FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : ST. JOSEPHS HOSPITAL (REPRESENTED BY SOUTH EASTERN HEALTH BOARD) - AND - A WORKER (REPRESENTED BY IRISH NURSES ORGANISATION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Ms Ni Mhurchu |
1. Appeal of Rights Commissioners Recommendation IR12231/02/TB.
BACKGROUND:
2. In February, 2001, the worker made a verbal complaint to Management and was requested to put in writing an account of alleged bullying incidents. This was submitted in March, 2001. An investigation date was set for August, 2001, but the worker was unable to attend due to illness. On return to work in September, 2001, the worker informed management of a wish to proceed with the matter. The investigation was set for February, 2002, and the findings issued in June, 2002. The Union sought an independent impartial investigation of the matter as they contend the initial investigation was flawed in that an undue delay in commencing the investigation compromised it's report and was in breach of good practice guidelines relating to bullying.
- The case before the Court concerns a claim by the Union on behalf of it's member for the following:
- a) The right to return to a safe working environment.
b) Compensation for loss of earnings incurred due to work related sickness, caused by the Board's failure to investigate the bullying allegations in a timely fashion.
c) Compensation for the undue stress and suffering caused by the SEHB's failure to properly adhere to best practice guidelines in investigation this matter.
d) Sick leave is treated as special leave with full pay and restoration of sick pay entitlements.
- The matter was referred to a Rights Commissioner for investigation and recommendation.
His findings and recommendation issued on the 22nd October, 2003, as follows:
- a) The right to return to a safe working environment.
- “I have accepted that the agreed investigation team arrived at its conclusion in a fair and impartial way.
On a balance I do not consider that there are sufficient grounds to overturn its report
I recommend that the findings of the investigation team should stand.
In relation to the four points raised by the INO, I recommend as follows:
The claimant has a right to return to a safe working environment and the SEHB should open discussions with INO with a view to making proposals in this regard.
In respect of the other three points, I do not recommend in favour of the claimant.”
On the 7th November, 2003, the Union appealed the Rights Commissioner’s Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969.A Labour Court hearing took place on the 22nd April, 2004.
- “I have accepted that the agreed investigation team arrived at its conclusion in a fair and impartial way.
UNION'S ARGUMENTS:
3. 1. Management's delay in commencing the investigation placed additional and unacceptable stress upon the worker due to the fact that the worker remained in the same environment as the alleged bully. Management's delay breaches all good practice guidelines relating to bullying.
2. The Union are seeking that the worker's sick leave be treated as special leave with full pay and arrears of remuneration to be paid accordingly as the two and a half years of distress and anxiety endured by the worker is due to Management's mismanagement of the complaint.
COMPANY'S ARGUMENTS:
4. 1. The Board was and is prepared to take all reasonable steps to ensure that the worker's right to return to a safe work place is vindicated and will be happy to assist in that regard. The worker's complaint was investigated under the Board's procedures that are consistent with the code of practice on prevention of workplace bullying investigation procedures of the Health and Safety Authority.
2. The Board's sick pay scheme has been applied to the worker in accordance with it's provisions. The Union's claim that the illness is attributed to work does not entitle the worker to more beneficial payments.
DECISION:
In its original claim before the Rights Commissioner the Union sought to have the findings of the investigating team set aside. That aspect of the claim is no longer being pursued. The Union is, however, claiming that the claimant suffered and continues to suffer from a stress related illness caused by the delay in initiating and completing the investigation and are seeking compensation for financial loss resulting from this illness. They are also claiming that the claimant should be returned to a safe working environment. The Rights Commissioner recommended a process by which this latter aspect of the claim could be achieved.
The claimant has received the full benefit of the Boards sick-pay scheme. In the circumstances of this case the Court cannot hold, from an industrial relations prospective, that the Board should accept any additional liability for the financial loss suffered by the claimant.
The Court, is, however, of the view that an investigation into allegations of bullying should be undertaken speedily so as to minimise the distress caused to all parties. In the present case the first date offered for the commencement of the investigation was five months after the complaint was formally made. This, in the Court's view, constituted an unacceptable delay.
Having regard to all the circumstances of this case, the Court is of the view that the Board should now accept that the investigation was not initiated with sufficient expedition and , in acknowledgement of which, should pay the claimant an ex-gratia lump sum of €1,000.
With this modification the recommendation of the Rights Commissioner is affirmed.
Signed on behalf of the Labour Court
Kevin Duffy
11th May, 2004______________________
J O'C/MB.Chairman
NOTE
Enquiries concerning this Decision should be addressed to Joanne O'Connor, Court Secretary.