ADJUDICATION OFFICER DECISION/RECOMMENDATION
 

Adjudication Reference:  ADJ-00009438

Parties:
 

 Waste management employee
Public Authority
 
Complaint(s):
Act
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
CA-00012363-001
07/07/2017
 

Date of Adjudication Hearing:  26/09/2017

Workplace Relations Commission Adjudication Officer:  Maire Mulcahy

Procedure:
In accordance with Section 13 of the Industrial Relations Acts 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 evidence relevant to the dispute.

Background:
The complainant has been employed as a general operative in the waste management section of a public authority since May 2007.

He submitted a complaint, using the respondent’s grievance procedure   identifying

1.The manner in which his request of September 2016 for a day’s leave to attend his mother in law’s

funeral ceremonies was handled.

2. His manager’s ’s statements of November 2016 concerning his medical certificate and his work ethic

And after his grievances were rejected

3. The incorrect application of the grievance procedure.

He used the appeals available to him within the procedure but no agreement with the respondent emerged and he referred his complaint to the WRC on 7/7/17.

He is on sick leave since October 2016.

He is seeking a transfer to another department within the respondent organisation without incurring any financial loss. His gross pay is €1550 per fortnight.
 
Summary of Complainant’s Case:
 

The complainant’s grievances:

1.Request for annual leave.

On 19th September, 2016, The complainant requested a day’s annual leave for 1st October ’16, to attend the final stage of his mother- in- law’s internment service. The original ceremonies which he had attended were on his days off. His supervisor refused this leave owing to the absence of other employees. He took the request to a more senior manager, the depot Inspector, who asked him to furnish proof of the funeral arrangements. This Inspector disclaimed knowledge of the reason for the complainant’s request which puzzled him as he stated that the department knew about his mother- in- law’s death and how upset he had been. The inspector suggested that the real reason for the leave request was the All Ireland Football Final replay. The complainant found this approach to be insulting and insensitive. He was obliged to obtain written confirmation from the crematorium of the funeral arrangements. He submitted same to the inspector who then approved the leave request. He described a close personal relationship with his mother- in- law.

2.A. Respondent’s questioning of a medical certificate from the complainant’s GP.

In November 2016, the complainant submitted a medical certificate from his GP which identified a respiratory infection plus work -related stress. On receipt of same the HR department wrote to the complainant’s inspector questioning if the same handwriting appeared on all sections of the

certificate. The claimant understood this to be a suggestion that the cert had been ‘doctored’

The complainant attended a meeting to discuss this doubt with the HR department at their request on 9/11/16. The complainant and his union representative raised complaints of bullying at this meeting but the respondent advised that the meeting was convened to discuss the possible tampering with his certificate. The HR executive said that it looked as if someone other than the doctor had amended the certificate and had added that the complainant was suffering from workplace stress which was attributed to work -related issues. The complainant explained that the Doctor had himself amended the cert after a longer consultation with him and his explanation was then accepted by the HR department. The HR executive referred him to staff support with respect to the issues raised and to CHI for medical assessment. The complainant suggested returning to work but the HR executive advised him to re-submit another certificate and remain on sick leave.

The complainant attended the occupational health doctor on 21st November 2016,  and was declared unfit to work, due to stress related illness, was  reviewed him on 19th December, which  found  him still unfit to work and was  advised that he was likely to remain unfit  until his work issues were addressed. He was again reviewed in 9th May 2017 and declared fit to resume work but that it would be in his best interests if he was transferred out of the Waste Department.

2.B   Respondent’s comments about complainant’s mental health and work ethic.

 The HR Department asked the inspector if he knew the basis of work- related stress diagnosis. The inspector in an email reply to the HR Department, copy of which was obtained by the complainant, stated that the stress arises “when he is asked to do a bit”, and that the claimant isolates himself when distressed and that he could be suffering from “depression”.

 The claimant interpreted this as the inspector raising doubts about his work ethic which was new to him as he had received nothing other than good reports about his work and performance.

He took offence at the tag of depression being attached to him.

3. Application of the grievance procedure.

The complainant invoked the grievance procedure, met the designated executive member of the respondent’s staff on 28/3/2017 who examined his complaints. The respondent by way of letter dated 4/4/17, did not uphold his grievances except for a partial upholding of the complaint concerning what the respondent accepted to be insensitive comments about the claimant’s mental health.

The complainant was unhappy with the outcome which was a partial recognition of what he viewed as legitimate complaints. He appealed the stage 2 decision on 7/4/17. The outcome of this appeal, heard on 8/6/17, conducted with the agreement of the complainant in accordance with stage 4 of the agreed procedure, added the following statement:

“I partially uphold your grievance complaint in respect of the’ work ethic’ comments”. Otherwise the decision, dated 13/6/17, affirmed the stage 2 outcome, delivered on4/4/17.

His complaint about the application of the grievance procedure is that the appeals officer didn’t take into account the evidence of witnesses  present at his discussions with the inspector- the subject matter of the complaints and that the appeal gave insufficient weight to his statements.

The complainant remains on sick leave and is paid disability benefit. His solicitor advised that he had incurred a loss of approximately €8,500 over 11 months as sick leave scheme only pays salary for a certain period.

4.Request for a transfer.

 It is accepted that the respondent tried to accommodate the complainant in another section but this would entail him working from 1-9pm and every 12th weekend off as opposed to the current arrangement of 6-2 or 2-10 and every third weekend off which suit his family requirements. Another option, would have entailed a loss of approx. €300 per fortnight due to loss of shift allowances which can be up  to an additional 1/6th of basic pay for day/hours in question.

The claimant has identified an interest in a job in the drainage department.

The transfer options which the respondent has put to him either represent less family friendly hours or a loss of shift allowances. In  addition he is at the top of the list in’ yard status’ in his own department. This means that he can avail of training opportunities or be assigned more responsible/supervisory functions/tasks as need arises and he would forfeit such status were he to avail of some of the transfer options.

The claimant applied on 23/9/17 for a position within the organisation which will be filled through a competitive process.

The complainant’s legal representative requested that he should be transferred into the P department on a red circled basis and with no loss of shift allowances.
 

Summary of Respondent’s Case:
 

1.Refusal to grant annual leave.

The respondent disputes that the complainant advised his supervisor of the basis for his leave request for the 1st October and states that had he done so the supervisor would certainly have mentioned it to the Inspector. The respondent stated that the inspector couldn’t exactly recall what was said to the complainant at the meeting on the 21st September given that 6 months had elapsed but the inspector did concede that he may have said that it as a coincidence that the spreading of ashes element of the funeral was on the same day as the match. Regarding the complainant’s objection to being asked to provide proof of ceremonies, the respondent advised that this was an organisation- wide policy which applies to everyone.

Given that the complainant was ultimately granted leave, the respondent did not uphold the

complaint concerning the original refusal to grant leave nor the request to furnish proof of the ceremony  but did accept that the inspector may have issued a flippant statement and advised  the author of these statements against any repetition. The respondent did not accept either at stage 2 or at the appeal stage of the grievance procedure that the complainant was treated in a callous or insensitive manner as contended.

 2.A. Enquiry re alteration of medical certificate for period 29th October – 5th November.

The respondent stated that it is normal for them to ask the employee to resubmit a medical certificate where there is a doubt; it was a valid enquiry to see if note had been altered. They stated that HR staff dealt with him in a sensitive manner. His explanation was accepted. They further advised that it was HR staff and not the inspector as claimed by the complainant who initiated what they consider to be a valid enquiry. Neither his grievance nor the appeal re same was upheld.

2.B.Inappropriate remarks about work ethic and health.

The respondent stated that they do not believe that the inspector’s comments concerning possible depression and stress arising “when he is asked to do a bit” manifest an unprofessionalism but they do accept that the inspector should have phrased his comments about the complainant’s mental health in a more appropriate manner and they therefore would partially uphold his complaint. The respondent advised that they had advised against any repetition of these remarks and the inspector had accepted same.

His appeal on this point was not upheld.

 3. Application of the grievance procedure

The respondent submits that they conducted the grievance process in accordance with the policy and that they did consult the named witness and gave due weight to both his and the  complainant’s statements

4.Request for transfer out of waste department.

This stems from the respondent’s occupational health provider who advised that the complainant is fit to resume work but that it would be in his best interests if he was transferred to another Dept. The respondent was not certain if the doctor was leading or following on this proposal.

The respondent’s HR department sought alternatives for him. 0n 27/2/17 he was offered a transfer to the PD department in waste management which would result in a small drop in earnings and different hours. He declined this due to loss in earnings and the fact that the proposed alternative was a less family- friendly shift. The claimant declined a second offer of a transfer to this department for the same reason. On 22nd May 2107, he was offered a transfer to the P Department on a trial basis. He declined as this would entail a noticeable drop in earnings. On 4th July he was offered a transfer to the H C  section . While it does  attract a shift allowance it would still entail a loss in earnings. The claimant declined the offer.

The respondent’s policy is that if an employee moves off a shift for whatever reason, they forfeit the

allowances going with that shift and earn the going and agreed rate on the new  shift.

The job that the claimant applied for on the 23/9/17 is outside of the remit of the respondent’s representatives in attendance at the adjudication hearing, and at grade 3, is one grade above the grade 2 job currently held by the claimant. It will be filled through a competitive process.

 The respondent is agreeable to his return to the waste department so long  as he submits a medical statement to the effect that he is free of work place stress and that he can give regular, uninterrupted service.

The respondent advised that he had been allowed benefit from the critical ill protocol section of the public service sick leave arrangements which provides for 6 months full pay and 6 months half pay.

The respondent asked that that his complaint should not be upheld
 

Findings and Conclusions:
 

Outcome of the grievance procedure.

1. Request for leave.

I a. I accept the requirement to supply evidence from a funeral provider when requesting leave to attend same, if unusual, is an organisational practice and is not directed at the claimant. I accept that the respondent is entitled to determine staffing needs when presented with leave requests.

 1.b.  The claimant could be understandably aggrieved at the suggestion that his request to attend an internment ceremony was bogus and really about him being able to watch the All Ireland Replay.

   I  uphold his grievance at 1.b above  that he was treated insensitively.

2. Statement about medical certificate and work ethic

2.a  I accept that the respondent’s HR department were entitled to enquire if in doubt about a medical certificate, but there was no evidence of any previous misuse of sick leave or medical certs on the part of the complainant.

2.b The statement from the depot inspector that the claimant may have depression, plus the same inspector’s comment that the complainant may experience stress” when he is asked to do a bit” could be legitimately  understood as a work-shy label. These comments are unsupported by any evidence concerning the claimant’s work rate.

I uphold this element of the complainant’s grievance at 2.b above based on the work- shy inference.

The author of these statements has been advised not to repeat these remarks. It’s possible that the party concerned will be more circumspect in dealing with the complainant and bolsters the case  against permanent exile from the waste department.

3.Application of the grievance procedure.

I find no evidence that the grievance procedure as a process  was improperly applied. The stages were followed correctly. The respondent advises that they gave due weight to the evidence advanced by the witness to the impugned exchanges.

4.Transfer Request.

The transfers on offer to the complainant either represent a loss in earnings, a loss of family time or a loss in yard status. I  can understand the difficulties which could arise for the respondent in creating precedents  regarding shift allowances for one individual as these matters are the subject of centralised agreements.

 The respondent is agreeable to the complainant’s return to the waste department. I accept that established organisational-wide protocols may apply in these circumstance.

 He has been deemed fit to return to work and has not been declared unfit to work in the waste department. The incidents he complained of are hardly sufficient to merit his permanent exile from the department. He advised that he had been happy to work in the waste department prior to these incidents. Guarantees of indefinite, uninterrupted good health should not be sought
 

Decision:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

I recommend that the respondent amend the decisions arrived at in the grievance procedure as outlined in the Findings and Conclusions section above of this recommendation. I recommend that they acknowledge the validity of these complaints to the complainant.

The complainant should be given an opportunity to reintegrate into the waste department with support from the EAP and management. Difficulties if they can arise should be dealt with at that time. Periodic reviews with support staff are recommended.

The complainant incurred an estimated loss of €8,500 while out on sick leave. I recommend that the respondent pay the complainant €500 in respect of loss of earnings.
 

Dated:  

Workplace Relations Commission Adjudication Officer:  Maire Mulcahy

Key Words:

Grievance procedure-rejection of outcome; transfer request
 

ADJUDICATION OFFICER DECISION/RECOMMENDATION

 Adjudication Reference: ADJ-00009438

Parties:

Anonymised Parties Waste management employee Public Authority  

Complaint(s):

ActComplaint/Dispute Reference No.Date of Receipt Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 CA-00012363-001 07/07/2017   Date of Adjudication Hearing: 26/09/2017 Workplace Relations Commission Adjudication Officer: Maire Mulcahy

Procedure:

In accordance with Section 13 of the Industrial Relations Acts 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 evidence relevant to the dispute.  

Background:

The complainant has been employed as a general operative in the waste management section of a public authority since May 2007.   He submitted a complaint, using the respondent’s grievance procedure   identifying 1.The manner in which his request of September 2016 for a day’s leave to attend his mother in law’s funeral ceremonies was handled. 2. His manager’s ’s statements of November 2016 concerning his medical certificate and his work ethic And after his grievances were rejected 3. The incorrect application of the grievance procedure. He used the appeals available to him within the procedure but no agreement with the respondent emerged and he referred his complaint to the WRC on 7/7/17. He is on sick leave since October 2016. He is seeking a transfer to another department within the respondent organisation without incurring any financial loss. His gross pay is €1550 per fortnight.

Summary of Complainant’s Case:

  The complainant’s grievances: 1.Request for annual leave. On 19th September, 2016, The complainant requested a day’s annual leave for 1st October ’16, to attend the final stage of his mother- in- law’s internment service. The original ceremonies which he had attended were on his days off. His supervisor refused this leave owing to the absence of other employees. He took the request to a more senior manager, the depot Inspector, who asked him to furnish proof of the funeral arrangements. This Inspector disclaimed knowledge of the reason for the complainant’s request which puzzled him as he stated that the department knew about his mother- in- law’s death and how upset he had been. The inspector suggested that the real reason for the leave request was the All Ireland Football Final replay. The complainant found this approach to be insulting and insensitive. He was obliged to obtain written confirmation from the crematorium of the funeral arrangements. He submitted same to the inspector who then approved the leave request. He described a close personal relationship with his mother- in- law. 2.A. Respondent’s questioning of a medical certificate from the complainant’s GP. In November 2016, the complainant submitted a medical certificate from his GP which identified a respiratory infection plus work -related stress. On receipt of same the HR department wrote to the complainant’s inspector questioning if the same handwriting appeared on all sections of the   certificate. The claimant understood this to be a suggestion that the cert had been ‘doctored’ The complainant attended a meeting to discuss this doubt with the HR department at their request on 9/11/16. The complainant and his union representative raised complaints of bullying at this meeting but the respondent advised that the meeting was convened to discuss the possible tampering with his certificate. The HR executive said that it looked as if someone other than the doctor had amended the certificate and had added that the complainant was suffering from workplace stress which was attributed to work -related issues. The complainant explained that the Doctor had himself amended the cert after a longer consultation with him and his explanation was then accepted by the HR department. The HR executive referred him to staff support with respect to the issues raised and to CHI for medical assessment. The complainant suggested returning to work but the HR executive advised him to re-submit another certificate and remain on sick leave. The complainant attended the occupational health doctor on 21st November 2016, and was declared unfit to work, due to stress related illness, was reviewed him on 19th December, which found   him still unfit to work and was   advised that he was likely to remain unfit until his work issues were addressed. He was again reviewed in 9th May 2017 and declared fit to resume work but that it would be in his best interests if he was transferred out of the Waste Department. 2.B   Respondent’s comments about complainant’s mental health and work ethic. The HR Department asked the inspector if he knew the basis of work- related stress diagnosis. The inspector in an email reply to the HR Department, copy of which was obtained by the complainant, stated that the stress arises “when he is asked to do a bit”, and that the claimant isolates himself when distressed and that he could be suffering from “depression”. The claimant interpreted this as the inspector raising doubts about his work ethic which was new to him as he had received nothing other than good reports about his work and performance. He took offence at the tag of depression being attached to him. 3. Application of the grievance procedure. The complainant invoked the grievance procedure, met the designated executive member of the respondent’s staff on 28/3/2017 who examined his complaints. The respondent by way of letter dated 4/4/17, did not uphold his grievances except for a partial upholding of the complaint concerning what the respondent accepted to be insensitive comments about the claimant’s mental health. The complainant was unhappy with the outcome which was a partial recognition of what he viewed as legitimate complaints. He appealed the stage 2 decision on 7/4/17. The outcome of this appeal, heard on 8/6/17, conducted with the agreement of the complainant in accordance with stage 4 of the agreed procedure, added the following statement: “I partially uphold your grievance complaint in respect of the’ work ethic’ comments”. Otherwise the decision, dated 13/6/17, affirmed the stage 2 outcome, delivered on4/4/17.   His complaint about the application of the grievance procedure is that the appeals officer didn’t take into account the evidence of witnesses present at his discussions with the inspector- the subject matter of the complaints and that the appeal gave insufficient weight to his statements. The complainant remains on sick leave and is paid disability benefit. His solicitor advised that he had incurred a loss of approximately €8,500 over 11 months as sick leave scheme only pays salary for a certain period. 4.Request for a transfer. It is accepted that the respondent tried to accommodate the complainant in another section but this would entail him working from 1-9pm and every 12th weekend off as opposed to the current arrangement of 6-2 or 2-10 and every third weekend off which suit his family requirements. Another option, would have entailed a loss of approx. €300 per fortnight due to loss of shift allowances which can be up to an additional 1/6th of basic pay for day/hours in question. The claimant has identified an interest in a job in the drainage department. The transfer options which the respondent has put to him either represent less family friendly hours or a loss of shift allowances. In addition he is at the top of the list in’ yard status’ in his own department. This means that he can avail of training opportunities or be assigned more responsible/supervisory functions/tasks as need arises and he would forfeit such status were he to avail of some of the transfer options. The claimant applied on 23/9/17 for a position within the organisation which will be filled through a competitive process. The complainant’s legal representative requested that he should be transferred into the P department on a red circled basis and with no loss of shift allowances.  

Summary of Respondent’s Case:

  1.Refusal to grant annual leave. The respondent disputes that the complainant advised his supervisor of the basis for his leave request for the 1st October and states that had he done so the supervisor would certainly have mentioned it to the Inspector. The respondent stated that the inspector couldn’t exactly recall what was said to the complainant at the meeting on the 21st September given that 6 months had elapsed but the inspector did concede that he may have said that it as a coincidence that the spreading of ashes element of the funeral was on the same day as the match. Regarding the complainant’s objection to being asked to provide proof of ceremonies, the respondent advised that this was an organisation- wide policy which applies to everyone. Given that the complainant was ultimately granted leave, the respondent did not uphold the   complaint concerning the original refusal to grant leave nor the request to furnish proof of the ceremony but did accept that the inspector may have issued a flippant statement and advised   the author of these statements against any repetition. The respondent did not accept either at stage 2 or at the appeal stage of the grievance procedure that the complainant was treated in a callous or insensitive manner as contended. 2.A. Enquiry re alteration of medical certificate for period 29th October – 5th November. The respondent stated that it is normal for them to ask the employee to resubmit a medical certificate where there is a doubt; it was a valid enquiry to see if note had been altered. They stated that HR staff dealt with him in a sensitive manner. His explanation was accepted. They further advised that it was HR staff and not the inspector as claimed by the complainant who initiated what they consider to be a valid enquiry. Neither his grievance nor the appeal re same was upheld. 2.B.Inappropriate remarks about work ethic and health. The respondent stated that they do not believe that the inspector’s comments concerning possible depression and stress arising “when he is asked to do a bit” manifest an unprofessionalism but they do accept that the inspector should have phrased his comments about the complainant’s mental health in a more appropriate manner and they therefore would partially uphold his complaint. The respondent advised that they had advised against any repetition of these remarks and the inspector had accepted same. His appeal on this point was not upheld. 3. Application of the grievance procedure The respondent submits that they conducted the grievance process in accordance with the policy and that they did consult the named witness and gave due weight to both his and the complainant’s statements 4.Request for transfer out of waste department. This stems from the respondent’s occupational health provider who advised that the complainant is fit to resume work but that it would be in his best interests if he was transferred to another Dept. The respondent was not certain if the doctor was leading or following on this proposal. The respondent’s HR department sought alternatives for him. 0n 27/2/17 he was offered a transfer to the PD department in waste management which would result in a small drop in earnings and different hours. He declined this due to loss in earnings and the fact that the proposed alternative was a less family- friendly shift. The claimant declined a second offer of a transfer to this department for the same reason. On 22nd May 2107, he was offered a transfer to the P Department on a trial basis. He declined as this would entail a noticeable drop in earnings. On 4th July he was offered a transfer to the H C   section . While it does attract a shift allowance it would still entail a loss in earnings. The claimant declined the offer. The respondent’s policy is that if an employee moves off a shift for whatever reason, they forfeit the   allowances going with that shift and earn the going and agreed rate on the new shift. The job that the claimant applied for on the 23/9/17 is outside of the remit of the respondent’s representatives in attendance at the adjudication hearing, and at grade 3, is one grade above the grade 2 job currently held by the claimant. It will be filled through a competitive process. The respondent is agreeable to his return to the waste department so long as he submits a medical statement to the effect that he is free of work place stress and that he can give regular, uninterrupted service. The respondent advised that he had been allowed benefit from the critical ill protocol section of the public service sick leave arrangements which provides for 6 months full pay and 6 months half pay. The respondent asked that that his complaint should not be upheld  

Findings and Conclusions:

  Outcome of the grievance procedure. 1. Request for leave. I a. I accept the requirement to supply evidence from a funeral provider when requesting leave to attend same, if unusual, is an organisational practice and is not directed at the claimant. I accept that the respondent is entitled to determine staffing needs when presented with leave requests. 1.b. The claimant could be understandably aggrieved at the suggestion that his request to attend an internment ceremony was bogus and really about him being able to watch the All Ireland Replay.    I uphold his grievance at 1.b above that he was treated insensitively. 2. Statement about medical certificate and work ethic 2.a I accept that the respondent’s HR department were entitled to enquire if in doubt about a medical certificate, but there was no evidence of any previous misuse of sick leave or medical certs on the part of the complainant. 2.b The statement from the depot inspector that the claimant may have depression, plus the same inspector’s comment that the complainant may experience stress” when he is asked to do a bit” could be legitimately understood as a work-shy label. These comments are unsupported by any evidence concerning the claimant’s work rate. I uphold this element of the complainant’s grievance at 2.b above based on the work- shy inference. The author of these statements has been advised not to repeat these remarks. It’s possible that the party concerned will be more circumspect in dealing with the complainant and bolsters the case against permanent exile from the waste department. 3.Application of the grievance procedure. I find no evidence that the grievance procedure as a process was improperly applied. The stages were followed correctly. The respondent advises that they gave due weight to the evidence advanced by the witness to the impugned exchanges. 4.Transfer Request. The transfers on offer to the complainant either represent a loss in earnings, a loss of family time or a loss in yard status. I can understand the difficulties which could arise for the respondent in creating precedents regarding shift allowances for one individual as these matters are the subject of centralised agreements. The respondent is agreeable to the complainant’s return to the waste department. I accept that established organisational-wide protocols may apply in these circumstance. He has been deemed fit to return to work and has not been declared unfit to work in the waste department. The incidents he complained of are hardly sufficient to merit his permanent exile from the department. He advised that he had been happy to work in the waste department prior to these incidents. Guarantees of indefinite, uninterrupted good health should not be sought    

Decision:

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.   I recommend that the respondent amend the decisions arrived at in the grievance procedure as outlined in the Findings and Conclusions section above of this recommendation. I recommend that they acknowledge the validity of these complaints to the complainant. The complainant should be given an opportunity to reintegrate into the waste department with support from the EAP and management. Difficulties if they can arise should be dealt with at that time. Periodic reviews with support staff are recommended. The complainant incurred an estimated loss of €8,500 while out on sick leave. I recommend that the respondent pay the complainant €500 in respect of loss of earnings.  

Dated:   14/12/2017                                                                                     Workplace Relations Commission Adjudication Officer: Maire Mulcahy