Worker

Employer

Anonymised Parties

An employee in a technical specialty

A Hospital

Representatives

Fórsa Trade Union

 Internal 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 - 00003555

13/12/2024

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

IR - SC - 00004485

13/06/2025

The Worker holds a high-level role in a hospital, in what is not currently a registered and regulated profession. That may change in the future.

In April 2023, the decision was taken by hospital management to unilaterally redeploy the Worker from his role, with two days’ notice. There was a background context to that in relation to the appropriate demarcation of role and responsibilities and communication/interpersonal difficulties within the relevant department. The Worker was not afforded the kinds of procedures that would be standard, in relation to that. He filed a formal grievance in relation to same.

The Worker’s Stage 2 Grievance which was conducted by an independent investigator was upheld and a number of recommendations made (report June 7th 2024). Those recommendations have not been implemented. Despite active engagement by the union on behalf of their member, there have been delays, and something of a stalemate.

The Employer acknowledges the delays, and points to some of the difficulties it had which precipitated those delays. It also points to the things it has done, such as re-instating the Worker on payroll, and that a formal apology was issued at one point but acknowledges that time-lines have lapsed, despite active attempts to make progress.

Very comprehensive submissions and documentation were submitted on behalf of the Worker.

The background to this case is that on 4th January 2024, the Worker filed a formal grievance under the Employer’s Grievance Policy. It is submitted that that grievance arose from a series of actions and omissions by management which constituted clear breaches of the Employer’s policies and procedures, violations of the principles of natural justice and fairness and actions that caused significant detriment to the Worker’s professional standing, health and wellbeing.

Following investigation, it is submitted that the Worker’s grievance was fully upheld at Stage 2 by an independent investigator, DG, on 7th June, 2024.

The report included specific recommendations with associated timeframes for implementation. Despite these clear directives, it is submitted that management failed to implement the recommendations for over sixteen months now (at the time of WRC hearing), leaving the Worker without re-instatement to his post, without completion of the mandated specified test [redacted] review, and without the initiation of the independent facilitation process.

The Stage 2 grievance report issued by DG on 7th June 20025, contained several key recommendations aimed at addressing the substantive issues raised by the Worker. These recommendations were summarised by the investigator under the following main headings:

1.      Redeployment to your substantive post

2.      Communication within the Department

3.      Advertisement of a [name redacted] Role

4.      Review of your specified test results [redacted]

5.      Appointment of an independent facilitator

The Workplace Stress Risk Assessment (WSRA) conducted by the Employer assigned the inherent risk rating as the highest possible – ‘almost certain extreme risk’ to the Worker should he continue to be excluded from his role.

While the Worker has been reinstated to payroll, he has yet to be facilitated in a return to work. The union submits that it has at all times actively engaged with management on the Worker’s behalf but progress has been minimal. It submits that management’s continued failure to implement the upheld grievance and to comply with agreed internal grievance procedures constitutes a breach of:-

-          The Employer’s own Grievance and Disciplinary Policy

-          A violation of the principles of natural justice and fair procedures, and

-          An abdication of the employer’s statutory duty of care under the Safety, Health & Welfare at Work Act 2005.

Comprehensive submissions and documentation were submitted on behalf of the Employer.

The Worker is in a very senior role within a hospital, in a technical specialty [redacted]. The Worker asserts that his grievance, lodged on 4th January 2024, was upheld under Stage 2 of the Employer’s Grievance Procedure, but that management at his assigned hospital failed to implement the recommendations arising therefrom in a timely or complete manner, which he contends has resulted in an ongoing restriction on his return to work and continued financial and professional disadvantage.

He has identified the following issues for consideration:

Lack of communication by hospital management and senior management within the relevant [geographic area redacted] Hospital Group.

Deficient process — failure to complete or facilitate the recommendations following the Stage 2 grievance outcome

Non-compliance with procedural timelines under the Employer’s Grievance Procedure; and

Restriction on the Worker’s return to work due to the delay in reviewing specified test results [redacted] and finalising the independent review process.

The Employer accepts that a grievance was lodged on 4th January 2024 and acknowledges that certain delays occurred, primarily arising from the difficulty in identifying an appropriate and independent manager to hear the matter in line with the provisions of the Employer’s Grievance Procedure.

On 28th March 2024, following consultation with Forsa Trade Union, the Employer confirmed the appointment of DG [name and title redacted] to hear the grievance under Stage 2.

The Stage 2 grievance hearing took place on 22nd April 2024, and the written decision and recommendations issued to the Worker on 7th June 2024.

The recommendations provided, inter alia, that the Worker should return to his substantive role [redacted], subject to the review of specified test results [redacted], and that hospital management may also give consideration to redeployment depending on the outcome of that review.

The Employer notes that the Worker had been absent on certified sick leave since approximately July 2023, and that his return to work was clinically dependent on the outcome of the specified test results [redacted] review.

The Employer acknowledges the delay in progressing the specified test results review, which arose due to the necessity to identify suitably qualified and independent examiners.

In recognition of the Worker’s financial hardship, the Employer restored the Worker to full basic pay retrospectively, including arrears to July 2023, notwithstanding that he had not yet returned to active duties.

A meeting was convened on 30th August 2024 between senior hospital [name redacted] management, the [geographic area redacted] Hospital Group, the Worker, and Forsa representatives, during which management issued a formal verbal apology for delays and reaffirmed their commitment to implementing the grievance recommendations.

On 6th September 2024, senior management provided a detailed written update to Forsa confirming reinstatement to payroll, commitment to back pay, and initiation of arrangements for an independent facilitator to oversee the review process.

On 11th October 2024, the Employer issued draft Terms of Reference for the independent competency review of specified test [name redacted] testing procedures. It is submitted that Forsa subsequently declined to accept the proposed Terms of Reference, contending that they were flawed.

In order to progress the matter a draft Terms of Reference were issued on 5th December 2024, proposing the appointment of [name redacted] as Independent Facilitator for the internal working group.

The purpose of the independent review group was to ensure objective oversight of the specified test [name redacted] competency review process, to clarify role expectations, and to re-establish appropriate governance and communication structures within the department.

The Employer’s position remains that the Worker can return to his substantive post, with a temporary restriction on performing clinical [specified tests] pending the completion of the independent review process.

The Employer has committed to:

-          Conducting a workplace risk assessment in consultation with the Worker upon his return;

-          Ensuring that the specified test [name redacted] review is completed by an independent review group, (NHS identified)

-          Maintaining full pay continuity and removal of the Worker sick leave from the future "look-back" period.

The Employer emphasises that significant efforts have been made to implement the grievance recommendations in good faith. The only outstanding matters of the completion of the specified test [name redacted] review and finalisation of the independent facilitator's remit, remain contingent upon the cooperation of both the Worker and his trade union representatives.

The Employer submits that it has acted in good faith at all times in its handling of this matter. While there were acknowledged delays, these arose from legitimate operational and procedural constraints, including the need to ensure independence, fairness, and adherence to clinical governance standards.

The Employer has taken demonstrable steps to address the grievance recommendations including reinstating the Worker to full pay, issuing Terms of Reference on two occasions, identifying a qualified independent facilitator, and engaging repeatedly with Fårsa in a spirit of cooperation.

The Employer remains fully committed to the Worker’s return to his substantive role, subject only to the completion of the independent specified tests [name redacted] review, a necessary clinical safeguard.

It is the Employer’s respectful submission that no deliberate non-compliance or inaction has occurred on the part of the employer. Rather, the Employer has continuously sought to balance its duty of care to the Worker, its clinical governance responsibilities, and its obligations under the national applicable Grievance Procedure recommendations.

The Employer therefore requests that the Adjudication Officer acknowledge:

The efforts made by the employer to progress and attempts to implement the grievance recommendations in full;

The ongoing good-faith engagement with the Worker and his trade union; and that the outstanding matters can only reasonably progress with mutual cooperation and acceptance of the independent review framework.

In conclusion, the Employer respectfully contends that the appropriate mechanism for resolving any residual issues lies in the completion of the agreed independent specified test [name redacted] review, followed by the facilitation of the Worker’s supported return to work in accordance with that process.

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

I gave the parties an opportunity to come up with solutions, on a consent basis, at hearing, which they felt they could actually commit to, in order to progress this matter on a good faith engagement basis, in circumstances where there is an ongoing employment relationship, existing recommendations set out (which the parties have stated they are committed to implementing) but delays and a stalemate of sorts, in respect of that. I have set out recommendations in those terms below.

I note that the Worker has already received an apology from the Employer but the timeline committed to as part of that was not implemented.

The Adjudication Officer clarified at hearing that clinical responsibility falls to the (Hospital) Consultant with carriage of the case/file, highlighting his/her responsibility (ultimate sign off/signing their name), as a registered and regulated professional and also with regard to his/her professional insurance; and that that is the context within which both parties are operating.

I further note that the union has made repeated, consistent and successful representations on behalf of its member throughout what has ultimately been a very lengthy period of time. I note that there a previous unilaterally commissioned and fundamentally procedurally flawed process/report, since so acknowledged by the Employer, since quashed and declared null and void.

Further to all of the above, I have carefully considered the submissions at hearing, the substantial written submissions made on behalf of both parties, with respect to the matter of compensation, which I indicated to both parties at hearing I would do.

As agreed between the parties at the hearing, I recommend as follows:-

1.      That the Employer will write to the two Cambridge assessors identified and agreed between the parties seeking a timeline in terms of when they can assess the ‘random sample of fifty (50) anonymised studies from a diverse mix of staff’ and that that assessment will be done on the basis of using ‘the original complete electronic file, rather than the hard copy.’ As agreed between the parties, the number of staff the samples pertain to is five (5); and the timeframe, as agreed between the parties, in relation to the samples to be used is April 2019.

The Worker’s union representative has indicated that the Worker will co-operate with the Employer and make himself available to extract the data, under supervision, if that is necessary in order to supply the electronic files required to do the assessment, as agreed.

2.      The Worker is currently off work but on full pay. He has agreed to return to work. That will happen on a managed and phrased basis and there are a number of steps to be undertaken in relation to it. The person with overall oversight of the process has been identified as BH [Name Redacted], as indicated by the Employer and agreed by the Worker.

3.      In terms of the Worker’s return to work, there are two review processes to be undertaken – one is a clinical review, the terms of which are set out at Point 1 of the Recommendation; and the second is a facilitation process, involving an independently appointed and agreed facilitator, whose role is to facilitate a process around the communication issues, clarity on role delineations etc. as set out in the report of 7th June 2024.

4.      That the Worker shall undertake self-managed learning, in the form of a number of self-directed modules in a [name-redacted] training which has been identified and agreed between the parties. It is provided by an American provider and constitutes a ‘clinical protocol refresh.’ There will no requirement on the Worker to sit any exam in that training undertaken.

5.      In terms of a ‘clinical refresh’, which it has been agreed will be undertaken onsite in another hospital, the Worker is to provide to the Employer with any suitable names acceptable to him, of people who can oversee that clinical refresh, by a deadline date of October 31st, 2025. If the Employer has any suitable suggestions, it can also provide those to the Worker for his consideration. The Employer has undertaken to contact any suitable identified people, within two weeks of the date of the names being provided to it by the Worker and I recommend that it do so, to ascertain the availability of the identified people to oversee the provision of a period of ‘clinical refresher’ (estimated to be approximately two weeks in duration) to the Worker onsite at their hospital. In other words, the Employer should be writing to those people no later than 14th November 2025.

6.      In terms of the recommendations previously made, the term ‘direct supervision’ is to be replaced with the term ‘clinical oversight’, as agreed between the Worker and the Employer.

7.      I have declined to direct that a copy of a previous report, unilaterally commissioned by the Employer and accepted by the Employer as being fundamentally procedurally flawed, since quashed and declared null and void, be provided to the Worker.

On the matter of compensation, I recommend the Employer pay the Worker the amount of €4,000, with respect to the delays and procedural failures, which have occurred to date.

Implementation; Grievance Procedure; Grievance upheld; Delays; Fair procedures and natural justice; SHAW Act 2005;