ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference: ADJ-00023852

Parties:

Complaint(s):

Date of Adjudication Hearing: 08/01/2020

Workplace Relations Commission Adjudication Officer: Jim O'Connell

Procedure:

In accordance with Section 41 of the Workplace Relations Act, Section 13 of the Industrial Relations Acts 1969 following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute

The complaint is employed by the respondent since 1985. On the 9th September 2016 the complainant received a phone call from the respondent to say that they had received a complaint made against her and she was invited the complainant to attend a meeting and to bring along her Trade union Representative. The complainant was not given details of the nature of the complaint other than it was about “You having a Voodoo Doll”.

A meeting was held on the 4th October 2016 at this meeting the complainant was informed the complaint was made in early August 2016. The Trade Union contacted the respondent by email dated the 21st October 2016 requesting that the complainant be given full documentation for the investigation including a copy of the original complaint.

On the 11th November 2017 the Trade Union received the letter of complaint dated the 9th August 2016 along with notes taken at the meeting with the complainant on the 4th October where the complainant issued her response and confirming in detail that these allegations were unfounded and that she didn’t have a “Voodoo Doll” and that the complainant didn’t know what a “Voodoo Doll” was prior to the meeting.

The Trade Union requested the matter be dealt with in a timely fashion. The respondent stated that the matter would be dealt with under the informal process of the grievance procedure and that the trade Union would be kept in informed

The Trade Union submitted a number of emails from the 13th September 2017 to the end of November 2017 and the complainant did not received any contact form the respondent.

On the 27th February 2019 the complainant received correspondence from the respondent stating that stage 1 of the grievance procedure would be heard on the 14th March 2019. The complainant attended with her Trade Union representative. The notes of the meeting were issued on the 10th April 2019 and the amended notes returned to the respondent on the 18th April 2019. It was submitted that following a phone call, the respondent would issue a draft report by the 5th July 2019. The Trade Union were dissatisfied with the prolonged delay in the entire process. No further contact was received from the respondent and the matter was referred to the WRC.

The draft report was finally issued on the 25th November 2019 where it stated that that complaint could not be upheld based on the evidence. The respondent recommended training in relation to dealing with complaints/grievances, that they should be dealt with promptly.

The Trade Union submitted while welcoming the findings, the entire process was unnecessarily delayed by the respondent, it was submitted that justice delayed, is justice denied.

The Union were seeking compensation for the unnecessary and unreasonable delay in dealing with the complaint.

The respondent submitted that the complainant is responding to a workplace complaint lodged by another employee which was brought to the complainant attention initially on the 9th of September 2016 and was discussed in greater detail at a meeting of the 4th October 2016. The matter was, and continuous to be dealt with under the respondent’s grievance procedure. The respondent engaged with the parties concerned, including discussing the option of engaging in Mediation, however, the complaint ultimately progressed to stage 1 of the grievance procedure.

The agreed terms of reference indicate that the investigation process was to be concluded within an eight to ten-week timeframe.

The respondent submitted that the complainant was on Carer’ Leave from the 8th May 2017 to the 4th August 2017 and she commenced a period of sick leave on the 29th September 2017 to the 16th of October 2017 and commenced sick leave on the 29th of November 2017 and has not returned to rostered duty to date.

The respondent understands that draft findings were issued to the parties.

The respondent has sought to support both parties. The respondent has made availability of alternative work placements which would ensure that any concerns raised by the complainant in terms of coming back into contact with the identified complainant in the context of the workplace investigation.

The complainant has at this stage exhausted the paid components of the sick Leave Scheme to include payment of the temporary rehabilitation remuneration which concluded on the 17th august 2019

The response submits that it is the position that it has engaged at all time with SIPTU in a fair and reasonable manner for the purpose of supporting the complainant through the workplace complaints process.

The respondent is requesting the complainant to meet with a representative of the respondent to discuss and agree an early return to work.

Findings

Both parties made written and verbal submission at the hearing

I find that the complaint dates back to September 2016. I find that while the complainant was on carer’s Leave and on sick leave the period of time to issue draft findings on the 25th November was unduly delayed I note that the complainant has exhausted her sick leave entitlement.

Further to WRC Adjudication hearing which took place on Wednesday, 8th January 2020 relating to Ms. ES, I wish to confirm that the employer has written to the Union representative on the 8th of January and has confirmed that on a without prejudice and without precedent basis, it is proposing to extend the temporary rehabilitation remuneration (TRR) arrangements on a retrospective basis as an exceptional basis, provided that the Complainant reverts, as soon as possible, to the identified Director of Public Health Nursing with confirmation that she has further attended her GP and is in receipt of a final medical certificate confirming her fitness to resume duty. It is noted that the Complainant confirmed to the WRC Adjudicator that she would expect that she would be in a position to return to work, at the very latest, by the end of January 2020.

Recommendation:

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

I find that having taken all evidence into consideration and I am making the following;

1. Upon receipt of confirmation from the Complainant that she is in receipt of her final medical certificate from her GP confirming her fitness to resume duty, which she indicates will be no later than the end of January 2020
2. She had engaged with the Director of PHN.
3. The respondent to write to the Complainant confirming arrangements to extend the TRR to the return to work date in January 2020.
4. An extension of sick leave at full pay for a period of four [4] months with effect from 18th of February 2018 to 17th of June 2018, this would amount to €8,252.40 less (TRR) already paid at €5,013.93.
5. Respondent to make a total gross payment of €3,238 to the complainant.

Dated:  

Workplace Relations Commission Adjudication Officer: Jim O'Connell

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