FULL RECOMMENDATION
SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HEALTH SERVICE EXECUTIVE - AND - A WORKER DIVISION : Chairman: Ms O'Donnell Employer Member: Ms Connolly Worker Member: Mr Hall |
1. A claim of bullying in the Workplace and a delay in investigating a complaint under the Dignity at Work Policy.
BACKGROUND:
2. This case was the subject of labour Court Recommendation No LCR21802.
The Labour Court recommended that: –
“the Parties await the outcome of the independent investigation into the Worker’s complaints. The Court sees no merit in the Worker’s claim for compensation at this point in time. However, once the investigator’s report has issued, and the Parties have had an opportunity to consider its contents and findings, the Worker may wish to make a further application to the Court then.”
On the 24 January 2019, the Claimant referred the dispute to the Labour Court in accordance with Section 20(1) of the Industrial Relations Act, 1969 and agreed to be bound by the Court's Recommendation.
The Claimant is seeking compensation for the length of time it took the HSE to conclude their formal investigation into his bullying complaint.
The Employer that there was no undue delay in conducting the formal investigation and said that while it has sympathy for the Claimant’s situation, he has been paid in line with the HSE sick pay policy and it is not within their power to go beyond his contractual entitlements.
A Labour Court hearing took place on the 19 February 2019.
RECOMMENDATION:
The issue in dispute between the parties arises from a complaint of bullying made by the Worker and the failure of the Employer to address his complaint in a timely manner. The Worker suffered loss of earnings as he was on extended sick leave and his paid sick leave entitlements were exhausted.
In his submission to the Court the Worker identified a number of delays and procedural flaws in the process followed by their Employer. In particular the fact that their own Occupational Health Specialist had recommended on three occasions over a six-month period that he was fit to work if he could be moved to a different location. The failure of the Employer to act on the recommendations of their own Occupational Health specialist has resulted in a loss of six month’s pay for him. When the employer eventually facilitated his return to work it entailed a round trip of 140 miles each day causing further hardship. While the Worker has now been facilitated with a position closer to his home, it took nearly two years from start to finish for his complainant to be addressed. It is his submission that the delay by the Employer in addressing his complaint caused him undue financial hardship.
The Employer in their submission did not dispute the dates in terms of the lodging of the Complainant and the issuing of the final report nearly two years later. The Employer accepted that there had been some issues with the process in that he had not received all the witness statements relied on and only received them after he went looking for them. The Employer could offer no reason as to why no action was taken on foot of the Occupational Health reports indicating that he would be fit for work if he could be, moved to an alternative location. It was their contention that he had not sought a transfer and that there were not many vacancies in his particular grade. It was their submission that the process of dealing with his complaint was not unduly long in circumstances where there were a number of witnesses to interview and that initially mediation was explored as an option.
The Court having considered the detailed submissions of both parties and the oral submissions made on the day notes that if the Employer had acted in accordance with their own occupational health recommendations that the Worker would not have suffered the financial losses that he suffered on foot of his paid sick leave entitlement being exhausted. The Court recommends the payment of €18,000 euro compensation in full and final settlement of this claim.
The Court so recommends.
Signed on behalf of the Labour Court
Louise O'Donnell
CR______________________
19 March, 2019Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Ciaran Roche, Court Secretary.