Complainant

Respondent

Anonymised Parties

An Administrator

A Bank

Representatives

Dermot O'Loughlin

Máille Brady Bates Arthur Cox

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-00030815-001

10/09/2019

The Complainant has been employed with the Respondent as an Administrator since August 2003.   She took maternity leave in 2017 which was followed by a period of absence due to a maternity related illness.   The Complainant raised concerns under the Respondent’s Grievance Policy regarding issues that arose associated with her return to work following that absence. The Complainant lodged a complaint with the WRC under Section 13 of the Industrial Relations Act, 1969 in relation to her treatment by the Respondent regarding to her return to work, in relation to the Respondent’s failure to address her grievances in an timely manner, in relation to the outcome of her grievance and in relation to the impact of these events on her health and wellbeing, as well as her family’s finances.                                                                                         The Complainant sought to be appropriately compensated for these matters.

The Respondent denied the complaints, claiming that they had a robust Grievance Policy in place which was fully utilised by the Complainant and that the Respondent conducted a full and thorough investigation of the Complainant’s grievance in this regard. The Respondent contended that at all material times the Complainant was treated reasonably and fairly and that the Respondent acted properly and correctly.   The Respondent also contended that they had a generous sick pay scheme and income continuance scheme in place and that as a result the Complainant did not suffer any loss.

The Complainant submitted that she commenced employment with the Respondent in March 2003 and that she had a positive working experience with the Respondent until these issues arose.   In April 2016 she was assigned to a role in the Tracker Project where she felt she made a valuable contribution.   The Complainant submitted that she went on maternity leave in December 2016 and that at the end of her maternity leave (June 2017) she remained absent from work due to post-natal depression. The Complainant submitted that she had to endure 3 months of debilitating and unfair practices by the Respondent in relation to her return to work. She submitted that, as a result, she lodged a formal grievance with the Respondent and that it was unreasonable and wrong that she had to wait 11 months for the Respondent’s Grievance Process to be concluded.

The Complainant’s issues are summarised as follows:

1.       The Respondent’s failure to assign the appropriate weighting to the seriousness of the Complainant’s grievance

(i) The delay in facilitating her return to work and the appropriate facilitation of a phased return

(11) The comments made by managers with the Respondent in meetings relating to the return to work

(iii) The circumstances that applied following her return to work

2.       The Respondent’s flawed Grievance Process

(i)The Respondent’s delay in addressing her grievance in breach of the Respondent’s own policy

(ii) The Respondent’s continuous request for additional information

(iii)The fact that the Complainant was placed at a disadvantage during the process by being denied the right to be represented by her representative of choice.

1         The Respondent’s failure to assign the appropriate weighting to the seriousness of the Complainant’s grievance

The Complainant submitted that on 7th February 2018 she emailed a member of the HR Team (hereinafter referred to as HR member A) seeking to engage regarding a phased return to work. She submitted that the email never received a response nor was it even acknowledged.

She further submitted that she then received an email from a second member of the HR team (hereinafter referred to HR member B) on 19th February 2018 advising that the Complainant’s sick pay had been cut and that she was to be placed on the Respondent’s Income Continuance Scheme.

The Complainant submitted that she emailed HR member A again on 20th February 2018 seeking an update on her previous email and suggested that she could utilise annual leave to facilitate a phased return to work. The Complainant advised in the email that she had a lot of annual leave outstanding from the previous year.

The Complainant further submitted that she emailed HR member B on 9th March 2018 seeking an update on her request. She emailed her again on 14th March 2018 providing a GP letter and seeking an update on her request. She then emailed HR members A and B on 21st March 2018 seeking an update on her request and again on 4th April she emailed HR member B confirming that she had met with the company doctor the previous week and seeking an update on her request.

On 7th April 2018 the Complainant stated that she emailed HR member B again as she had not received any response regarding her request for a phased return to work and she confirmed that on this occasion she received a reply to say that the matter was now with management.

The Complainant submitted that she was contacted by phone on 10th April 2018 to advise her to return to work on 12th April 2018. The Complainant confirmed that she did return to work on 12th April as advised and that she met with HR member B and another manager (hereinafter referred to as Manager 1) to discuss her phased return to work. She also confirmed that her request to return on a phased basis was supported by her own GP and the company doctor. The Complainant submitted that during the meeting the Respondent opined that “…your hormones are all over the place after a baby…”

The Complainant submitted that she met again with HR member B and another manager (hereinafter referred to as Manager 2) on 5th July 2018 to discuss the company doctor’s recent medical report. She stated that at that meeting she was told that the doctor’s report was “just a recommendation”. In addition, she stated that at that meeting the Respondent further enquired “are you on medication?” and “what is the problem, is it that you can’t leave the baby?” She submitted that she found the meeting very distressing and that following the meeting she was medically certified as unfit to attend work.

The Complainant contended that the actions of the Respondent were unreasonable and left her disillusioned and demoralised. She described the Respondent as intransigent and advised that despite the lengthy process she was put through no plan for her phased return to work was ever produced or agreed.

The Complainant also submitted that upon her return to work she was not assigned to the role she had prior to her maternity leave, that she wasn’t advised to whom she should report i.e. which Team Leader and that she had to enquire as to where her workstation was each day.

The Complainant submitted that the Respondent acted unreasonably and in breach of her rights under the Maternity Protection Act in not returning her to the role she held prior to maternity leave, not providing her with clarity on her reporting relationship and not providing her with a workstation. The Complainant provided copies of all emails referred to above to support her contentions.

2         The Respondent’s flawed Grievance Process

The Complainant submitted that she lodged a formal grievance with the Respondent on 29th August 2018 and that she did not receive a response to that grievance until 10th September 2018 when she received an acknowledgement and a copy of the procedure from a member of the HR Team (hereinafter referred to as HR member C). The Complainant submitted that there were numerous correspondences throughout October/November 2108 in relation to medical appointments, meeting requests and unavailability issues but most noteworthy among that correspondence was an email of 17th October in relation to a meeting with HR member C in relation to her grievance. She submitted that the meeting took place on 11th December 2018 and that she was accompanied to that meeting by her partner.   Following that meeting on 14th December 2018 the Complainant advised that she sent an email to HR member C confirming that she was proceeding with the grievance. The Complainant stated that she did not hear back from the Respondent in relation to her grievance until 16th January 2019 and that the response stated that HR member C had “spoken informally to the other parties named in the grievance with a view to understanding more.”

The Complainant submitted that as a result of her escalating anxiety she engaged an external representative and advised the Respondent of her representative’s contact details etc by email of 23rd January 2019. On 24th January 2019 her representative wrote to the Respondent setting out details of concerns such as maternity protection issues, employment equality issues, health and safety issues and procedural issues relating to the management of the grievance. On the 29th January 2019 the Respondent wrote to her representative advising that they would not be engaging with him on the matter and would deal directly with the Complainant.

The Complainant further submitted that she received correspondence on 29th January also in relation to her formal grievance and that this correspondence made, what she described, as “questionable requests” of the Complainant in relation to the grievance process. Following further correspondence between the parties the Respondent wrote to the Complainant on 14th February 2019 establishing a meeting for 20th February to investigate the grievance.   The Complainant submitted that this meeting was further delayed until 26th February due to the unavailability of a colleague to attend the hearing with her and the Respondent’s requirement for the Complainant to produce a medical certificate.

The Complainant submitted that she learned of the outcome of that meeting by letter of 29th March 2019 and that she issued a letter appealing that decision on 2nd April 2019. The letter contained 6 grounds for the appeal.   The Complainant outlined that she then received correspondence from another manager who had been appointed to hear the grievance (hereinafter referred to as Manager 3) seeking additional information into the reason for her grievance by close of business on 19th April 2019. The Complainant advised that she submitted this information on 15th April 2019 and that the stage 2 appeal was heard on 2nd May 2019. The outcome of this hearing was communicated by correspondence dated 15th May 2019 and confirmed that the appeal was not upheld.

The Complainant advised that she again appealed the outcome under stage 3 of the procedure to another member of the HR Team (hereinafter referred to as HR member D).   The Complainant submitted that, yet another member of the HR team (hereinafter referred to as HR member E) responded to her on 23rd May seeking a “clear, comprehensive and detailed outline of the grounds” for the appeal. The Complainant advised that she protested this requirement by letter of 27th May 2019, protesting both the request and the timeline prescribed.   She advised that she received a response on 28th May 2019 from HR member E which advised that the Respondent could not progress the matter at that time as her response to the request for additional information was unsatisfactory. The Complainant advised that she again protested in writing to HR member E on 31st May and advised that all relevant documentation had already been provided. The Complainant advised that she received a response from HR member E on 18th June 2019 again requesting additional information to be provided by 25th June 2019. The Complainant submitted that on 20th June 2019 she responded to HR member E refuting that she had failed to provide satisfactory and reasonable responses in relation to her stage 3 appeal. HR member E responded on the same day and requested that the additional information sought be submitted by 28th June 2019. The Complainant submitted that she did submit further information on 28th June 2019.

The Complainant submitted that the stage 3 appeal was held on 4th July 2019 and that she was notified of the arrangements for that hearing on 2nd July 2019.   On 25th July 2019 the Complainant was advised by HR member E that her appeal was not upheld.

1         The Respondent’s failure to assign the appropriate weighting to the seriousness of the Complainant’s grievance

The Respondent submitted that the Complainant commenced employment with the Respondent in March 2003, that she had been a valued member of the team and had made a positive contribution throughout her employment. The Respondent confirmed that she was assigned to a role in the Tracker Project on a temporary basis from April 2016 to September 2016. The Respondent confirmed the dates of maternity leave and sick leave following maternity leave. The Respondent submitted that the Complainant’s case is without merit, that she had failed to explain her allegations or to provide evidence to support those allegations, that the Respondent fully supported the Complainant’s return to work and facilitated a phased return to work in accordance with medical recommendations. The Respondent further submitted that they had fulfilled their duty of care to the Complainant, that they had been in regular contact with her to confirm her medical wellbeing, had organised medical assessments to ascertain her fitness to return to work, to support her while back at work and to assess her fitness to participate in the investigation process in relation to her grievance.

The Respondent further submitted that they were in regular contact with the Complainant in relation to her remuneration while on sick leave, and that she had continued to receive basic pay under the Respondent’s Sick Pay and Income Continuance policies.   The Respondent confirmed that at all material times they acted properly and correctly and treated the Complainant fairly. The Respondent submitted that they fully and thoroughly investigated the concerns raised by the Complainant under the Grievance Policy and facilitated all appeals in accordance with that policy. At the end of that process the Respondent advised that the complaints were not upheld and that since then the Complainant had been deemed medically fit to return to work on a number of occasions, most recently on 18th November 2019. Despite this, the Respondent advised that the Complainant had not returned to work.  

The Respondent advised that at the time the Complainant contacted the Respondent to arrange her return to work In February 2018 she had been on sick leave since 30 June 2017.   The Respondent further advised that it was explained to the Complainant that prior to her return to work she would first need to be deemed “fit to work” by her own doctor and that following this she should contact HR member A and a named HR Business partner to agree a return to work plan. The Respondent advised that it was explained to the Complainant that this plan would be based on the medical recommendations of her doctor.

The Respondent submitted that the Complainant clarified that she had contacted HR member A and that she was hoping to arrange a phased return to work. The Respondent submitted that it was again explained to the Complainant that she must first be certified fit to return to work and that any medical recommendations; including a phased return to work and a reduced working week, could be discussed thereafter.

The Respondent submitted that they did not hear back from the Complainant in relation to her fitness to return to work and followed up with her by email of 6 March 2018. The Respondent submitted that the Complainant attended an appointment with the company’s Occupational Health Specialist on 26 March 2018 who advised the Respondent to facilitate a phased return to work for a 4-week period, and to review the arrangement after that time. The Respondent confirmed that this recommendation was adhered to, with the Complainant working 1 day for her first week back and 2 days per week thereafter, up until 27 April 2018. The Respondent advised that after that date the Complainant’s return to work plan was assessed on an on-going basis and that the Complainant attended a number of Occupational Health appointments to ascertain the medical recommendations for supporting the Complainant in her return to work. The Respondent submitted that the Complainant went on sick leave again in July 2018 and that she remained on sick leave as at the date of the hearing.

The Respondent drew attention to the Complainant’s statement that the manner in which she was treated following her return to work had a “profound negative effect on her self-confidence and esteem.” The Respondent submitted that the Complainant failed to explain the alleged treatment and how it impacted her self-confidence and esteem. The Respondent outlined that in her grievance the Complainant had stated that she had not been facilitated in her return to work in the same manner as another colleague, that she returned to a different role than the one she was in prior to maternity leave and that she no longer had a desk upon her return.   The Respondent wholly disputed these allegations. The Respondent submitted that the Complainant’s return to work was fully facilitated by them in line with medical recommendations provided. The Respondent also submitted that the colleague referred to had been facilitated with reduced working due to personal and very different circumstances than those that applied to the Complainant.

The Respondent did not reference the matter of the comments allegedly made by HR member B specifically in their submission. However, at hearing the Respondent refuted these allegations and pointed to the documentation in relation to the Grievance process that had been undertaken.   The outcome of all three stages of the process was that the complaints regarding these allegations were not upheld and the other parties to the grievance process denied the comments.

The Respondent further submitted that the Complainant was returned to the role she held prior to maternity leave. The Respondent pointed out that the Tracker Project was a temporary assignment and that the Complainant was fully aware that this was the case at the time. It was confirmed by the Respondent that the Complainant ‘s term on the project came to an end and that she returned to her substantive role of Operations Executive in October 2016 prior to her going on sick leave before her maternity leave. It was to this Operations Executive role that she was returned following her maternity leave and associated sick leave. Finally, the Respondent submitted that while the Complainant was on maternity leave they introduced a hot desk policy. The Respondent contends that the Complainant was fully aware of this and that as she was first in every morning she could choose her preferred desk every day.

2         The Respondent’s flawed Grievance Process

The Respondent submitted that the Complainant lodged her grievance on 29th August 2018 and that upon receipt of that grievance, as the Complainant was on sick leave, the Respondent contacted her to confirm whether she was fit to engage in an investigation process in relation to her grievance. The Respondent submitted that the Complainant responded, stating that she was not “in a position to physically attend an investigatory meeting and that she would arrange a meeting upon her return to work.” The Respondent advised that as the Complainant was expected back to work in October 2018 the Respondent contacted her to make arrangements to process the grievance. By response the Complainant advised that she had been medically certified out for a further month but that on her doctor’s and counsellor’s advice she would like to meet with the Respondent to discuss her grievance. The Respondent advised that HR member C confirmed to the complainant by return that she would like to meet with the Complainant on an informal basis in the first instance to discuss her grievance and the income protection policy before arranging a more formal investigation. The Respondent submitted that the informal meeting was initially scheduled to take place on 30th November 2018 but was rescheduled at the Complainant’s request to 11th December 2018.

The Respondent submitted that the first formal hearing of the grievance took place on 26th February 2019. The Respondent further submitted that the company had a comprehensive Grievance Policy in place which complied with the Code of practice on Grievance and Disciplinary Procedures (SI 146 of 2000) and submitted a copy of that policy and all documentation in relation to the grievance process.   The Respondent advised that the policy consisted of 3 stages: initial grievance, appeal, and final appeal. The Respondent submitted that the Complainant went through all three stages, and that three different managers investigated the grievance at each stage.   The Respondent pointed to a very thorough process with notes taken and a full report of the outcome issued at each stage. The Respondent submitted that, due to the nature of the complaint several witnesses were interviewed and that all three stages were concluded by 25th July 2019.

The Respondent confirmed that the Complainant was given the opportunity to state her grievance, was afforded the right to be accompanied by a fellow employee, had a right to comment on and amend meeting notes. The Respondent also confirmed that the matter was fully investigated before a decision was made, that the assessment of the facts and that the outcome issued took account of representation made by the Complainant and was an impartial determination.

The Evidence:

·       The Respondent’s failure to assign the appropriate weighting to the seriousness of the Complainant’s grievance

At the hearing it was evident that the parties held differing views in relation to responses to correspondence from the Complainant and the timeliness of those responses. Helpfully, both parties provided copies of several emails, albeit the parties submitted different emails based on their respective positions. However, I reviewed those documents together in chronological order and was able to establish a clear picture of the sequence of events that unfolded up to the time of the Complainant’s return to work based on that documentation. I now set out below details of those correspondences in chronological order:

·       7th Feb at 10.42 - The Complainant emailed HR member A seeking an action plan regarding her return to work, confirming that she was attending weekly counselling and that the counsellor’s advice was to get a plan in place to help reduce anxiety. The Complainant sought a 3- day week availing of parental leave to cover 2 days off. (There is no evidence of any response from HR member A to this email)

·       19th Feb at 12.58 - HR member B emailed the Complainant advising her that an overpayment associated with receipt of state illness benefit had been identified. She also advised her of the policy relating to assessment for Income Continuance and advised her that she would be removed from the Respondent’s payroll on 1st March. (The Complainant responded to this email on the same day)

·       19th Feb at 13.28 pm - The Complainant responded to HR member B by email and confirmed that she had also received a letter from revenue re tax credits. She advised that she was very confused with maternity and sick pay and that she was “all over the place”. She requested that HR member B let her know what her revised wages would be. (HR member B responded to this email within a day)

·       20th Feb at 14.21 - The Complainant emailed HR member B again further seeking clarity re wages/income continuance. She confirmed that she had notified HR member A about the Counsellor’s advice, and that she would follow up with him on 20th Feb also. She advised that she was trying to manage stress and was “working hard to get it all under control”. (HR member B responded to this email on the same day)

·       20th Feb at 14.25 - The Complainant emailed HR member A again seeking an update on her return to work plan. She reiterated that she had a large volume of holidays carried forward and suggested that this might also be an option to facilitate a phased return. (There is no evidence of any response from HR member A to this email)

·       20th Feb at 14.30 - The Complainant emailed HR member B and sought clarity re VHI payments while covered by income continuance. (HR member B responded to this email within a day)

·       22nd Feb at 10.38 – HR member B emailed the Complainant. She thanked her for her email responses and clarified the process and likely timeframe for assessment under the Income Protection Scheme. She confirmed that VHI contributions would not be impacted by the changeover to income protection. She also confirmed that if the Complainant’s medical advisor deemed her fit to return to work she should notify HR member A and a named HR Business partner. She further confirmed that the return to work plan would be based on her doctor’s medical recommendations. (The Complainant responded to this email on the same day)

·       22nd Feb at 14.31 - The Complainant emailed HR member B. She thanked her for coming back to her and thanked her for her support. She confirmed that she had emailed HR member A the previous week about her return and was waiting to hear back. (HR member B responded to this email on the same day)

·       22nd Feb at 15.24 - HR member B emailed the Complainant and clarified that she should first get a cert from her GP confirming her fitness to return to work.   She further confirmed that if the GP recommended a phased return to work the Respondent would comply with that and work out the best solution for the Complainant. She confirmed that this could be discussed in more detail when the letter from the GP was received. This email was also copied to HR member A. (There is no evidence of a response from the Complainant to this email)

·       6th March at 14.26 - HR member B emailed the Complainant explaining that the Respondent had been closed for 2 days due to snow and apologised for the delay in following up. She enquired about the Complainant’s wellbeing and asked if there was any update on her return to work. (The Complainant responded to this email within a day)

·       7th March at 12.46 - The Complainant emailed HR member B confirming that she was due back with her GP the following week and that she anticipated a return to work in April. She again advised that she was seeking a phased return and advised that she had emailed HR member A seeking parental leave. She asked HR member B to get back to her regarding a plan. (HR member B responded to this email within 2 days)

·       9th March at 12.46 - The Complainant emailed HR member B clarifying if any decision had been made in relation to her return to work plan. (There is no evidence that this email received a response)

·       14th March at 16.16 - The Complainant emailed HR member B attaching her GP’s letter and sought to have a discussion regarding a phased return. She also sought clarity on whether anything else was needed from her. (There is no evidence that this email received a response)

·       21st March at 11.24 - The Complainant emailed HR member A and HR member B to clarify if any decision had been made on her phased return. (There is no evidence that these emails received a written response though it is clear that arrangements were made for an occupational health appointment during this period)

·       4th April at 12.10 - The Complainant emailed HR member B querying if there was any update on her return to work plan. She confirmed that she had heard nothing since attendance at the company doctor on the previous Monday. She sought confirmation that the medical report had been received. (HR member B responded to this email on the same day)

·       4th April at 12.52 - HR member B emailed the Complainant to advise that the medical report was being reviewed by Manager 2 and to advise that she would be in touch when that manager reverted to HR.

At the hearing the parties confirmed that the Complainant was contacted by phone on 10th April and advised that she should return to work on 12th April. Both parties agreed that she did return and that a meeting took place on that date involving the Complainant, HR member B and Manager 1. Both parties confirmed that the purpose of the meeting was to consider and discuss the medical recommendations relating to the Complainant’s return to work.

The Complainant submitted that throughout these events the Respondent failed to address her requests for a phased return to work utilising her parental leave and accrued annual leave, failed to respond to her correspondence, delayed her return based on a requirement for additional medical certification and, in fact, returned her to work without an agreed phased return in place despite the medical recommendations to that effect.

The Respondent submitted that this was not the case, that every effort had been made to assist the Complainant’s return to work, to maintain her earnings during this prolonged period and to facilitate the medical recommendations in relation to a phased return to work.

The Complainant submitted that the Respondent failed to take account of the seriousness of these matters and matters listed at 1(ii) and 1(iii) below when considering her grievance.

1(ii) The comments allegedly made by managers with the Respondent in meetings relating to the return to work

In her letter of 29th August 2018 outlining her grievance at Stage 1 the Complainant described how she became upset at the meeting when she was advised that the Respondent did not have to adhere to the medical recommendation. She stated that when she apologised for becoming upset she was told that “your hormones are all over the place after a baby”.   In that letter she also stated that at a meeting on 5th July with HR member B and Line Manager 2 she was again advised that the medical advice was “just a recommendation”. She set out that she was asked highly inappropriate questions such as “are you on medication?” and “what is the problem, is it that you can’t leave your baby?”

I reviewed the minute of the meeting held under the Grievance Procedure dated 12th March 2018 with HR member B. I note that the date on this document is likely a typing/administrative error and that the date should read 12th March 2019. I note from the content of those minutes that HR member B refuted asking if the Complainant was on medication and advised that she did not make a comment about the Complainant’s hormones being “all over the place”. I further note that in relation to the comment “what is the problem, is it that you can’t leave your baby?” HR member B confirmed that she did recall asking the Complainant “if her issue was leaving her baby”. The minutes reflect that she clarified that this was in an attempt “to draw out the Complainant’s request and challenges in agreeing to return to full time.”

I reviewed the minute of the meeting held under the Grievance Procedure dated 8th March 2019 with Manager 1 who was present at the meeting held with the Complainant on 12th April 2018.   I noted from the content of those minutes that Manager 1 advised that the meeting discussed return to work arrangements, and that those were agreed for a period of 4 weeks in line with the medical advice at that time. In the minute Manager 1 described HR member B as being “very caring within the meeting” and “so nice in the meeting” and she described that meeting as “a positive one” and “that there was no tension in the meeting.”   I note that she did not make specific reference to the comments alleged by the Complainant.

I reviewed the undated minute of the meeting held under the Grievance Procedure with Manager 2 who was present at the meeting held with the Complainant on 5th July 2018. I note from the content of those minutes that Manager 2 described the Complainant as “upset in the meeting at the beginning”. She confirmed that HR member B “did not make any inappropriate comments” to the Complainant in the meeting of 5th July and that HR member B had in fact advised the Complainant that “they were there to help and support” the Complainant.

I noted that throughout the three internal stages of the Grievance Process the evidence given by these parties remained consistent, as did the evidence of the Complainant.

1(iii) The circumstances that applied following her return to work

Assignment following Maternity Leave

From the evidence adduced at hearing it is clear that the Complainant worked on the Tracker Project on a temporary basis and that both parties were aware of the temporary nature of the project. There was some debate as to whether the project was concluded at the time of commencement of the Complainant’s maternity leave. However, what was not disputed was the fact that at the time of the Complainant’s return from maternity leave the project had concluded.  

At the hearing the Respondent submitted that the Complainant had been returned to her substantive position of Operations Executive with the Operations team.   However, the Complainant contended that this was not her substantive position and that prior to working on the Tracker Project she had worked as part of the Lodgements team. Having reviewed all documentation provided I noted the undated minute of the meeting held under the Grievance Procedure where Manager 2 provided evidence in that forum that the Complainant’s substantive role was with the Lodgements Team and that she had worked in that role prior to her temporary assignment on the Tracker Project.

Workspace upon return from maternity Leave

At the hearing the Complainant confirmed that when she returned from maternity leave she had to ask where she would sit each day. She contended that prior to maternity leave she had an assigned desk space. She submitted that she found this unsettling.   The Respondent confirmed that during the period of the Complainant’s absence on maternity and sick leave it had become necessary to introduce a hot desking policy. The Respondent confirmed that the Complainant was advised of this change upon her return but that there was little or no impact on the Complainant because of the change. The Respondent advised that the Complainant had previously been approved for a particularly early start time and that she was one of the first staff in each morning because of this flexible arrangement. In these circumstances the Respondent suggested the Complainant had her choice of desk. The Complainant confirmed that she did have an early start but submitted that she had not been advised of the new hot desk policy.

Reporting relationship following maternity leave

At the hearing the Complainant advised that upon her return from maternity leave/sick leave she was advised to whom she should report in this new role.

The Respondent advised that the Complainant was well aware of the reporting structure that applied. From the evidence adduced at hearing it became clear that the Complainant was familiar with the line managers in the area. There is no doubt that she was aware of the management structure as she met with one of those line managers in relation to her return to work on her first day back and the other manager throughout the months that followed in relation to her request for reduced working.

Consideration of these matters under the Grievance Policy

At the hearing the Complainant submitted that these matters were not given appropriate consideration throughout the grievance process and that the Respondent had failed to assign appropriate weighting to the seriousness of the grievance and to the impact on her of the totality of the issues raised. The Complainant provided relevant documentation relating to all 3 stages of the Grievance Process.

The Respondent submitted that a full and thorough examination of the facts had been undertaken at each of the 3 stages of the Grievance Process. The Respondent pointed to the detailed reports provided at each stage and to the independence of the Investigating Manager at each stage.   The Respondent provided comprehensive documentation associated with all stages of the Grievance Process.

In reviewing the documentation provided by both parties I noted that the Complainant raised concerns in her original grievance under Stage 1 of the process in relation to delays in responding to her emails, failure to accommodate her return to work on a phased basis, the fact that she returned to work without any confirmation of working arrangements in line with the medical advice and the circumstances that applied upon her return.

Delays in responding to emails

I noted that at Stage 1 of the Grievance Process, the Investigating Manager, in considering the issue of the failure to respond to emails and delays in responding, determined that “due to leavers in the HR Department, the investigation into the above query was unable to be determined in the alleged lack of response to the Complainant.” The Investigating Manager found extensive correspondence between the complainant and HR member B and so found that the “actions of Management involved in this scenario to be appropriate” and therefore did not uphold this complaint.

I already set out above the chronology of correspondence between the Complainant and the Respondent from the time she indicated her desire to agree a back to work plan up to her actual return to work on 12th April.

Having examined the exchange of emails between the Complainant and HR member A I note that the Complainant emailed HR member A on 3 occasions regarding her return to work and that HR member A was also copied on correspondence by HR member B.   However, in keeping with the Complainant’s evidence there are no copies of responses from HR member A in the documentation provided. At the hearing the Respondent confirmed that this individual was no longer working with them, however, it is evident from HR member B’s correspondence that he was in employment at the time of these correspondences. Having examined the exchange of emails between the Complainant and HR member B, I note that, for the most part, both individuals responded to each other’s emails in a timely manner. I consider the tone and content of correspondence issued by HR member B to be helpful, informative, empathetic and supportive. I note that the Complainant acknowledged this in a number of her responses and expressed her appreciation for the support.

Failure to accommodate her return to work on a phased basis

In relation to the failure to accommodate her return to work on a phased basis I noted that at Stage 1 of the Grievance Process the Investigating Manager considered the incident as described by the Complainant that “I emailed (HR member B) once again on 4th April, as I had still not received any correspondence or acknowledgement from my previous emails requesting a phased return to work. This time I received a response to state that it was with management”. The Investigating Manager examined the correspondence between the Complainant and HR member B and set out, in brief the content of the correspondence. The Investigating Manager noted the Occupational Health appointment on 26th March and the subsequent recommendation, and thereafter noted the email of 4th April from the Complainant seeking an update on her return to work and response from HR member B that the matter was with management and they would be in touch with a decision. It was also noted by the Investigating Manager that contact was made with the Complainant on 10th April regarding her return to work.   Based on the above the Investigating Manager concluded that when the Complainant initially made contact regarding her return to work she had still not been deemed medically fit to return and therefore the company was “not in a position to confirm the request” for a phased return. The Investigating Manager further concluded that the Complainant was asked by HR member B to update the company once the complainant was certified fit to return so that necessary measures could be taken to facilitate her return. The Investigating Manager noted the Occupational Health appointment on 26th March 2018 and the medical recommendation for a 4-week phased return and that upon the return of the Complainant on 12th April 2018 a return to work meeting was held and the Complainant was advised. On this basis the Investigating Manager did not uphold the complaint.

Return to work without any confirmation of working arrangements in line with the medical advice

I noted that the Complainant had set out in her grievance that “I finally received a call on the 10th April to confirm my return to work on the 12th April, however no plan was confirmed prior to my return which left me distraught.” The Investigating Manager at Stage 1 noted the company doctor’s report and advised and that a meeting took place between the Complainant, HR member B and Line Manger 1. The Investigating Manager further noted that the recommendations were outlined to the Complainant at that meeting and that those arrangements were confirmed subsequent to that meeting by email. It was also noted that this was the Complainant’s first day back.   Based on this information the Investigating Manager concluded that no one had “acted inappropriately” and so did not uphold this complaint.

The circumstances that applied upon her return.

I noted that the Complainant raised 3 matters as part of her original grievance under Stage 1 of the Grievance Process, specifically that she did not return to her original job following maternity leave, that she was informed she had no desk and that her position could not be confirmed. The Investigating Manager at Stage 1 noted that the Complainant had been assigned to the Tracker Project but had been returned to her role in the Operations Team prior to going on maternity leave as the project was concluded. The Investigation Manager also referenced the fact that the Complainant had been in the Lodgements Team but that she had never requested to go back to the Lodgements Team. The Investigating Manager noted evidence given by the respondents that the Operations Department “encourages cross-functional exposure” but also noted the evidence that the job title and terms and conditions remained the same.

In relation to the issue of not having a desk, the Investigating Manager noted that the Complainant did not return to a specified desk and noted the introduction of the hot desking policy within the Operations Team. The Investigating Manager also noted the early start which had been facilitated for the Complainant and the fact that this gave her access to a choice of desk each morning as she was one of the first staff in attendance. It was further noted that the Complainant had not notified management of any issue in relation to the role she returned to nor in relation to the seating arrangements and these matters were only brought to attention when she submitted her written grievance in August 2018. Based on the above findings the Investigating Manager did not uphold her complaint.

Stages 2 & 3 of the Grievance Process

I noted that these matters were considered again at Stage 2 Appeal reason 1 of the process based on the Complainant’s appeal that “the investigating manager appears to have failed to comprehend the totality of my grievance.” Under this heading the complainant highlighted that “all correspondence with HR were ignored in relation to her queries regarding a phased return to work.” The Investigating Manager in this instance noted the correspondence between the Complainant and HR member B and confirmed that HR member B “responded to all of the Complainant’s queries” and therefore did not uphold the appeal.

I also noted that the Investigating Manager at Stage 2 Appeal reason 2 considered the Complainant’s issue that “that a phased return to work was not implement by (the Respondent) from 12th April onwards”.   In this regard the Investigating Manager referenced statements from HR member B and Managers 1 & 2 who all confirmed that a phased return to work was implemented from 12th April onwards as per medical recommendation and was reviewed on an ongoing basis. Based on this information the Investigating Manager did not uphold the appeal.

The Investigating Manager at Stage 2 also considered the matter raised as Appeal Reason 3 which was that “The findings do not give appropriate weightings to the evidence I proffered.” In considering this matter the Investigating Manager noted that he reviewed all the documentation and the report from the Stage 1 Process including the meeting note from HR member B and Manager 1. Based on this he concluded that the Investigating Manager at Stage 1 “conducted a full and complete review considering all of the grievances raised.” As a result of this conclusion the Investigating Manager did not uphold this appeal.

The matter was given further consideration at Stage 3 under Appeal Reason 1 namely that “the Investigating Manager at stage 2 has failed to comprehend the totality of my grievance. My grievance is not a specific situation, it is a combination of issues, interactions and procedures that I believe have unfairly and unreasonably impacted on me since 7th February 2018 when I formally sought a return to work plan from (the Respondent) and the ongoing concerns that continue to this present day.” The Investigating Manager, having examined the documentation associated with the first 2 stages and in the absence of any further supporting documentation or evidence from the Complainant, did not uphold this complaint.

Findings

1.The Respondent’s failure to assign the appropriate weighting to the seriousness of the Complainant’s grievance

Having reviewed all the correspondence provided in relation the sequence of events relating to the phased return and from the evidence adduced at hearing I noted the following:

·       The Complainant was absent on sick leave for a period of 10 months

·       That by email of 7th February 2018 the Complainant sought to make a plan for a phased return to work based on her medical advice and sought to utilise her parental leave to facilitate this arrangement

·       That email and others sent by the Complainant to the Respondent (HR member A), seeking to address a plan for a return to work did not receive a response. These emails sought to utilise annual and parental leave to facilitate a phased return.

·       That the Complainant was not advised until 22nd February 2018 that she should first get a cert from her GP confirming her fitness to return to work. She was also advised that if the GP recommended a phased return to work the Respondent would comply with that and work out the best solution for the Complainant. This advice was given although the Complainant had sought to use her annual leave (71.5 days) and her parental leave to facilitate a reduced working arrangement.

·       It took up until 14th March for the Complainant to provide that medical certification.

·       It was only after the medical certification was received that on 26th March 2018 the Complainant was required to attend the Occupational Health Service to establish her fitness to return to work and her requirement for a phased return to work on medical grounds.

·       It took a further 15 days before the Respondent contacted the Complainant regarding her return to work.

·       That throughout this time the Complainant was repeatedly seeking an update on her request for reduced working arrangements upon her return

·       That on 10th April 2018 the Complainant was advised by the Respondent to return to work on 12th April, some 2 months from the date of initial contact by the Complainant.

·       That a meeting took place on 12th April 2018, the Complainant’s first day back, at which she was advised of the medical recommendations for a 4-week period (including the current week).

·       That the recommendation of the Occupational Health service for reduced working arrangements was for an initial 4-week period, with a plan to review the Complainant on 30th April. I note that following the meeting of 12th April clarity on a working arrangement up to 27th April was achieved in line with the medical recommendations.

·       That although the Occupational Health review was to take place on 30th April it did not take place until 8th May 2018, that the doctor who conducted that review found the Complainant to “remain symptomatic” and recommended that the Complainant be placed on a three-day week “for the foreseeable future”.

·       That despite this recommendation a 3-day week was approved on a short-term basis only up until 30th June and this arrangement was extended on further subsequent short-term basis.

·       That the continuing requirement for review of the reduced working commitment ultimately culminated in the meeting in July which led to the Complainant commencing a second, more prolonged period of absence due to ill health.

·       That the Complainant was returned to a role of Operations Executive upon her return from maternity leave and that she had a right to return to a post in the Lodgements Team

·       That when the Complainant returned to work she resumed working an early shift and therefore was not significantly impacted by the hot desk policy which had been introduced in her absence

·       That the Complainant was familiar with the reporting relationships that applied upon her return

In considering the totality of the issues raised I am conscious that the Complainant was absent from work with post-natal depression for a period of almost 10 months and that at the time of her return to work she was still fragile, as evidenced in her own emails at that time and the company doctor’s medical report.   I believe this context to be relevant to the question of the reasonableness of the Respondent’s actions in dealing with the Complainant’s return to work and her request for a phased return to work.

In that context and in light of the above observations I find that

·       Both the Complainant and the Respondent contributed to the delay in finalising arrangements for the Complainant’s return to work and both parties must take an equal measure of responsibility for these delays.

·       HR member B went to considerable lengths to provide information and support to the Complainant and conducted her correspondence with the Complainant with a high degree of professionalism.

·       The Complainant did not receive a response to a number of emails sent to HR member A in relation to her return to work.

·       The Grievance Process did not adequately consider this matter nor give it appropriate weighting (it is not enough to submit that the email information relating to a key witness was not available as that witness was no longer an employee with the Respondent. This appears to have been the approach taken by all 3 Investigating Managers within the Grievance Process. These emails are business emails, and so, remain in the possession of the company after an employee has departed. In these circumstances a simple search conducted by the Respondent could have established if these emails received a response. I noted there was no evidence that such a search was conducted in any of the 3 reports issued under the Grievance Process and none was presented at hearing. I have formed the view that the Investigating Managers failed to fully investigate this matter. Even a cursory examination of this grievance in discussion with HR member B would have shed light on what occurred and would likely have led to a conclusion that these emails to HR member A did not receive a response.   Had this been done I believe this grievance would have been upheld.)

·       The Respondent was entitled to require the Complainant to undertake a medical review with the Occupational Health Service prior to returning to work.

·       However, the Respondent gave mixed messages to the Complainant in relation to the process to be undertaken regarding her return to work, firstly indicating that her GP medical certificate was what was required and only later advising her that the Occupational Health review was necessary.

·       The Complainant’s multiple requests to avail of annual leave and parental leave to enable her to reduce her working week upon her return from maternity/sick leave were not considered on their own merits. (The complainant had 71.5 days annual leave accrued and the facilitation of a reduced working week utilising this leave did not require a medical recommendation. Likewise, the facilitation of a reduced working week based on utilising parental leave did not require a medical recommendation.)

·       Despite making contact with the Respondent in February 2018 in relation to a phased return to work, and despite complying with every requirement of the Respondent, the Complainant was returned to work on 12th April 2018 without an agreed working arrangement in place

·       The Company Doctor had provided her recommendation for the Complainant’s first 4 weeks following her return to work to the Respondent by letter of 26th March 2018 and no reasonable explanation was provided within the Grievance Process or at hearing as to why the Respondent could not communicate and agree arrangements with the Complainant before her return on 12th April.

·       Due to the continuing necessity to have a medical recommendation to support a reduced working week arrangement the Complainant found herself back in work, dealing with the uncertainty of only having agreement to a reduced working week under a series of consecutive short-term arrangements. I consider this level of uncertainty to be most unreasonable for any employee returning from maternity leave who needs certainty to make appropriate childcare arrangements, and even more egregious when dealing with an employee who was returning following a prolonged absence due to a mental health issue.

·       The Grievance Process did not adequately consider the issues relating to the phased return to work nor give it appropriate weighting in relation to the respondent’s compliance with the medical recommendations. (The outcome of the Grievance Process in relation to this matter was that the Complainant’s grievance was not upheld. The Process concluded that the Respondent had complied with the medical recommendations.   However, the medical report of 8th May 2018 advised that the Complainant required to have reduced working “for the foreseeable future”.   All the evidence showed that such arrangements were only approved on a short-term basis, even after that report was received.)

·       Th Respondent did not comply with the medical recommendations of 8th May 2018.

·       There was conflicting evidence at hearing in relation to the alleged inappropriate comments and there was also conflicting evidence at the Grievance hearings from the parties directly involved. While HR member B confirmed one comment she denied all others. On balance and based on her otherwise helpful and professional interactions with the Complainant I consider it likely that she did not make the alleged comments.

·       That the Complainant was upset and distressed by the discussions which took place at the meetings on 12th April and 5th July. (It is evident that some discussion took place about the reason for the Complainant’s continued requirement for reduced working, that the medical report was considered a recommendation only and that this recommendation could be implemented or not as management saw fit.)

·       The Complainant did have the use of a desk each day and the hot desking policy had no significant negative impact on her (In the context of differing positions in relation to whether the Complainant was advised of the hot desk policy and in the absence of any corroborating evidence or supporting documentation I cannot make a finding as to whether the Complainant was advised of the new policy. However, since both parties accept that the Complainant had an early start I consider it logical to conclude that she did have her choice of desk each day.)

·       The Complainant was aware of the reporting relationships that applied upon her return to work.

·       The Complainant had no entitlement to return to the role on the Tracker Project as this was a temporary role and the temporary nature of the post was fully understood by the Complainant.

·       The Complainant should have been returned to her substantive role on the Lodgement Team following her maternity leave.

·       The Grievance Process did not adequately consider the issues relating to the role the Complainant was returned to following her maternity leave nor give it appropriate weighting. (The Grievance Process concluded that the Complainant had not raised the matter prior to invoking the formal procedure, that she had not objected at the time and as the same terms and conditions applied to both roles the grievance was not upheld. The simple fact is that the Complainant’s substantive role was on the Lodgement team. She had an entitlement to return to that role.)

In view of the above findings I uphold the Complainant’s position that the Respondent failed to assign the appropriate weighting to the seriousness of the Complainant’s grievance and I further find that the Respondent acted unreasonably in not giving full consideration to the Complainant’s requests for a reduced working week utilising annual leave and parental leave and in not returning her to the post she held prior to her maternity leave.

1.       2 The Respondent’s flawed Grievance Process

The Evidence

At the hearing it was evident that the parties held differing views in relation to the delay in processing the grievance. The Complainant was of the view that the Respondent had sought to delay and frustrate the process throughout. She pointed to the long delay from the submission of her grievance on 29th August 2018 to the outcome of the final hearing on 25th July 2019 (approximately 11 months) and contrasted this timeline with that laid down in the Respondent’s policy i.e. 35 days.  The Respondent pointed out that many of the delays were due to the ill health of the complainant, however, the Complainant advised that the company doctor had confirmed her as fit to participate in the process by end of November 2018 and that she had confirmed her intention to proceed with the formal grievance by mid-December 2018. The Complainant suggested that even if you moved the start date of the timeline to that date the Respondent still took over 7 months to complete the process that should be completed within 7 weeks according to the Respondent’s own policy. At the hearing the Complainant indicated that she felt she was significantly disadvantaged by not having the support of her chosen representative throughout the grievance process. She pointed out that she had previously been permitted to have external representation. This was not denied by the Respondent. She submitted that she had become very stressed and anxious because of the issues which had arisen surrounding her return to work and that this was exacerbated by the Respondent’s intransigence in relation to facilitating her phased return to work. She submitted that when she lodged her grievance she again experienced delays and that the Respondent had placed obstacles in her way in relation to the processing of that grievance. She submitted that among the obstacles she encountered were, not being permitted representation by her chosen representative, being asked for a statement of the grievance when the written grievance had already been presented and being asked for further details in relation to her appeals when the grounds for her appeals were already provided by her.

The Respondent advised that it was company policy to deal directly with employees in relation to grievances, and not to engage on such matters with external parties. The Respondent also advised that a Complainant is required to document the full extent of their grievance when pursuing matters through the formal procedure and are also required to document the grounds for their appeal at each stage of the process. The Respondent submitted that this was all that was required of the Complainant in this instance.

From the evidence adduced at the hearing and from the detailed submissions made by both parties I note the following sequence of events and timeline in relation to the initiation of a grievance investigation:

·       29th August 2018 – The Complainant submitted her grievance

·       10th September 2018 – The Respondent (HR member C) confirmed receipt of the grievance and sought confirmation that the Complainant was fit to engage in the process

·       17th September 2018 – The Complainant confirmed that she was not in a position to attend a meeting due to ill health

·       8th October 2018 – The Respondent sought to make contact regarding a medical review

·       8th October 2018 – The Complainant advised that she was certified for an additional month but that, based on medical and counsellor advice, she would like to meet to discuss her grievance

·       8th October 2018 – The Respondent (HR member C) replied and agreed to meet to discuss the grievance before she would “arrange a more formal investigation.” She sought the Complainant’s availability and preferred location.

·       10th October 2018 – The Complainant sought confirmation that she could bring a family member

·       11th October 2018 – The Respondent (HR member C) confirmed that the Complainant could bring a family member and again sought her availability to meet.

·       17th October 2018 – The Complainant confirmed availability to meet on 25th October 2018 and suggested a venue

·       17th October 2018 – The Respondent (HR member C) advised a mix up with dates, advised she had intended to request that the meeting take place on 30th October 2018 and sought confirmation of the Complainant’s availability on that date.

·       23rd October 2018 - The Respondent (HR member C) emailed again seeking confirmation of availability to meet on 30th October.

·       23rd October 2018 – the Complainant apologised for not responding, advised that she was unwell and therefore would not be able to attend the proposed meeting.

·       12th-15th November 2018 – Exchange of emails re appointment with the company doctor.

·       30th November 2018 – The Complainant advised she had attended the medical appointment and sought a meeting to discuss her grievance

·       30th November 2018 – The Respondent (HR member C) advised she had not yet received medical report but suggested meeting on 11th December 2018.

·       30th November 2018 – The Complainant confirmed the meeting

·       11th December 2018 – emails exchanged confirming arrangements and meeting took place.

·       14th December 2018 – The Complainant confirmed that she was proceeding with the grievance.

·       16th January 2019 – The Respondent (HR member C) responded and in relation to the grievance advised that she had not previously established a formal investigation as the Complainant had advised that she was “not in a position to physically attend an investigatory meeting”.   She also outlined that Manager 2 was willing to work to achieve a phased return to work.

·       23rd January 2019 – The Complainant wrote advising the Respondent of her representative and relevant contact details.

·       24th January 2019 – The Complainant’s representative wrote to the Respondent itemising the issues of concern and sought a meeting to “explore opportunities to conclude a mutually harmonious agreement to this unfortunate episode.”

·       29th January 2019 – The Respondent (HR member C) replied to the Complainant’s representative and confirmed that the Respondent “is committed to engaging and communicating directly with our employees”

·       29th January 2019 – The Respondent (HR member C) advised the Complainant that they would be dealing directly with her and in relation to the grievance acknowledged the formal grievance of 29th August 2018, their acknowledgement letter of 10th September 2018, as well as the delays resulting from the Complainant’s illness. The Respondent provided a copy of the grievance policy and sought “a formal statement” so that the Respondent might instigate the grievance process.

·       7th February 2019 – The Complainant expressed concern and disappointment at the content of the previous correspondence from the Respondent.   She advised that she did wish to proceed with an investigation of her grievance and advised that she found it “additionally stressful” to be asked for “a formal statement” when the Respondent had acknowledged that they were in possession of her written grievance since 29th August 2018. She also pointed out that she was very disappointed to be denied the right to be represented by her chosen experienced industrial relations practitioner and felt disadvantaged and aggrieved, particularly in circumstances where she had previously been allowed external representation.

·       14th February 2019 – The Respondent again set out the sequence of events from 10th September and advised of next steps. The Respondent sought confirmation from the Complainant’s GP that the Complainant was fit to participate in the investigation process and asked that this be emailed by 19th March 2019. The Respondent confirmed that upon receiving that confirmation from the GP an investigation meeting under the Grievance Process was proposed for 20th February 2019. The Respondent provided details of the investigation team and a copy of the Staff Handbook including the Grievance Policy. The Respondent further advised the Complainant of her right to be accompanied to the grievance hearing by a work colleague.

·       19th February 2019 – the Complainant provided the medical certification required but advised that she would not be able to attend the hearing the following day due to the unavailability of her colleague who was to attend the hearing with her.

·       22nd February 2019 – The Respondent (HR member C) advised of a new date for the hearing i.e. 26th February 2019 and advised that the content of the correspondence of 29th August 2018 would be taken as the substance of the grievance to be considered.

I further noted the sequence of events and timelines in relation to the processing of the grievance from the first meeting under Stage 1 to the outcome of Stage 3 of the Process:

·       26th February 2019 – First hearing under Stage 1 of the Grievance Process took place. I note that additional grievances, not included in the letter of 29th August 2018 were raised at this meeting.

·       4th, 8th 12th March 2019 – Meetings with respondents to grievances took place

·       29th March 2019 – Outcome of Stage 1 investigation and full report issued

·       2nd April 2019 – The Complainant submitted an appeal of the outcome of Stage 1 of the Grievance Process outlining 6 grounds for the appeal

·       10th April 2019 – The Respondent sought specific detail in relation to each of the 6 grounds

·       18th April 2019 – The Complainant responded with the specifics requested.

·       2nd May 2019 - Appeal hearing under Stage 2 of the Grievance Policy took place

·       15th May 2019 - Outcome of Stage 2 investigation and full report issued

·       22nd May 2019 - The Complainant submitted an appeal of the outcome of Stage 2 of the Grievance Process.

·       23rd May 2019 – The Respondent confirmed receipt of the appeal under stage 3 and advised the Complainant that “in order to progress the matter to Stage 3, you are required to set out your grievances in writing, and to explain precisely why the outcome of Stage 2 was not satisfactory.” The information was requested by 9 am on 27th May 2019.

·       27th May 2019 – The Complainant expressed dismay at the short timeframe for providing a response requested. She also expressed confusion at, what she described as, “contradictory issues” within the previous correspondence from the Respondent. She advised that the substance of her grievance and the grounds for her appeal were already provided in itemised correspondence already in the possession of the Respondent.

·       28th May 2019 – The Respondent advised the Complainant that “I cannot progress this matter, at this time, as your response to my request for additional information was unsatisfactory.”   The Respondent advised the Complainant of 4 specific pieces of information that were required to progress the matter and requested that copies of emails supporting the grievances and appeals also be submitted.

·       31st May 2019 – The Complainant advised that she had been unfit for work due to stress and anxiety and that in that context she was astounded at the suggestion that her response was “unsatisfactory”. She also expressed her concern that she was being asked to provide copies of all emails as these emails were already on her personnel file. She again suggested that a review of documentation already provided should enable the appeal under Stage 3 to proceed.

·       18th June 2019 – The Respondent apologised for the delay in responding and advised this was due to an administrative error. The Respondent clarified the information required to progress the matter and encouraged the Complainant to provide same in order to address the grievance prior to the Complainant’s return to work. The Respondent noted that the complainant had been deemed fit to return by the providers of the Income Continuance Scheme.   The information was sought by 9 am on 25th June 2019.

·       The Complainant advised that as she had not received a response to her previous correspondence within the 5 - day timeline prescribed in the Grievance Policy she had referred the matter to the WRC. She also advised that she remained prepared to resolve the matter locally and asked for details of specifically what part of her response was unsatisfactory.

·       20th June 2019 – the Respondent replied outlining the 4 specific areas requiring a response and also advised that supporting documentation should accompany the response. The response was sought by close of business on 28th June 2019.

·       26th June 2019 – The Complainant provided clarification of the reasons for her appeal under Stage 3 of the Policy.

·       2nd July 2019 – The Respondent sought confirmation of the Complainant’s availability to attend the appeal hearing on 4th July 2019.

·       4th July 2019 – Appeal hearing under Stage 3 of the Grievance Policy took place

·       25th July 2019 - Outcome of Stage 3 investigation and full report issued

From documentation provided by both parties in relation to the processing of the grievance I noted that the Respondent had a comprehensive Grievance Policy in place and that 3 different managers investigated the complaints at each stage of the process. I noted that at each stage of the process the complainant was given the opportunity to present her case, to submit any additional information and supporting documentation and was allowed to be accompanied to the meeting by a work colleague. I further noted that, at each stage of the process, the Complainant was provided with a draft note of her meeting for further comment before the Investigating Manager made a decision on her grievances.

In considering the totality of the issues raised I remained conscious of the Complainant’s continued absence from work arising from mental health and other stress related ill health issues. I was also conscious that, apart from a brief period from mid- April to early July 2018, the Complainant was absent from work due to ill health issues since mid-2017; and that it is against this background the Complainant was seeking to address her concerns under the Grievance Policy.

In that context and based on the above observations I find that

The Respondent’s delay in addressing her grievance in breach of the Respondent’s own policy

·       The Respondent was not responsible for delays in processing the Complainant’s grievance during the period from 29th August 2018 to 12th December 2018.   Rather this was the result of the Complainant’s continuing ill health resulting in her inability to participate in the process.

·       The 12th December should be considered as Day 1 of the Grievance Process, as by that date the Complainant had attended the Occupational Health service, had confirmed her fitness to engage in the process and her intention to proceed with addressing the matters formally within the Grievance Process.

·       The Respondent failed to comply with their own policy in relation to the timeline from 12th December 2018 until the investigation was finally established under the Grievance Process on 26th February.

(The Respondent’s policy provides that employees who raise a grievance “will receive a formal written response within 5 working days or as soon as practicable thereafter.” The Complainant’s grievance can be assumed to have been lodged on 12th December 2018 and based on this the Complainant could reasonably have anticipated notification of a date for a hearing by circa 19th December 2018. In the alternative, given the proximity of the timeline to the Christmas break it would have been reasonable to have advised the Complainant that the Respondent would be in touch early in the New Year with details of arrangements for the investigation. Instead the Complainant did not receive any response until 16th January when the Respondent confirmed the reason for not establishing an investigation back in Autumn 2018 and advised that management were willing to engage regarding a phased return to work. This position appears to take no account of the information provided in December by the Complainant about her fitness to participate and her intention to proceed with a formal grievance. Correspondence then ensued between the parties in relation to the Complainant’s representative, however, I do not consider that this exchange should have impacted the timeline of the investigation. The Respondent then wrote to the Complainant again setting out the sequence of events in Autumn 2018 including an acknowledgement of the letter of 29th August 2018 and on this occasion sought a formal statement so that the grievance process could be instigated. This correspondence appears to take no account of the content of the letter submitted on 29th August 2018 which clearly outlined the grievances to be considered. When the Complainant protested by email of 7th February and indicated that this approach was adding to her stress levels the Respondent wrote again on 14th February asking that the Complainant obtain confirmation from her GP of her fitness to participate in the grievance process and proposed to initiate the process on 20th February. This arrangement was later moved to 26th February as the colleague attending with the Complainant was unavailable.)

·       Once the Grievance Process was established the Respondent processed the grievances through all 3 internal stages within a reasonable timeline

(The Stage 1 hearing took place on 26th February 20108 and the outcome including a full report of the investigation was issued to the Complainant on 29th March 2018. The Complainant lodged her appeal at Stage 2 on 2nd April and there was an exchange of correspondence between her and the Investigating Manager in relation to clarification of issues over the next few weeks. The stage 2 hearing took place on 2nd May 2018 and the outcome including a full report of the investigation was issued to the Complainant on 15th May 2018. The Complainant lodged her appeal under Stage 3 on 22nd May 2018 and in this instance lengthy correspondence ensued between the parties in relation to specific grounds for appeal and this correspondence concluded on 2nd July 2018. The appeal hearing took place on 4th July 2018 and the outcome of that appeal including a report of the investigation issued to the Complainant on 25th July 2018. I am conscious of the initial delay of some 3 weeks in responding to the Stage 3 appeal, however, I consider that the Respondent did comply with the timeline in their own policy which provided for a 5-day timeline or “as soon as practicable thereafter” and in the context of the number and complexity of the issues raised I consider that the timeline for this element of the grievance process was reasonable.

Based on these findings I concluded that the Respondent was responsible for some of the delays in processing the grievance and I would equate this to approximately 3 months (12th December to 26th February and the 3 - week delay at stage 3). However, other factors also contributed to the delay i.e. the Complainant’s ill health and the challenges experienced by both parties in relation to the grounds for appeal.

The Respondent’s continuous request for additional information

The Respondent sought additional information from the Complainant on 3 occasions – when planning to instigate the formal Grievance Process, upon commencement of the Stage 2 appeal and upon receipt of the Stage 3 appeal. I reviewed the correspondence and found that on the first occasion the Respondent sought a formal grievance when this had been already received in August 2018. This, in my view was unnecessary.

I noted that the Investigating Manager sought specifics in relation to the appeal at Stage 2 and this was provided by the Complainant without debate or delay. I consider the information requested to be reasonable and appropriate to the issues under consideration.

I noted also that at Stage 3 the Respondent sought additional information in relation to the grounds for appeal, specifically seeking to understand what element of Stage 2 was being appealed. This request triggered an angry response from the Complainant resulting in an exchange of correspondence where the Respondent continued to seek the information required and the Complainant continued to protest. I appreciate that from the Complainant’s viewpoint this may have seemed unnecessary and pedantic in circumstances where the substance of her complaints remained largely unchanged throughout the entire process. The only substantial difference at stages 2 and 3 was the contention that at the previous stage(s) the Investigating Manager(s) had failed to give appropriate weighting to the seriousness of the grievances. However, it is worth noting that any grievance process requires the complainant to, not only outline their initial grievance(s), but also to set out the grounds on which they wish to appeal a decision at an earlier stage of the procedure. This is all that was being sought by the Respondent in relation to Stage 3. From the Respondent’s viewpoint in managing a grievance they must ensure that both parties to the grievance are treated fairly and in that context the Complainant must demonstrate the basis for their appeal, not just the details of the initial grievance, and must provide supporting information and documentation.   It is the sole responsibility of the Complainant to provide such information.

Based on the above I find that the Respondent’s requests for additional information were reasonable and were in keeping with normal practice when managing a grievance.

The fact that the Complainant was placed at a disadvantage during the process by being denied the right to be represented by her representative of choice.

From the evidence adduced at hearing and from the documentation provided I noted that there was no dispute between the parties in relation to the fact that the Respondent declined to engage with the Complainant’s choice of representative.   It is also evident that the Complainant proposed using an external representative in the context of her ongoing stress and anxiety issues and that she clearly communicated this reason to the respondent on more than one occasion. As I reviewed the sequence of events surrounding the Complainants grievance it became evident to me that there were many instances where she was disadvantaged by not having an experienced representative to advise her. Indeed, the presence of an experienced representative might well have been of assistance to the Respondent in moving the process forward.

I noted that when the proposed representative first made written contact he sought a meeting to “explore opportunities to conclude a mutually harmonious agreement to this unfortunate episode.” This offer was rejected, and, in my view, this was a missed opportunity to resolve matters on an informal basis. Instead of taking this opportunity the Respondent moved very quickly thereafter to instigate the formal process.

I have already noted the number and complexity of the grievances raised and this was also noted by at least one of the Investigating Managers. There can be no doubt that the Complainant would have benefitted from the assistance of an experienced representative when she was presenting her case. I considered this to be particularly relevant in the context of her ill health issues. I noted that the Complainant, despite her best efforts to detail her complainants, did so in a way that was, at times disjointed, and often confusing. I believe that the support of her chosen representative would have brought greater clarity to the annunciation of the grievances and therefore would have assisted both the Complainant and the Investigating Managers.

I was particularly aware of the assistance that could have been provided to the Complainant by an experienced representative when she was dealing with the Respondent’s request for additional information for her appeals. A representative could have assisted her with preparation of documents and could have advised her on the normal processes to be followed. Had this occurred the delays experienced at Stage 3 might well have been avoided altogether.

Based on the above I find that and so I uphold her complaint in this regard.

On considering the issues raised and based on the evidence adduced at hearing and the extensive documentation provided by both parties I set out below a summary of my key conclusions:

1 Company Failure to Assign Appropriate Weighting to the seriousness of the Grievances

Phased return to Work and the circumstances that applied upon return

·       Both the Complainant and the Respondent contributed to the delay in finalising arrangements for the Complainant’s return to work

·       HR member B went to considerable lengths to provide information and support to the Complainant and conducted her correspondence with the Complainant with a high degree of professionalism.

·       The Complainant did not receive a response to a number of emails sent to HR member A in relation to her return to work.

·       The Respondent gave mixed messages to the Complainant in relation to the process to be undertaken regarding her return to work.

·       The Respondent acted unreasonably in not considering the Complainant’s requests for a reduced working week utilising annual leave and parental leave and in only considering this on medical grounds

·       The Respondent did not uphold the Complainant’s rights under the Maternity Protection Act in not returning her to the post she held prior to her maternity leave.

·       The Complainant was returned to work on 12th April 2018 without an agreed working arrangement in place

·       The Complainant was left in a state of continuous uncertainty regarding her working arrangements, with reduced working commitments only facilitated under successive short -term arrangements

·       The Complainant did have the use of a desk each day and the hot desking policy had no significant negative impact on her

·       The Complainant was aware of the reporting relationships that applied upon her return to work.

The Grievance Process consideration of these matters and alleged comments made on 12th April and 5th July 2018

·       The Grievance Process did not fully investigate the matter of the failure of HR member A to respond to the Complainant’s correspondence

·       The Grievance Process did not adequately consider the issues relating to the role the Complainant was returned to following her maternity leave nor give it appropriate weighting.

·       The Grievance Process did not consider that the Complainant had applied to reduce her working week based on annual/parental leave and that these requests were never considered on their own merits but were considered by the Respondent as a request for reduced working based on medical grounds.

·       The Grievance Process did not adequately consider the medical report of 8th May, the recommendations contained therein and the Respondent’s actions thereafter

·       The Grievance Process made a reasonable assessment of the issues relating to the alleged comments and I concur with this conclusion

·       The Grievance Process did fully assess and consider all other grievances raised and I concur with the conclusions reached

2         Company’s Flawed Grievance Process

·       The Respondent was responsible for some of the delays in processing the grievance and I equated this to approximately 3 months of a delay

·       Other factors also contributed to the delay i.e. the Complainant’s ill health and the challenges experienced by both parties in relation to the grounds for appeal.

·       The Respondent’s requests for additional information were reasonable and were in keeping with normal practice when managing a grievance.

·       The Complainant was placed at a disadvantage during the process by being denied the right to be represented by her representative of choice

In considering compensation in this matter I took into account delays for which the Respondent was responsible, the failure of the Respondent to consider the application for reduced working based on leave applications, the failure of the Respondent to confirm back to work arrangements prior to that return and the failure of the Respondent to properly implement the recommendations of their own Occupational Health Service without adequate explanation.   However, I also took into account the Respondent’s generous Sick Pay and Income Continuance schemes and the most recent medical reports that advised of the Complainant’s fitness to return to work on a phased basis since November 2019. I also noted that other health issues have arisen since July 2018 that may not be fully attributable to the above matters and which have contributed to the Complainant’s prolonged absence from work. Finally, I took account of the overpayment of salary while on sick leave in early 2018 and the Respondents confirmation at hearing that they would not seek to recoup this overpayment. Based on all of the foregoing I recommend that the Respondent not seek to recoup the aforementioned overpayment and pay the Complainant compensation in the amount of €8,000.

In writing this recommendation I am very conscious that compensation alone does not fully resolve this matter, nor does it, in any way, restore the positive and harmonious working relationship that previously existed between the parties. I am also very conscious that the Respondent’s representatives at hearing were very complimentary in terms of the Complainant’s work history and were keen to resolve matters by way of mediation but that the Complainant was not so inclined at that time. However, it is in the long-term interest and well-being of the Complainant to re-establish a productive working relationship with the Respondent and to commence taking steps to return to the workplace. It is also essential, in my view, that both parties have a clear road map to follow in moving beyond the current impasse. With those objectives in mind I make the following further recommendations:

·       That the Respondent agree a reduced working week (3 days) for the Complainant for a period of not less than 6 months from the first day of her return to work

·       That details of the specific days to be worked be confirmed by the Respondent to the Complainant at least 2 weeks in advance of her return to work

·       That the Complainant be again reviewed by the Respondent’s Occupational Health Service to confirm her general fitness to return to work

·       That the Complainant return to her role on the Lodgement Team

·       That prior to her return an externally facilitated meeting take place, between the Complainant and the HR and Line Management staff involved in meetings of 12th April 2018 and 5th July 2018 with a view to “normalising” the working relationships and addressing any tensions that remain outstanding between the individuals

I wish both parties well and trust that these recommendations will be of assistance to the parties.

Maternity, grievance procedures,