Worker

Employer

Anonymised Parties

Health Care Assistant

Health Service 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 - 00002031

05/12/2023

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

The Worker referred her dispute to the Director General of the WRC on 5 December 2023 pursuant to Industrial Relations Act, 1969.

SIPTU, on behalf of the Worker submits as follows.

On 23  October 2019, the Worker was handed a letter from the Director of Nursing which referred to "the enclosed complaint" which was received from a coworker 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. There was no complaint 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. Furthermore, if the matter was being investigated under the Grievance Policy, then at stage 1 "the employee should refer the complaint to (specify appropriate level of management). A meeting will be arranged to discuss the matter not later than seven working days following receipt of the complaint."

It is unclear why a preliminary screening was carried out in relation to a grievance as there is no provision for a preliminary screening under the 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.

The Dignity at Work Policy 2009 states the following: -

"In order to carry out the preliminary screening, the complainant must set out details of the alleged behaviour in writing including approximate dates and witnesses (if any) and the context in which the alleged behaviour occurred. The preliminary screening will be carried out by a member of the HR Department who will decide whether or not it is appropriate to progress the complaint under the Dignity at Work Policy. This assessment will be based exclusively on the written details of the complaint as set out by the complainant"

Formal Investigation

The alleged perpetrator will be advised that the complaint is the subject of a formal investigation. S/he will be given a copy of the written complaint and invited to respond to the allegations in writing within 2 weeks. A copy of the response will be forwarded to the complainant.”

The complaint in question makes no references to "alleged behaviour in writing including approximate dates and witnesses (if any) and the context in which the alleged behaviour occurred" as set out in the policy. Two emails were furnished which were between Ms. A and her union representative almost two years after the initial complaint.

On 15October 2021, SIPTU representative emailed the A/Director of Nursing advising that the Worker’s case had been referred to her and that she would meet the Worker and revert. The representative followed up on 18 October 2021 with the A/Director of Nursing stating that she could not understand how a preliminary screening had taken place when the Worker had not received a copy of the complaint. It was pointed out that the complaint was received by the Employer on 12April 2019 but the Worker heard nothing about this until 6October 2021. She also requested a copy of the outcome of the preliminary screening.

On 22 October 2021 at the request of the A/Director of Nursing the email sent to her was forwarded to the Manager Old Peoples Service. No response was received.

On 15 November 2021 the Worker’s representative emailed the Director of Nursing confirming that the matter was assigned to her and that it was being dealt with previously by the Manager Old Peoples Service. She confirmed that the Worker had still not been given a copy of the complaint raised by Ms. A in April 2019. She confirmed that the A/Director of Nursing had said she would send on same. The Worker’s representative confirmed that all that was received was two emails from Ms. A to her union representative and that this was not a grievance under the Employer’s Grievance Procedure.

Reminder emails were sent to the Director of Nursing in  February 2022 who confirmed on 7 February 2022 that the matter was being dealt with at national level. SIPTU sought a reference number to follow up directly with the Unit due to the manner in which the matter had been dealt with thus far. On 19  February 2022 SIPTU emailed the Employee Relations Manager and a former investigator in the Investigations Unit seeking his assistance in finding out where the case was at.

On 1 March 2022 the Worker emailed the A/Director of Nursing and the Director of Nursing asking for confirmation as to who referred the matter to the Employee Relations Manager for preliminary screening and who referred same to the Investigations Unit. The A/Director’s of Nursing response was:

"At present at my level I have nothing further to add other than the conversation we had last day".

SIPTU representative emailed the A/Director of Nursing and the Director of Nursing on receipt of the Worker's email. She requested the identity of the Commissioner and stated that it was normal practice for the Commissioner to follow up with the Investigations Unit and stated that she wanted this done urgently to get 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 on the same date and sought a response and guidance on the matter.

An employee of the Employer, Ms. R responded on 4 March 2022 to the Worker’s representative and advised 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, Ms. S on 9 October 2022 seeking an update and stated the matter had been ongoing since 2019. A further email reminder was sent to her on 21 November 2022.

Ms. S 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.

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

On 24 January 2023, the Worker’s SIPTU representative emailed Mr F advising that she represented the Worker and 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 SIPTU representative sent a reminder email on 17 May 2022 asking him to revert. Mr F responded on 18 May 2023 to suggest that SIPTU 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 was unaware that the Commissioner was no longer in place.

On 31 May 2023 SIPTU emailed Ms. I looking for an update on the case. No response was received and an email reminder was sent on 20 June 2023 and an automated response email advised she was out of the office until January 2024 with no details of who else to contact.

After further enquires, on 20 June 2023, the Worker’s SIPTU 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 SIPTU representative advising that the new Liaison Officer was Ms. L as Ms. I was out until January 2024. 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 at this stage). He advised 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 NIU Manager followed up by email of 1 August 2023 giving the Commissioner’s 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 25 October 2023 the Worker emailed the Commissioner, the A/Director of Nursing and the CNM in relation to the Dignity at Work complaint setting out the events and the fact that the matter was ongoing for four and a half years.

She stated that she was at her wits end and had high blood pressure as a result and was put on medication. She advised that her mental health also had been affected due to her being denied the opportunity to defend herself against the complaint. She stated she felt let down by the Employer and was seeking the recipients help to draw a line under the situation once and for all for the sake of her mental health.

The A/Director of Nursing responded on 26 October 2023 stating that she had requested the CNM to link in with the Worker and refer her to Occupational Health. The report from Occupational Health dated 14 December 2023 states:

 "She reports a history of longstanding workplace stressors which she relates primarily to interpersonal conflict with a colleague. She tells me that there are outstanding processes underway... I expect that in the absence of a timely solution to the outstanding processes that her symptoms may deteriorate with the potential for future sickness absences".

On foot of the Worker's email above her SIPTU representative emailed the Commissioner on 31 October 2023 advising that she was informed by the Investigations Unit that the investigation would commence without further delay. She sought an update. She emailed the Commissioner on 5 December 2023 stating that as the matter was ongoing since 2019 and as they were no further along, she had referred the matter to the Workplace Relations Commission in relation to the delay by the Employer in dealing with same.

The matter was referred to the Workplace Relations Commission on 5 December 2023.

Since that date no progress whatsoever has been made in relation to the investigation.

UNION ARGUMENT:-

The letter of 23 October 2019 had no complaint attached. Nothing ever was 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.

CONCLUSION:-

In conclusion, based on the above facts of the case SIPTU requests that the case is declared well founded and that the Worker is awarded  compensation for the manner in which she has been treated by the Employer by their failure to abide by their own policies, and their failure to afford her natural justice and fair procedure.

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 issued  on 11 August 2010 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 issued on 10 October 2023 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 Worker has met with the appointed investigator and that an internal investigation has commenced and is ongoing with all associated parties being afforded the opportunity to attend/participate and be heard.

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.

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.

Post-hearing, the Employer furnished the National Investigations Unit’s timeline review document which was requested by the Adjudication Officer. The Employer also furnished some unsolicited documentation including a screenshot of  the Worker’s correspondence of 12 December 2023 where she stated that she had a grievance regarding the management’s failure to adhere to the Dignity a Work Policy in the context of the complaint against her. The Employer asserted in its email of 12 June 2024 that the grievance of the Worker is in relation to the Dignity at Work investigation and associated timeline. The Employer asserted further that the grievance is in progress. I note that there was nothing put forward that the Employer, in fact, acted on this. There was no acknowledgement of the correspondence, no proposed action to be taken etc. This in itself raises serious questions. In any event, in the absence of any follow up, it is disingenuous of the Employer to assert that the Worker is precluded from bringing the within dispute because her grievance is in progress.

For the avoidance of any doubt, this recommendation does not address a separate grievance that was raised by the Worker against her coworker (Ms. A, who made the complaint against the Worker in April 2019). These are two separate grievances and processes.

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 note that both the Worker’s SIPTU representative and the Worker herself pleaded with the Employer to complete the investigation. The Worker, in fact, sent an email to the Employer on 25 October 2023 and stated that she is sending it “in desperation” , that “this case has been ongoing now for longer than I would  have imagined.”

Having regard to the totality of foregoing points, I recommended 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 to the foregoing, 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.

I recommended 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 to the foregoing, 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.

Investigation – delay -