FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : CONRAD HOTEL (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner's Recommendation r-122302-ir-12/JT.
BACKGROUND:
2. The Claimant is employed as a Night Porter with the Conrad Hotel, Earlsfort Terrace, Dublin for the past ten years. In September 2011 he learned that there was a written complaint concerning alleged bullying by him of a female colleague. The matter was investigated by a Manager who in the Complainant's view was biased against him. The Claimant refutes the allegation and claims that Management had failed to follow their own procedures in investigating the bullying complaint. Management state that they acted fairly, reasonably and in accordance with procedures as was appropriate.
The issue involves a claim by a Worker. The matter was referred to a Rights Commissioner for investigation and recommendation. The Rights Commissioner issued his Recommendation dated 15th April, 2013 as follows:-
"Therefore failure to investigate or otherwise is not considered penalisation. I do not have jurisdiction in the matter. However, as the claim is being heard under the Industrial Relations Act 1969-2001, I recommend that all complaints of alleged bullying referred to at the Hearing be investigated by the Respondent through agreed procedures."
On the 14th May, 2013 the Worker appealed the Rights Commissioners 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 August 2013.
UNION'S ARGUMENTS:
3. 1. An investigation by an agreed unbiased third party into the allegation is required in order to afford the Claimant the fair procedures and natural justice to which he is entitled. Management has breached its own procedures in the way it has treated the Worker by not having an unbiased third party investigate the allegations. The Claimant has as a result suffered stress and a loss of income for which he is seeking compensation.
2. The actions of Management has wider implications for other Union members within the Hotel if disputes referred to a Rights Commissioner are ignored. Management should reaffirm it's commitment to the Company/Union Agreement regarding procedures on bullying into the future.
COMPANY'S ARGUMENTS:
4. 1. The bullying allegation was considered and it was determined that the issue could be resolved without recourse to formal disciplinary procedures and which resulted in the placing of a"letter of concern"on to the Claimant's file for six months. No appeal mechanism exists where no formal disciplinary sanction is issued and the"letter of concern"has since been removed from the file.
2. To clarify, nothing by way of a sanction now or ever existed to appeal. The Company is committed to investigating grievances and dignity at work complaints through proper channels.
DECISION:
There are two issues of concern to the Union in this case. Firstly, they take issue with the manner in which an investigation into an incident involving the Claimant was carried out. They claim that the Claimant was not afforded an opportunity to put his side of the events giving rise to the investigation and that he was denied an opportunity to appeal against the outcome.
Secondly, the Union is concerned at the refusal of the Company to participate in a Rights Commissioner investigation in relation to an earlier grievance involving the Claimant.
In relation to the first matter the Company told the Court that it was not dealt with as a disciplinary issue in that the Claimant was merely issued with a ‘letter of concern’. On the second issue the Company pointed out that it is entitled, under the Industrial Relations Acts 1946 – 2012, to object to a Rights Commissioner investigation.
In the course of the hearing the Company, through its representative, acknowledged that while there was no disciplinary sanction, as such, imposed on the Claimant there was an investigation into his conduct. It was further acknowledged that this investigation was procedurally flawed. In relation to the earlier incident referred to by the Union the Company further acknowledged that that while it is statutorily entitled to object to a Rights Commissioner investigation, a collective agreement between it and SIPTU provides for a reference to a Rights Commissioner of a dispute or grievance following the use of internal procedures.
The ‘letter of concern’ issued to the Claimant had a defined lifespan which as now expired. Furthermore, it appears to the Court that there is no real difference between the parties concerning the requirement for fair procedures in the conduct of an investigation which could lead to the imposition of a disciplinary sanction. Even where the outcome of the investigation results in a course of action falling short of a disciplinary sanction the requirement for fair procedures is not negated. It also appears that there is no real difference between the parties as to the requirements of the collective agreement in respect to the processing of disputes or grievances, including grievances in disciplinary matter, which includes a reference to a Rights Commissioner where appropriate.
Having regard to all the circumstances of this case the Court is satisfied that the most appropriate way of disposing of this dispute is for the parties to exchange letters confirming their understanding of the general principles applicable in situations such as those giving rise to the dispute (upon which there appears to be no real difference). On that basis the dispute should be regarded as resolved.
The recommendation of the Rights Commissioner is varied accordingly.
Signed on behalf of the Labour Court
Kevin Duffy
20th September, 2013______________________
JFChairman
NOTE
Enquiries concerning this Decision should be addressed to John Foley, Court Secretary.