FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HEALTH SERVICE EXECUTIVE - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Marie Worker Member: Mr Hall |
1. Appeal of Adjudication Officer's Recommendation No: r-140001-ir-13/EH.
BACKGROUND:
2. This case concerns a complaint made by the Worker under the Employer's Dignity at Work Policy.
- This matter was referred to an Adjudication Officer/Rights Commissioner for investigation and Recommendation. On 4 December 2018 the Rights Commissioner/Adjudication Officer issued the following Recommendation:-
I recommend that the Worker should be paid €4,000 in compensation for the delays caused by his employer in not having his grievances dealt with in a timely manner.
The quantum of award of compensation reflects his own contribution to the impasse through his failure to properly engage with the employer and to enter into meaningful and realistic alternative employments.
I recommend that this should be paid within six weeks of the date below.
The Union on behalf of the Worker appealed the Rights Commissioner's/Adjudication Officer's Recommendation to the Labour Court on 10 January 2019 in accordance with Section 13(9) of the Industrial Relations Act, 1969
A Labour Court hearing took place on 26 March 2019.
DECISION:
This is an appeal of a Rights Commissioner’s (now known as an Adjudication Officer) Recommendation by the Union on behalf of a worker who claimed that he had been subjected to adverse treatment by an Area Manager and as a result, has been on certified sick leave since December 2011.
On 20thNovember 2013, the Union submitted a claim to the Labour Relations Commission (now known as the Workplace Relations Commission) alleging that management had failed to deal with a complaint raised by the Claimant under the Dignity at Work Policy. A hearing before a Rights Commissioner was held on 6thMarch 2014, which was adjourned to allow for discussions to take place between the parties. At a reconvened hearing 20thDecember 2017, it was decided that further discussions at local level should take place between the parties and the hearing was consequently adjourned for a second time. A reconvened hearing took place on 24thSeptember 2018, by which time the Claimant was looking for compensation for the undue delay in having his complaint dealt with. The compensation sought was quantified as 1 ½ years’ pay. The Rights Commissioner found that there was undue delay in management’s response from July 2012 to January 2013 regarding his request for assistance from St Loman’s HR before he referred the matter to the National Director HR under the Dignity at Work Policy.
The Rights Commissioner recommended that the Claimant should be paid €4,000 in compensation for the delays caused by his employer in not dealing with his grievance in a timely manner. In his Recommendation, the Rights Commissioner stated that the quantum of compensation awarded reflected the Claimant’s own contribution to the impasse through his failure to properly engage with management and to enter into meaningful and realistic alternative employments. The Claimant appealed the Recommendation.
The Claimant was employed by HSE as a Minibus Driver since 1980. At the material time to this complaint the Claimant was employed as a Minibus Driver at St Loman’s Hospital and is currently employed as a Porter in Cherry Orchard Hospital. The Claimant alleged that he had difficulties with an Area Manager stemming from 2009.
The Claimant initially sought assistance with regard to these difficulties from St Loman’s HR in July 2012 and again in October 2012 but received no response. He made a complaint to a HSE National Director under the Dignity at Work Policy on 14thJanuary 2013. When this was assessed HSE management informed him on 7thMarch 2013 that it was not appropriate to progress his complaint under the Dignity at Work Policy due to lack of information in his complaint. Details of his complaint were forwarded to the Area Manager in question who responded by letter dated 15thJune 2013 to the complaint made and expressed deep regret for any distress caused as she was in the process of reviewing the Claimant’s role and functions against the backdrop of a changing service. Management offered to meet him to allay his concerns.
Prior to the Rights Commissioner hearing in March 2014, management carried out a further screening of his complaint and informed him that it did not fall within the definition of bullying/harassment as outlined in its Dignity at Work Policy, however, it did recognise that there were issues to be addressed once the Claimant was declared fit to resume duty by its Occupational Health Physician. On 18thMarch 2014, the Claimant requested that his complaint be now dealt with under the HSE Grievance Procedure.
The Claimant has been absent for long periods since raising his complaint. He engaged in a grievance meeting which took place on 15thMay 2014. Since then Management have offered him a number of positions which he either declined or turned out not to be suitable to him. When he failed to engage with local management he was recorded as absent and remains so.
Having considered the submissions made by both parties, the Court notes that a substantial passage of time has elapsed since the matters which are the subject of this dispute were first raised. The Claimant’s absence from work for such a substantial period of time had presented significant challenges for management in attempting to resolve matters between the parties. The Court is of the view that the resolution to this dispute lies in the Claimant’s return to work as soon as he is deemed fit to do so.
Therefore, the Court recommends that the Claimant should co-operate with the Occupational Health Department process to facilitate a medical assessment with a view to his return to work. The Court recommends that as soon as the Claimant is deemed fit to do so, he should engage with management, with the assistance of the Union, in order to finalise an orderly return to his employment.
Accordingly, the Court rejects the Claimant’s appeal and overturns the Adjudication Officer’s Recommendation.
The Court so Decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
29 March 2019______________________
MNDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Michael Neville, Court Secretary.