Worker

Employer

Anonymised Parties

A Health Care Assistant

A Public Body

Representatives

O'Flynn Exhams LLP

 In House

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 - 00004501

16/06/2025

The complainant is a health care assistant.

On  March 11th, 2024, she was the subject of a complaint made by a patient. A preliminary screening took place, and it was initially decided that no abuse had occurred. However, following  a further complaint in writing from the patient, this triggered a Preliminary Screening Assessment.

Under the relevant policy, a preliminary screening should be carried out to establish the facts by the immediate line manager who must notify the staff member of screening and document it.  If no abusive interaction could have occurred or further action warranted, a note should be kept on the file.

If the preliminary screening indicates that an abusive interaction was possible, then the matter is required to be referred to senior management to decide whether the employee has a case to answer. The complainant asks whether this screening was done by a senior manager as required by the policy.

In due course the complainant was informed in writing that the patient complaint and her response could be used within a formal investigation and/or disciplinary process. She was moved to administrative duties in the stores. But she was not notified in writing and simply told it was pursuant to the terms of the relevant Policy.

She was asked to take two days annual leave immediately after the complaint. If a formal investigation is warranted, a meeting should be arranged to advise the staff member and of their right to a companion.

The staff member should be given the details of the complaint and afforded the opportunity to respond.  

On June 24th, the complainant was told of an external investigation.

Protective measures are normally taken at the relevant stage in the process. These may take the form of providing a level of supervision or putting the staff member off duty with pay pending the outcome of the investigation.

Thes are specified under the policy as "providing an appropriate level of supervision or putting the staff member off duty with pay pending the outcome of the investigation" and the policy must be strictly construed against the employer in this regard.

It is clear that the placing of the complainant in an administrative role, is not something which falls under the definition or 'Protective measures' under the Trust in Care Policy. The complainant had to take two months stress leave from work.

She also complains about the delay in completing the investigation and the lack of consultation about it. It was not published until November 20th nine  months after the initial complaint. The complaint against the complainant was not upheld

She returned to work on November 25th, working in the 'stores', but she felt isolated there. On December 19th, 2024, the complainant returned to her position on the ward.

In summary, the respondent failed to discuss whether the matter warranted formal investigation, pursuant to the applicable policy, the complainant was not furnished with Terms of Reference and deprived from making any representations in respect of same.

In addition, the matters complained about constituted an allegation of serious misconduct which could have had serious implications, as a result of which the complainant experienced a great deal of unnecessary stress.

The respondent says that the complainant has failed to raise any of the issues referred to through its internal Grievance Machinery.

In any event, it rejects the criticism made by the complainant of how the process was conducted. The respondent submits that it fully respected the complainant’s rights at all stages of the process and in particular she was consulted when required. It complied fully with the applicable policy.

She made no objection, although invited to comment at the time, to either the Terms of Reference or to the appointment of the investigator.

Likewise, the issue of protective measures was discussed with the complainant and her trade union representative. She had sought to be placed on ‘administrative leave’, which the respondent was not willing to do. While her placement ‘in the store’ has been referred to disparagingly it was near her normal place of work and appropriate to her grade. A colleague in the same grade already worked there and she was told of it in advance.

The respondent says that the complaint is without merit and in any event the WRC has no jurisdiction to hear it as it has not been properly processed through the grievance machinery.

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

It is difficult not to empathise with any worker who is the subject of what turns out to be an unfounded complaint.

The very making of such an allegation and the process which follows it is inevitably stressful, and while any ultimate vindication will, of course, be a welcome relief, it will not easily wash away all the distress that preceded it.

In this case  the complainant has raised a number of specific complaints.

Some of these were without any merit, allegations were made which were unfounded specifically in relation to an alleged lack of interaction with the complainant about the process.

Others were based on a misreading of the policy. For example, in respect of the protective measures where the complainant’s representative urged strict interpretation, he chose to interpret sample options as an exhaustive list when the text clearly states that they were not.

The respondent provided a robust, and persuasive response to all of the allegations.

However, even before consideration of the merits of the dispute, it is a cardinal principal of referrals under this Act that a complainant has exhausted the workplace level procedures before they are referred to the WRC.

This is for two reasons.

The first is that the workplace is the best place to deal with such issues. It is where those most familiar with the context and detail of the issues are to be found.

So, they can be addressed by those intimately familiar with the dispute and with greatest speed and efficiency. In this case, issues arose first in March 2024, and while it dragged on for many months after that, some of the complaints before the hearing related to that early stage in the narrative. 

Thus, (and this is to the detriment of a complainant seeking resolution of their issues) rather than being addressed at a point close to when they occurred, they turn up at a WRC hearing in November 2025, some twenty months later.

It is important also to note that in relation to some of the issues now raised by the complainant she had not raised any objection to them at the time even though she was given the opportunity to do so.

There are no time limits to complaints under this legislation but failure to act on a grievance at the time it arose, or reasonably soon afterwards, will inevitably raise a question in an Adjudicator’s mind about why something that was not sufficiently grave to raise at the time, became so many months later.

There is also what may loosely be referred to as a ‘jurisdictional issue’.

As mentioned to the parties at the hearing, it is important to recall that while the acronym ‘WRC’ becomes a brand through constant usage, the words it stands for have important meaning in this context. The WRC has a primary focus on ‘workplace relations’.

Apart from the impractically of generally intruding into the HR affairs of Irish business or public bodies it is vital that those charged with doing that job are not undermined by precipitate referrals to the WRC when internal processes have not been exhausted.

In the case of Gregory Geoghegan t/a TAPS v A Worker 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.

This was further relied on in A Worker v An Employer (ADJ 40376).

The complainant in the current case was legally represented at the hearing and her solicitor confirmed that while she had not processed the matter through the grievance procedure, he, (her solicitor) had corresponded with the respondent at an early stage.

This is not sufficient.

Solicitors have no general right of audience under the Code of Practice on Grievance and Discipline, SI146/2000, and a grievance must, in most Grievance Procedures be submitted personally by the worker in question.

Legal practitioners approached in such circumstances should consider advising their prospective clients who have not done so to comply with that requirement and essentially apply the jurisdictional test under discussion here.

In any event they are likely to meet resistance as most HR departments will not deal with solicitors in respect of non-legal employee matters or issues that are purely industrial relations.

The complainant has not made out a sufficient case of a breach of her rights. For all these reasons the complaints are not upheld.

Workplace procedures