FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : AN POST - AND - A WORKER (REPRESENTED BY CWU) DIVISION : Chairman: Mr Foley Employer Member: Ms Doyle Worker Member: Ms Treacy |
1. Appeal of Adjudication Officer's Recommendation.
BACKGROUND:
2. The case before the Court concerns an appeal of an Adjudication Officer's Recommendation. The dispute relates specifically to the Worker's claim that the Employer has failed to appropriately address concerns raised by him in line with its internal procedures. The Employer refutes the Worker's claim and the dispute could not be resolved at local level.. The matter was referred to an Adjudication Officer for investigation and recommendation. On the 18th January 2018, the Adjudication Officer issued her Recommendation as follows:
"In these circumstances I recommend that a line be drawn under this dispute and that due to the protracted nature of the dispute, the respondent offer to the complainant the compensatory sum of €5,000 in final settlement"
The Employer and the Union appealed theAdjudication Officer's Recommendationto the Labour Court in accordance with Section 13(9) of the Industrial Relations Act 1969. A Labour Court hearing took place on the 7th March, 2018.
UNION'S ARGUMENTS:
3. 1. The Worker contends that the Employer failed to address concerns raised by him in a timely and appropriate manner in line with the Dignity at Work Policy.
2. The delay in the Employer's handling of the matter caused the Worker to suffer a significant financial loss as a result of his extended sick leave period.
3. The Worker is seeking to be compensated for the financial loss he incurred during his sick leave period.
Employer'S ARGUMENTS:
4. 1. The Employer maintains that it took appropriate action in relation to the concerns raised by the Worker and dealt with them as expediently as was possible at the time.
2. The Employer asserts that it made every effort to enable the Worker to return to work when he was declared medically fit to do so.
3. The Employer is of the view that there is no compensation owing to the Claimant in this matter.
DECISION:
The Court has given careful consideration to the written and oral submissions of the parties.
The Court, at its hearing, made it clear that the Court has no function in this matter of making findings as regards complaints of bullying and harassment. The matter before the Court was characterised by the Trade Union as a complaint that the Employer had not adhered to its own procedures as set out in its written Dignity at Work Policy and / or did not exercise its duty of care to the Complainant.
The Court has examined in detail the Dignity at Work Policy and considered the sequence of events as described to it by the parties. The Court finds that the Employer followed appropriately the procedures set out in the Dignity at Work Policy for dealing with a complaint of Bullying and Harassment in an informal manner. The Court notes that the Employer offered mediation as provided for in the Policy and that the Complainant declined, for stated reasons, to participate in that process. The Court notes that the formal stage of the procedure for dealing with complaints of Bullying and Harassment was not invoked by the Complainant.
The Trade Union has submitted that the Employer, notwithstanding the fact that procedures as set out in the Dignity at Work Policy were followed, should have embarked on an alternative procedure in discharge of its duty of care to the Complainant. The Court finds that the Employer had a duty of care to both individuals associated with the complaint of Bullying and Harassment. That duty of care to both employees, as well as the requirements of natural justice, obliged the Employer, having published a Dignity at Work Policy, to follow the procedure as set out in that policy and not any other procedure.
The Court notes that the Complainant did not at any time invoke the formal stage of the procedure for making complaints of Bullying and Harassment. The Court also notes that, having returned to work in 2015 and the Employer having ensured that the persons associated with the complaint of Bullying and Harassment no longer had work related contact, the Complainant did not advance the within claim until 2017.
The Court notes that the Complainant has made reference to losses of earnings suffered by him during his absence on sick leave. The Court finds that the majority of that sick leave, and the losses associated therewith, occurred after the CMO had found that the Complainant was fit to attend work. The Court further notes that the period of illness concerned was considered as part of a disciplinary process which made certain findings. This Court cannot trespass on the outcome of that procedure.
The Court can make no finding that the Employer failed to respond appropriately and in accordance with its procedures when the Complainant’s complaint was made in 2011 or since. In those circumstances, the Court, recognising the long history of this matter and without prejudice to either party, recommends that, in the interest of good industrial relations, the Employer should make a payment of €2,500 to the Complainant in full and final settlement of the matter.
The decision of the Adjudication Officer is varied accordingly.
The Court so recommends.
Signed on behalf of the Labour Court
Kevin Foley
16th March 2018______________________
SCChairman
NOTE
Enquiries concerning this Decision should be addressed to Sharon Cahill, Court Secretary.