Complainant

Respondent

Anonymised Parties

Employee

Employer

Representatives

Vivian Cullen SIPTU-Trade Union

Lisa Conroy Penninsula Group Limited

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-00011879-001

13/06/2017

In the circumstances of this case, the Complainant has sought adjudication by the WRC in relation to a trade dispute in her workplace pursuant to the Industrial Relations Act, 1969.

The Complainant commenced employment with the Respondent Company on the 1st July 2004 as a Professional Development Officer and has a monthly gross pay of €1955.35 and works 24.5 hours per week. The Respondent Company is a membership organisation that provides advice and advocacy services to the said members.

The genesis of this dispute arose on the 23rd January 2017 when the Complainant received an email from the CEO of the Respondent Company with a letter attached dated the 16th January 2017. The aforementioned letter outlined concerns in relation to an incident wherein it was alleged the Complainants inquiries have had a negative effect and there had been an impact on the Respondent Company’s employees ability to work together and such actions were looked on in a very serious light. Further, it was stated that the Respondent Company had previously addressed the Complainants concerns and it could not tolerate what has been regarded as disruptive inappropriate behaviour as it is interfering with the effective operation of the business and causing stress for other staff. There was a request that there be no further repetition of what has occurred and also expressed a reluctance to raise matters as a formal warning but believed it was necessary to set out the company’s position and finally offered the Complainant the opportunity to discuss content of letter if necessary.

The Complainant responded by email on the 30th January 2017 indicating she wanted to appeal the content of the letter. The CEO replied on the 31st January 2017 that no decision or action had been made and purpose of the communication was to allow the Complainant to respond to the alleged incident.

Accordingly, the Complainant sent an email dated the 9th February 2017 with a letter attached dated the 7th February 2017 responding to the aforementioned letter . The Complainant sought clarification in relation to the contents of the letter of the 16th January 2017 and in relation to previous salary discussions. There followed a number of emails between the parties on the 6th and 7th March 2017.

No further correspondence occurred until the 5th April 2017 when the Union Representative on behalf of the Complainant wrote to the CEO of the Respondent Company seeking a response to the Complainants aforementioned letter and suggesting a meeting to discuss all pertinent concerns.

The CEO of the Respondent Company replied on the 2nd May 2017 seeking the Complainants perspective in relation to the alleged incident in order to both sides of the picture and be clear on what happened.

In correspondence dated the 10th May 2017, to the CEO of the Respondent Company, the Complainants Union Representative commented on SI 146/2000 Industrial Relations Act (Code of Practice on Grievance and Disciplinary Procedures) and the case of Frizelle -v- New Credit Union Limited (1997) and further sought clarity and transparency in relation to ongoing concerns and the opportunity for the parties to meet on an agreed time and date.

Ultimately, the Complainant referred this matter to the WRC on the 13th June 2017 and receipt of same was acknowledged on the 16th June 2017. The Respondent Company were informed of this referral on the 16th June 2017. Following no response from the Respondent Company, the Representative of the Complainant was informed on the 27th July 2017 that this matter would proceed to adjudication. Accordingly, both parties were informed of the hearing date of this matter on the 14th August 2017.

In undated correspondence, received by the Complainant on the 6th September 2017, indicating that the Respondent Company would prefer this matter be dealt with internally using the companies grievance procedure. This letter stated they were aware that this matter being heard by the Respondent Companies CEO would not allow a fair and impartial investigation for the Complainant , so the Respondent Company had decided to hire in an external unbiased HR professional to formally hear the grievance on the Complainants behalf.

In correspondence dated the 8th September 2017 the Complainant acknowledged receipt of letter and declined the offer for this grievance to be heard by an external party. Ultimately, the offer to have this matter heard by an external party was renewed by undated correspondence received by the WRC on the 12th September 2017 wherein the non attendance of the Respondent Company at the designated hearing date for adjudication was confirmed.

It was submitted on behalf of the Complainant that the CEO of the Respondent Company had failed in his duty of care by not providing any tangible mechanism to address the Complainants rights to natural justice or fair procedures or the right to defend herself and be heard. It was submitted that no evidence was brought forward, no signed written statements and nothing effectively to substantiate his original written letter of the 16th January 2017. Further, it was submitted that the CEO of the Respondent Company had not made any genuine attempts to engage with either the Complainant or the Union Representative.

In conclusion, it was submitted on behalf the Complainant that the CEO of the Respondent Company had breached the terms of SI 146/2000 as mentioned above. The Complainant sought that the letter of the 16th January 2017 be retracted in its totality and be taken off the Complainants personal file and that the Complainant be entitled to compensation for lack of due process and low standards.

There was no appearance on behalf of the Respondent Company at the hearing of this matter on the 13th September 2017.

The WRC received an email with attachment from the Respondent Company dated the 12th September 2017 at 16:59. The attached (undated) letter indicated the Respondent Company would not be attending the hearing and objected to the Industrial Relations hearing being held.

The attached letter indicated the Respondent Company would prefer this matter to be dealt with internally using the company’s grievance procedure. In particular, the letter stated they were aware that the that this matter being heard by the Respondent Companies CEO would not allow a fair and impartial investigation for the Complainant , so the Respondent Company had decided to hire in an external party to formally hear the grievance on the Complainants behalf and this offer was by way of said attached letter.

At the outset , I acknowledge the personal distress that has arisen for the Complainant in the circumstances of this matter.

However, the Labour Court decision of Bord Gais Eireann -v- A Worker AD1377 aptly sets out my remit in relation to disputes regarding internal investigations, and also extends to disciplinary processes brought under Section 13 of the Industrial Relations Act 1969 as follows: “It is not the function of the Court to form a view on the merits of complaints giving rise to those investigations nor can it substitute its views for those of the investigators appointed in either case. Rather, the role of the Court is to establish if the procedures used by the Company conformed to the generally accepted standard of fairness and objectivity that would normally be used in cases such as these.”

Therefore my role is not to substitute my views for those involved in dealing with this matter but to establish if the procedures adopted by the Respondent conformed to the generally accepted standard of fairness and objectivity that would normally be used in such cases.

Further, I am guided by S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) requiring that the procedures for dealing with workplace disciplinary matters reflecting the varying circumstances of enterprises/organisations must comply with the general principles of natural justice and fair procedures.

Having examined the disciplinary process in question and having reviewed the nature of the correspondence between the parties, I am satisfied that the Respondent conformed to the generally accepted standard of fairness and objectivity that would normally be used in such cases.

In particular given the serious ramifications of the allegations made by the Respondent Company, which are strenuously denied by the Complainant, it is of concern that the Respondent Company took a significant period of time to propose the hearing of the Complainants grievance by an external party. However, I do not accept that the Respondent Company has not provided a tangible mechanism to address the Complainants rights to natural justice or fair procedures.

In the circumstances of this matter, and although I am critical of the lack of alacrity on behalf of the Respondent Company in dealing with this matter, I am of the opinion that the correct approach at this juncture, is for the Complainant to avail of the internal grievance procedure which will be formally heard by an external party.

Taking all of the foregoing into account and having regard to the submissions made on behalf of the Complainant I cannot recommend, at this juncture, that the CEO of the Respondent Company retract the letter dated the 16th January 2017 and for it to be removed from the Complainants personal file or pay any compensation as suggested.

Based on the aforesaid reasoning, I recommend that the Respondent avail of the Internal Grievance Procedure as proposed by the Respondent Company and for an external party to formally hear the grievance on her behalf.

Industrial Relations- Grievance Procedure