Worker

Employer

Anonymised Parties

Worker

Hospital

Representatives

Michael Kerrigan

Fórsa Trade Union

Employee Relations Manager and

Group Director of HR

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 - 00001989

17/11/2023

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

IR - SC - 00001990

17/11/2023

The Worker is employed by the Employer since August 2020. She raised two complaints.

IR - SC – 00001989

Since the Worker was appointed, the Employer changed two lower posts to the same level as hers and created two posts at her level. This was done without her consultation.

On the 9th January 2023, the Worker raised a formal grievance about a number of issues. This included this issue. Stage 1 was heard on the 23rd of January 2023. The outcome issued on the 7th of March 2023. The Worker referred the matter to Stage 2 on the 10th of March 2023. This was heard on the 2nd of May 2023. The outcome issued on the 2nd of June 2023. The Worker referred it to Stage 3 on the 7th of June 2023. It was heard on the 1st of September 2023. The outcome was received on the 4th of October 2023.

IR - SC – 00001990

The Worker claims she was penalised, without fair procedures or natural justice.

Another employee who reported to her, was advised by the Employer that they no longer had to communicate with the Worker either face to face, or over the phone, instead only emailing. This was an interim measure until the matter was investigated.

The complainant against the Worker under the HSE Dignity at Work Policy was paused. The Worker never received the complaint and claims she was not offered an opportunity to respond to the complaint prior to these decisions being made.

The other employee returned to work and then resigned.

IR - SC – 00001989

The Worker claims she was not consulted about the four new positions and that it reduces her level of responsibility.

When the Worker is acting up, in the absence of the manager at the next level, it is impossible for the Worker to manage staff at the same grade as her. The Worker deputises for her manager. The four new posts are supposed to be reporting into her when she is doing this. The Worker believes this undermines the Worker’s role, remit, and authority. It causes reporting issues from grade to grade.

The Worker disputed the relevance of any other hospital.

When the Worker interviewed for the job she was told who her manager would be, and where she was in the line of command. There was a clear line of command.  This was no longer the position.

The Worker did not accept the creation of the positions was in motion prior to her appointment. She was not aware of it or made aware of it. 

The Worker claims the hospital changing the structure without consulting her is in breach of the Information and Consultations Act 2006, the Health Service Information & Consultation Agreement 2006 and various public sector agreements. It also undermined the Worker’s role, remit, and authority.

The Worker raised this issue as part of the Grievance Procedure. This took 9 months from initial grievance to Stage 3 decision. This is in breach of the timeline in the Grievance Policy.

The Worker complained that despite a note taker being present at Stage 1 and 2 no notes were received. She had requested the notes at both stages.

The Worker submitted that at Stage 3 there had been much discussion about the notes being provided and it was agreed that the notes would be provided in advance of the outcome. The notes of the Stage 3 meeting were sent with the outcome. This was not what had been agreed. The Employer made an attempt to recall this email. There was an attempt to replace the notes with altered notes, including the removal of the agreement that the notes would be sent in advance of the outcome. The person hearing the Stage 3 assured the Worker the replacement notes were those saved at the conclusion of the meeting. The metadata shows it was edited 5 weeks later, directly prior to the outcome issuing.

The Employer has not followed their own timelines. They attempted to rewrite the notes to fit their preferred outcome. They failed to address the substantive points raised in the procedure.

These additional posts at the same level as the Worker impacts the express and implied terms and conditions of the Worker.

The Worker sought an independent review of her post & the structures.

On the second day of hearing the workers’ representative stated that there was capacity for an independent review. The worker is an employee of the service, and all applicable workers are employees of the service. They all have the same employer regardless of the region they are in. There is no reason why there cannot be a review of all model three hospitals. There were examples of two hospitals where there were higher grades advertised.

The workers’ representative stated that the suggestion to send this matter to the national joint council would just be kicking it down the road. 

It was submitted there are not many hospitals of this level, and they may not have deputy managers that’s why it needs to be a national review. The workers’ representative stated it was a mixed bag and that there was a need to see the grading and the grading of reporting into them.

The Workers’ representative stated that there was a grievance, the timeline was not followed to address the grievance, and notes were not provided and were altered as shown by the matter data.

The Worker was seeking the grading of deputy managers nationally within the service at model three hospitals be reviewed independently.

IR - SC – 00001990

The Worker claims the Employer imposed a sanction without affording her, her right to fair procedures or natural justice. This was not in line with the HSE process or procedures. It was also detrimental to her. As it went on for months the Worker raised a grievance.

The Worker maintains that the decision to impose that this employee, would not have to report via telephone or face to face to her amounted to a sanction. This occurred without the Worker having an opportunity to reply or respond to the allegations. This has been detrimental to her reputation, remit, and wellbeing.

The Worker believed this other employee was also advised they would have an alternative manager on their return to work.

The Worker complained that the issue was not resolved. The allegation was out there and had been out there for months. 

This employee retired months later, during which the Worker was not afforded a right to reply or natural justice. The detriment continued. The complaint was raised in October 2022, that person retired in May 2023. There were months where nothing occurred, and the sanction remained.  The Worker was seeking compensation to acknowledge this delay. 

The Worker felt the other employee was fully supported and returned to work whereas she viewed her position as having received sanction. Regardless of whether the other employee retired or not there was no chance to respond to the allegations or restore her reputation. The Worker had not agreed to the approach taken, this was done by a senior manager and the other employee, she was not part of the deal. 

The Worker stated that for her day-to-day ability to operate services had been hampered and her day-to-day dignity had also been affected. She would pass this other employee in the corridor and say hello, there would be no response. 8 months was too long to have it hanging over her. 

The Worker sought compensation for the failure to ensure fair procedures, natural justice and in recognition of the detriment the Worker suffered.

On the second day of hearing the Worker’s representative stated the Worker believes that she was penalised. There was a complaint against her and there was no face to face meeting in relation to it. No opportunity to respond. She was not given the complaint.

The Workers’ representative pointed out that the other worker retired eight months after the complaint. There was some sick leave by that other employer but there was sufficient time to address the complaint. 

IR - SC – 00001989

The Employer used other hospitals as examples of where there were a number of posts at the same level as the Worker. There were no reporting issues when the employee in the Workers position acted up. The Employer accepted that there were 4 new grades being created. There had been consultation with the hospital manager who had asked for these upgrades. When a post is upgraded there is consultation at a national level. 

When the Worker is acting up, the 4 posts will report to her, as she is acting in a higher post. The Employer’s representative stated that in their experience there had never been any issues on any site in relation to this issue of reporting to someone who is acting up, who can be at the same level as the person reporting to.  

The Worker raised an internal grievance which were heard under the HSE Grievance Procedure. These grievances included this issue. The Grievance was heard at three stages, none of which upheld the grievances. The Employer stated that it was standard practice that the worker would only be provided with the outcome and rationale. The notes from the meetings would not be provided. 

One of the posts created was an ICT post at the same level as the Worker. A group decision, across a number of hospitals was made to appoint persons at this level. The post has a joint reporting relationship in the hospital and to an ICT manager in the group.

On the second day of hearing the employers’ representative stated that they would agree to a review within their own hospital, but they had no authority to move beyond that.

The employers’ representative stated that the group had gone as of the 1st of October 2024 and services were being integrated into the community. There are regions. There are a number of hospitals in each region. It was accepted that the employer is the same regardless of the region. The representatives did not approval for a national review.

There was reference to a national joint council which could look at the issue. It could make address a singular claim which would be wider and national. 

The employer believed all hospitals at this level have a worker at this level.

The employers’ representative stated they did not have authority to upgrade this position due to issues over independence.  They are looking to get some lower posts re-graded, but it is very slow.

IR - SC – 00001990

This matter has never been raised internally or under the HSE Grievance procedure by the Worker.

The Employer considered the rights of both parties involved. A complaint was made under the HSE Dignity at Work policy. The employee who made the complaint went off sick. The Employer made efforts to have them return to work. This employee repeatedly stated the sole issue for his sick leave was the relationship with the Worker. The Employer denied that it was a sanction but rather it was an effort to move things along. 

As the matter was at the informal stage of the Dignity at Work policy, there was no requirement to furnish the complaint to the Worker. The complaint was paused till the employee returned to work.

Interim measures were proposed to get the employee back to work and then to establish normal reporting relationship. This included the idea of communicating via email. A meeting was then planned. The Employer denied this other employee was advised they would have an alternative manager on their return to work. This employee was still reporting to the Worker, albeit by email.

The employer accepted that there had been a period of settling back in. Then things escalated where the other staff member refused to engage and then tendered their resignation. The employer was acting to protect the worker as well as the other party.

The employer stated that they had made genuine attempts to get the other employee back to work and to protect this Worker. It was accepted the timeline had not been followed. Everything had been done in the interest of good employee relations on both sides. 

The Employer referred to emails which reference fairness to both parties, “without prejudice to you or your line manager” “I have to be conscious of [the worker’s] position in this and be balanced to all parties”.

It is denied an alternative manager was act in respect of the employee on his return to work. When he returned to work he continued to report to the Worker.

The Employer denied penalisation. They submitted there was fair procedures and natural justice to both sides.

On the second day the Employers’ representative stated that in relation to the substantive complaint, the person had retired. That ended the process. The Employer believed that they had acted with due process. With a balance to be struck between the other worker and this worker.  They will say that this worker had the best intentions.

The Employer sought that both claims be found in the Employer’s favour.

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

Section 13 (2) and (3) of the Industrial Relations Act 1969 sets out the role of adjudicators in such disputes as follows

“(2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.

(3) (a) Subject to the provisions of this section, a rights commissioner shall investigate any trade dispute referred to him under subsection (2) of this section and shall, unless before doing so the dispute is settled—

(i) make a recommendation to the parties to the dispute setting forth his opinion on the merits of the dispute, and

(ii) notify the Court of the recommendation.”

As the parties can see, the only outcome open in the absence of a settled dispute, is to make a recommendation on the merit of the dispute.

IR - SC – 00001989

I recommend that an independent review take place of the grading of Deputy Managers at Model 3 hospitals nationally within this organisation.

I also note it is good practice for the notes of meetings to be furnished to all parties after the meeting so the content can be confirmed or amended accordingly. It is also good practice that the timelines set by the Employer be followed.  

I recommend that the Employer use their best endeavours to ensure that the timelines of its grievance procedure are adhered to.

I recommend the Employer pay the Worker €950.00 for failing to apply best practice when implementing the grievance procedure.

IR - SC – 00001990

Whilst I have sympathy for the position of the Worker, the Employer was left in a difficult position balancing the rights of two workers. Unfortunately, the Worker did not raise a grievance in relation to this issue. As is clear from the foregoing dispute the Worker was aware and has utilised the grievance procedure in relation to other matters.

It is well established that the workplace grievance machinery must be engaged and allowed to conclude before a reference is made to the WRC. Indeed, to invoke the jurisdiction of the Industrial Relations Act on any issue it is necessary to have done so. Its purpose is to provide for a remedy when the workplace procedures have been exhausted, not to replace them

In the case of Gregory Geoghegan t/a TAPS v A Worker (INT 1014)the Labour Court held

“The Court is not prepared to insert itself into the procedural process in a situation where the dispute procedures have been bypassed.”

That case was cited in A Worker v An Employer (ADJ 40376)in which the Adjudication Officer held:

“It is well established that, before submitting a grievance about any matter to the WRC, an employee must exhaust the internal procedures at their workplace.”

This dispute is not upheld for those reasons.

Industrial Relations; grievance procedure; penalisation