ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00021164
A Nurse (2)
A Health Service Provider
Psychiatric Nurses Association
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: 22/05/2019
Workplace Relations Commission Adjudication Officer: Pat Brady
In accordance with Section 13 of the Industrial Relations Acts 1969 following the referral of the dispute to 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 and a colleague submitted a Dignity at Work complaint in April 2015. (The colleague’s complaint is addressed in a separate decision but as the facts in the original workplace complaint are identical so too are the Findings and Conclusions).
(For the sake of clarity, reference to ‘the respondent’ is to the respondent in this WRC case, i.e. the complainant’s employer. The co-worker against whom the Dignity at Work complaint was made is referred to as ‘Respondent 1’).
Summary of Complainant’s Case:
The complainant initially, in May 2015 met with his manager to put in place certain safety measures. Respondent 1 (i.e. in their workplace complaint) refused to cooperate with these measures and the complainant and the colleague were moved to a different location.
The complaints were screened and found to be valid within the scope of the Dignity at Work policy.
Terms of reference were agreed for an investigation and the complainant was interviewed in January 2016.
Witnesses were interviewed in the course of February and March and both complainants were provided with transcripts of the interviews.
By September, this complainant’s sought an update on the investigation as nothing had been heard since April 2016. He was told that the process had been delayed by legal considerations at which point the complainant put the matter in the hands of the trade union in April 2017.
A meeting took place with the respondent HR department in January 2018 and the complainant was advised that the investigation would not be proceeding for legal reasons. The complainant insisted that the matter must be investigated.
There was further contact between the parties throughout 2018 in an attempt to secure the cooperation of the person against whom the complaint had been made but to no avail.
In December 2018 the complainant was advised that the investigation had been ‘stood down’ and a fresh investigation would be put in place.
The matter was then referred to the WRC.
Summary of Respondent’s Case:
The respondent set out its various attempts to set up an investigation into the Dignity at Work complaint and to secure the cooperation of Respondent 1.
He was initially sent the complaints in June 2015 but denied that he received them.
He was sent the Terms of Reference of the investigation in November 2015 and also denies receiving those. They were sent to him again in January 2016 and he replied saying he would need legal representation ‘to ensure due process’.
Therefore, Respondent 1 was aware that an investigation was underway.
Following the interviews with the complainants and the witnesses, respondent 1 was advised in April that the investigation team wished to interview him, and he was offered a number of dates for a meeting.
On receipt of this Respondent 1 claimed that he had no idea that an investigation was taking place and raising an objection to the investigation team and in June he sought copies of relevant employment policies.
It was pointed out that he had had the opportunity to object earlier in the process but did not do so.
Solicitors acting for Respondent 1 then raised a number of objections to the investigation.
On receipt of this the Respondent put the investigation on hold and there was unfortunate delay in getting its own legal advice and a reply was issued to the solicitors in February 2017.
Despite numerous reminders the solicitors for respondent 1 failed to reply until April 16th agreeing to meet the respondent subject to certain clarification and this took place on July 19th. However, they persisted with criticism of the process.
Shortly after that the respondent proposed a fresh investigation.
The respondent accepts that the delay has been inordinate and accepts that the legal challenges have frustrated both the complainant and itself; noting that here were some inadequacies in setting up the investigation. That said the primary cause of the delay was the failure of Respondent 1 to cooperate with the investigation.
Findings and Conclusions:
Some recent decisions in the Courts have shone a light on workplace investigations and not for the first time. This is not the place to review those various cases except to say that it is clear that investigations do trigger certain fair procedure requirements and need to be approached with great care.
Most of those requirements are little more than the requirements of an efficient investigation, although it has been made clear that there may be certain situations in which a higher level of compliance with fair procedure requirements (legal representation, for example) may be triggered.
Investigations at the lower end of this spectrum are those which are purely fact-finding, and which seek to establish whether various events which have been the subject of a complaint actually happened or not.
Dignity at Work complaints are closer to the higher level in that an investigator is generally required not only to establish the facts, but also to reach some conclusions about whether those facts represent a breach of the relevant Dignity at Work policy.
The question of whether this then should give rise to any disciplinary sanction will be a matter to be kept at ‘arm’s length’ and for a fresh process, at which the investigation report is no more than evidence.
In summary, a person against whom a complaint has been made is entitled to the protection offered by certain fair procedure principles in respect of the conduct of the investigation.
On the basis of the submissions of the parties in this case, (including the respondent’s) it seems that something rather more than the exercise of these rights was happening in this case.
The solicitor for Respondent 1 raised ten objections to the conduct of the investigation.
These included the failure of the investigation team to set time limits for its work, the fact that the complainants were interviewed without Respondent 1’s ‘knowledge or involvement’, the location of the interviews, the makeup of the investigation panel, an alleged breach of confidentiality (disputed by the respondent) etc.
In general, and with only a few exceptions they ranged from the spurious to the ludicrous and it is hard to avoid the conclusion that it was a calculated attempt to obstruct the legitimate conduct of the investigation (although noting that the respondent accepts that there were some flaws in how it set up the investigation).
For example, under its policy a respondent in a complaint is entitled to express a view on the composition of the investigation team. This has its dangers too, in that it would allow an uncooperative respondent to object to an investigator they did not approve of, or simply as a device to delay the process.
Could the respondent have done more to address this obstructiveness? Possibly, although it would have hardly have been necessary if Respondent 1 had cooperated in the investigation, as he was obliged to do.
Nonetheless, there is absolutely no doubt that the complainant was denied the right to have his complaint processed in accordance with the relevant workplace policy and for that he is entitled to a remedy. It is over four years since the complaint was made to the employer and this represents an intolerable delay.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I uphold complaint CA-00026034-001 and recommend that the respondent pay €5,000 to the complainant as compensation for the breach of his rights under the respondent’s Dignity at Work policy.
Workplace Relations Commission Adjudication Officer: Pat Brady