Worker

Employer

Anonymised Parties

Social Care Worker

Social Care Provider

Representatives

Jade Wright Solr.,                                        Ormonde Solicitors 

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00002876

18/07/2024

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. On two separate dates the said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely.  I am also satisfied that I was in a position to fully exercise my function, and I made all relevant inquiries in the usual way.

In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that all hearings should be conducted fairly. The hearing was not conducted in public as it concerned a dispute brought under Section 13 of the Industrial Relations Act of 1969.

Industrial Relations disputes are primarily heard on the basis of factual submissions provided by the respective parties. Relevant parties might be invited to give an oral recollection of events, facts and matters within their knowledge. Testimony may be subject to rebuttal by witnesses or other relevant contradicting evidence provided by the other side.

The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 18th of July 2024.

As the within matter is a dispute between parties and brought before the WRC using the Industrial Relations Acts it was heard in private, and the recommendation is anonymised.

At the completion of the hearing, I did take the time to carefully review all the matters presented to me in the course of the two days of hearing. I have noted the respective position of the parties.  I am not required to provide a line-by-line assessment of the evidence and submissions that have been presented to me and instead tend to concentrate on the issues which have guided me to the final recommendations being made. In this regard, I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held that a

“…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one.  Only broad reasons need be given…”. 

The Complainant was fully represented. The Complainant relied on the submission outlined in the Workplace Relations Complaint Form. For the purpose of expediency, I set out that full submission as follows:

Following participating in Reflective practice about teamwork with a team of 4 one SCL and 3 SCW which was facilitated by the SCL on 26/9/23,

on attending supervision on 28/9/23 I was falsely accused of colluding with one staff member due to my eye contact and saying things against the other two members of staff.

(I was categorically told this, there was no discussion about this and my counter arguments of this was ignored and not documented),

I was questioned in supervision about what I said in Reflective Practice so it could be figured out who or what I was saying things against.

I was told that working in Clodiagh house (previous place where I worked with my line manager) had been toxic and that the access team is like this now.

It is documented in the supervision notes about the importance of psychological safety and that I am to develop self-awareness around this.

In the outcome of my stage three grievance, it says Reflective practice is an opportunity for the team to discuss what is working well and what challenges may be arising under a specific topic,

However, after participating in reflective practice and attending supervision following this I felt unsafe psychologically because of how I was treated in supervision and the record that was made of this supervision session.

This actually resulted in me going on work related stress leave from 2nd of Oct 23 to 22 Jan 24 as following supervision it was untenable for me to attend work as I could not talk to anyone or look at anyone following these false allegations.

There continues to be information on my supervision notes which are damaging and slanderous to me,

I have made it clear at stage 1, 2 and 3 I did not behave in the manner I have been falsely accused of and this record continues to be in place.

Stage three of the grievance process has told me I can make amendments to my supervision notes, the problem with this is there is no acknowledgement that these allegations are false, and it appears that I am still being accused of having acted in this manner.

I want my name cleared. I have worked alongside the person making these false allegations for 22 years and I have never behaved in the manner I am accused of behaving in.

Also, during this supervision session there was a physical hand gesture made by my line manager. I have used all my sick leave through no fault if my own. i would appreciate meeting someone in person to go through this and my documentation to back it up.

The Complainant alleges that she has been greatly wronged by her Employer and is deeply dissatisfied with a grievance process raised in the workplace and the outcome thereto.

Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on the obligation on the Complainant to make her case known to me. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

The Respondent entity was represented by the in-House Assistant National Director for HR. The Respondent provided me with a written submission dated 26th of September 2024. These were opened to me by KH, the Assistant National Director for HR. I have additionally heard from LOB the Regional Area Manager as a witness for the Respondent.

The Respondent rejects that there has been any procedural unfairness and that it followed its own codes as appropriate. The Respondent asserts it has therefore complied with the general principles set out in the Code of Practise on Grievance and Disciplinary Procedures (SI 146 of 2000).

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

I have carefully considered all that I have heard of the course of two days of hearing. At the outset I confirm that I am somewhat bound by the complaint/dispute articulated by the Complainant in her Workplace Relations Complaint Form dated July of 2024. This narrative sets out a seven- or eight-month process between October of 2023 and about May of 2024 the outcome of which was most dissatisfactory for the Complainant. I have allowed the Complainant fully to articulate her perception of how things were handled as well as her sense of where this process has left her.

I am satisfied that the Complainant is dedicated to her work and has had no previous issues in the workplace. The complainant has been a Social care Worker since 1993. She has been a Leader with the Respondent since 2024.

Everything stems from an event which was described as a Reflective Practise Session which was attended back on the 26th of September 2023. The purpose of this meeting was to allow a team to come together and open up about any issues within the team in carrying out its work and function. I accept that the nature of such a meeting is that it is intended to have a non-retaliatory outcome. Employees are expected to be open and unafraid to speak up in the interests of clearing the air, suggesting supports and making the work place a better one.

As it happens the complainant was due a Supervision meeting with a Ms K two days later and I understand that this was intended as a performance type meeting to discuss cases and workload and such meetings are regularly set up with Line Managers – in this instance Ms. K was the appropriate Line Manager.

This meeting opened with the issue of the Complainant’s timekeeping but quickly moved to an issue on the team. Ms. K suggested that the complainant and one of her colleagues had spent the Reflective practise Session trying to get at Ms K. This is an allegation which the complainant completely refutes. Ms. K seemed to take exception to the body language and covert looks passed between the complainant and one of her colleagues L and asserted that this was all an attempt to undermine Ms. K.

The Complainant says that Ms.K took issue with the contributions that the Complainant had made in the course of the Reflective Session which of itself is a betrayal of what is intended by having those meetings. The presumption is that anything said in a Reflective Session should remain in the Reflective Session.

The Complainant was deeply upset that these seemingly unfounded allegations were being made against her, and that Ms. K then went on to suggest that the Complainant was known to have created a toxic atmosphere in the last place that she had worked in too.

The Complainant says that she was deflated and exhausted after the meeting.

There is no doubt that the allegations made (which included innuendo) had an extremely negative impact on the Complainant. I cannot know exactly what was said to the Complainant nor yet the spirit in which it was intended that it would be received, but there is little doubt that the Complainant was deeply offended and not in a position to willingly let it go.

The Complainant left the workplace on the following Monday the 2nd of October. This was a stress related absence from the workplace and the Complainant was paid for this absence in line with the workplace sick pay policy.

It was in these circumstances that she approached Ms K’s Line Manager Ms. Q to make a complaint. I note that from this early stage the Complainant was fully supported by a FORSA representative who was in a position to assist the Complainant. I understand that Ms Q tried to resolve matters informally. Ms K’s synopsis and understanding of what had happened and what was said at the Supervisory meeting was committed to paper and signed by her on the 4th of December 2024. There can be no doubt that Ms. K did not have the same perception of the outcome of the meeting. Her take on what was discussed was entirely different to that presented by the Complainant.

The Complainant opted to pursue this matter by way of a grievance. The Complainant contacted LOB the Area HR Manager concerning the next steps. Both the Grievance procedure and the Dignity at Work Policy were forwarded to the Complainant for consideration at this time. The Complainant determined that a Formal Grievance process was required, and this was arranged by the Employer. The Complainant attended this hearing on the 15th of January 2024 with her FORSA representative and was, I believe given every opportunity to make her case as against Ms. K.

I should note that prior to publishing the outcome that Mr. GM who heard this 2nd stage Grievance had put some constructive supports in place for the Complainant. This included temporary work away from the Team she had been in, together with sessions with an in-house clinical psychologist.

In the outcome of that process Mr. GM who heard the grievance found that as he had

“no third-party supporting evidence that I can rely on to assist my review of these matters…I can only conclude that your grievance is not upheld.”

This outcome was deeply unsatisfactory to the Complainant.  The finding was, to her mind, no finding.  It gave her no satisfaction that her position was not being believed over and above any position seemingly being put forward by Ms. K.

After an attempt at mediation between the Complainant and Ms. K, the Complainant appealed the outcome provided by Mr GM  to stage 3 of the Grievance Procedure. This was ultimately handled by Ms. LOB the Area HR Manager.

By now, the Complainant was very clear on what she wanted. This included:

-        An apology from Ms. K

-        Her period of Sick Leave to be discounted as this was used as a direct result of her treatment at the hands of the workplace.

-        The Notes relating to the Supervision meeting to be destroyed.

-        Reassurance that she would not have to work with certain individuals again (including Ms. K)

-        L to be notified of what had been said about her in the Supervision notes.

I note that the Complainant never, in fact, returned to the team she had been working with at the time of the Reflective Session in September of 2023. In fact, the position and work that the Complainant was moved to on a temporary basis by Mr.GM ultimately became a permanent role for her and one in which I believe the Complainant has found some happiness and self-belief.

I am going to have to note that the Complainant was also upset that she was being asked to conduct better time keeping and in particular be present from 9am and not thereafter.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

An allegation concerning whether or not Ms. K raised her hand in the course of the original meeting crept in over the course of the Grievance process. Ms. K absolutely refutes this allegation. I am mindful that no dignity at work process was ever triggered and I am setting that issue to one side as it did not form the narrative from the start of the Grievance process nor was it raised at the outset with MsQ.

I note that in the course of the 3rd stage that LOB had comprehensive meetings with both the Complainant and Ms K, both of whom had full FORSA representation.

The outcome of this stage was made known to the Complainant on the 10th of July 2024 and once again there was little comfort for the Complainant. As there was no middle ground in the accounts given by the parties as to what had happened at the Supervision meeting held on the 28th of September 2023 it was impossible to reconcile either side’s version. It meant that no apology would be forthcoming and there would be no destruction of the notes already in existence. Even though the parties now worked in separate teams, the Employer could not even give a guarantee that this would ever and always be the case.

There is no doubt that the Complainant believes that the outcome was that the employer allowed a character assassination of her good name to take place.

As discussed in the second day of the hearing, I have limited scope in what I can recommend. For the avoidance of doubt, I am not finding that any of the procedures adopted by the Employer was unfair nor were they in any way tinged with bias. I do not find the outcomes as wrongheaded as they fall within the reasonable band of the outcomes that might reasonably be reached. The fact is that the Complainant’s case was not preferred to the case put forward by Ms. K. To some extent as the Complainant is making her case it is for the Complainant to present the stronger case. This she did not do. In the circumstances no findings of fact have been made against either side. In the circumstances of looking to what the Complainant was looking for

-        An apology from Ms. K - This cannot be recommended by me. Ms. K was not before me and clearly feels she has nothing to apologise for

-        Her period of Sick Leave to be discounted as this was as a direct result of her treatment at the hands of the workplace - This cannot be recommended by me as the policy is governed by the public service sick leave scheme.

-        The Notes relating to the Supervision meeting to be destroyed – This cannot be recommended. However, in agreement with the parties I am recommending that the Employer allow the Complainant attach her own version of how this meeting was conducted to the one prepared by Ms.K . I am further recommending that the parties agree a formula of words which would identify how and in what circumstances these two versions of the one event came into existence. This agreed narrative should be pinned to the file for the benefit of anyone looking at this issue again

-        Reassurance that she would not have to work with certain individuals again (including Ms. K) - This cannot be recommended as this would interfere with the internal workings of the workplace.  I will however recommend that the Respondent Employer try as far as is practicable to keep these two workers apart.

-        L to be notified of what had been said about her in the Supervision notes - This cannot be recommended as this would interfere with the internal workings of the workplace and in any event L was not before me so I cannot make a recommendation concerning her.

I am mindful of the fact that the complainant’s reaction to what happened in the course of her meeting with Ms. K was so intense and so severe that she remained out of the workplace for three or four months. The Complainant lays the blame for this absence squarely at the feet of the Employer. She says the psychological effect of having to face the workplace with Ms. K would have been detrimental to her. I do not appear to have any medical evidence backing up this contention.

I was under the impression that the Complainant was looking for General Damages in respect of the alleged injury caused to her by reason of alleged workplace bullying. That is outside of the jurisdiction of the WRC and such matters rest with the Courts proper.

I do accept that the Complainant had, as a consequence used up all of her (generous) allowance of sick leave which appears to allow for up to six months paid sick leave in a rolling four-year period. However, these days cannot be discounted or in some way returned to her. They have been used up and the Complainant has been paid for them (albeit on a sliding scale).

I am however prepared to award the Complainant a sum of money in the amount of €1,500.00 by way of compensation for the very real distress felt by the Complainant. In making this recommendation I am acknowledging the case provided  and concerning compensation in the case of  ADJ 45127 General Operative Manufacturing Company