Complainant

Respondent

Anonymised Parties

A pharmacist

A pharmacy chain

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00011914-001

15/06/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00011914-002

15/06/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00011914-003

15/06/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00011914-004

15/06/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00011914-005

15/06/2017

Complaint seeking adjudication by the Workplace Relations Commission under Part 14 Section 103(55M) of the Health Act, 2007

CA-00011914-006

15/06/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00011914-008

15/06/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00011914-009

15/06/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00011914-010

15/06/2017

The Complainant is a Pharmacist employed by the Respondent on 05/02/2016.

This complaint was lodged with the Workplace Relations Commission (WRC) on 15/06/2017, initially the complaint comprised of 9 different complaints for investigation, 4 referred under s.27 of the Organisation of Working Time Act, 1997; 2 under s.13 of the Industrial Relations Act, 1969; 1 under the Payment of Wages Act, 1991; 1 under s.7 of the Terms of Employment (Information) Act, 1994 and finally 1 under Part 14 Section 103 (55M) of the Health Act, 2007.

At the commencement of the hearing the Respondent’s Representative informed the Adjudication Officer that some of the complaints were the subject of High Court proceedings and that any of the complaints involving wages would be settled. This only left the two complaints referred under s.13 of the Industrial Relations Act,1969.

All attending the hearing on behalf of the Respondent left the hearing at this stage and the hearing of the two complaints under the Industrial Relations Act proceeded with no Respondent present, these complaints are referenced: CA – 00011914 – 004 and CA – 00011914 – 005.

The complaints referred under s.13 of the Industrial Relations Act, 1969 are as follows:

CA – 00011914 – 004.

“I was suspended pending an investigation into an error on 1st February. The Company failed to follow their own grievance procedures throughout, I was given a punitive sanction in a disciplinary of a proposed pay reduction by half my contractual salary and demotion to Intern Pharmacist as a result of their findings. I do not believe the “independent investigator” was independent. I have appealed each finding and I have been denied fair procedures throughout the process. There are also issues regarding the provenance of documents. In particular when my solicitors checked who had written/edited the investigation report, Ms X’s (named person – company director) reference was there as having edited same”.

CA – 00011914 – 005.

“I say I reported the bullying and harassment to the Superintendent Pharmacist Ms X (name supplied), that I was having difficulties with the supervising pharmacist Mr Y (name supplied) . I attended with her specifically in Naas to address issues I was having with Mr Y, I raised these issues again most recently in February 2017 and was told to sort it myself and “Mxxxx I hate women who do not stick up for themselves”. I had previously tried to address the issue with Mr Y directly and was told it wasn’t personal just the way he is. I feel that I have no other option than to seek the recourse of the WRC”.

The Respondent was not present or represented at the hearing of the complaints under the Industrial Relations Act, 1969.

The Complainant was placed on a paid suspension from work on 6th February 2017 during which an investigation would take place.

Following on from this investigation the Complainant attended at two disciplinary hearings, the first on 26th April 2017 and the second on 16th May 2017.

By letter dated 23rd May 2017 the Respondent outlined the outcome of the Disciplinary hearings:

“In taking all matters into consideration, the enquiry has concluded the breaches of discipline are of the most serious kind, but do not justify your dismissal from employment. Accordingly, further consideration has been given to your position within the company.

We have carefully examined all information provided as part of this process as well as your service with the pharmacy. We have decided therefore to change your role to that of Interim Pharmacist. In practice, this means that your work must be supervised by a Qualified Pharmacist during all of your working hours with the company. This is a temporary change and your role in that regard will commence on the date of this letter and will subsist for a period of twelve months.

On the expiration of that period the company will review your performance. During that period the company will offer additional training and supervision and you will be employed at our headquarters in xxxxxxxx. Your rate of remuneration will be commensurate with the standard industry norm for a Pharmacist Intern and will be in a sum of €14 per hour. The remaining terms and conditions of your employment will remain unchanged.

Upon the conclusion of a minimum six month period and a maximum of a twelve month period and subject to a satisfactory performance review, you will be restored to your position of Pharmacist and the company will, subject to the exigencies of our service, transfer you to our branch in yyyyy or to another suitable branch.

You have the right to appeal this decision. Should you decide to take this option you have 15 working days in which to do so and the appeal hearing will be heard by Mr AAA. Should you wish to invoke the appeal process which is outlined in our disciplinary procedures, which you are familiar with, please do so directly in writing to Mr AAA stating the reasons.

On the date of this letter your suspension has been revoked and we request that you report for work at xxxxxx at 9.00am on Friday 26th May 2017”

The appeal letter from the Complainant’s solicitor was dated 1st June 2017.

This letter outlined nine points and these together with the Complainant’s allegation of bullying and harassment would constitute the terms of reference for the appeal to be conducted by Mr AAA.

Conclusions and Findings (Mr AAA’S appeal / investigation).

Arising from the process outlined above, the following are the Conclusions and Findings reached by Mr AAA.

1.       The Determination is unnecessarily punitive

Bearing in mind both the serious nature and the frequency of repetition relating to the errors made by the Complainant in the course of her duties, my conclusion is that the Respondent was left with no alternative but to take the appropriate disciplinary action to address the following:

·         The primary need to ensure the protection of public and client safety.

·         The appropriate re-training and supervision be provided by the Respondent with the expressed objective of assisting the Complainant achieve a level of competence and performance to protect against similar errors and shortcomings in performance occurring in the future.

·         In order to achieve the continuous performance improvement required, the decision to move the Complainant to the role of Intern Pharmacist at yyyyyyy, albeit on an interim basis, would provide for the supervision and mentoring, combined with a specific range of activities and responsibilities within an appropriate environment during the re-training period.

Consequently, I uphold the return to work conditions as put forward by the Respondent for the reasons outlined.

However, I recommend the company give consideration to the following:

·         In the event of the Complainant agreeing to return to work on the basis of the above, travel costs associated with working in yyyyyy be reimbursed to her by the company for the duration of the re-training period.

·         In the event of the Complainant demonstrating a positive and committed response on her part to the support training and mentoring provided to her and which is reflected in on-going performance review, that the company consider the following:

a)      The company adopts a flexible approach to the minimum period for six months, allowing for the possible return to Pharmacist level at an earlier time. This could be combined with her remaining at yyyyy for a further period following return to Pharmacist level as a transitional arrangement prior to returning to xxxxxxx, or an appropriate Branch at that time.

b)      I am conscious that the Complainant has suffered financial loss due to the discontinuance of her salary for several months. Whilst unfortunate, it must be noted that her decision not to return to work was a voluntary one taken by her, in the full knowledge that she could well suffer financially arising from this decision. There was an option open to her to return to work subject to her entitlement to appeal the determination. Likewise, it is worth noting that the company has undergone significant disruption, operationally and in cost terms in having to recruit temporary locums.

c)       Notwithstanding this, should the Complainant respond in the spirit and manner as outlined above, I suggest the company consider some gesture of goodwill to acknowledge her progress in this regard, at the end of her re-training period. This decision is at the discretion of the Company.

Allegation of Bullying and Harassment

In considering the allegation of bullying and harassment made by the Complainant against Francis Cunningham, I have referred to the following:

·         Submission by the Complainant dated 5th April 2017.

·         Minutes of the meetings dated 17th July and 4th August 2017 respectively

·         Minutes of meeting dated 25th July 2017.

·         Minutes of meeting dated 28th July 2017.

·         Minutes of meeting dated 22nd August 2017.

·         Minutes of meeting dated 4th August 2017.

In her submission, the Complainant gave examples of instances which she considered constituted bullying and harassment on the part of her Supervisor. In addition, she alluded to a note which was left for her by the Supervisor which she felt was proof of his “passive aggressive attitude” towards her. In response, the Supervisor explained that he was simply carrying out his responsibilities as her reporting senior.   He acknowledged that at times he became frustrated arising from the frequent repetition of errors, in spite of constant efforts on his part to try to correct her performance.

The Complainant alleges that she brought her concerns to the attention of a Director at a meeting between both in yyyyy during November 2016.   Furthermore, she alleges that following her meeting with said Director, she told the Supervisor that she had complained to the Director about his bullying behaviour.

The response on the part of the Director was that at no time during the meeting in yyyyyy did the Complainant make any reference to bullying and harassment on the part of the Supervisor. According to the Director, the meeting was primarily about the Complainant’s request for a salary increase including discussion around internal processes at Branch level.

In my meeting wither Supervisor, dated 4th August 2017, he denied having had any discussion with the Complainant in which she referred either to her complaint about him to the Director or any comment to him about his bullying behaviour towards her.

As this constitutes a most serious allegation on the part of the Complainant towards a fellow employee and also a direct criticism of the Director, I cannot consider that the allegation carries any validity unless there is factual evidence to support this allegation. There is no evidence or witness to verify the Complainant’s allegation. Furthermore, for Director and Supervisor to both deny such conversations took place, if in fact they did take place, would require collusion between them both. I consider this to be highly unlikely.

Finally, having given consideration thought to the statements made by the Complainant and the Supervisor, I can see no justifiable grounds to support the allegation of bullying and harassment against the Supervisor.

This is an excellent piece of work and goes a long way towards clarifying the two Industrial Relations complaints. It is against this background that I deem the complaints not well found and for this reason the complaints fail.

Complaints fail.