Complainant

Respondent

Anonymised Parties

An Employee

A Health Service Provider

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-00023406-001

21/11/2018

The Complainant commenced employment with the Respondent, a health services provider, in October 1994, in the role of Head Porter in Theatre.

The Complainant is seeking adjudication, under Section 13 of the Industrial Relations Act 1969, of his claim that the Respondent has failed to involve the internal Grievance Procedures in relation to a grievance which he raised on 22 March 2018.

Background:

The Complainant submitted a grievance under the Respondent’s Grievance Procedure on 22 March 2018. The grievance was against a work colleague (Mr A).

On 4 April 2018, the Complainant’s Trade Union wrote to the Respondent requesting a copy of the statements which had been taken from two staff members who were interviewed, as witnesses, as part of the grievance investigation.

On 27 April 2018 the Trade Union again wrote to the Respondent on the Complainant’s behalf. In this correspondence, the Trade Union outlined concerns that Mr A continue to work in the same work location as the Complainant, despite a request that he would not continue to work alongside the Complainant after the grievance had been raised.

On 3 May 2018, the Respondent met with the Complainant’s Trade Union representative and Mr A’s Trade Union representative to discuss the matter. However, it is stated on behalf of the Complainant that no progress was made at this meeting as Mr A’s Trade Union representative was of the view that a letter, dated 6 April 2018, issued to his member (Mr A) was not in accordance with the Respondent’s procedures and should be withdrawn.

It was stated on behalf of the Complainant that the Respondent then suggested mediation as a means to resolve matters. However, it was stated that on 8 May 2018, the Complainant’s Trade Union representative confirmed to the Respondent that the Complainant did not wish to enter mediation.

According to the Complainant’s evidence, on 21 June 2018 his Trade Union Representative wrote again to the Respondent requesting confirmation that the matter of his grievance was being progressed. It was stated on behalf of the Complainant that, despite confirming on 8 May 2018 that he did not wish to engage in mediation, the Respondent again suggested mediation in late June 18.

Following a series of correspondence between the Complainant’s Trade Union representative and the Respondent in September and October 2018, the Respondent wrote to the Complainant, on 18 October 2018, stating that, as mediation was not an option, the next step will be an investigation. However, it was contended that the Respondent suggested the parties await the outcome of an investigation into a previous alleged incident in 2017, which resulted in a complaint being made against the within Complainant by Mr A.

According to the Complainant’s evidence, his Trade Union representative responded to the Respondent, on the same day, outlining that the grievance was raised under the Grievance Procedure and not the Dignity at Work Policy and, therefore, that there was no requirement for an investigation.

It was stated that, on 5 November 2018, the Respondent advised that they would proceed to arrange separate meetings under Stage I of the Grievance Procedure. However, the matter was referred to the Workplace Relations Commission on 21 November 2018 and, since that date, no progress has been made in relation to the progression of the Complainant’s grievance.

Substantive Argument:

The Complainant’s Trade Union representative stated that he had raised a formal Grievance under the Grievance Procedure on 22 March 2018. It was further stated that the Respondent has failed or refused to invoke the Grievance Procedure, despite continual requests on the Complainant’s behalf that the Respondent would conduct the grievance procedure to conclusion.

In summary, it was submitted, on behalf of the Complainant, that it was now almost a year since the grievance was raised and the matter has not been progressed. Consequently, the Complainant is seeking a recommendation that would include (a) a declaration that the Complainant’s case is well-founded, (b) a declaration that the respondent should involve the Grievance Procedure immediately and (c) an award of compensation to the Complainant for the manner in which he has been treated by the Respondent and the failure to afford him natural justice and fair procedure.

Background:

The Respondent’s representative at the Hearing confirmed the background details to the matter, as set out above, in the Complainant’s Background section.

Respondent’s position:

It was submitted on behalf of the Respondent that, on 23 March 2018 when the Complainant submitted his grievance to his Line Manager. It was further stated that the Line Manager examined the contents of the grievance, met with the witnesses identified therein and obtained their written statements.

According to the Respondent’s evidence, the Line Manager then met with Mr A on 6 April 2018 and provided him with copies of the witness statements. It was further stated that the Line Manager sought a response from Mr A to the allegations being made and requested that response to be provided by 13 April 2018. However, the Respondent stated that no response has been received to date and the matter is currently the subject of further discussion with Mr A’s Trade Union representative.

In conclusion, the Respondent stated that, while acknowledging the various contacts from the Complainant’s Trade Union representative, it is very difficult to hear the grievance until the full facts of the case are established. It is further submitted that the fact that the Line Manager had not received a response from Mr A to the witness statements is also adding to the difficulty of dealing with the Complainant’s grievance.

According to the Respondent, the matter is further complicated by the fact that the Investigation Report in respect of Mr A’s complaint against the Complainant has not yet issued.

The Respondent stated that, while they are happy to hold a grievance meeting, they do not have all the facts necessary to progress the matter.

I have carefully considered all the evidence adduced and submissions made on behalf the Complainant and by the Respondent. Having done so, it appears that the progression of the Complainant’s grievance is being hampered by the failure of the respondent in the grievance (Mr A) to fully engage with the process, i.e. his failure to provide a response to the Grievance Officer, conducting the grievance process, within the stipulated timeframes. I am strongly of the view that it is unreasonable to allow this situation to impede the progress of the Complainant’s grievance process.

Secondly, it appears that the progression of the Complainant’s grievance is also impacted by the delays in the issuing of the Investigation Report into the investigation of an earlier complaint made by Mr A against the Complainant. I am strongly of the view that, despite the fact that the same two individuals are involved in these processes, albeit with role reversal in relation to the complainant/respondent roles, these are two separate processes and should be treated as such by the Respondent and all parties involved.

Taking all of the above into consideration, I find that the Complainant’s claim is well-founded and that the delay in progressing his grievance is unreasonable and unacceptable in the circumstances. On that basis, I am of the view that the Respondent should now proceed, without further delay, to invoke the Grievance Procedures in relation to the Complainant’s grievance as submitted in March 2018.

While I fully accept the bona fides of the Line Manager, who originally commenced the investigation of the Complainant’s grievance, I am further of the view that all parties would be best served if the Complainant’s grievance was investigated de novo by an appropriate individual who has no prior involvement in or connection with the matters contained within the grievance.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I recommend that the Respondent commences an immediate investigation of the Complainant’s grievance of March 2018 and that this process is conducted on a de novo basis by a new Grievance Officer. I further recommend that, in the interest of all parties, the process be brought to a speedy conclusion.