ADJ-00002426

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002426

Complaints/Dispute for Resolution:

Date of Adjudication Hearing: 02/11/2016

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 13 of the Industrial Relations Act, 1969 and following the referral of the complaint/dispute to me by the Director General, I inquired into the complaint/dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint/dispute.

Background 

The Complainant has been employed as a Technical Employee with the Respondent since 18^th March 2008. She is employed on a full-time basis.

The Complainant referred a complaint to the Workplace Relations Commission on 16^th March 2016 alleging she had been penalised by the Respondent under the Health and Safety Act, 2005 arising from a complaint she made in relation to a health and safety issue.

The Complainant also referred a dispute to the WRC on 16^th March 2016.

Summary of Complainant’s Position.

Health and Safety Act, 2005

IMPACT Trade Union stated that the Complainant had submitted a formal grievance in relation to a Health and Safety Issue against her Supervisor in August 2013 and alleged that this complaint had not been concluded but that the Complainant had been penalised by the Respondent when she was relocated to a different location in June 2013.

Industrial Relations Act, 1969

The Complainant made a formal grievance on 9^th August 2013 in relation to issues arising concerning a site inspection. The Respondent appointed an external investigator to report with its findings in relation to the complaint. There was a delay in issuing the investigators report and IMPACT had a meeting with the Respondent and wrote in December 2014 to the Respondent seeking an update. The Respondent replied on 12^th January 2015 giving an update but also stating that there was no requirement on staff to engage. The Respondent sent a letter to the Complainant on 9^th March 2015 including a brief report with a cover letter stating there were no firm conclusions and again stating they were not in a position to compel an employee to participate in the investigation. IMPACT responded by letter dated 13^th March 2015 expressing their dissatisfaction on behalf of the Complainant.

The matter was unresolved and the matter was referred to a Rights Commissioner who heard the complaint on 13^th May 2015 and issued his Recommendation on 29^th November 2015 recommending that the investigation be completed prior to Christmas 2015. The matter was not progressed.

The Complainant requested information/report in relation to her Grievance under the Data Protection Legislation on 3^rd June 2016 which she was given on 12^th August 2016 which she alleged substantiated her Grievance.

Summary of Respondent’s Position.

Health and Safety Act, 2005

The Respondent stated that at no time had they set out to deliberately penalise the Complainant in relation to the issues pertinent to her dispute under the Industrial Relations Act, 1969. Despite the passage of time there appears to be little in the way of reconciliation or a satisfactory resolution. The immediate outcome has now been taken out of the Respondent’s hands due to one of the Parties initiating a formal third party referral against the Respondent in relation to this matter.

Industrial Relations Act, 1969.

The Respondent stated that a grievance was initially raised in November 2012 relating to an incident that had occurred in September 2011 and reported in December 2011 remains unresolved. This complaint was heard in May 2015 following which the Respondent moved to finalise the internal investigation as verbally recommended by the Rights Commissioner.

The Personnel Officer of the Respondent held a number of discussions and meetings with staff members whom he believed could provide the information necessary to facilitate closure of this long-standing issue. The Personnel Officer issued his report in October2015 and the Complainant and her Trade Union Representative had been given advance sight of this report prior to its submission to the Respondent.

However during May and October 2015, one of the parties directly involved in the Complainant’s dispute, initiated a formal third party referral challenging aspects of the Personnel Officers report and this third party referral remains outstanding and is ongoing and therefore is outside the Respondent’s control.

Findings 

Health and Safety Act, 2005.

Preliminary Issue. Time Limits

This complaint was submitted to the WRC on 16^th March 2016 in relation to a grievance that was lodged in November 2012 following which the Complainant alleged she was transferred to a different work location and allege that this is penalisation by the Respondent for making a complaint under the Safety and Health Act, 2005.

Section 41(6) of the Workplace Relations Act, 2015 provides that a complaint must be lodged within the period of 6 months of the allegation to which the complaint relates. This complaint was submitted to the WRC ON 16^TH March 2016 in relation to alleged penalisation that occurred in 2013.

Industrial Relations Act, 1969.

A Grievance was lodged by the Complainant with the Respondent in November 2012 and this was formalised on 9^th August 2013. A complaint was lodged with the Labour Relations Commission in relation to this outstanding dispute and this complaint was heard by the Rights Commissioner on 13^th May 2015 and he issued his Recommendation on 29^th November 2015. The Rights Commissioner had also made a verbal recommendation at the Hearing to the effect that this matter should be concluded by Christmas 2015.

Between May and October 2015 the Personnel Officer of the Respondent sought to finalise the matter and held discussions and meetings with five named employees, including the Complainant, in an attempt to finalise the grievance. The Personnel Officer did finalise his Report which was forwarded to the Respondent on 28^th October 2015. This was a four page report with a conclusion. The Complainant and her Trade Union Representative were given advance sight of this report prior to its submission.

However one of the Parties directly involved in the Complainants grievance initiated a formal third party process in relation to their position challenging aspects of the Personnel’s Officer’s Report and this remains outstanding at the date of the Hearing on 2^nd November 2016

One of the concerns raised by the Complainant at the Hearing on 2^nd November 2016 was the fact that while her Grievance has not been completed because of the current third party process initiated by a named party to the Complainant’s grievance, was that she was suffering financial loss on an ongoing basis because she was transferred to another work location. At the Hearing the Respondent stated they were open to discussions with the Complainant in relation to seeking to facilitate a transfer to a more suitable location in circumstances where the Complainant has clearly indicated she does not wish to work in the same location as the other named employee who is party to her grievance.

 
Decision. CA-00003236-002 Health and Safety Act, 2005

In accordance with Section 41 (5) of the Workplace Relation Act I declare I do not have jurisdiction to hear this complaint as the complaint does not comply with Section 41 (6) of that Act.

 
Recommendation. CA-00003236-001 Industrial Relations Act, 1969.

In accordance with Section 13 of the Industrial Relations Act, 1969 I recommend as follows –

The Complainant’s Grievance cannot be finalised pending the outcome of the third party referral by another named employee to the outcome of the investigation by the Personnel Officer dated 28^th October 2015. I recommend that following the outcome of this third party referral the Complainant and the Respondent should meet to finalise the outcome to her Grievance and if necessary the issue can be further referred back to the WRC for a further Recommendation if necessary.

I further recommend that pending the outcome of this third party referral the Complainant and the Respondent should meet to discuss the possibility of the Complainant being accommodated in a different location or even in a different section of her previous location pending the outcome. I further recommend that the Respondent and the Complainant should consider the regulations governing Travel and Subsistence arrangements for Public Servants to see if it is possible to compensate the Complainant for her travel to her current location. This to be done from a current date without creating any precedent to the Travel and subsistence Regulations that apply. In the alternative perhaps the parties could consider a payment to the Complainant because of this long drawn out investigation pending the outcome of the third party referral.

For consideration by the Parties.

Date: 26^th January 2016.