FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : KERRY PARENTS AND FRIENDS ASSOCIATION (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Marie Worker Member: Mr Shanahan |
1. An appeal of an Adjudication Officer's Recommendation No: ADJ-00002320.
BACKGROUND:
2. This case concerns an appeal by the Claimant against her employer regarding its handling of a bullying complaint and disciplinary sanctions taken against her.
- This matter was referred to an Adjudication Officer for investigation and Recommendation. On the 5 July 2017 the Adjudication Officer issued the following Recommendation:-
- “Section 13(2) of the Industrial Relations Act 1969 prohibits an investigation by an Adjudicator in the event that the Labour Court has made a recommendation in relation to the Dispute. I am satisfied that the Labour Court made a far reaching recommendation in the set of circumstances attributed by the complainant to this dispute on 28 November, 2014 and I lack jurisdiction to hear a claim based on identical circumstances. I find that the claim cannot proceed for want of prosecution.
The Worker appealed the Adjudication Officer’s Recommendation to the Labour Court on the 15 August 2017 in accordance with Section 13(9) of the Industrial Relations Act, 1969.
A Labour Court hearing took place on the 9 November 2017.
DECISION:
This is an appeal by the Claimant of an Adjudication Officer’s Recommendation relating to her complaint against her employer regarding its handling of a bullying complaint she made in 2011 and secondly the disciplinary sanctions taken against her. The Adjudication Officer did not find in her favour.
The Claimant was employed in different roles with the employer since June 2002, latterly as Training Co-ordinator. She was dismissed on 17thSeptember 2015. The Court notes that her dismissal was the subject of a claim under the Unfair Dismissals Acts, 1977 to 2015, in which the Adjudication Officer found that her complaint was well founded. That case was not appealed. (The Claimant also made claims against the employer under the Safety Health and Welfare at Work Act and the Protected Disclosures Act, which are the subject of separate appeals by the Claimant).
Part of her claim under the Industrial Relations Acts related to her complaint regarding disciplinary sanctions up to and including her dismissal. The Court is of the view that such claims were encompassed by her claim under the Unfair Dismissals Acts and accordingly does not make a decision on those issues in this appeal.
The second part of her complaint related to procedures for making such a bullying complaint. The Court is conscious of the fact that in 2014, it held a hearing into a joint appeal of a Rights Commissioner’s Recommendation (as Adjudication Officers were then known as) concerned the outcome of an investigation into her bullying complaints.
At the time, in Labour Court Decision AD 1488, the Court held as follows: -
- ‘Having considered the submissions made by both parties the Court is of the view that the Organisation’s procedures have been exhausted and sees no value in a further investigation being conducted. In its approach to this case the Court's primary objective is to facilitate the Claimant and Management in restoring a viable employer / employee relationship and in putting the various occurrences and issues in dispute behind them. Therefore, the Court recommends that the parties should agree to the appointment of an independent facilitator nominated by the Court for the purpose of assisting the parties to reach agreement on acceptable terms under which a normal working relationship can be restored.
Upon acceptance by both parties of this Recommendation they should confirm their acceptance when the Court will proceed to make the nomination.’
- ‘Having considered the submissions made by both parties the Court is of the view that the Organisation’s procedures have been exhausted and sees no value in a further investigation being conducted. In its approach to this case the Court's primary objective is to facilitate the Claimant and Management in restoring a viable employer / employee relationship and in putting the various occurrences and issues in dispute behind them. Therefore, the Court recommends that the parties should agree to the appointment of an independent facilitator nominated by the Court for the purpose of assisting the parties to reach agreement on acceptable terms under which a normal working relationship can be restored.
The Claimant submitted that since then an independent facilitator (Ms Janet Hughes) was appointed. She said that there were two meetings with Ms Hughes, the first was to brief her and the second was to start work to agree/negotiate a work plan for the Claimant. She said that when her view of the work plan did not marry with the employer’s view, a decision was made by the employer to suspend Ms Hughes’ involvement in the recommended facilitation process. The Claimant expressed her concern regarding this outcome, following which the employer asked her to agree and accept the work plan and she was placed on paid leave pending her agreement. This eventually led to her dismissal. The Claimant disputed the assertion that she was supplied with a copy of her job description in November 2011.
The employer said that there had been two full days of facilitation with Mr Hughes, at the end of which Ms Hughes was not seeking major negotiations on the Claimant’s work plan but was seeking to assist in providing clarity for her. The employer said that the work plan was drawn up in accordance with the Claimant’s job description which had been signed by her on 21st November 2011. The employer said that on 16th April 2015 as the Claimant was not willing to agree a work plan and not willing to proceed with any further facilitation unless her perception of her role was included in the plan, it suspended the facilitation process.
The employer said that prior to suspending the facilitation, the organisation’s representatives consulted with the facilitator. In its email to Ms Hughes the representative relayed it concerns to her regarding the Claimant’s demands, and stated that it was suspending the facilitation process pending further meetings with the Claimant directly. This was communicated to the Claimant. The facilitator wrote to the Claimant on 16th April 2015 setting out her position on the matter and indicating that she was still available as a facilitator. The facilitation process was never reactivated.
The Court was provided with a copy of the Claimant’s job description signed and dated by both parties in November 2011.
Having considered the extensive documentation associated with this claim, the Court is of the view that the suspension of the facilitator was somewhat premature and that such a process was not used to its full potential. The Court had recommended a process designed to restore a viable employer / employee relationship. While there clearly was frustration on the employer’s part to the perceived non-cooperation of the Claimant with the work plan, the Court is of the view that further efforts could have been made to restore a viable employer / employee relationship. This required cooperation and mutual respect on both sides with the assistance of the highly qualified independent facilitator. In the circumstances, such a process required careful handling which in all the circumstances could only be achieved over time. The Court is of the view that the procedures envisaged by the Court were not exhausted to the fullest extent possible and events overtook the intended outcome. This is regrettable.
Having regard to the manner and circumstances within which the facilitation was suspended by the employer, the Court is of the view that the employer must bear the greater responsibility for the cessation of the facilitation process. Therefore, in all the circumstances, the Court recommends that the employer should pay compensation to the Claimant for its part in the premature cessation of the facilitation process. Therefore, the Court recommends that the employer should pay the Claimant the sum of €5,000.00 in full and final settlement of this claim.
The Court so Recommends.
Signed on behalf of the Labour Court
Caroline Jenkinson
CR______________________
30 November, 2017Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran Roche, Court Secretary.