FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TESCO IRELAND (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY MANDATE) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Ms Ni Mhurchu |
1. Appealing of Recommendation of a Rights Commissioner R-092890-Ir-10/GC
BACKGROUND:
2. The issue before the Court concerns an appeal of a Rights Commissioner Recommendation No. R-092890-IR-10/GC by the Union on behalf of its member. The worker concerned commenced employment with the Company in 2007 as a General Assistant. In October 2009 the worker became ill and unfit for work until April, 2010. A written formal complaint of alleged bullying was submitted on 12th October, 2009. It is the Union's claim that the Company did not respond to the complaint until the 16th November, 2009 and failed to comply with the agreed terms of the Grievance Procedure or Dignity at Work Policy. It is seeking an independent third party investigation and compensation as is just and equitable given the circumstances of the case. The Company accepts that the worker's complaint was not dealt with expeditiously and not in accordance with agreed procedures and is committed to a full investigation by another Tesco manager. It rejects any claim for compensation as the worker was on paid sick leave at the time.
The matter was referred to a Rights Commissioner for investigation and recommendation. On the 20th October, 2010, the Rights Commissioner issued her Recommendation as follows:
"I find the best way forward would be an agreed independent third party to investigate the claimant's substantive complaint as contained in her (undated) letter in October outlining all her grievances.
I recommend that the parameters of that investigation be confined to the substantive issues raised, and that a definite time limit be set by the parties for issue of a final report. To clarify, in my view, as it is common case that the Company failed to investigate the matter in accordance with its own procedures, no positive purpose would be served by investigating the Company's failure to investigate.
In recognition that the delay caused loss of earnings for claimant, I find that the Company should compensate the claimant in the sum of €3,000."
On the 30th November 2010, the Claimant 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 8th March, 2011.
UNION'S ARGUMENTS:
3. 1 The Company failed the worker in every regard surrounding her complaint. It did not follow its own Grievance Policy or Dignity at Work Policy in dealing with this complaint. This has caused considerable stress to the worker.
2 There was a systemic attempt to frustrate the worker's claim during this whole process. The Company failed to respond to several letters and phone calls from the worker.
3 The Union is seeking that an independent third party carry out an investigation into the alleged bullying complaint.
COMPANY'S ARGUMENTS:
4. 1 The Company accepts there was a delay in dealing with the worker's complaint. However, from the outset the Company made every effort to seek engagement with the worker. While it is accepted she was on sick leave, her failure in responding to Company letters contributed to the delay.
2 The Company cannot see how an employee can be compensated for absence on certified sick leave.
3 The Company are committed to a full investigation of the worker's complaint. This must be done by a Tesco Manager as it makes no sense to have matters which are intertwined investigated by separate people.
DECISION:
Having considered the submissions of the parties the Court has concluded that the approach adopted by the Rights Commissioner provides a reasonable basis upon which the parties should proceed in seeking a resolution to this continuing dispute.
It is noted that the Company acknowledged that there was a failure to adhere to its own procedures in this case and that there was an inordinate delay in addressing the Claimant's grievances.
It is the opinion of the Court that having regard to all the circumstances of the case the recommendation of the Rights Commissioner should be affirmed but with the following modifications:-
1 The investigation of the Claimant's grievance should be conducted by an appropriate member of the Company staff at a senior level from outside the jurisdiction and in strict accordance with the procedures prescribed in the Union / Company Agreement
2 The circumstances surrounding the failure to adhere to the agreed procedures in the investigation of this complaint be the subject of discussions between the Company and the Union with a view to identifying the cause of that failure and the taking of such steps as are necessary to avoid any reoccurrence of those failures.
3 The other components of the Union's claims, including its claim for additional compensation be dealt with at the conclusion of the processes referred to at 1 and 2 above.
With these modifications the recommendation of the Rights Commissioner is affirmed
Signed on behalf of the Labour Court
Kevin Duffy
11th April, 2011______________________
DNChairman
NOTE
Enquiries concerning this Decision should be addressed to David P Noonan, Court Secretary.