking confirmation of the identity of the Commissioner and requesting that the matter progressed. The Director of Nursing confirmed the Commissioner was Ms. S. The A/Director of Nursing forwarded SIPTU’s email to Ms. S and sought a response and guidance on the matter. The Commissioner’s PA responded on 4 March 2022 to SIPTU and advised that contact had been made with the Investigations Unit that week to progress the matter in relation to the appointment of an Investigator. Nothing further was received.

The Worker’s representative emailed the Commissioner on 9 October 2022 on 21 November 2022 seeking an update.

The Commissioner responded on 22 November 2022 to advise that she had escalated the matter of the delay with  the National Investigations Unit and had now received the name of the investigator. However, due to the time delay the administration support had been promoted and a new administration support was needed to allow the investigation to commence.

The Commissioner wrote to the Worker on 24 November 2022 to advise that Mr F was appointed as Investigator.

On 24 January 2023, the Worker’s representative emailed Mr. F advising that she awaited hearing from him as soon as possible. Mr. F responded on 23 February 2023 to advise that he was meeting with the administration support that day to get access to the files and progress the investigation and would be in touch shortly.

The Worker’s representative sent a reminder email on 17 May 2023. Mr. F responded on 18 May 2023 to suggest that the Worker’s representative contact Ms. I at the Investigation Unit as there was no new Commissioner appointed, there was a delay and he withdrew from the process. SIPTU were unaware that the Commissioner was no longer in place.

On 31 May 2023, the Worker’s representative emailed Ms. I. No response received and an email reminder was sent on 20 June 2023 and an automated response email advised that she was out of the office until January 2024 with no details of who else to contact.

After further enquiries, on 20 June 2023, the Worker’s representative emailed the National Investigations Manager asking him to look into the matter. He replied on 21 June 2023 advising that he had asked the Deputy National Investigations Manager to look into the matter and revert.

On 13 July 2023 the Deputy National Investigations Manager emailed the Worker’s representative advising her that the new Liaison Officer, Ms. L replaced Ms. I. He also stated that there had been a change of Commissioner and administrative support in recent months and the assigned Investigator had stood down (as SIPTU knew). He advised that they were endeavouring to source a new investigator and would liaise directly with the new Commissioner, Mr W with details of same as soon as possible. The Deputy National Investigations Manager followed up by email of 1 August 2023 giving the new Commissioner' contact details and advising that if he had not heard from him within a week he would follow up and advise SIPTU of the outcome. On 5 September 2023 the Deputy National Investigations Manager emailed the Worker’s representative to confirm details of investigator would be given to the Commissioner in the coming weeks.

On 31 October 2023, the Worker’s representative emailed the Commissioner seeking an update.

On 13 November 2023 the Worker emailed the Commissioner, the A/Director of Nursing and the CNM2. She stated that she felt that her line managers and the Employer had failed in their duty of care to her and her colleague in not fully investigating this false allegation. She stated the allegations were never investigated but continued to sit on her record. She stated that the allegations had a detrimental effect on her health and sought a speedy response.

The A/Director of Nursing responded on 14 November 2023 stating that "the HR and senior OPS managers are actively dealing with the matter of concern in line with the [Employer’s] policies and procedures" and asked the Worker to link in with a named staff member if she wanted a referral to Occupational Health. The report from the Occupational Health specialist dated 4 January 2024 states that "[The Worker] reports a history of longstanding workplace stressors which she relates to an unresolved dignity at work process, allegations of bullying and interpersonal conflict with a colleague. She reports an adverse impact on her health and wellbeing which she relates to her ongoing perceived workplace concerns it appears her reported concerns are adversely impacting on her mental health and wellbeing. I recommend that you meet with her to carry out a stress risk assessment to further explore her perceived concerns. Considering her reported symptoms, I expect that in the absence of a timely resolution to the outstanding processes that her symptoms may deteriorate with the potential for future sickness absences.”

The matter was referred to the Workplace Relations Commission on 4 December 2023. Since that date no progress whatsoever has been made in relation to the investigation.

UNION ARGUMENT:-

The Worker was furnished with a letter on 23 October 2019 with no complaint attached. Nothing was ever progressed with this complaint whatsoever (and this includes the eight other recipients) under the grievance procedure as cited in this letter. The Employer has failed or refused to invoke the grievance procedure or the dignity at work policy as referred to in the second letter of 6 October 2021. SIPTU has followed up with the Employer on a continual basis to try and have the matter progressed but to no avail.

It is now five years since the initial complaint was raised by Ms. A (in which the Worker was not named) and nothing has been done. SIPTU is at a loss to understand how this matter was not prioritised given the amount of correspondence and the number of people contacted by SIPTU to try and have the complaint progressed.

This has caused the Worker considerable upset and distress. It has affected her physical and mental health. The Employer have not met their duty of care to the Worker. The matter has been passed from pillar to post with no meaningful follow up by the Employer.

The Worker's case relates solely to the inordinate delay by the Employer in dealing with the complaint from Ms. A. It is completely unacceptable that a complaint from April 2019 has not been progressed in any meaningful way. Since that time the Worker works in the same unit as Ms. A, which has caused her considerable upset and distress.

SIPTU cited the following cases in support of the Worker’s claim: ADJ-00013782 A Nurse Manager and A Hospital, IR-SC-00000295 A Porter and A Health Service Provider, ADJ-00039602 Nurse v Medical Provider.

SIPTU seeks that the dispute is declared well founded; the Employer should ensure the investigation be dealt with within a given time frame; and that the Worker is awarded compensation for the manner in which she has been treated by the Employer by its failure to abide by their own policies, and their failure to afford her natural justice and fair procedure.

At the hearing, the Worker’s representative said that they were not aware of a new investigator being appointed in January 2024, there has been no contact from them.

The Employer submits that the Worker and other associated parties are currently participating in an investigation commissioned by the Employer which is currently under way and being conducted in accordance with the terms and provisions of the Employer’s  Dignity at Work Policy.

The Worker previously confirmed her availability to participate in the duly commissioned investigation and has been invited to meet with the appointed investigator in the context of the progression of the investigation.

The Worker is seeking to bypass an internal investigation by seeking an investigation of her complaints before the WRC and in circumstances where the collectively agreed investigative process is ongoing.

The Employer relies on the Labour Court recommendation INT 1014 where it was held as follows "The court is not prepared to insert itself into the procedural process in a situation where the dispute procedures have been bypassed."

In the context of Labour Court recommendation, the Employer is of the view that the Worker is seeking to bypass internal procedures in circumstances where the Worker confirmed her willingness to participate.

The Employer further relies on IR-SC—00000831 where the Adjudication Officer stated "It is well established that before submitting a grievance about any matter to the WRC an employee must exhaust the internal procedures at their workplace. In Gregory Geoghan trading as TAPS v A Worker INT1014 the labour court held: "The court is not prepared to insert itself into the procedural process in a situation where the dispute procedures have been bypassed.”

The Adjudication Officer in IR-SC-00000831 also found and confirmed as follows "I conclude that as the internal procedures have not been exhausted therefore, I cannot insert myself into the procedural process. In the circumstances I conclude that the workers dispute is not well founded.”

In the WRC recommendation IR-SC-000761 regarding a complaint lodged under Section 13 of the Industrial Relations Act 1969 the Adjudication Officer cited the matter of FAS v A Worker LCR 18332, wherein the Labour Court held as follows,

'The Court wishes to express its concern at the failure of the parties to resolve the issues giving rise to this referral through internal procedures. Each of the issues raised affect one worker and are individual in character. The Court is a forum of last resort, and its services should not be detained in dealing with issues which can and should be resolved internally by skilled and experienced industrial relations practitioners on both sides.

The Adjudication Officer in IR-SC-00000761 stated "In this regard, the Labour Court has consistently held that disputes within the meaning of the Industrial Relations Acts should only be referred in circumstances whereby the internal procedures in respect of resolving such disputes have been exhausted. Regarding the instant dispute, the parties have submitted that the issue has been canvassed in correspondence and was the subject of a meeting between the parties, with the respective positions being made clear in this regard. Notwithstanding the same, the fact remains that this matter has not been ventilated by means of an internal procedure, and a recommendation in this respect would serve to prejudice the outcome of the same.”

The Labour Court in LCR18332 stated that.

"The Court wishes to express its concern at the failure of the parties to resolve the issues giving rise to this referral through internal procedures. Each of the issues raised affect one worker and are individual in character. The Court is a forum of last resort, and its services should not be detained in dealing with issues which can and should be resolved internally. "

Conclusions

The Worker, as per her compliant form, seeks adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act 1969.

The Employer can confirm that an internal investigation has commenced. For the Employer to conclude the investigative process the cooperation and participation of all associated parties is required. The Worker has confirmed her participation and cooperation with the investigation.

The Employer’s position is that the Worker is party to an internal process, namely an investigation being conducted in accordance with the terms and provisions of eh collectively agreed Dignity at Work Policy.

It remains the view of the Employer that the grievance of the Worker that is before the WRC are also the subject of the Employer’s investigative process and any recommendation at this time, may serve to prejudice or further delay the current ongoing investigation.

At the adjudication hearing, the Employer accepted that the internal process had been subject to some delays, however it was submitted that these arose due to matters outside of the Employer’s control. The Employer stated that the matter was with the National Investigation Unit and it could not comment on the process. The Employer said that it could not ask the Investigator to report.

The Employer said that a new investigator was appointed in January 2024.

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

The dispute arises from an allegation by the Worker that the Employer failed to investigate a complaint against her within a reasonable timeframe. The Employer submitted that the matter is not appropriate for an investigation by an Adjudication Officer because the Worker had not exhausted the relevant internal procedures.

With regards to the preliminary issue raised by the Employer, I accept that the WRC and the Labour Court have been reluctant to intervene in a process that has not finalised internally. However, the dispute itself relates to an allegation of a failure on the part of the Employer, despite numerous attempts to engage by SIPTU and the Worker, to conduct the investigation process in good time, as opposed to any issue with the outcome of the process.

In such circumstances, I find that the Employer’s alleged failures with regards to the investigation of the complaint against the Worker by her coworker of April 2019  are the subject of a valid trade dispute that is the basis of a recommendation from the WRC.

With regards to the substantive issue, it relates to a complaint against the Worker that was made in April 2019 and which remained incomplete as of the date of the adjudication hearing, over five years later. This is an extraordinary delay which is inexcusable and unacceptable and represents a clear violation of fair procedures on the part of the Employer.

I cannot accept the Employer’s proposition that the matter was with the National Investigations Unit which the Employer has no control over.

The Worker encountered an extraordinary delay in having this matter completed and with allegations against her remaining unresolved for an exceptionally long period of time. The Worker outlined, and made it known to the Employer previously, the significant upset caused by extensive delays and the manner in which the investigation took place and the impact it had on her health.

I recommend that the Employer convene a meeting with the Worker within two weeks of the date of this recommendation in order to appraise the Worker of the current status of the investigation and the proposed manner in which the Employer intends to finalise the same. I recommend further that the investigation of the complaint against the Worker by her coworker of April 2019 is concluded within three months of the date of this recommendation.

In addition, I recommend that the Employer pay the Worker the sum of €5,000 for the distress arising from the delay and the manner in which the Employer dealt with the matter.

Delay – investigation-