ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00032740
Parties:
| Complainant | Respondent |
Anonymised Parties | Nurse Manager | Health Service |
Representatives | Mr. Peter Hughes, Psychiatric Nurses Association | Self-Represented |
Dispute:
Act | Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00043401-001 | 06/04/2021 |
Date of Adjudication Hearing: 11/03/2022
Workplace Relations Commission Adjudication Officer: Brian Dolan
Procedure:
In accordance with Section 13 of the Industrial Relations Acts 1969following 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.
Background:
On 6th April 2021, the Worker referred a dispute within the meaning of the Industrial Relations Acts with the Commission. Thereafter the Employer positively elected to engage with the dispute and the matter proceeded to hearing.
A hearing in relation to this matter was convened for, and finalised on, 11th March 2022. This hearing conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing.
No issues as to my jurisdiction to hear the dispute were raised at any stage of the proceedings. |
Summary of the Worker’s Case:
The Worker has long service as a psychiatric nurse and manager with the Employer. In addition to these duties, the Worker is also engaged as a union representative within the workplace. On 30th September 2017, the Worker raised a formal grievance under the terms of the Employer’s dignity at work policy. Shortly thereafter, the mediation was suggested as a means by the which the matter may be resolved. While the Worker was agreeable to the same, no further communication was received in this regard. Almost one year later, on 28th August 2018, no further action had been taken on foot of the complaint. In circumstances whereby the behaviour was ongoing, the Worker referred a further complaint under the policy. Over six months later, on 1st March 2019, the Worker received correspondence to the effect that the complaint had passed the screening process and an investigator had been appointed in respect of the same. Over eighteen months later, on 8th September 2020, the Worker received a draft report for review and was given a period of ten days in which to review the same. The Worker requested an extension of this timeframe in order to allow him to receive and review certain transcripts. On 29th September 2020, the Worker requested further time to review the transcripts, a request that was duly denied. The Worker emailed his comments in respect of the same on 30th September. On 16th November 2020, the Worker was informed of a requirement to appoint a new investigator and the likely delay on foot of the same. On 29th April 2021, the Worker received the final report, the outcome of which he disagreed with. This report was received three and a half years after the initial complaint. The Worker, through his representative, submitted that this delay was excessive and served to deny him justice. The Worker also raised issue with the fact that he was not provided with a copy of the witness statements in the course of the process, in contravention of agreed procedure. Finally, the Worker submitted that the investigation team allowed the respondent to the complaint to make numerous slanderous allegations against him without the same being meaningfully challenged. |
Summary of the Employer’s Case:
In relation to the first point raised by the Worker, the Employer broadly accepted his timeline of events. They submitted that a delay arose during the initial screening process as the Worker’s section did not have a HR function and the matter had to be passed to the national section to be processes. Thereafter, the process was intricate and involved that interview of a number of witnesses. These interviews took some time to arrange as they had to fit around the schedule of others. Nonetheless, these interviews were completed in the period May 2019 to March 2020. Following these interviews, the Employer began to draft the investigation report. Unfortunately, due to the outbreak of the Covid-19 pandemic, all dignity at work investigations were suspended until September 2020. Thereafter, the investigator appointed to the complaint moved to another role in the department and a new investigator had to be appointed. The new investigator then released the report in April 2021. While the Employer accepts that the report took a great deal of time to be published, they submitted that it did not take longer than was to be expected of this type of complaint. They submitted that numerous events occurred that give rise to a series of delays in the process, many of which were beyond the control of the Employer. Regarding the allegation in relation to the Worker not having sight of the respondent’s statements, the Employer submitted that while there was a delay in provided in these, the Worker had sight of all statements prior to setting out his comments in relation to the same. |
Findings and Conclusions:
The first and primary matter in dispute between the parties is the alleged delay in completing the Employer’s dignity at work process. From the evidence adduced, it is apparent that the process took three and a half years from the date of the initial complaint to the publication of the final report. While the Employer accepts that this is lengthy process, they submit that the cause of at least a portion of the delay can be attributed to events outside of their control. In this regard, I note that the Covid-19 pandemic occurred during this process and naturally caused a significant amount of strain on the health service. Nevertheless, it is apparent that this occurrence accounted for approximately six months of the delay. Taking the same into account, the process still took three years to complete, an incredible amount of time for any internal process. From the evidence adduced, I note that many of the causes of this delay were matters that were entirely within the Employer’s control. For example, a delay occurred when the investigator informed management that she had been appointed to another position within the organisation. The appointment of a new investigator caused a significant disruption towards the end of the process. In this regard, while investigators can become unavailable during a process, a reasonable employer would ensure a relatively smooth handover and seek to minimise the interruption to the process to the best of their ability. I further note that a period of eighteen months passed between the agreement of the terms of reference (which itself took an extraordinary amount of time) and the referral of the draft report. While the Employer has submitted that much of this time was taken interviewing witnesses, I note that the matter was not particularly complex and the witnesses were under the Employer’s control regarding the scheduling of appointments. Having regard to the foregoing, I find that the delay in finalising the process was excessive and inexcusable. Consequently, I find in favour of the Worker in this regard. Regarding the Worker’s second point, I note that he was not provided with the relevant witness statements at the relevant time. I further note that he did belatedly receive the same as part of the process. Nevertheless, the Employer’s failure to provide these at the correct time caused the Worker some difficulty and served to exacerbate an already difficult situation. As the final point raised by the Worker relates primarily to an inter-personal dispute, I make no recommendation in relation to the same. |
Recommendation:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I recommend in favour of the worker. In circumstances whereby the report is finalised and the Worker has made an application to set the same aside, I find that compensation is the most appropriate form of remedy. In the circumstances, I recommend that the Employer pay the Worker the sum of €5,000 in settlement of this dispute. |
Dated: 20th October 2022
Workplace Relations Commission Adjudication Officer: Brian Dolan
Key Words:
Internal Investigation, Delay, Covid-19 |