Worker

Employer

Anonymised Parties

A Nurse

A Hospital

Representatives

Irish Nurses and Midwives Organisation

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 - 00003016

20/08/2024

In May 2021,  the complainant was subjected to unacceptable conduct by a Health Care Assistant (HCA). It took the form of being shouted at by the co-worker, who repeatedly used expletives in the presence of another nurse. When she tried to answer him, he persisted.

Later as the complainant attempted to leave the ward for her break, the co-worker was standing close to the exit. He directed more strong language towards the complainant and taunted her. 

On reporting the incident to the Night Assistant Director of Nursing (ADoN), the complainant  was advised to simply avoid the HCA and return to work.

She reported the incident to the ward Acting/CNM2, prior to handover that morning who encouraged the complainant to raise the incident as a grievance.

The complainant  submitted a grievance on Saturday May 22nd, 2021 .

On June 2nd  in the course of an informal meeting with the Acting/CNM2, she was offered an opportunity to attend an informal meeting with the HCA to resolve the issue, but she declined on the basis of the level of fear and intimidation she had experienced during the incident

The complainant  subsequently formalised her grievance on June 3rd and submitted it to her line manager The complainant had to attend her GP who placed her on certified stress-related sick leave for a period of 15.03 days.

A Stage 1 grievance hearing was held on Monday 19th July 2021.

In correspondence from the  grievance decision-maker on Thursday 17th August, the respondent gave an update. The INMO responded requesting the outcome report of the Stage1 hearing.

On August 19th the respondent issued the report and confirmed that the grievance had been upheld and  that the respondent had committed to providing a written apology to her.

However, the correspondence also stated that the grievance was being escalated to Stage 2 and that another line manager would address the grievance.  Despite the union pursuing the apology it has never been given

The INMO requested a meeting with the Director of Nursing and Deputy HR Manager on May 30th, 2022, at which the following remedy was sought as resolution to the complainant 's grievance.

That an extension of 15.04 days be applied to her sick leave entitlement

That she be compensated for the loss of premia shifts which she was scheduled to work during her period of sick leave.

The employer committed to considering this request, but ultimately did not respond.

Given the serious nature of the behaviour of the co-worker it is unacceptable that the respondent took forty-six days to hear the complainant's grievance in the first place and it is in breach of the seven day timeline in its Grievance and Disciplinary procedure.

In the context of the respondent Policy on the Prevention of Work-related Aggression and Violence  in the workplace, Section 7 of that policy makes provision for incident assessment and management post the circumstances central to the complainant 's grievance. However, the respondent failed to utilise that policy to investigate and administer the complainant‘s grievance

Following the meeting on 30th May 2022, the respondent failed to respond.

A number of WRC cases were submitted as authorities.

In A Worker v respondent ADJ- 00025413 in which the AO held that while some delays were outside the respondent's control, they failed to provide satisfactory explanations for not processing the complainant's grievance.

The complainant 's sick leave was solely related to the incident with the co-worker and the failure of the respondent to protect her thereafter. Had it not been for these circumstances, the complainant  would not have endured such significant stress, and her sick leave record would not have been affected.

In A Heath Worker v A Health Sector Employer IR - SC-00000087  the AO held "Accordingly, I consider that it would be unfair to penalise the worker for being off sick as a result of the failures of her employer. The causal link is self-evident ......Therefore, I recommend that the sick leave record from May 2021 to January 2022 be amended and treated as special leave".

At the time the complainant  lodged her formal grievance, the respondent was uncertain about how the complainant's grievance would be processed which did not provide confidence or reassurance to the complainant.

The respondent failed to discharge their duty of care to the complainant  by advising her to return to the location for which she reported as being unsafe without any protective measures being put in place. The respondent Dignity at Work policy also provided the respondent with grounds to protect the complainant  and investigate the incident after it was reported but they failed to do so.

The respondent maladministered the complainant's grievance and failed to undertake meaningful and reasonable measures to resolve the grievances and in doing so demonstrated that verbal abuse and seeking to restrain the movement of an employee was completely acceptable rather than employing a zero tolerance approach.

The complainant raised a formal grievance under the respondent Grievance and Disciplinary procedure with management following an alleged incident with a fellow employee, which the complainant  alleges left her feeling threatened and fearful in the workplace.

It is the complainant  position that the ‘mal-administration’ of the grievance lead to greater distress. It is claimed that she incurred stress related sick leave as a result. The complainant  sought an extension to her sick leave entitlement by the number of days she was on associated sick leave.

It should be noted that this was in the height of the Covid 19 pandemic, it was a very stressful and pressured time for all those working in the Health Services.

The respondent apologises to the complainant  for any delays regards the administration of the grievance procedure with regards to this case.

Unfortunately, there is no scope to facilitate the reinstatement of any employee’s sick leave under the respondent  ‘Managing Attendance’ policy.

In this case the complainant  was not satisfied with the administration of her grievance. It is not uncommon for one or other (or both) parties to be dissatisfied with the outcome of a grievance.  However, that does not change the fact that that the respondent took such steps as were reasonably practicable to review and correspond with the complainant  in relation to her concerns.

The Grievance of the worker was lodged and processed in accordance with the terms and provisions of the respondent  Grievance and Disciplinary procedure.

The respondent again apologises for their delay in the outcome of the grievances raised by the complainant however as mentioned above this was in the height of the Covid 19 pandemic.

The Grievance Hearer made an oral submission to the hearing and described her efforts to conduct the hearing as quickly as possible. She was on annual leave for a week, and spoke of her genuine efforts to initially mediate a resolution and then to arrange the meetings with both sides to allow her to reach decisions on the grievance.

It was also at the height of the Covid pandemic.

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

The issue arising in this case is a relatively straightforward one, which has been unduly complicated by a number of other issues that followed the initial processing of the grievance. 

The facts are that there was an unacceptable incident in which the complainant was subjected to oral abuse by a co-worker. 

This was then followed, in the complainant’s submission by an unacceptable delay in processing the grievance, described somewhat oddly, and inaccurately as ‘mal-administration’, by the complainant‘s union.

This is the nub of the matter.

The incident took place  on May 13th, 2021 and was immediately reported. The complainant says she made a first formal grievance on May 22nd but there is also a reference to a formalised grievance on June 3rd. Nothing much turns on this; even starting the clock ticking at the later date does not diminish by much the case the respondent has to answer.

The Stage 1 meeting took place on July 9th and the process concluded on August 19th.   Nothing further might have been heard of the case had the aggressor in the matter complied with the decision of the Grievance Hearer and apologised but he did not do so, and as the respondent pointed out at the hearing it has limited powers to require him to do so, although it has some.

In many employments this might be felt, in the particular circumstances of the time, to have been a reasonably timely and satisfactory conclusion of the matter.

For reasons that are not entirely clear, nothing further happened until May 2022,  some twenty-one months later, when a meeting took place between the parties to consider a claim for compensation for the complainant.

She had every right to pursue such a claim, of course, but the attempt by her union to represent this as some part of the original grievance process continuing is misconceived.

The grievance process may have been too long for the complainant‘s liking, but it concluded on August 19th, 2021, with the issuing of the report and a recommendation that the subject of the complaint apologise to the complainant.

The fact that the complainant and her union felt entitled to some sort of compensation is a fresh claim and not part of the original grievance, although arising from it. Specifically, if the complainant wished action to be taken to secure the apology, she had the option to either submit a fresh grievance or possibly appeal the outcome of the first one, on the basis that it had not been complied with.

It then took the complainant until August 2024, over two years later, and three years since the grievance process concluded, to refer the matter to the WRC and she is fortunate that the statutory time limits in employment rights statues do not apply in this case. 

The respondent says that it could not respond to the demands made in the claim for compensation in May 2022 as it would have involved disrupting exiting schemes etc. This was somewhat predictable; the respondent is a large organisation with nationally agreed employment policies that do not lend themselves to adaptation to fit special cases, as ought to be well known to the complainant’s union, at least.

In my view, a more imaginative approach by the complainant and her union that took account of these realities might have yielded better results, essentially by formulating a claim for redress that had some realistic chance of being conceded.

So, returning to the central issue; the delay in the grievance process, there are clearly a number of mitigating factors.

The evidence of the grievance hearer was persuasive in that she acted diligently and there was no evidence of excessive tardiness on her part. These events took place during Covid and the summer holiday period. The suggestion that there was any ‘maladministration’ on the part of the grievance hearer is totally without foundation.

(Definitions of maladministration refer to ‘inefficient or dishonest administration or mismanagement and it is an entirely inappropriate word in this context to describe delay in the procedure.)

Nonetheless it is quite a stretch from the approximately fourteen days permitted in the grievance Policy for the process and the forty-six it took.

I do not know why the respondent has such timelines in its procedures as they are arguably over ambitious and unrealistic. But they are there and primarily there for the protection of a worker submitting a grievance and a hedge against unnecessary delay.

While these timelines may be ‘more honoured in the breach than in the observance thereof’, once a complaint is made, a complainant has the right to rely on them.

There is provision for extension in exceptional circumstances, as one would expect. That was not in fact done and probably only required the courtesy of notification to the parties that the periods were being extended, with some explanation as to why.

I cannot retrospectively do so but it should be a lesson learned for the respondent for the future.

It would not have been difficult to make the case for ‘exceptional circumstances’ during the Covid pandemic.

The union relied on a number of earlier decisions of the WRC.

Cases under the Industrial Relations Act are of an entirely different character to employment rights statutes and are so particularly ‘fact-specific’ that they may be of little value as precedent  in later cases and indeed may fetter the wide discretion of an Adjudicator in hearing a case.

It is unusual and generally unhelpful to introduce such ‘authorities’ in Industrial Relations cases as the general principles of precedent do not apply and is unlikely to be helpful unless the facts and circumstances of the case relied on are so closely aligned with the one being heard as to make them near identical.

For example,  in one of the cases submitted, ADJ 25413 the delay in the process had been fourteen months, (as opposed to two and a half here).

In the other ADJ IR SC 87  the Adjudicator had found that the complainant had ‘not been afforded fair and due process from the outset’.  There was no suggestion of any such dilution of the complainant‘s rights in this case, merely a delay, which, if it were not for the specific timelines in the respondent‘s procedures was not unreasonable, in my view.

Neither of these cases has anything to contribute to a Recommendation in this one.

And as already noted, the delay in this case was not exceptional by reference to the normal experience in such processes; (and this is well known to the complainant‘s union) but the complainant‘s right to a remedy derives from the respondent’s failure to deliver on its own timelines.

I find, even taking the mitigating factors into account, including the respondent’s apology that the complainant is entitled to a remedy for the delay and the ensuing breach of her rights, based on the letter of the respondent’s policy.

I balance those mitigating factors by having regard to the nature of the incident which gave rise to the grievance, and its impact on the complainant.

(For the avoidance of doubt, I find that this was not ‘mal-administration’ which is an entirely inaccurate word to describe what happened.)

Failure to adhere to timelines