ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00004125

Dispute for Resolution:

Date of Adjudication Hearing: 26 September 2016 and 25 January 2017

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance Section 13 of the Industrial Relations Act, 1969, following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any submissions and suggestions in relation to the resolution of the dispute.

Claimant’s Submission and Presentation:

The claimant commenced work as a Customer Assistant at the respondent store in 1999 on a part time basis. In 2009, the claimant relocated to the clothing department .She signed a contract to work 30-35 hours per week on a Monday – Saturday basis.

The claimant commenced working full time in 2013,again on a Monday to Saturday basis 7 am -4pm with alternate Sunday working of 8 am to 1pm on an additional hours basis .

The claimant described a very positive work experience at the respondent store where she was given plenty of responsibility and scored well on her performance ratings.

The claimant began to experience difficulties at the store when, from June 2015 onwards, she submitted that her work rate was unfairly questioned by the store manager. During the months of June, July and November, the claimant then received a series of invitations to meet with management on separate issues of

1 Training

2 Clocking in/out for breaks

3 Investigation into carrying out personal errands on company time.

The claimant was invited to bring a representative to these meetings, which she found unusual and she began to believe that she was singled out .The meeting on clocking in for breaks had not occurred. The investigation into the personal shopping had not occurred.

This ran in parallel with feedback received from the claimant’s line manager that the store manager did not like the claimant. The claimant felt under pressure.

During December, 2015, the claimant heard rumours from colleagues that her working pattern was being considered for alteration and she became worried. She felt vulnerable as a practice was underway to review all staff on set working patterns with a view to full flexibility. Staffs were expected to have written documents confirming their set hours to secure a waiver.

The claimant discovered that her 2013 contract, which would have protected her from the above process, was missing from her file. In addition, her positive performance reviews from 2014 and 2015 were missing .She knew that she had scored highly in her last performance review in 2015 and saw it as a safeguard in any subsequent discussions on her performance .

The claimant received another invitation to attend an investigation meeting on December 17 and she then submitted a grievance.

The grievance stated that the claimant felt intimidated, upset and confused by the store manager. She highlighted that she had received 4 letters to attend meetings in the last few months which were investigations waiting to be dealt with. She stressed that this was her first grievance in her then 16 years of working with the respondent.

The grievance was processed and heard by a Store Manager from a different store .The findings were issued six weeks later and were appealed on February 11, 2016 as the claimant believed that the issues raised were not adequately addressed or investigated.

The claimant was redeployed from the clothing area to the check outs.

The appeal findings were received by the claimant on 28 July, 2016 and upheld the outcome of the grievance .The Union had informed the respondent that the matter was to be placed before the WRC on 30 June. The referral was made on 15 July, 2016. The claimant was on medical sick leave at the time of both days of hearing in this case.

The union sought a direction from the adjudicator to re-open the investigation into the claimant’s grievance to ensure that an agreed third party would conduct a transparent and fair examination of the facts. The Union also sought compensation which was just and equitable.

Respondent’s Submission and Presentation:

The respondent disputed the claim and disputed that the claimant’s hours had been altered. The facts as presented as background in the case were accepted by the respondent.

The respondent confirmed that the claimant had raised a grievance regarding her store manager and his treatment of her in December 2016; this was responded to in line with company policy and found to have no basis.

The respondent also engaged in the appeal, which equally was not upheld .The respondent acknowledged and apologised for the delay in completion of the procedures which was attributed to operational pressures.

The respondent submitted that the claim had been submitted to the WRC in advance of the outcome of the appeal and must be judged as premature.

The respondent expressed a willingness to work with the claimant to secure her return to work.

Recommendation:

Section 13 of the Industrial Relations Act, 1969, requires that I investigate the dispute and make a recommendation in relation to the merits of the dispute.

I have listened carefully to the parties in this case and I have considered the written and oral submissions which were helpfully submitted by the parties.

On meeting the parties during the first day of hearing, I was struck firstly by the negative effect of the claimants experience on her general well being .The claimant was on long term sick leave with no planned return to work date .Secondly, I was struck by the bona fides of the respondent in wishing to work with the claimant to agree a pathway for her safe return to work.

The claimant asked me to recommend a re opening of the investigation into the claimants grievances in light of her diminished trust and confidence in the outcome of her December 2015 grievance. I have not been in a position to agree to this as it was clear to me that the parties were prepared to work together and had sufficient skills to agree a mutually acceptable action plan for the complainants return to work and I granted a short adjournment to facilitate this.

The parties reconvened in January 2017, following the appointment of another store manager to address the impediments submitted by the claimant .Some progress was made and I heard from the parties on their submitted preferred way forward for the claimant.

I have considered the merits of this dispute and find that from an early stage, i.e. June 2015, the claimant began to feel unsettled at work.

Having reviewed the documents and discussions on what prompted this upset , I found there was insufficient reliance on the informal approach in the first instance between the claimants line manager prior to sending letters suggesting that representation was required to discuss a clocking in /clocking out issue , till training and the placing of two products on “ lay by “.

The word investigation without reference to the corresponding procedure being used must have caused confusion and uncertainty for the claimant and could easily have been avoided by the respondent through informal engagement in the first instance and follow up if this did not resolve matter. I was not satisfied at the reliance on rumour and innuendo by the claimant in this case. I would, as stated at the hearing, prefer her to have more confidence in her own decision making with regard to her work.

I appreciate that the claimant believed that she was in the “high risk zone” for roster change and she felt vulnerable without the documentary protection of her contract, nonetheless, the respondent has not altered her shift pattern.

However, I also found that the respondent may well have been trying to address some cause for concern with the claimant and this objective was not met when there was no follow through on announced meetings. This matter has now been resolved between the parties, however, I feel that I must emphasise that the respondent is entitled to address points of concern with the claimant in the course of her work separate and distinct from the grievance procedure.

The parties submitted their respective way forward in this case with the con joint objective of an assisted early return to work for the claimant. I have considered these positions and make the following recommendation in the interest of meeting this objective.

1 That the claimant accepts the bona fides of the company and returns to work at the earliest possible medically advised date, following the assistance of Occupational Health Department and supportive counselling, financially supported by the respondent. I cannot recommend the exact number of sessions, however, as that is solely within the gift of the professionals. I can merely recommend that if this recommendation is acceptable to the parties, this should commence within 4 weeks of acceptance.

2 That a Support Contact person is appointed by the respondent to assist the claimant over the first 12 months of her return to work. The purpose of this is to ground an early intervention system of support/advice if the claimant determines that she needs it. For that reason, I recommend that the store Personnel Manager in the claimants own base be available to the claimant for that purpose.

4 That a covenant is committed to and signed by both parties to move forward   . That the claimant commits to moving forward on her return to work and the respondent commits to the provision of   a safe working environment. It must be stated here that trust and confidence needs to be rebuilt by both parties and this may take time.

5 That the respondent records the claimants return to work as the beginning of a new absence year ,with a clean absence record to be managed going forward in line with company policy .

6 I have given some thought to the claim for compensation in this case. There is no doubt that the respondent over reached their own time limits in relation to the grievance procedure and the subsequent appeal by a considerable number of weeks.

The claimant has been on sick leave from June 2016, some of which has been paid by the respondent. I found the claimant to be highly distressed by her experiences at work and I note her stated commitment to return to work, that takes strength of character and courage. The respondent has been very helpful in this regard.

I agree that the claimant has been at a financial loss due to this issue. I accept that there were both procedural and operational delays in getting her back to work which should no longer impede progress in this case .In light of the unique circumstances of this case, which are unlikely to be repeated, I recommend that the respondent restores the claimant to the payroll for a 12 week period of her sick leave and pays her the value of 12 weeks pay minus Department of Social Protection payments.

Patsy Doyle, Adjudicator.

Dated:   20 March 2017