ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference:  ADJ-00027057

Parties:

Disputes:

Dates of Adjudication Hearings:  15/12/2020, 16/02/2021 & 12/05/2021

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Procedure:

In accordance with Section 13 of the Industrial Relations Act 1969, the Director General of the Workplace Relations Commission (hereinafter ‘WRC’) referred the aforesaid disputes received on 14th February 2020, to me for adjudication.  I held remote hearings on 15/12/2020, 16/02/2021 & 12/05/2021 pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designates the WRC as a body empowered to hold remote hearings. I proceeded to hearing at the scheduled times and gave the Parties an opportunity to be heard and to present any evidence.  All of the issues in dispute resolved save for one matter as addressed hereunder. 

Summary of Worker’s Position:

The Worker had been employed with A City Council since 2001.  She had complained to her Employer that in August 2017, she experienced inappropriate behaviour of a sexual nature from a number of male colleagues whilst in work.  An internal investigation commenced before it was referred to an external party for completion.  The investigation did not find in her favour.  The appeal was limited to the process and not the outcome.  Nonetheless, she appealed and her appeal was not upheld.  She was extremely unhappy with the process adopted.  A complaint under the Equal Status Acts was referred to the WRC and subsequently withdrawn.  The Worker had also been out of work on certified sick leave since 2017 and all efforts to return to work had been unsuccessful (CA-00034645-001).  Secondary to this issue, she contended that for the past sixteen years she had carried out clerical duties in addition to her role as a General Operative, for which she received additional payment in the form of an acting-up allowance but should have been re-graded (CA-00034645-002).  This dispute had been resolved by the time these matters came on for hearing and I regard this dispute as being withdrawn.  Throughout the course of hearing the remaining issues, the Parties were able to agree a return to work for the Worker to a position that did not require contact with the colleagues’ subject to her complaint.  However, she still seeks a review of the investigation process.  The Parties were unable to agree terms of reference and the external expert to be appointed.  In addition to the names provided by the Employer, the Worker’s Representative also put forward a name and deferred to this Adjudication Officer for the purposes of nomination.

Summary of the Employer’s Position:

The Employer maintained that the investigation process had been properly conducted but indicated that it was open to having the process reviewed by an external expert with a view to making recommendations as to how such investigations may be improved in the future.  As the Employer agreed to discharge the fees for the review, they were invited to nominate three names.  However, the person to be appointed and/or the terms of reference could not be agreed between the Parties and the Employer also deferred to this Adjudication Officer for the purposes of nomination. 

Recommendation - CA-00034645-001 (strictly limited to this dispute)

Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to this dispute.  The Parties are to be commended for progressing to a position whereby the Worker herein successfully returned to work on mutually agreeable terms during the currency of the hearing of this dispute.  It is noted that failing agreement on a suitable external expert to be appointed to review the investigation process adopted, the Parties have agreed to defer to this Adjudication Officer for the purposes of nomination.  Therefore, and in the following order depending upon their availability, (using initials only) I recommend the appointment of R. McG., M. S. & J. N.  I further recommend that the person appointed determines the terms of reference in liaison with the Parties.  Finally, I counsel the Parties to approach this process with a view to identifying improvements that may be made to such investigations going forward as opposed to attributing blame to or seeking vindication of any particular person/s or body regarding any perceived or actual shortfalls.

Dated:   26th July 2021

Workplace Relations Commission Adjudication Officer:  Aideen Collard