FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HEALTH SERVICE EXECUTIVE - WEST - AND - A WORKER REPRESENTED BY QUINN, DILLON AND COMPANY SOLICITORS DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal of Rights Commissioner's Recommendation R-044451-Ir-06/TB
BACKGROUND:
2. This case concerns an appeal of Rights Commissioner's Recommendation R-044451-Ir-06/TB. The dispute concerns an employee of the Health Service Executive West (HSE) who claims to have been bullied at work.
The worker in question initally agreed to move to another work location but subsequently made a claim after four years in relation to the allegations.
It is alleged that informal procedures did not resolve the issues and that a subsequent investigation was also deemed unsatisfactory.
The matter was then referred to a Rights Commissioner for investigation and Recommendation. His Recommendation issued on 3rd April, 2007 stating that the Respondent had investigated the matter in accordance with its policy and that, given the time lapse since the initial complaint, a re-investigation would not assist in the resolution of the issues. The Rights Commissioner also recommended that that the complainant be offered all possible assistance to move on from a very difficult and unpleasant experience.
On the 18th April, 2007, the worker appealed the Recomendation of the Rights Commissioner in accordance with Section 13(9) of the Industrial Relations Act,1969. A Labour Court Hearing took place on 5th March, 2008.
WORKER'S ARGUMENTS:
3 1 The investigation into the complaint was unsatisfactory on the basis of the way it was carried out. The Dignity at Work Policy for the Health Service provides that investigations be carried out "thoroughly and objectively with due respect for the rights of both the complainant and alleged perpetrator".
2 The HSE also failed to follow their own terms of reference in relation to the investigation of the dispute.
3 There were documents relating to the incident that were provided with little time to respond and no preliminary report on the investigation was received for comment prior to its publication.
4 There are many such cases that are processed after long periods of time. The important issue is that such issues are concluded and that closure is provided to all concerned.
MANAGEMENT'S ARGUMENTS:
4 1 Management are willing to re-investigate the complaint if necesssary, but given the length of time that has elapsed, it may create practical difficulties.
2 Management investigated the complaints in accordance with procedures and followed the policies laid down in the Dignity at Work Policy for the Health Service.
3 Every effort has been made since the independent investigation into the complaint and the Rights Commissioners hearing to assist the worker through the provision of training, reassignment to a new work location and a reduced working week.
DECISION:
The Court has given careful consideration to the written and oral submissions of both sides. The Court notes that the “Dignity at Work Policy for the Health Service” which was directly applicable in this case, is designed to ensure that all reasonable efforts are made by local management to deal with complaints as expeditiously and effectively as possible at an early stage.
The Policy provides for both an informal and formal means of addressing complaints. The former procedure suggests that the employee who feels aggrieved should in the first instance make attempts to have the issue resolved by letting his/her objections be known. It allows for a number of informal steps to be taken, including contacting the Support Contact Person, intervention by an appropriate manager, mediation etc. These steps were not invoked in this case. Instead, following the Complainant’s complaints made initially in November 2000 an informal arrangement was agreed with management whereby she was moved to another position and she decided not to pursue her complaints any further.
However, the Complainant subsequently decided to make a formal complaint, four years later, pertaining to the alleged bullying. At that point, as part of the procedures a mediation process was embarked upon, which was unsuccessful. Following on from that, as part of the procedures, an independent investigation was conducted into her complaints. However, the appellant was dissatisfied with the investigation and its procedures, which gave rise to the claim before the Rights Commissioner.
Having examined the investigator’s report, the Court is of the view that there were a number of deficiencies in its methodology and procedures. These were of such significance that the Court has decided that the report should be set aside. Furthermore, the Court is of the view that in all the circumstances of this case, it would be inappropriate to recommend that a review of the investigator’s report or a second investigation should take place and consequently, for the avoidance of any doubt, the Court does not recommend in favour of either course of action.
Mr. Dillon, the Legal Representative for the Appellant, stressed that her main priority is to bring complete closure to this matter in order to restore a normal working relationship.
In all the circumstances of this case, the Court recommends that Management should acknowledge the distress caused to the Appellant by the failure of the investigator’s report to bring a resolution to the matter and recommends that compensation to the value of €7,500 should be paid to her, in full and final closure of all matters relating to the original complaints.
Accordingly, the Court varies the Rights Commissioner’s Recommendation.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
16th April 2008______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.