ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00018366
Health Service Provider
Employee Relations Manager
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: 03/10/2019
Workplace Relations Commission Adjudication Officer: Shay Henry
In accordance with Section 41 of the Workplace Relations Act, 2015and/or Section 13 of the Industrial Relations Acts 1969 following the referral of the disputeto me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
The complainant made complaints against another member of staff in 2014. The final report into these complaints has still not issued
Summary of Complainant’s Case:
The issue relates to the delay by the respondent in releasing the preliminary report and also the final report into complaints under the Dignity at Work made by the complainant on the 17th and 22nd of April 2014.
Complaints were made to the respondent and deemed appropriate for investigation following a preliminary screening under the Dignity at Work Policy. Fifteen months later a full independent investigation commenced on the 10th of July 2015. The complainant cooperated fully with the timeframes as set out in the Dignity at Work policy, the terms of reference of the investigation and the investigative team at all points of the investigation.
Following numerous requests form the INMO eventually In February 2018, preliminary reports were issued to the complainant and comments were sought from her by the investigative team within a set timeframe of two weeks. The complainant complied fully with this timeframe and this was acknowledged by the investigative team.
It is clear from the preliminary report’s list of chronological timeframes, that the issuing of preliminary reports was deliberately delayed by the respondent. Since the return of comments on the preliminary report in March 2018, the INMO has corresponded on behalf of the claimant seeking the publication of the final report. To date, this report has not issued.
The timeframes for this investigation were set out in the terms of reference as six weeks. The respondents Dignity at Work policy instructs that the formal investigations should allow for a period of two weeks for responses to complaints made. The claimant has complied with all timeframes set out by the investigative team based on the dignity at work policy and the terms of reference. However, the person against whom the complaint was made has not and undue latitude has been afforded to this by the respondent.
On the 06th of January 2017, the investigators were requested by the respondent to adjourn their proceedings. The complainant was not notified of this instruction to the investigation team, nor was she aware of it until the preliminary report issued in February 2018. This instruction was reiterated on the 22nd of March 2017 by the respondent to the investigative team, again recorded as part of the preliminary report. Nine months later, on the 06th of December 2017, the respondent changed its instruction and requested the investigative team to draft its preliminary reports. This delayed the issuing of the preliminary reports. It is clear that on December 14th, 2016 the investigative team had commenced preparing the report. Due to the instruction from the respondent, the preliminary report was not issued for a further 14 months after the original date, that it had been prepared.
In respect of the delay in publishing the interim report it is submitted that the respondent received an adjudication officer’s report on the 14th of July 2017 which stated:
I will not be, as requested by the Complainant, recommending a termination of the existing investigations into the complaints against the complainant by 14 of her colleagues, nor will I be recommending its suspension as I note that unlike the case with adjudication officer decision/case ADJ-00003781, this complaint/case does not involve a member of the investigation team. Indeed, the (person), against whom this complaint/claim is made played and plays no part on that investigation, while the other person is the commissioning offer for the investigation he is not part of the investigation team. I further note, as submitted by the Respondent, the Complainant and her INMO Representative are participating in and engaging with that Investigation and it is open to them to raise any issues they have in that regard at those investigations hearings, or as suggested by the Respondent, at the issue of the first draft of the report of the Investigation, or in any appeal against the final report of the investigation or in any appeal to the WRC and/or the Labour Court against the outcome of the investigation. I consider it in the interest of all parties, including the Complainant, that the current investigation, that has been ongoing for more than 3 years, should be concluded without any further delay.
This finding recommended that the respondent continue with the investigation and issue final reports. Any appeal could be made to the relevant third party after that stage. A recommendation of this nature supported the respondent if they chose to clearly direct the investigative team to proceed immediately and afforded two weeks as per the policy, to the alleged perpetrator to raise any matter regarding the preliminary report, and thereafter issue the final report. The respondent did not take this approach. On the 24th of August 2017 (allowing for a 42-day period from the date of issue), the investigative team should have been instructed by the respondent to issue the preliminary report. This instruction instead only issued to the investigations team on 06th of December.
On the 06th of September 2019 the investigative team wrote to the INMO to advise that: “notwithstanding the objection made in correspondence on behalf of the respondent to proceeding to finalisation of this process, the investigative team have now been requested to do so by the commissioner of the process.” It would appear from this sentence that an instruction to proceed and issue final report therefore was only issued to the investigation team in September 2019. Eighteen months latitude between February 2018 and September 2019 was therefore afforded to the alleged perpetrator, despite the July 2017 recommendation to issue the final report and deal with any appeals after its issuing. By not following this recommendation and allowing this extraordinary latitude to the alleged perpetrator the respondent demonstrated more favourable treatment of the alleged perpetrator and little or no regard for lack of fairness this afforded the complainant.
Making a complaint of bullying under the Dignity at Work policy is a serious matter. It is especially so when you are making this complaint against your senior manager and you are a member of that management team. In your role as a senior nursing manager, you are expected and reminded regularly to uphold respondent policies and procedures. This obligation is mutual and must also apply to the respondent’s obligations and requirement to uphold its own policies. The respondent in this case, has failed to uphold its own policy and has demonstrated a lack of due care to in its deliberate interference with the investigative process to delay publications of both the preliminary and the final reports and affording extraordinary latitude to the alleged perpetrator in attempts to prevent this investigation concluding.
In support of the claim the complainant submitted a number of recommendations in other cases dealing with similar issues including the following;
i. ADJ 00021164. The circumstance in this case are noteworthy and the respondent relied on the obstructiveness of the person against whom a Dignity at Work complaint was made and their representative, to explain the delay in processing the complaint. However, as is this case, there was evidence that the claimant was:
“denied the right to have his complaint proceeded in accordance with the relevant workplace policy and for that he is entitled to a remedy. It is just over four years since the complaints was made to the employer and this represents an intolerable delay”.
The complainant argues that a five year and six months wait for an outcome to this very serious complaint is equally as intolerable and warranting of a remedy as sought.
There is no doubt but a timeframe of 5 and a half years without a final report issuing following the submission of serious complaints such as these, is extraordinary and unacceptable. The latitude given by the respondent to the alleged perpetrator is equally extraordinary. All precedents would indicate that it is unfair on the complainant to have to wait this long and go to such extraordinary lengths to have an outcome to serious complaints made to the respondent.
The respondent has afforded extraordinary latitude to the alleged perpetrator in this case. In doing this, the respondent has neglected due care and fair procedure to the complainant who had an expectation that the respondent would uphold its own policy in dealing with their complaint.
In addition, when the alleged perpetrator responded to the original complaints, she made serious allegations, against the complainant. We have described these as vexatious, as they had never been raised and argued same to the investigative team. Until the final report is issued these vexatious complaints remain unaddressed and affords no redress to the complainant. The Dignity at Work policy instructs that any malicious or vexatious complaints to be treated very seriously and may lead to disciplinary action.
The delay in publishing the final reports leaves these vexatious complaints unaddressed. By allowing the alleged perpetrator to ignore timeframes to the extent that has happened, the respondent, in our view, has denied fair treatment and due process to the complainant.
The respondent has acted contrary to all best practice, contrary to the health and safety of the complainant and contrary to its own policies and procedures. For this to go without any consequence, would be grossly biased against the complainant and indeed, make a complete mockery of the respondent’s continued contention that they are fair employers and that they demonstrate equality and due process in all investigations.
This complainant continued to perform her duties to the best of her ability, in very difficult circumstances. There is no doubt that the experience of having made a formal complaint against a senior nurse manager, and having no closure to that caused her undue stress, anxiety and left her with a feeling of little or no trust in her respondent to fulfil its obligation to her under health and safety and their own policy.
To compensate for the personal and professional stress and anxiety that this has caused to the complainant, the INMO requests compensation to the sum of €5, 000. In addition, the INMO seeks that the Adjudication Officer immediately instructs the publication of the final report into complaints dated 17th and 22nd of April 2014.
Summary of Respondent’s Case:
The respondent acknowledged that considerable time had elapsed since these complaints were first lodged. This was due to the complexity of the complaints, which initially involved 14 different complainants and subsequently to a number of issues raised by the person against whom the complaints were made. These included an allegation of bullying against a member of the Investigation Team which had to be investigated before the investigation into the complaints made by the complainant in this case could be finalised.
Findings and Conclusions:
When an employer is investigating complaints of bullying there is an obligation to respect the rights of both the complainant and the person against whom the complaints are made. I note that the respondent has comprehensive procedures in place to deal with these type of issues. These procedures include time frames. There may of course be occasions when the envisaged time frames cannot be met and a delay is unavoidable. There is however, a well-known legal maxim that justice delayed is justice denied and so any delay beyond the time frames outlined in the procedure should be kept to a minimum. Where one party is effectively frustrating the process through raising issues which cause continual delays at some point there is an obligation on the employer to bring the matters to conclusion. In this case the latitude afforded to the person against whom the complaints of bullying were made, particularly in relation to responding to the investigation report, was in my view excessive and compounded the stress for the complainant which the earlier delays had caused. The complaints were lodged in 2014 and had not been finalised at the date of the hearing in 2019.
Accordingly, I believe that the complaint is well founded and the final report regarding her complaints of bullying should be published and the complainant should be compensated
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.]
I recommend the immediate publication of the final report into the complaints made by the complainant and that the respondent pay the complainant the sum of €3,000 in compensation for the stress caused by the undue delay in bringing the process to a conclusion.
Dated: 4th December 2019
Workplace Relations Commission Adjudication Officer: Shay Henry
Investigation into bullying complaints. Unacceptable delay