FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HEALTH SERVICE EXECUTIVE NW - AND - MARY MC ANAW (REPRESENTED BY IRISH NURSES ORGAINISATION) DIVISION : Chairman: Mr Foley Employer Member: Ms Doyle Worker Member: Ms O'Donnell |
1. Appeal of an Adjudication Officer's Decision No(s). CA-00002214-001
BACKGROUND:
2. This dispute concerns a complaint relating to bullying and harassment in the workplace. This dispute was referred to a Rights Commissioner for investigation and recommendation. On the 16th August, 2016 the Rights Commissioner issued the following Recommendation:-
- "I recommend that the Report from the Independent Investigator in relation to the grievance complaints submitted by the Complainant on 26th April 2016 be set aside and accordingly this means that no actions can be taken by either party on foot of it."
"I also recommend that as a gesture of goodwill and in recognition of the procedural deficiencies in the way they handled this matter that the Respondent pay the Complainant compensation in the sum of €2,500.00c within 6 weeks of the date of this decision".
"I further recommend that both parties put this matter behind them and move forward in a spirit of co-operation".
On the 26th September, 2016 the Employee 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 17th November, 2016..
3. 1. The Worker lodged a legitimate complaint in accordance with the HSE process and she did not get the fairness and due process that she was entitled to.
2. The Union argues that the investigator failed to declare that he had been a member of the interview panel that had appointed the person about whom the complaint was made to the post of Acting Director of Public Health Nursing and therefore there was a serious conflict of interest.
EMPLOYER'S ARGUMENTS:
4. 1. The Employer believes that the grievance was heard in an impartial and professional manner.
DECISION:
This case comes to the Court by way of an appeal of a Recommendation of an Adjudication Officer by INMO. The Adjudication Officer upheld the claim and recommended that an ‘investigation report’ be set aside aside and that the Respondent should pay a sum of €2,500 to the Claimant as a gesture of goodwill and in recognition of procedural deficiencies in the way the Respondent handled the matter.
The Court has considered carefully the written and oral submissions of the parties. The Court notes the findings of the Adjudication Officer as regards deficiencies in the procedure followed by the Respondent in the matter. The Court supports the finding of the Adjudication Officer in this regard and notes in particular the decision of the of the Respondent to deny the Claimant an appeal of the outcome of the stage two hearing of the complaint she had made. The Court also notes the time delay in dealing with the matter following the making of the complaint in April 2013.
The Court makes no finding as regards the contention that the person assigned the function of conducting the stage two appeal was conflicted in the role given his previous function as a member of an interview board.
The essence of the INMO position is a contention that the complaint made in April 2013 which related to alleged events occurring in 2008 and subsequently should be the subject of a de-novo hearing at stage 2 of the agreed grievance procedure.
The Court acknowledges the conviction of the Claimant that the process employed to deal with her complaint lacked procedural fairness. Nevertheless the Court has to take account of the fact that the alleged events giving rise to the complaint made in 2013 date back in the main at this point in time for a period of up to six years and in some respects to eight years. The Court cannot agree that a process can properly be initiated at this point in time which would have the capacity to fairly address complaints relating to events allegedly occurring over such an extended period.
In coming to that conclusion the Court takes account of the entirety of the circumstances applying. The Court is aware that similar situations in other environments have benefitted from mediation processes delivered with the support of an independent third party mediator. It is for the parties to consider whether the resolution tool of mediation has a role to play in the current circumstances.
The Court, taking account of all of the circumstances, recommends that the decision of the Adjudication Officer be accepted. The decision of the Adjudication Officer is affirmed.
Signed on behalf of the Labour Court
Kevin Foley
29th November, 2016______________________
CCChairman
NOTE
Enquiries concerning this Decision should be addressed to Ceola Cronin, Court Secretary.