Worker

Employer

Anonymised Parties

A Radiographer

A health service provider

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 - 00002414

26/03/2024

The Worker commenced employment with the Employer in August 2002.

On 26 March 2024 the Worker referred a dispute to the Director General of the WRC regarding the manner in which the Employer dealt with her complaints.

On 11 October 2022 the Worker raised complaints against her line manager Mr A, Radiography Services Manager (RSM1) with Radiography Services Manager (RSM3), Ms C and the HR Site Manager.

The first complaint related to the pattern of ongoing aggressive and intimidating actions. This complaint was raised under the Dignity at Work Policy. The second complaint relates to Mr A's failure to carry out work duties leaving Radiographers to do their work along with his.

On 13 October 2022 the RSM3 emailed the Worker requesting confirmation that the complaints could be sent to Mr A. The RSM3 also enquired if the Worker would partake in the mediation process.

On 18 October 2022 the Worker emailed the RSM3 stating that there were two complaints, and that the correct policy should be followed for each one. In this email the Worker also set out further examples of duties not carried out by Mr A. The Worker also advised that the Dignity at Work complaint should be referred to HR for "the desk based exercise called preliminary screening".

On 20 October 2022 the RSM3 emailed the Worker again inquiring if she could forward the complaints to Mr A and asking if she would engage in mediation.

On 24 October 2022 the Worker responded by referring the RSM3 back to her email of 18 October 2022. She stated that mediation was not the next step in the processing of the two complaints.

On 18 November 2022 the RSM3 emailed the Worker requesting her to meet with herself and Mr H from HR to discuss the contents of her emails and to progress through the relevant policy.

On 12 December 2022 SIPTU emailed HR Site Manager advising that the Union was representing the Worker in relation to her complaints dated 11 October 2022.

On 14 December 2022 the RSM3 emailed the Worker again requesting her to meet with herself and Mr H of HR. She again asked her to consider mediation and again inquired if the Worker’s complaints could be given to Mr. A.

On 18 January 2023 the Worker emailed the RSM advising she had no objection to the complaints being forwarded to Mr A.

By email of 14 December 2022 Mr H of HR emailed the Worker’s SIPTU representative to advise of the RSM3 email to the Worker. SIPTU responded on 19 December 2022 to advise Mr H that the Worker had already confirmed by email of 24 October 2022 that she did not wish to engage in mediation. SIPTU advised Mr H that she wished for the matter to be progressed under the Employer’s Dignity at Work Policy without further delay.

SIPTU sent a reminder email to Mr H on 4 January 2023. Mr H replied on 12 January 2023 to advise that both himself and the RSM3 had been on leave and that he would follow up with her and revert.

No reply was received from Mr H and SIPTU sent a further reminder email on 8 February 2023.

Mr H emailed the Worker’s representative and the Worker on 24 February 2023 looking for a date to meet. The meeting was confirmed for 6 March 2023 with Mr H and the RSM3 attending.

On 3 March 2023 Mr H emailed the Worker and her representative with Mr A's response to the complaints against him.

The Worker and her representative attended the meeting of 6 March 2023.  The RSM3, the HR Site Manager and Mr H of HR were in attendance. The Worker expressed an interest in partaking in mediation. She was told she would receive notification the following Monday as to whether or not this was proceeding. She heard nothing. Nor did she receive an outcome in relation to the second grievance.

On 10 March 2023 the RSM3 emailed the Worker and Mr A asking them to confirm they were agreeable to enter the mediation process. The Worker confirmed her agreement on 13 March 2023.

On 17 May 2023 SIPTU emailed Mr H of HR and the RSM3 stating they had not heard from them since the meeting on 6 March 2023.

On 2 June 2023 SIPTU sent a further reminder email to Mr H and he RSM3 and advised the other grievance had also to be dealt with. Mr H responded on 7 June 2023 stating the case has been referred to the National Mediation Service. SIPTU requested he follow up with the Unit.

On 19 June 2023 SIPTU emailed Mr H and the RSM3 in relation to the other grievance the Worker raised regarding the RSM1 failing to carry out his work and sought an outcome on this. SIPTU advised that the Worker confirmed that she would not attend mediation until the outcome was given.

On 25 June 2023 the Worker emailed the RSM3 looking for an update. She responded on 20 July 2023 advising that mediation was to be scheduled regarding the dignity at work complaint. She advised that the second complaint was being dealt with through the staff reporting structure. She upheld the grievance on one point 'for example 3/10/22 room one for an 8 am start. He did not appear for work in General x-ray all day leaving Radiographers to do their work along with his. He did not communicate with Radiographers why he was not turning up for work in general x-ray. He did not turn on the equipment at 8 am or do any warm ups on the rooms. This delayed the day's work. He did not schedule enough Radiographers to work in general that day. There were 140 exams that day in general alone. The Radiographers were exhausted and patients were delayed — [Mr A] has responded "I had not checked the roster and was in the department from 08:20 but nobody mentioned my mistake until I noticed myself mid-morning, by then the morning clinics had almost finished and all staff were on duty. When I arrived the waiting room was empty and I didn't look for a radiographer. I kept an eye on the clinics and was available if needed. No radiographer requested my presence on that day"

The other aspects of the grievance brought to our attention are being dealt with through the performance achievement process."

On 24 July 2023 SIPTU emailed the RSM3 seeking clarification on her response on the second grievance. SIPTU sought an exact answer as it was not an isolated incident. SIPTU advised the Worker gave many examples in emails and verbally at the meeting with both HR and the RSM3. SIPTU stated the response was ambiguous and seemed to suggest that the RSM3 only accepted one example. SIPTU further stated that the grievance related to a pattern of behaviour and not an isolated incident on 3 October 2022. The RSM3 re-issued the outcome on 28 July 2023.

On 2 October 2023 SIPTU emailed the RSM3 and stated the Worker wished to appeal the outcome to Stage 3 and inquired to whom the appeal should be sent. On 4 October 2023 the RSM3 confirmed that the appeal should be sent to Mr P.

The Worker emailed Mr P on 7 November 2023 setting out the position to date. An appeal hearing took place on 27 November 2023.

The Worker emailed Mr H of HR and the RSM3 on 28 November 2023 asking if the grievances were upheld as Mr P asked this at the appeal hearing. She also sought the outcome of the preliminary screening.

SIPTU emailed on 23 January 2024 looking for the outcome. Mr P issued the outcome on 29 January 2024. The outcome stated that it was a "complex issue and has a number of aspects to it, which I have worked through. There is absolutely no doubt that there is a difficulty in the working relationship between [Mr A] and [the Worker]. This is very evident. It is difficult for me to make a determination on this aspect of [the Worker’s] grievance because in essence there is a lack of concrete evidence. Rather than me making a determination on this aspect of it I am suggesting that we seek the assistance of the WRC mediation service between both parties in an effort to resolve this aspect of the issue.

In relation to the grievances lodged by [the Worker] on 11/10/22 and 18/10/22 it is evident from talking to [the Worker] that neither were dealt with within the procedure's timeframes and also it was unclear as to whether or not they were upheld. In this regard this is unacceptable and I uphold this aspect of her grievance. It is important that procedural timelines are adhered to and that clear outcomes are given. I believe that even to date no outcome has issued. This aspect of the grievance is upheld. In relation to the first part of the grievance I am happy to arrange for WRC assistance with the mediation if both parties are agreeable. "

The matter was referred to the Workplace Relations Commission on 26 March 2024.

UNION ARGUMENT

This matter has been referred to the WRC due to the failure of the Employer to follow its grievance procedure through the correct stages, and within the correct time frames for each stage.

The Employer failed to follow the Dignity at Work Policy through its stages starting with preliminary screening. No preliminary screening was carried out at all.

The Employer failed to provide an outcome under the Dignity at Work Policy and failed to provide a transparent outcome under the Employer’s grievance procedure policy.

In relation to the Worker's grievance relating to the dignity at work, the Employer gives "intimidating or aggressive interactions" as examples of bullying behaviour. It should be noted that this behaviour was brought by the Worker as far as the Rights Commissioner in 2013, but there was no follow up on his recommendations by the Employer.

The Employer embarked on a Survey "Engaging with staff to create a work positive Environment". The results showed that staff found communication with managers as being sporadic and ineffective, but can also be " aggressive, hostile and destructive". No follow up action was taken.

The Worker's grievances pertain to similar aggressive and intimidating interactions with the line manager. However, again there is no outcome or resolution.

This matter has caused the Worker considerable upset and distress. The Employer have not met their duty of care to the Worker.

SIPTU cited the following cases which deal with similar issues re not following procedures and delay.

IR-SC-00002029 A Health Care Attendant and a Hospital Services Provider - Complainant awarded €5,000 compensation for the extraordinary delay in dealing with investigation by Respondent and for not following procedures.

ADJ-49110 A Health Care Attendant and a Hospital Services Provider - Complainant awarded €5,000 compensation for the extraordinary delay in dealing with investigation by Respondent and for not following procedures.

ADJ-50827 A Porter and A Hospital - Complainant awarded €2,000 compensation as the Respondents breached its own policies and its duty of care to the worker.

Background

On 11 October 2022 the Worker made a complaint to the Radiography Service Manager 3 (RSM3) against her line manager, Radiography Service Manager 1 (RSM1) this was raised under the Employer’s Dignity at Work Policy.

On 13 October 2022 the RSM3 requested consent to share the complaint with the RSM1 whom the complaint was made against. The RSM3 asked if the Worker wished to engage in mediation to resolve the complaint.

On 18 October 2022 the Worker emailed the RSM3 referencing a grievance, however, did not include a response with regards the sharing of the complaint with the RSM1 nor if she wished to engage in mediation.

On 20 October 2022 the RSM3 responded to the Worker and once again requested permission to share the complaint and inquired if the Worker wished to agree with mediation.

On 24 October 2022 the Worker responded to the RSM3 and noted mediation was not the next step and she wished for this to be referred to the HR Department.

On 5 December 2022 the RSM3 once again inquired with the Worker if she was happy to share the complaint with the RSM1 whom the complaint was against.

On 10 December 2022 the RSM3 emailed the Worker and asked the Worker to reconsider mediation and noted that she could avail of the National Mediation Services to resolve the complaint.

On 12 December 2022 the Worker’s SIPTU representative sought an update from the Human Resource Manager in relation to the issue.

On 14 December 2022 the Deputy HR Manager advised SIPTU that the RSM3 had emailed the Worker regarding her willingness to participate in mediation and if she was agreeable to share the complaint details with the RSM1 whom the complaint was made against. The RSM3 also asked the Worker if she would like to meet with the Manager or a representative from the HR Department to discuss this issue.

On 19 December 2022 SIPTU advised the Deputy HR Manager that the Worker did not wish to go through mediation. The Worker’s SIPTU representative noted that they wished to progress the complaint under the Dignity at Work Policy without further delay.

On 4 January 2023 SIPTU sought an update from the Deputy HR Manager.

On 12 January 2023 the Deputy HR Manager advised SIPTU that he was awaiting to meet with the RSM3 regarding the matter and would revert once they have had the opportunity to discuss.

On 18 January 2023 the Worker confirmed via email that the complaint could be shared with the RSM1.

On 19 January 2023 the RSM3 shared the complaint with the RSM1.

On 26 January 2023 the RSM1 responded to the allegations made against him and refuted these allegations in full.

On 8 February 2023 SIPTU sought an update from the Deputy HR Manager.

On 28 February 2023 a meeting was arranged for 6 March 2023.

On 3 March 2023 in advance of the meeting scheduled for 6 March the Deputy HR Manager forwarded the RSM1 response to the complaint to the Worker and her union representative.

On 6 March 2023 a meeting was held between the Deputy HR Manager, RSM3, the Worker and the Worker’s union representative.

On 10 March 2023 RSM3 asked via email, both the Worker and RSM1 if they were agreeable to mediation. The RSM1 agreed to mediation. On 13 March 2023 the Worker agreed to mediation.

On 28 March 2023 the case was referred to the National Mediation Services by the Deputy HR Manager.

On 7 June 2023 Deputy HR Manager advised SIPTU the case was handed over to the National Mediation Services. SIPTU advised the union was not aware of this and the Deputy HR Manager then followed up with the National Mediation Service.

On 19 June 2023 SIPTU advised that the Worker would not attend mediation until she received an outcome of the grievance.

On 25 June 2023 the Worker contacted HR regards her issues, HR responded and noted they were awaiting the assignment of an external mediator for this case.

On 19 July 2023 SIPTU requested an outcome of the Worker’s grievance which was issued by the RSM3 on 20 July 2023.

On 21 July 2023 the National Mediation Service notified HR that a meeting was organised for 28 July 2023.

On 24 July 2023 SIPTU sought clarity on what the outcome was to the grievance – was it upheld or not. Further that day the National Mediation Services notified HR that the Worker had postponed the mediation which was due to take place on 28 July.

On 28 November 2023 the Worker requested the outcome of the grievance to be issued via email.

On 30 November 2023 HR requested the outcome from the RSM3 however she did not have the outcomes as of then.

On 15 January 2024 RSM1 requested an update on the case from the HR Manager.

On 26 January 2024 a meeting was arranged between the HR Manager and the RSM3 to discuss the status of the case.

On 26 March 2024 the Worker referred the matter to the WRC.

The Employer stated at the hearing that it did not receive Mr P’s report of 29 January 2024 so there was no follow up.

The Employer’s Position

The Worker was not satisfied with the outcome of the internal review of her complaint. It is not uncommon for one or other (or both) parties to be dissatisfied with the outcome of a review. However, that does not change the fact that the Employer took such steps as were reasonably practicable to review and correspond with the Worker in relation to her concerns.

It is to be noted with previous issues between the Worker and the RSM1 that this is an interpersonal issue – this is evident in the Rights Commissioner report issued in 2013.

Conclusion

The grievance of the Worker was lodged and processed in accordance with the terms and provisions of the Employers Grievance Procedures (Stages 1, 2 and 3). The Employer apologised for the delay in the outcome of the grievances raised by the Worker. The Employer noted that it took the Worker’s complaints seriously. The Employer stated that it took an action to address the Worker’s difficulties with her line manager through the performance management mechanism but, regrettably, could not share the details.

The Employer noted that it engaged an independent facilitator to engage with all the staff and issue a report with a view to creating a positive work environment.

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

The Worker’s claim relates to the manner in which her complaints were dealt with.

There was no dispute that the Worker raised her complaints with the Employer on 11 October 2022. By email dated 18 October 2022 the Worker clarified that each of the complaints should be dealt with in accordance with the relevant policy. Her first complaint was in relation to alleged aggression and intimidating behaviour of her line manager and the appropriate policy was the Dignity at Work Policy. The second complaint was a grievance with her line manager’s alleged failure to carry out his duties.

It appears that the difficulties between the Worker and her line manager go back as far as 2012 when, following receipt of the Worker’s dispute regarding her treatment by her line manager, a Rights Commissioner issued a recommendation on 20 February 2013. The Rights Commissioner recommended that the conflict be resolved through mediation and the operational aspects should be addressed at an institutional level. While at the hearing the Employer was of the impression that there was an attempt to arrange a mediation at that stage, the Worker stated that there was no offer to mediate post-Rights Commissioner’s recommendation and there was no improvement in the circumstances.

Some 12 years later, the matter remains unresolved. The Worker’s 2022 complaints seem to be another attempt to resolve the difficulties. It seems that the same staff members, RSM3 and the HR Manager have been aware of and dealt with the issues since 2012 as they represented the Employer at the Rights Commissioner’s hearing on 6 December 2012.

I accept the Employer’s position that some steps were taken but, due to the confidentiality of the performance management process, could not be disclosed to the Worker. Having said that, it seems that the approach to the Worker’s complaints of 2022 was somewhat disjointed. The Worker requested that the matter be dealt with in accordance with the relevant policies. However, even at stage 3 of the Worker’s grievance, Mr P seemed to be unable to ascertain what were the outcomes of the Worker’s grievances and was of the view that none was issued. He also agreed with the Worker that the timelines were not adhered to. Furthermore, Mr P recommended that a mediation be arranged in an attempt to resolve a difficulty in the working relationship between the Worker and her line manager. This clearly has not been addressed. I note that the Employer conceded at the hearing that there was no action taken with regards to the Worker’s grievance as the Employer has never received the outcome of stage 3 grievance of 29 January 2024. It has been a year since Mr P issued his outcome and, even in the context of the WRC dispute, there was no follow up by the Employer. I accept that the Employer is a large organisation, however, I find the communication shortcomings quite disappointing.

With regards to the Worker’s complaint under the Dignity at Work policy, I recommend that the Employer arranges a mediation with a view to resolving the working relationship difficulties between the Worker and her line manager.

With regards to the operational aspect of the Worker’s grievance, I recommend that the Employer addresses the working arrangements so as to ensure that all staff, including the RSM1 are aware of their duties and responsibilities.

I am cognisant of the confidentiality of the performance review process, and in that context I do not expect the Employer to report to the Worker on the steps taken through such a process. However, I recommend that the process is utilised by the management to separately address the alleged shortcomings, if any, of the RSM1 performance.

In addition, I recommend that the Employer pay the Worker the sum of €3,000 for the delay and the manner in which the Employer dealt with the matter.

Grievance – dignity at work