INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
HEALTH SERVICES EXECUTIVE MIDLAND AREA
- AND -
(REPRESENTED BY IRISH NURSES ORGANISATION)
Chairman: Ms Jenkinson
Employer Member: Mr Doherty
Worker Member: Mr Nash
1. Appeal of Rights Commissioners Recommendation R-031125-04-DI.
2. The Claimant retired from the Midland Region Hospital, Portlaoise, in July 2002 on grounds of ill health. He was a senior Staff Nurse at the time of this retirement. In 1997 following complaints from a number of staff nurses regarding bullying harassment, a review of working relationships in the medical ward of Portlaoise Hospital was conducted by an Independent Consultant The Complainant was one of those who participated in the review. The Union state that the report concludes that over 80% of staff nurses complained of being harassed and bullied by a specific individual. The Report made strong recommendations including a facilitation process in respect of issues brought to its attention.
A facilitation process for all ward staff commenced in March 2002. It contained many of the same recommendations which were observed and recommended by the Independent Consultant's Report.
The claimant sought an independent investigation on his own behalf in August, 2003. An internal investigation took place. The Union state that the individual whom the allegations were made against refused to co-operate with it, the Midlands Health Board produced a report regardless of that fact which concluded that they could not find any evidence to support the allegations made against the individual. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 23rd June, 2005, the Rights Commissioner issued his recommendation as follows:
“I find that the respondent consistently failed to deal effectively with the complaints of bullying made by the claimant and other colleagues. It is also unacceptable that the respondent allowed the process to fail due to the non co-operation by the person against whom the allegations had been made. The result has been that the claimant has suffered both in terms of his health and also in terms of his income/pension entitlements.
Having considered the seriousness of the matter. I find in favour of the claimant's complaint and I award the claimant €40,000 in compensation for the failure by his employer to take all reasonable steps to ensure a safe working environment over a number of years and for the impact that this had on his health, his income and the level of his pension".
- On the 8th July, 2005 the Health Services Executive appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with
Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 26th April, 2006.
3.1 The Rights Commissioner concluded that the Health Board did not take all reasonable steps to ensure a safe working environment over a number of years for the Claimant. The arguments presented are based on the in-action of the Board, the non adherence to their own policy on bullying, the non adherence to agreed terms of reference for an investigation, the abandonment of a necessary facilitation process and the promotion of the individual to a senior post with responsibility over those who had made complaints against that person, prove that Management failed in its duty of care to the Complainant.
2. The Board were fully aware of the problems experienced by the Complainant and other colleagues resulting in the behaviour of the individual. These difficulties were recorded in the Consultants Report and accepted as being true. The Board accepted this review, therefore, they also accepted that the findings were true.
3. Despite these serious concerns the Board remained inactive on the issues and only implemented the urgent recommendations three years later in a compromised and rushed manner. They denied the Complainant the right to an independent investigation when he requested it and treated his complaints as trivial matters.
4. The Claimant's health has been effected due to the negative effects of the pattern of delay, inactivity, the non-adherence to basic principles of fairness and duty of care to the claimant (and all employees equally) by the Midland Health Board.
4.1 The Rights Commissioners Recommendation under appeal is erroneous, in that Management did not have the opportunity to respond to the allegations made by the Claimant. The Rights Commissioner's conclusions are based on hearing only one side of the story, thereby denying natural justice to the Respondent.
2. Management refutes the Union's argument that it failed to comply with its own policy in regard to the investigation of the Complainant's complaint. Management are satisfied that the complaints of the Complainant were fully investigated by trained investigators and in accordance with policy and procedures.
3. Management refutes that the suggestion that the investigation was hampered by the alleged bully. The individual acted on the advice of their own Union and chose alternatively to make a written statement in support of their position.
4. Management initially sought to retain and relocate the complainant including offers of redeployment to different units. Both of these reasonable options were rejected. The claimant indicated that he wished to retire from Nursing.
5. Management denies that it failed to provide a safe working environment for the claimant or that by its actions it caused impact to his health.
6. The claimants decision to resign from the 1st May, 2002 was his and his decision alone and was for reasons which predated his allegations of bullying against the respondent. which was received on 27th August, 2003, a full 16 months after his request to retire.
This is an appeal by the HSE of a Rights Commissioner’s recommendation which found in favour of the claimant’s claim that his complaint of bullying had not been properly dealt with and awarded him €40,000 in compensation for employer’s failure to take all reasonable steps to ensure a safe working environment over a number of years and for the impact this had on his health, his income and the level of his pension.
Management refutes the allegations made by the Union and held that his complaint of bullying had been properly dealt with in accordance with its procedures and stated that the claimant voluntarily resigned on health grounds from his position a Senior Staff Nurse.
The Union wrote to the Midland Health Board on 10th February 2003 seeking an investigation into allegations of bullying. This was at a time when there appeared to be an agreement between the Union and the Board that an external investigation would be carried out by the Board and where a commitment was given by the Assistant CEO and the Director of Nursing a year earlier that the matter would be seen through to its conclusion. However, no action by taken by the Board. The Court notes that the claimant’s formal letter of complaint followed this non-response to the Union’s request.
Having examined the details provided by both sides, the Court is of the view that the claimant’s allegation of bullying was not taken seriously by management; his situation was not adequately addressed. The investigation carried out was flawed and was not in compliance with management’s own procedures. The Court is of the view that considering the reports carried out in 2000/2001 into the difficult interpersonal relationships which existed within the hospital and the measures recommended to tackle these difficulties, it makes it all the more damaging that the Board did not complete the process committed to in 2002. The Court accepts that this lack of action lead to the claimant’s claim - the subject of the Rights Commissioner’s recommendation.
Therefore, taking all matters into account, the Court concurs with the findings of the Rights Commissioner and upholds his recommendation. The Court dismisses the HSE’s appeal.
Signed on behalf of the Labour Court
Enquiries concerning this Decision should be addressed to Jackie Byrne, Court Secretary.