ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00005604
A Learning Disability Employer
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
Date of Adjudication Hearing: 26.04.16
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Location of Hearing: Sligo
In accordance with Section 41 of the Workplace Relations Act, 2015nd/or Section 13 of the Industrial Relations Acts 1969] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Summary of Complainant’s Case:
The claimant has been employed as a Social Care Worker with the respondent since the 1st.Aug 2000.The claimant was aggrieved with an investigation of allegations made against her and asserted that the respondent failed to observe their own procedures and were responsible for a protracted and flawed investigation in her complaint form the claimant outlined
“[THE COMPLAINANT IS A SOCIAL CARE WORKER WITH 16 YEARS SERVICE WITHOUT ISSUE.
IN APRIL 2015 COMPLAINTS WERE MADE AGAINST HER BY HER SERVICE MANAGER. THE
EMPLOYER INITIATED AN INVESTIGATION WHICH WAS CONDUCTED BY A MR A. THIS CONCLUDED THAT THERE WAS NO CORROBRATIVE EVIDENCE TO SUPPORT
MUCH OF WHAT WAS ALLEGED BUT SOME OF THE MATTERS RAISED UNDER CODE OF
CONDUCT WERE UPHELD.THE COMPLAINANT BELIEVES THAT NORMAL / RESPONDENT PROCEDURES WERE NOT ADHERED TO BY THE EMPLOYER THROUGHOUT THIS PROCESS AND THAT THEINVESTIGATION WAS FLAWED. SHE WAS PLACED OFF DUTY WITH PAY FOR ANEXCESSIVE LENGHT OF TIME 23.04.15 TO 18.01.2016, AT WHICH TIME SHE WAS RETURNED TO A NEW WORK BASE AND ISSUED WITH A WRITTEN WARNING.SHE APPEALED THESE SANCTIONS BUT HER APPEAL WAS REJECTED. THE COMPLAINANT IS SEEKING TO HAVE THE WARNING LIFTEDAND A RETURN TO HER NORMAL WORK BASE”
At the hearing the claimant confirmed that she no longer wished to return to her original work base as her current base is more convenient to her home.
The claimant was contacted by phone by her regional manager (MH1) on the 22nd.April 2015 to advise her that complaints had been made against her – the following day she received a letter placing her off duty with basic pay pending an investigation into allegations made by her line manager(MH2).The complaints related to the claimant’s engagement with staff in a local pharmacy as well as concerns by her line manager about her conduct. The union presented a chronology of the ensuing documentation between the parties. The complaint relating to the pharmacy was it was submitted a second hand account of allegations regarding an engagement between the claimant in the local chemist shop; the other complaint was non specific , contained issues that had never previously been raised with the claimant at supervisory support meetings and was dated 5 days after the letter which put the claimant off work.
On the 1st.May the claimant was advised that issues of protection and welfare were identified and would be the subject of preliminary screening the following week. Ultimately it was decided that an investigation would be carried out by Mr.B into the protection and welfare concerns and dignity at work complaints made against the claimant by her line manager MH2. This was communicated to the claimant on the 21st.May – wherein she was also informed that the Pharmacist did not wish to pursue the complaint against her. On the 11th.June ,2015 the union raised a number of issues in relation to the terms of reference for the investigation, suggested that the parameters around the original complaint from the chemist “ were being extended contrary to fair procedures” and submitted that a formal investigation into the dignity at work complaints was premature as all informal procedures should have been utilised in the first instance.
It was submitted that the records of the Supervisory Support sessions between the claimant and MH2 indicated that there had been no mention of any issues with the claimant’s conduct or behaviour in the service. A further series of correspondence was submitted into evidence charting the exchanges between the union , the respondent and the investigator Mr.B. The union had sought a copy of the interview Mr.B had conducted with MH1 – the regional manager but were advised that the audio recording did not work on the day ; in the event MrB compiled a record from some notes he had taken. It was submitted that the notes were vague and the Investigator t had made no attempt to explore the veracity of statements made by MH1.
The draft report issued on the 29th.Sept. 2015 wherein it was concluded that the claimant had breached the respondent’s code of conduct – all other allegations were not upheld.
The final report was issued to the claimant on the 9th.Nov. 2015 ; it identified that the investigation had been conducted under the Dignity at Work Policy , the Adult Safeguarding Policy and the Code of Conduct for the respondent’s employees. No findings were issued under Dignity at Work- this was not even referenced in the conclusions according to the union ; matters under Adult Safeguarding were not upheld and as per the draft report a finding issued that the claimant , through her behaviour had demonstrated a breach of the respondent’s Code of Conduct. The report suggested that the claimant had been accused of bullying by MH2 even though there was no mention of bullying in the original complaint made.
The union presented the final sanctions that were imposed on the claimant arising from the Code of Conduct breach. The claimant appealed the decision to the CEO on the 10th.Dec. 2015 but the appeal was not upheld.
It was submitted that the respondent had failed to take account of the claimant’s impeccable service over15 years. At the hearing the claimant stated that she believed that it was because of her efforts to advocate on behalf of service users to receive their entitlements- specifically with respect to ongoing deductions being made from residents for transport that had been purchased several years ago - that she fell out of favour with her line manager MH2.It was submitted that the respondent and the investigator failed to take account of the claimants responses during the entire investigation. Mediation had not been explored as an appropriate mechanism to deal with relationship difficulties. It was submitted that additionally, neither the respondent nor the investigator had taken account of the written statement submitted by colleague MH3.
The terms of reference of the investigation were not agreed. It was submitted that it had been accepted by Mr.B that the issues “which formed the basis of these complaints were mere afterthoughts and were amassed and combined in order to build a case against “ the claimant.
The investigator had failed to interview any of the 3 witnesses put forward by the claimant. Other staff who had little day to day contact with the claimant were interviewed and their views were taken on board. It was submitted that the investigator failed to elaborate or expand upon his findings against the claimant under the Code of Conduct .It was asserted that the HR manager had formed a subjective conclusion unrelated to the findings of the report that the claimant “ had not taken on board any of the issues raised with her and that she had demonstrated a total lack of self – awareness of her engagement and interaction with people and in relation to how she engages with colleagues on a day to day basis and that she did not appear to have engaged in any self – reflection throughout the process”. It was submitted that the CEO had failed to take on board the foregoing flaws when he conducted the appeal and it was suggested that because HR provided administrative support Mr.B , there was a question mark over the independence of the investigation .
Summary of Respondent’s Case:
The respondent set out a chronology of the events leading up to the decision to undertake an investigation into the allegations made against the claimant. It was submitted that given that the concerns “were deemed serious – the impact of addressing these on the staff member , the service users and the overall staff team was considered and the decision was taken to place” the claimant “ off duty with pay allowing the “respondent” time to gather the information which could be presented to “ the claimant” and an opportunity to determine how to address the concerns”. It was advanced that this was taken in the best interests of everyone concerned at the time – the decision was not taken lightly .
The investigation commenced in early July 2015 and the claimant received transcripts of meetings that were held - this took a considerable period of time .The final report was received on the 30th.Oct. 2015.A meeting was held on the 23rd. Nov. 2015 to address the findings and consider the claimant’s response.It was submitted that her response was considered and on the 7th.Dec. 2015, the claimant was advised of the sanction issued under the Disciplinary Procedure. It was decided to issue the claimant with a written warning and to return her to a different work location .
The CEO ‘s response to the appeal was read and submitted into evidence. The CEO had concluded that the investigator was balanced in his work and reflected the overall context. He determined that the sanctions issued were reflective of the outcome of the investigation and proportionate “ to the position of the investigation”. He rejected the allegations of poor practise with respect to the procedures utilised. He submitted that the HR manager was correct in noting the absence of evidence self-reflection and asserted that this did not detract from the claimants right to defend herself. The CEO maintained that the claimant’s move of location was considerably nearer the claimant’s home and reduced her travel to work notwithstanding the fact that the placement imposed an additional cost on the association.
It was submitted that the respondent had formed the view that workplace relationships were difficult and had broken down and that it would now be impossible to return the claimant to her original location in light of the potential impact on the staff team and service users.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.]
I have reviewed the evidence presented at the hearings and considered the entirety of the written and oral submissions. On the basis of said evidence I find the disciplinary procedure was flawed from the outset, that it failed to comply with the principles of natural justice and that the respondent failed to observe the provisions of SI 146/2000.These findings are based on the following procedural deficits:
The claimant was suspended from duty on foot of a phone call – without a meeting where she would be afforded an opportunity to respond to the allegations against her.She was suspended prior to the respondent having received a written complaint from the claimant’s manager – this was entirely inappropriate in circumstances where the claimant’s manager was making the allegations against the claimant .One would have to conclude that the word of the claimant’s manager was preferred from the outset – notwithstanding the provisions of the disciplinary policy which provide “An employee may be put off duty with pay where the alleged offence is of a particularly serious nature and time is required to allow for a proper investigation and the operation of agreed Disciplinary procedure”. Clearly , without any reference to the claimant , a view had been formed that the alleged offence was of a particularly serious nature. The claimant was suspended without knowing the complaints against her and was denied the right to respond to the allegations – which at this point had not been documented to the respondent. It was entirely unjust to the claimant to suspend her on foot of a verbal complaint from the other protagonist in the dispute.
The investigator issued his findings without having interviewed the claimant’s witnesses – one of whom made very serious allegations against the claimant’s manager and which were never investigated. One can only conclude that the process was unbalanced given the failure to interview the claimant’s witnesses – a process which was specifically referenced in the terms of reference. The investigator’s findings were grounded on the evidence of witnesses put forward by only one of the parties to the dispute.
Notwithstanding the significant procedural deficits, the respondent’s Code of Conduct fails to advise that non adherence to the Code of Conduct will result in disciplinary action- in such circumstances, the sanction imposed was inappropriate and disproportionate .
The respondent failed to explore the option of Mediation which is identified in the respondent’s policies as the preferred method of resolving dignity at work complaints.
The documentation presented by the union and the respondent’s records of the meetings held with the claimant at the disciplinary and appeal stage supports the claimant’s contention that her defence to the allegations was not given the consideration it warranted .
The sanction imposed on the claimant appears to have been based on a finding that the claimant’s persistent protestations about the unfairness of the procedure were evidence of a lack of remorse or self-reflection. At no stage was the claimant advised that the nature of any potential sanction would be contingent on indications of remorse and/or self-reflection. This was unfair to the claimant.
In all of the circumstances I recommend that the findings of the investigation be set aside and that they be expunged from the claimant’s personnel records.
While I acknowledge that the CEO dismissed the claimant’s assertion of a witch-hunt, I cannot ignore the claimant’s allegation that the allegations and ensuing process were motivated by her efforts to advocate on behalf of service users – particularly with respect to ongoing deductions from service users for transport costs. I recommend that the union and respondent meet with a view to determining if this matter should be examined in the context of the respondent’s protected disclosures policy. I recommend in full and final settlement of the dispute that the respondent pay the claimant an exgratia €5,500 compensatory payment for the distress caused to her as a result of this process – in recommending this award I am taking account of the fact that the claimants relocation was advantageous in terms of proximity to her home .
Dated: 28 July 2017
Workplace Relations Commission Adjudication Officer: Emer O'Shea