Worker

Employer

Anonymised Parties

An Occupational Therapist

A Primary Care Provider

Representatives

Alastair Purdy & Co Solicitors

 Comyn Kelleher Tobin LLP

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 - 00002420

28/03/2024

The Worker is an Occupational Therapist.

The Employer is a Primary Care Provider.

Submissions were received and relied upon by both sides.

There was agreement between the parties that no Recommendation would issue before January 2025.

The Worker commenced employment with the Employer on 30 March 2009 as a Senior Occupational Therapist, based at a Primary Care Centre. The Worker carried out her duties without issue until 2022, when concerns arose in relation to the management of a client with significant disabilities who required ongoing wheelchair support.

Due to insurance restrictions, the Worker was unable to assess the client’s needs in the private day care facility where the wheelchair was mainly used. On 3 October 2022, the Worker submitted eight risk assessments.

An initial response was received in late October 2022, but the underlying issues remained unresolved. The Worker’s relationship with management deteriorated, and on 9 December 2022 she submitted a formal grievance following a meeting she described as resembling a disciplinary process.

A Stage 1 of the Employer’s Grievance Procedure (the “procedure”) grievance hearing took place in February 2023, chaired by a senior manager who had also been directly involved in the earlier disputed meeting but did not recuse herself. The Worker was supported by her trade union representative. The grievance outcome, issued in May 2023, did not uphold any of the matters raised. The Worker contended that the investigation failed to consider the evidence presented, omitted relevant witnesses, and went beyond its remit by suggesting her actions might warrant disciplinary sanction.

On 29 May 2023, the Worker confirmed her wish to proceed to Stage 2 of the procedure. A meeting took place on 18 July 2023, attended by the Worker, her representative, and a note taker, and was conducted by a senior manager.

On 11 August 2023, the Worker received the Stage 2 grievance report. The outcome did not uphold any of the issues raised by the Worker, consistent with the findings at Stage 1. The Worker considered that the conclusions reached did not reflect the available evidence or the circumstances of the case.

The Worker proceeded to Stage 3 of the procedure, with a hearing held on 27 November 2023, attended by the Worker, her representative, and a note taker, and conducted by a senior manager.

On 20 December 2023, the Worker received the outcome of Stage 3. The findings of earlier stages were upheld, and the grievance was not resolved in the Worker’s favour citing no evidence for the first two grievances and a finding it was not appropriate for the individual being complained off to assess or review the claim.

The Worker submitted the Stage 3 outcome did not properly reflect the timeline of events and incorrectly suggested that she had relinquished responsibility for the client. The Worker also noted that proposed witnesses external to the Employer were disregarded, despite their potential relevance to the grievance.

As a result, the four points originally raised by the Worker remain unresolved. The Worker maintains that she never handed over the client’s file and that this is supported by email evidence and her ongoing efforts to address the issues raised.

The Worker submitted that the Employer did not follow its own grievance procedure in handling her formal grievance. The Stage 1 hearing, held almost two months after the grievance was submitted, was chaired by a senior manager who had prior involvement in the matters under dispute and therefore should have recused himself. The Worker asserted that the investigation failed to fully consider her evidence and largely relied on the line manager’s account. The Stage 1 report also included comments suggesting potential disciplinary action, which the Worker argued were beyond the remit of the grievance process.

The Worker appealed to Stage 2, which was heard in July 2023. She submitted evidence and documentation, but the outcome did not uphold her grievance, and the rationale provided was limited. She raised concerns that the decision appeared overly reliant on the Stage 1 findings. A further Stage 3 appeal was lodged in November 2023, heard by the HR Manager. Again, the Worker argued that the findings failed to fully consider the evidence, did not include statements from relevant parties, and provided minimal explanation for the conclusions reached.

The Worker submitted that there were procedural failings at each stage, including delays in scheduling hearings, inadequate consideration of submitted evidence, and omission of interviews with key parties. She contended that these failings represented a breach of the Employer’s grievance procedure and subsequently escalated her grievance to this forum for review.

The Employer submitted that the matters raised by the Worker had already been addressed through the internal grievance process, including Stages 1, 2, and 3, none of which upheld the Worker’s complaints. While the Worker remained dissatisfied with the outcomes, the Employer maintained that the grievance procedure had been conducted in accordance with policy and within a reasonable timeframe, and that the dispute did not warrant further internal or external escalation.

However, it did accept there had been delays in the process.

The senior manager outlined the process he followed in addressing the Worker’s grievances, including forwarding the grievance to the named individual and holding a hearing with the Worker, accompanied by a note taker. He submitted that there was a delay in the process due to a dispute over the minutes of the meeting.

Regarding the issue of bias raised by the Worker, it was submitted that the senior manager did not believe the parties were engaged in a grievance meeting on 9 December 2022. He further stated that, at all times, the Worker had the support of her union representative, and no concerns were raised during the process. He was of the view that it was inappropriate to speak with third-party witnesses.

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

In consideration of the dispute before me, I am obliged to assess whether the Employer complied with its own procedures in hearing and deciding on the Worker’s grievance.

Allocation of work and assignment of duties, health and safety issues, and relationships with work colleagues are all listed as falling within the scope of the Employer’s Grievance Procedure (the “procedure”).

In response to the Employer’s submission criticising the Worker for referring the matter to the Workplace Relations Commission (“WRC”), it is noted that, aside from the WRC’s own jurisdiction to investigate such complaints where no objection was received from the Employer, the Employer’s own procedure specifically acknowledges the Worker’s right to refer the unresolved issue to the WRC under Stage 4, and separately, under the Industrial Relations Acts 1946–2001. Consequently, this objection is not accepted.

S.I. No. 146 of 2000, Industrial Relations Act 1990 Code of Practice on Grievance and Disciplinary Procedures (Declaration) Order 2000 provides:

“Procedures are necessary to ensure both that while discipline is maintained in the workplace by applying disciplinary measures in a fair and consistent manner, grievances are handled in accordance with the principles of natural justice and fairness. Apart from considerations of equity and natural justice, the maintenance of a good industrial relations atmosphere in the workplace requires that acceptable fair procedures are in place and observed.”

The Worker raises a number of concerns regarding whether the grievances were heard, and outcomes reached in line with the principles of natural justice and fairness.

Following a meeting on 9 December 2023 with the Worker’s line manager and a senior manager, a formal grievance (Stage 1 of the procedure) was submitted on the same date to the senior manager who had been present at the earlier meeting. It is noted that it was the Worker herself who addressed the grievance to the senior manager. However, when she later raised the issue of his impartiality at the Stage 2 meeting, while this was noted, it was not addressed by the Stage 2 investigator.

Fair procedures require that a hearing be impartial, and that the Worker be given an opportunity to be heard. It is not for the Employer to be selective in what it addresses in the final report.

The issue of delay in scheduling the grievance hearings was also raised. It is acknowledged that the Employer accepted at the hearing that there was delays in addressing the process. Under each stage of the procedure, a timeframe is specified. The procedure also notes that while every effort is made to adhere to the prescribed time limits, they “may be extended at any stage in exceptional circumstances.” While it is entirely understandable that investigations are complex and require significant time during the investigators’ working day, these timelines were agreed upon by a joint trade union and management working group.

At no stage in the procedure did the Employer adhere to its own timelines. It is further noted that no extension of time was sought at any stage by the investigation manager. The HR manager did note that the delay in the hearing was due to the parties’ annual leave; however, this was only communicated in the outcome letter dated 20 October 2023.

It has not gone unnoticed that there were numerous amendments to the meeting minutes, particularly under Stage 3 of the process, which delayed the outcome of Stage 3. It is noted that the Employer engaged a stenographer at Stage 4 in order to overcome any issues regarding the accuracy of the minutes.

The Code of Practice requires grievances to be fairly examined, resulting in a fair and impartial outcome. This includes a clear consideration of all the evidence presented. It is unclear whether the investigators at each stage considered all the evidence presented by the Worker, as there is only sporadic reference to it in the findings.

There is very little analysis of the evidence to support the findings. The reasoning is extremely limited in some instances — for example, the Stage 3 outcome letter simply states: “Following review of the documents I find there is no evidence to support an accusation of discrimination.”

The Worker also raised the issue of the Employer’s failure to consider the witnesses she proposed. In particular, at Stage 3, she submitted an outline of each witness or group of witnesses and their relevance. While it is a matter for the investigator to decide which witnesses, if any, fall within the remit of the grievances raised, there is nothing in the procedure that restricts an investigation from interviewing individuals outside the Employer. Nor is there any reasoning provided as to why the proposed witnesses were not deemed relevant by the investigator.

The grievance procedure is not merely a formalistic exercise; it requires meaningful engagement at each stage, with a genuine commitment to fairness and impartiality. Based on the foregoing analysis, it is concluded that the Employer did not adhere to its own established procedures.

IR