ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00017631
Parties:
| Complainant | Respondent |
Anonymised Parties | A Manager | Community Development Company |
Complaint:
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-00022744-001 | 22/10/2018 |
Date of Adjudication Hearing: 05/03/2019
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 andSection 13 of the Industrial Relations Act 1969 following the referral of the complaint/dispute to me by the Director General, I inquired into the complaint/dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint/dispute.
Summary of Complainant’s case:
The Complainant has a dispute with the Respondent going back to February 2017 when she sought a meeting with the CEO to discuss her role which she felt was being undermined by the actions of the CEO in excluding her from certain managerial aspects of her role. He dispute remains unresolved as various attempts at mediation and investigation failed. The Complainant now believes that the procedures adopted by the Respondent were at variance with their own grievance procedures and the terms of reference of the most recent initiative were not as agreed between the parties. Further, the Complainant believes the procedures being adopted do not conform with the provisions of S.I. 146 of 2000 and the Respondent has not afforded her the principles of natural justice and fair procedures. The time limits as contained in the company’s procedures have long since passed and the Complainant is of the opinion that the original complaint was incorrectly handled not least in circumstances where the chairman sought direction on how to handle the complaint from the person against whom the complaint was made. Extensive written submissions were provided outlining the history of the case. Mediation was attempted and failed. The second mediation session broke down when new information was introduced by the CEO. The Complainant went out sick with work related stress from August to November 2017. The Complainant welcomed a decision in August 2017 to appoint a third party to investigate her complaint. The Chairman in correspondence dated 30th August 2017 indicated that he had handed over the process to another Board member (Mr E) as he was a potential witness. An Investigator was appointed without any input or terms of reference agreed by the Complainant or her Union. When the Complainant met with the Investigator he stated that he had been engaged by Mr P and had never met with Mr E. The Investigator asked her if she would consider an exit package. The process ended without a report or agreement. On 1st February 2018 the Complainant raised a further grievance as to the circumstances in which Mr P had received access to her personal data. A grievance meeting was held on 31st May 2018 to discuss the Complainant’s grievance letter dated 26th April 2017 and her letter of 1st February 2018. During this meeting, the Chairman revealed that he had consulted with the CEO as to how to handle the complaint (made against her). He agreed with the Union Official that this was not a fair process. The board later decide to appoint another Investigator and the Complainant was invited to attend a meeting on 12th October 2018. She replied stating that she did not agree with the terms of reference and that she would not attend. The Complainant contends that this whole process has been flawed and this has had a detrimental affect on the Complainant. The procedures adopted failed to afford the Complainant due process and she should be compensated accordingly. |
Summary of Respondent’s Case:
The essential facts of the case are not in dispute. The timeline was as follows: a. 26 April 2017 - grievance lodged b. May-June 2017- mediation which ultimately broke down |
- July 2017 - Respondent attempts to appoint an external investigator
- August – mid November 2017 – Claimant on sick leave
- November 2017 – March 2018 – External Investigator appointed – Complainant refuses to engage with him – he concludes there is noting to investigate
- March – May 2018 – Chairman attempts to investigate grievance/complaint but as potential witness recused himself.
- Post May 218 – A further third party is appointed and begins investigation.
While it is accepted that there have been certain errors and delays in the process, these issues have been significantly contributed to by the Complainant who has frustrated the Respondent’s genuine attempts to investigate at every turn. The Complainant did not fully particularise her grievance until 29 March 2018. The matter has been unresolved for almost two years and the Respondent would appreciate the WRC’s guidance on how to proceed.
Recommendation:
This dispute has been in train now for well over two years. The Complainant had a basic request to discuss her role and whether she was being undermined in it. I note the many failed attempts at mediation and investigation, and I note the Respondent agrees that the Chairman should not have consulted with the CEO against whom the complaint was made. I recommend that both parties (i.e. some member of the Board who has not up to now been involved in this dispute and the Complainant and her Trade Union Official) sit down as soon as possible and agree clear terms of reference for a third party investigation, and that the Union be consulted on these and who will be appointed as Investigator. I also recommend that the record of the Complainant as it relates to sick leave be cleared and any loss of pay be restored.
Dated: 05/09/19
Workplace Relations Commission Adjudication Officer: Gaye Cunningham