FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : ESB INTERNATIONAL LTD. - AND - A WORKER DIVISION : Chairman: Mr Hayes Employer Member: Ms Doyle Worker Member: Mr Shanahan |
1. Failure of Company to investigate bullying complaint in accordance with the Company's written policy.
BACKGROUND:
2. The case before the Court concerns a claim by the Worker in relation to the alleged failure of the Company to investigate a bullying complaint in line with the Company's written policy. The Worker has been employed by the Company, a subsidiary of the Electricity Supply Board (ESB), as an engineer for a period of almost 19 years. In 2009 the Worker submitted 18 formal complaints of bullying to senior management in line with the Company's "Respect and Dignity for the Individual in ESB" Policy. A formal investigation was carried out and a report was issued finding that the Worker's bullying complaints could not be upheld. In accordance with the Policy the Worker appealed the findings of the investigation and an appeals hearing was initiated. The appeals hearing concluded with a report which upheld the previous decision that the Worker's complaints were not well founded. The Worker maintained that the appeals hearing was not carried out in accordance with Company Policy and subsequently notified the Company of his intention to appeal his case to the ESBI Tribunal, an independent adjudicating body. The Worker then withdrew his claim from the ESBI Tribunal and informed the Company that he was proceeding with the claim externally.
On the 11th April 2011, the Worker referred the issue to the Labour Court, in accordance with Section 20(1) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 21st July, 2011. The Worker agreed to be bound by the Recommendation of the Court.
WORKER'S ARGUMENTS:
3. 1. The formal investigation carried out by the Company was not in line with the"Respect and Dignity for the Individual in ESB" Policy.
2.The Worker asserts that the investigation was not thorough and impartial and is seeking the reinvestigation of his bullying complaints by an external third-party.
3.The appeals hearing was not carried out in line with the Company's Policy. The Worker contends that the findings of the Appeals Manager are "flawed and invalid".
COMPANY'S ARGUMENTS:
4. 1. The Worker's complaints were investigated fully in accordance with Company Policy.
2. The appeals hearing found that the formal investigation was carried out in a fair, thorough and impartial manner at all times.
3.The Worker withdrew his claim prematurely from the ESBI Tribunal and so the Company contends that internal procedures were not fully exhausted before the Worker referred his case to the Labour Court.
RECOMMENDATION:
The Court has carefully considered the extensive oral and written submissions in this case. On the basis of that information the Court finds that:-
•All complaints of bullying that arise within the company are dealt with in accordance with the “Respect and Dignity for the Individual in ESB” policy that governs the handling of such matters within the ESB in general and ESBI in particular. That policy document and the procedure set out therein applies to all staff within both the ESB and ESBI.
•The bullying complaints raised by the Worker against two of his managers within ESBI were processed in accordance with that procedure.
•The final stage of the procedure provides that in the event that“the decision of the Appeals manager is not acceptable to the individual concerned then a referral can be lodged as a personal case to the ESB Joint Industrial Council (which is binding on both sides and in line with section 9(a) of the constitution of the JIC) or other established and recognised procedures in ESB Subsidiaries within five working days of the appeal decision.”
•The Worker initially referred an appeal to the JIC and subsequently withdrew it on two grounds:oBecause of the delay in processing the matter he lost confidence in the impartiality of the JIC and his prospects of achieving a fair hearing of his case. He held the mistaken belief that as the decision of the JIC was binding on both parties he had no recourse to any other body should he fail to get a fair hearing.
oAccordingly he withdrew the case from the JIC and referred the matter to the Labour Court pursuant to Section 20 of the Industrial Relations Act 1990.
- The result of this action is that the procedure set out in the “Respect and Dignity for the Individual in ESB” policy has not been exhausted and consequently this Court has no industrial relations jurisdiction to consider the substantive issues between the parties.
- Accordingly the Court recommends that the dispute be referred back to the JIC for consideration and decision. The JIC should consider the matter within a reasonable period of time andthe Worker should be free to choose a representative to present his case from amongst his work colleagues in ESBI or from amongst the officials of any of the signatory unions to the Collective Agreement in place within ESBI.
- Finally the Court notes the undertakings the Company gave in the course of the hearing to the effect that nothing in the informal or formal procedures being operated in this case or a decision of the JIC can overrule an employee’s statutory rights.
The Court so recommends.
Signed on behalf of the Labour Court
Brendan Hayes
15th August 2011______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Sharon Cahill, Court Secretary.