FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : DAUGHTERS OF CHARITY (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY IRISH NURSES AND MIDWIVES ORGANISATION) DIVISION : Chairman: Mr Haugh Employer Member: Mr Murphy Worker Member: Mr McCarthy |
1. Appeal of Adjudication Officer's Recommendation No ADJ-00014406.
BACKGROUND:
2. The case before the Court concerns the Claimant's appealof Adjudication Officer's Recommendation No ADJ-00014406.The dispute relates specifically to the Claimant's claim for reinstatement of seven days unpaid sick leave and related loss of earnings resulting from same. The Claimant is further seeking compensation owing as a result of the Employer's alleged delay in carrying out an internal investigation into complaints raised by the Claimant in line with Company procedures. The Claimant is seeking reinstatement of seven days' unpaid sick leave and related loss of earnings resulting from same.
The matter was referred to a Adjudication Officer for investigation and recommendation. On the 3rd October 2018, the Adjudication Officer issued his Recommendation as follows:
"I recommend that due to these delays, the Complainant be paid any loss of income attributable to her being on sick leave since she lodged the complaint and that all sick leave since she lodged the complaint be eliminated from her sick leave allowance for the purpose of the Sick Pay Scheme. As the Complainant has not suffered any further income loss arising from the delay I see no rational industrial relations reason to add any further recommendations of compensation for the Complanaint".
On the 9th October, 2018 the Claimant appealed the Adjudication Officer's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act 1969. A Labour Court hearing took place on the 17th April 2019.
The following is the Decision of the Court:-
DECISION:
The Complainant has been employed by the Daughters of Charity (‘the Respondent’) as a Staff Nurse since 16 May 2016. The Complainant referred a complaint to the Workplace Relations Commission on 27 April 2019, pursuant to section 13 of the Industrial Relations Act 1969, alleging that the Respondent had delayed investigating complaints of bullying and harassment raised by her from January 2017 onwards and that the delay had resulted in her suffering stress, anxiety and other health-related issues. The complaint was investigated by an Adjudication Officer on 10 September 2018. The Adjudication Officer issued his Recommendation on 3 October 2018. He found that there had been delays in completing the investigation, some of which were outside the Respondent’s control and others for which the Respondent was responsible. While he did not recommend any compensation payment be made to the Complainant, the Adjudication Officer did recommendthat “due to these delays, the Complainant be paid any loss of income attributable to her being on sick leave since she lodged the complaint and that all sick leave since she lodged the complaint be eliminated from her Sick Leave allowance for the purpose of the Sick Pay Scheme.” (ADJ-000014406).
The Complaint has appealed the above Recommendation to this Court. She is seeking: compensation of €15,000.00; re-instatement of seven days’ unpaid sick leave and alleged related lost earnings of €1,300.00 and recoupment of €1,100.00 in medical expenses. The Court heard the appeal in Limerick on 17 April 2019.
The Parties’ Submissions
The Complainant was requiredby the Respondentto work in a named day service between mid-September 2016 and mid-November 2016 during which period she was subject to bullying by a more senior colleague. She made a verbal complaint only at that time to her line manager as she was due to be transferred to a different day service and expected not to have to work with the perpetrator thereafter. However, she was subsequently returned to the service location where the bullying had occurred. She, therefore, made a formal complaint on 26 January 2017. The complaint was the subject of an investigation which resulted in a preliminary report issuing in November 2018 and a final report in March 2019. The Complainant submits that she suffered considerable distress and anxiety as a consequence of the protracted nature of the investigation process and that she required frequent attendances with her General Practitioner as a result.
The Respondent told the Court that it accepts that there were significant delays in investigating the Complainant’s allegations but that many of the factors that caused the investigation to be protracted were outside of its control. For example, the alleged perpetrator went on extended sick leave when the allegations had been put to her by the Respondent at the outset of the investigation. It appears that a number of meetings were scheduled with the alleged perpetrator on her return from sick leave which she failed to attend. The alleged perpetrator then went on extended sick leave again between August and November 2017. Further delays were caused by the Complainant’s absence on sick leave: she was absent on four occasions in 2017 and on five occasions in 2018.
Decision
The Court finds that the Respondent must take some responsibility for the delays in the investigation into the complaints raised from January 2017 onwards by the Complainant, notwithstanding the intermittent absences of both the Complainant and the alleged perpetrator. The Court recommends that the Respondent should review the lessons learned from this case and seek to ensure that it implements best practice in its communications with employees who raise grievances and complaints in the future.
The Court recommends compensation of €1,500.00 be paid to the Complainant in full and final settlement of her complaints. The Recommendation of the Adjudication Officer is varied accordingly.
The Court so decides.
Signed on behalf of the Labour Court
Alan Haugh
7th June 2019______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Sharon Cahill, Court Secretary.