Worker

Employer

Anonymised Parties

A Gardener

A Local Authority

Representatives

SIPTU

HR

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00029801-001

22/07/2019

The Worker submitted his claim to the Director General of the WRC on 22nd July 2019 alleging that he has a dispute with his employer arising from the failure to respond through the grievance procedures to his request for a transfer out of his department.

SIPTU on behalf of the Worker submits as follows:

The Worker lodged a grievance related to an interaction with one of his supervisors on 15th October 2018 which resulted in the Worker attending his doctor and being declared as unfit for work. This was not the first occasion that the Worker had experienced difficulties with this particular colleague and previously had complaints dealt with under the Employer’s Dignity at Work Policy on two separate occasions.

The Worker is employed in a Craft Grade in the Local Authority and is currently studying for a degree which is partly sponsored by the Employer.

Following the interaction with his supervisor on 15th October 2018, the Worker sought the assistance of his union in dealing with the situation. SIPTU emailed GD of the Employer on 19th October 2018 setting out the Worker’s concerns and seeking a meeting to discuss same. In response SIPTU received an email on 19th October 2019 from DM of the HR Department setting out the procedure for processing an employee’s grievance. The procedure required that the matter be raised with the Worker’s Line Manager in the first instance and that a formal grievance form needed to be submitted. As required, the Worker submitted same on 19th October 2018 to MS, his Line Manager. As a result, a meeting was arranged for 6th November 2018 which was attended by MS, the Worker and SIPTU representative. During the course of the meeting SIPTU outlined the nature of the Worker’s concerns, reminded MS of the Employer’s responsibilities under the Safety, Health and Welfare at Work Act, 2005 and emphasised that the current working environment was having a detrimental effect on the Worker’s health and well-being. As a means of reconciling the Worker’s grievance SIPTU confirmed that it was seeking a transfer on the Worker’s behalf. It was accepted by SIPTU that MS would not have the necessary authority to grant his request and suggested that MS should liaise with the HR Department in respect of the proposal. MS confirmed that he would talk to HR and either he or HR would revert.

Following a number of weeks and given that no response was forthcoming, SIPTU again emailed GR of HR on 3rd January 2019 seeking an update in respect of the progression of the Worker’s grievance and reminded the Employer that the timelines associated with the grievance procedure were not being adhered to.

On 18th January 2019, SIPTU received a response from DM of HR advising that the Grievance Procedure must be used to its fullest within the relevant Department before involving HR. DM advised that MS should organise a further meeting and, in line with the policy, would document the outcome. A further meeting was arranged on 18th April 2019, some six months since the Worker had lodged his grievance. The discussions that took place at this meeting were a repeat of the discussion that had taken place in November. Despite the content of DM’s email, MS did not agree or document an outcome. MS subsequently issued a letter dated 21st June 2019 purporting to be a response from the Worker’s colleague advising that the Worker’s complaint was vexatious. It should be noted that the Worker’s issue was being dealt with under the grievance procedure and not the Dignity at Work Policy. MS followed up with a note issued on 19th July 2019 asking if the Worker was satisfied with the response and if not that he should give details of his grievance.

Given that the Employer was clearly deviating from the provisions of the agreed procedures, SIPTU referred the complaint that is the subject of this hearing. On receipt of the notification of this complaint from the WRC the Employer wrote to the Worker on 8th August 2019 setting out the transfer procedure and further confirmed that the HR Department were now prepared to meet with the Worker. However, given his experience to date in attempting to follow the agreed process, the Worker and SIPTU decided to deal with the issues involved through the WRC.

SIPTU argues that the Employer’s grievance procedure sets out that

“The purpose of the individual grievance procedure is to provide a framework for dealing promptly and fairly with individual staff members concerns or complaints about working environment, terms and conditions or workplace relationships which have not been or cannot be resolved through the normal working relationship.”

The policy sets out a staged procedure with agreed timelines for each stage and, despite the position adopted in DM’s emails, provides for HR involvement at any stage of the process. The entire process should take no more than six weeks and not as in this case be still engaged at stage 1 after a 9-month period. The manner in which the Employer has managed this particular grievance is nothing short of deplorable. It is quite apparent that line management have no understanding of their roles and responsibilities in processing grievance and they are untrained for their role in that regard. SIPTU also claims that it is evident that the HR Department rather than assisting their management team, are first to abdicate their own responsibilities by blindly sticking to a mantra that requires a rigid approach to dealing with an individual grievance.

SIPTU argues that it is clearly recognised by the State industrial relations machinery that employers are required to deal effectively with individual grievances and complaints. This recognition is evidenced by decisions of both Adjudication Service and the Labour Court when awarding sizeable levels of compensation to workers whose employer had failed to discharge that responsibility.

SIPTU argues that the Employer’s responsibility rests with agreeing to the requested transfer and that any such transfer must take cognisance of the Worker’s grade, skills and aspirations in respect of obtaining a degree.

The Employer submits as follows:

SIPTU notified the HR Department on 19th October 2018 that it was to formally lodge grievance on behalf of its member in relation to an incident on 15th October 2019. A response was issued to SIPTU by return informing the union that the matter should be dealt with in accordance with the Employer’s Grievance Procedure, which was enclosed, which clearly sets out the procedure for processing an employee’s grievance. The union was advised that the matter should be dealt with through the relevant Department by the lodging of a grievance to the appropriate line manager.

SIPTU and the Worker met with his line manager on 6th November 2018. The line manager subsequently notified the HR Department that SIPTU was in the process of contacting HR to request a transfer for the Worker to another section. The line manager noted that SIPTU did not discuss the grievance at this meeting as the transfer request seemed to be the main purpose of the meeting from their point of view. A request for transfer was not received by the HR Department.

On 3rd January 2019, correspondence was received from SIPU confirming that the meeting had taken place on 6th November 2018 but due to lack of response, it was clearly outside the timelines contained within the procedural agreement. SIPTU requested confirmation as to when the Worker’s grievance would be progressed.

A reply was issued to SIPTU on 18th January 2019, again enclosing a copy of the Employer’s Grievance and Disciplinary Procedure and advising that the grievance process must be utilised to its fullest within the relevant department prior to its referral to the HR Department. The correspondence drew SIPTU attention to the form on which a grievance should be documented and Details of Outcome form. It was noted that the Details of Outcome form had not been completed at the previous meeting and that completion of this form would aid in removing any confusion around the matters discussed and the outcome achieved.

An automatic out of office reply was received to this correspondence as the SIPTU official was absent on leave for a number of months. During the absence of the SIPTU official the line manager of the Worker was informed by the Worker that he did not wish to proceed with the grievance until the return of the relevant official.

Since the return of the official from leave, the line manager has been in liaison with the parties to the grievance and is progressing same. The Employer understands that clarification has been sought from the Worker on a matter but it has not been forthcoming to date. The Line Manager informed HR Department on 3rd September 2019 that SIPTU had informed him that it was pursuing this grievance on behalf of the Worker externally as HR took too long to deal with the issue.

The Employer’s position

The Worker has lodged a grievance in relation to an incident, which arose on 15th October 2018. No determination has been made in respect of the grievance as SIPTU informed the Worker’s line manager that it would now be dealt with externally.

SIPTU has been advised on two occasions of the process to be undertaken to enable grievance to be resolved. However, as the substance / contents of the grievance are not a matter for consideration today, it would be inappropriate for the Employer to dwell any further on this matter within this forum.

The matter of application for transfer and processing of a grievance in relation to a specific incident which arose in a department are two distinct and separate processes. The HR department has not received a request for a transfer from the Worker to date. The Worker, and in particular SIPTU would be aware of the process involved with respect to seeking a transfer and that any request should be forwarded to the HR Department in writing.

Following receipt of the complaint referral by the WRC on 30th July 2019 the Employer responded to state that it was willing to engage in mediation on this matter.

The Employer wrote to the Worker on 6th August 2019 advising him of the process to be undertaken if he wished to be considered for a transfer. In addition to providing details of the process to follow, the Employer offered to meet with the Worker should he so wish, at a mutually agreed time and date to be arranged. No response has been received to date.

In the event of the Worker applying for a transfer, he will be placed on a transfer list. In determining eligibility for transfer, the factors to be taken into account include: the request itself, the operation needs of the Employer, any other requests for transfer, the post/position currently held by the potential transferee and the skills required both within the existing department and the department to which the person may be transferred. However, as no request has been received to date, these matters cannot be taken into consideration at this time.

In conclusion, the Employer argues that both matter the grievance lodged and the transfer request are separate and distinct. The Worker was informed of the process by which a transfer can be sought and HR has offered to meet with him in this regard. He has not sought a meeting further to this offer to date.

In respect of this dispute I find as follows:

The Worker referred his complaint to the WRC claiming that he “…has a dispute with my employer arising from the failure to respond through the grievance procedure in relation to my request for transfer out of my department”.

There were two matters discussed at the adjudication hearing. Firstly, the matter of the grievance procedure and secondly the matter of the transfer.

The Employer argued that the issue of the grievance process is a separate issue and not the subject of these proceedings. It was asserted that the herein dispute relates only to the matter of transfer. In that regard, the Employer indicated that it is willing to support the Worker in his role and it is happy to engage with the Worker with a view to resolving the issue. However, no transfer request has been put forward and the Worker did not respond to the Employer’s offer of 6th August 2019 to meet and discuss the matter.

The Worker criticised the grievance process, in particular the slow progress and the lack of willingness on the part of the Employer to accede to the “simplest solution to the problem” in the form of transfer.

It is my view that the grievance process and the resolution suggested by SIPTU are intertwined and cannot be considered separately in context of this dispute.

It is clear that the timing of the grievance process was significantly delayed but the responsibility for that delay cannot be ascribed to either of the two parties.

It is well established by the Workplace Relations Commission and the Labour Court that they do not intervene in a dispute under Section 13 of the Industrial Relations Act 1969 until all internal grievance procedures have been fully exhausted. In Geoghegan T/A Taps v a Worker INT 1014 the Labour Court held that “The Court is not prepared to insert itself into the procedural process in a situation where the dispute procedures have been bypassed.” This has clearly not happened in the circumstances of the present dispute.

In respect of the transfer, the Employer has well established mechanism for the processing of transfer requests, and indeed SIPTU confirmed that it is familiar with same. In organisations of the size and hierarchical grading structure such as the Employer, it is common practice that staff transfers take place following some system-based assessment process rather than collective bargaining or negotiations. It is not within the remit of the Adjudication Officers to bypass the Employer’s mechanism and substitute themselves for the process which remains available to the Worker. In that regard, I note the commitment given by the Employer at the adjudication hearing to engage with the Worker with a view to resolving the matter.

Having considered the submissions of both parties to this dispute I recommend that the Parties engage without any further delay in the grievance process and finalise it as a matter of urgency.

In respect of the matter of transfer, I do not find in favour of the Worker’s claim.  

For the avoidance of doubt, I confirm that this recommendation is particular to the unique facts and circumstances of the instant case and that it cannot be quoted or used by either party or any other party in any other case.

Grievance - transfer