Complainant

Respondent

Anonymised Parties

Engineering Operative

Transport Company

Representatives

Barnaba Dorda, SIPTU

Michael McGrath, IBEC

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-00032742-001

05/12/2019

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

CA-00032780-001

06/12/2019

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

CA-00033858-001

17/01/2020

The employee commenced his employment in 2004. He was originally employed as a driver. Since 2016 he has worked as an engineering operative involved in vehicle repair.   There is a collective agreement in place between the employer and the employee’s union concerning the allocation of overtime.   In October 2017 the employee had an issue concerning the allocation of overtime. Arising from the handling of this issue by his manager the employee submitted a grievance to the employer. This dispute concerns the handling of the employee’s grievance by the employer.

The employee used the employer’s grievance process to make a complaint about his manager. He contends that the employer did not follow fair procedures in dealing with his grievance. Further, that the investigation was unreasonably lengthy and the whole process was not impartial.

There is a collective agreement in place which, inter alia, regulates the allocation of overtime.   In general overtime is allocated based on seniority in post.   Under the terms of the collective agreement when senior employees decline the offer of overtime then it falls to the most junior employee to work the overtime, but within the limits of the working time regulations.

26 October 2017

The employee started work at 07.00. Later that morning his supervisor requested that he work overtime that evening from 16.00 to 21.00. Another work colleague was present when this request was made. The employee declined the request as he already had personal plans for that evening. The supervisor warned the employee that if he refused the request he would face disciplinary action. The employee felt he was being threatened by his supervisor in the presence of another employee. The supervisor later apologised to the employee because he should not have discussed the possibility of disciplinary action in the presence of another employee.

The employee was later told by his manager that he was obliged to work the overtime that evening.   When the employee asked if another junior employee had been asked to work the overtime the manager became aggressive. The manager warned the employee about disciplinary action if he refused to work the overtime.

The employee sought advice from his union official. He then reviewed the collective agreement with his supervisor. The supervisor told the employee he was required to work until 20.00. The employee calculated that working to 20.00 would be over his eleven-hour day and he told the supervisor that he would finish work at 19.30 so as not to exceed his eleven hours of work. The employee worked overtime and clocked out at 19.30.

27 October 2017

The employee started work at 07.00 as usual. His manager called him into his office and questioned him about why he had clocked out at 19.30 the previous evening instead of 20.00. The employee was unsure if this meeting was a disciplinary hearing and so he asked for union representation and to be given a clear purpose for this meeting. His request for union representation was denied and he was not given a written communication about the purpose of the meeting.

The employee explained that the previous day he had started work at 07.00 as usual and so as not to exceed eleven working hours in the day he had to finish work at 19.30.   He felt the manager was getting annoyed at this explanation and that he was being challenged about his start time of 07.00. The manager realised that the employee was correct about the working hours and so he then told the employee that in future his starting time would be 08.00.   The employee felt he was being punished but he accepted this starting time. The employee, although upset by this, told the manager that he would accept the change of starting time to 08.00 as he would soon be transferring to another location. At that point the manager told the employee that the transfer might not happen.

The employee was shocked by what the manager told him. The manager indicated that a more senior man might claim the transfer or that lots of things could happen before the transfer. This interaction was so upsetting that the employee felt overwhelmed. He told his manager that he felt victimised and left the office. He was so upset that he could not face his colleagues and could not control his emotions. The employee’s colleagues saw how upset he was and some of them went to management to discuss what had happened to him. One colleague came and sat with him and discussed the whole situation, but no supervisor spoke with him. The employee was so upset by the whole incident that he was on sick leave from his next working day, 30 October to 03 November 2017.

Grievance

Following consultation with his union official and having checked the HR policies the employee lodged a complainant about his manager under the terms of the grievance policy.   The complaint was lodged with the respondent on 02 February 2018. It was addressed to the HR Manager.

In July 2018 the HR Manager replied and sought clarification as to whether the employee wished to raise his grievance in a formal or informal way.

In September 2018 the employee was invited to meet with the person appointed by the HR Manager to investigate the complaint. The first investigation meeting took place on 10 September 2018. The second investigation meeting did not take place until 15 January 2019. At the second meeting the employee had an opportunity to correct the minutes of the previous meeting, but he was not provided with any other documents.

The employee received nothing further, no update or other documents, until July 2019. On 16 July 2019 he received a letter from the HR Services Manager which stated that the employee’s complaint was not upheld.   The employee appealed the decision.   The appeal hearing took place on 30 July 2019 and was heard by the HR Services Manager, the same person who had communicated the decision on the complaint. The appeal was rejected. The employee was not provided with a copy of the investigation report.

The respondent’s grievance policy sets out clear timelines for the processing of complaints. For example, after an employee lodges a written complaint a grievance process must be concluded within 14 days and an appeal must be concluded within 9 days. This employee submitted a complaint in February 2018 and did not receive a decision until July 2019. There was a significant and unprecedented delay in dealing with the employee’s complaint.

The employee was not provided with a copy of the investigation report. The investigator had interviewed the employee’s supervisor and manager during his investigation but notes of these interviews were not made available to the employee. The failure to provide the employee with the relevant documents deprived him of his right to a fair grievance process and appeal hearing.

The decision on the employee’s grievance was issued by the HR Services Manager and he was also the person who heard the appeal. There is no known reason why the same person should issue the original decision and hear the appeal.

Summary

The respondent did not process the employee’s complaint in a fair manner and fair procedures were not followed.

The employee’s complaint was not dealt with in an impartial and unbiased manner.

There was an unreasonable delay in dealing with the employee’s complaint.

The employee was not given a copy of the investigation report or notes of the interviews conducted with his supervisor and manager.

The HR Services Manager issued the decision on the employee’s complaint and hear the appeal of that decision.

The investigator did not interview other employees who could have substantiated the employee’s version of events of 27 October 2017.

The employee sought a just and equitable recommendation. His representative noted that in similar cases where there was significant delay in processing employee’s complaints the Labour Court had awarded compensation to the employee. It was suggested that a de novo investigation of the entire matter might be appropriate. The employee sought a recommendation which would encourage the respondent to be fair and reasonable in dealing with grievances against management and ensure that in future the respondent would take similar complaints seriously.

The employee is employed as an engineering operative. He is currently working at a different location to that where he was in 2017.   The employee applied for a transfer in 2016 and he was moved to his current location in November 2017.

Procedure

In 2018 the employee submitted a grievance by letter to the HR Manager (Services). The letter was dated 22 January 2018. The HR Manager did not receive the letter. A union official subsequently wrote to the HR Manager (Services), on 11 May 2018, querying why the employee had not received a response to his letter of 22 January 2018.   On his return from leave 19 June 2018, the HR Manager spoke with the relevant union official. He requested a copy of the original letter. The HR Manager (Services) received a copy of the original letter of complaint on 20 June 2018. He replied in writing the following day apologising for the delay and inviting the employee to a meeting on 29 June 2018.

The proposed date of 29 June 2018 was not suitable. The HR Manager (Services) sent a further letter on 12 July 2018 stating he was eager to have the matter resolved. He asked if the employee wished to use the informal or formal route. If the employee chose to use the formal route, he would arrange to have a manager investigate the matter. The union official replied the following day confirming that the employee wished to have a formal investigation of his complaint.

The HR Manager (Services) appointed the Area Operations Manager to investigate the employee’s complaint. On 18 July 2018 the employee was told which manager had been appointed to investigate his complaint. He was invited to meet with the investigator in September 2018 and the first meeting took place on 10 September 2018. There was a delay in the investigation at this point due to annual leave, claimant illness and unavailability and schedules and Bus Connect meetings. The second investigation meeting took place on 15 January 2019.

The investigator met with the employee’s manager on 10 April 2019 and with his supervisor on 21 May 2019. The investigation was delayed by a bereavement and issues with the format of documents. The Area Operations Manager sent his report to the HR Manager (Services) on 11 July 2019.   On 16 July 2019 the HR Manager (Services) wrote to the employee with the outcome of the investigation. The investigating officer found that the employee’s manager had no case to answer. The employee appealed this decision. The HR Manager (Services) heard the appeal on 30 July 2019. The appeal was rejected, and the employee was informed of this by letter dated 09 August 2019.

Issues

The employee’s complaint arises from the allocation of a shift to be worked as overtime. There is in place a Shift Agreement which is not in dispute. The agreement provides that where there is a shift to be carried out it falls to the most junior employee on site who is duty bound to work the shift.

On 26 October 2017 the employee was requested to cover a shift. He would be provided with the appropriate rest breaks when covering the shift. In this case the employee was required to work to 20.00 that evening. The employee’s supervisor informed him that he was required to cover the shift. The employee indicated that he did not wish to work the shift. The supervisor informed the employee that he was duty bound to work the shift under the terms of the agreement. The supervisor also suggested that he should talk with some of the more senior employees to see if any of them would work the shift. However, if no one else would work the shift then the employee was required to work the shift.

The employee refused to cover the shift, so the supervisor informed the manager. The manager then spoke with the employee and explained that if no one else would work then he was obliged to work the shift. He stated that the employee could work the shift under protest.

In that meeting with his manager, the employee asked what the disciplinary procedures are if someone would not work a shift. The manager then explained the process to the employee. Because of the conversation with his manager the employee then spoke with his union representative. The union official informed the employee that he was obliged to work the overtime shift. The employee then informed his supervisor that he would work up to 19.30 and he did clock off at that time.

The following day the manager met with the employee to discuss why he had left at 19.30 the previous night instead of 20.00. The employee stated that he needed his union representative to accompany him at the meeting. As this was not a disciplinary / grievance meeting no representation was required.   The employee also asked his manager to write to him to invite him for an ‘official recorded’ meeting. As this was not part of any formal process but rather a normal management / worker interaction a written invitation was not required.

The manager asked the employee for an explanation for leaving at 19.30. There was a discussion about the employee starting work at 07.00 instead of the normal 08.00 as per his contract. The employee asked the manager whether disciplinary action would affect his pending transfer to another location. The manager stated that disciplinary action can have some affect on staff in general. The employee was not disciplined for leaving work at 19.30. The employee was transferred to the new location the following week.

The employee submitted a complaint under the grievance policy three months after the issue about the shift. The matter was formally investigated, and the grievance was not upheld. The employee appealed that decision, his appeal was rejected, and the decision was upheld.

Summary

The employee was obliged to cover the overtime shift to 20.00 hours.

The employee was not threatened with disciplinary action. The employee raised the question of disciplinary action with his manager in the event he refused to work the overtime shift. The employee worked overtime to 19.30. The following day he was asked to meet with his manager to explain why he left at 19.30. No inappropriate conduct or statements were made to the employee.   The employee was not disciplined for leaving at 19.30. There was no interference with the employee’s transfer to another location.

The complaint was investigated thoroughly. There were some delays in the process however the delay did not affect the substance of the investigation which was procedurally fair in all respects.

The employee was transferred at his request to another location a week later and so he was not working with or reporting to any of the individuals named in his complaint.

This complaint was dealt with appropriately by the employer. The process was fair, and the investigation was conducted in a procedurally and substantially correct manner.

The employer sought a recommendation in favour of the employer.

The issues in this dispute arise from exchanges that took place on 26 and 27 October 2017 between the employee and his manager and the employee’s subsequent complaint to the employer under the grievance policy. It was clear from the submissions of both parties that what took place in October 2017 related to the allocation of overtime, the interpretation of the collective agreement dealing with overtime and the handling of the issues by the relevant manager.

The terms of the collective agreement are not in dispute. Overtime is allocated based on seniority. When senior employees are not available or reject the offer of overtime it ultimately falls to the junior employee to work the overtime.   At the relevant time the employee was not familiar with the terms of the agreement.

The employee’s complaint to the employer was not about the collective agreement or how it was interpreted.   His complainant was about how the issue was handled and his treatment by his manager.   The employee was upset by the exchange with his manager on 27 October 2017. He was upset by the thought that if he was to be disciplined he might be denied a planned transfer to another location. In the event the employee was not disciplined, and he was transferred as planned to another location.

It was clear from documents presented at the hearing that the manager was aware that the employee was upset on the day and indeed the employee was on sick leave for several days following the exchange. The employee subsequently made a complaint under the grievance policy.

Grievance Process

The employee did not submit his complaint under the grievance policy until February 2018, some three months after the event. The employee stated in his letter of complaint that “While such disputes can and do arise from time to time, the way I was treated by (manager) was unfair, upsetting and not in keeping with how any employee should be dealt with. I was threatened with Disciplinary Sanction and that my pending transfer to (new location) was in jeopardy.” He requested an urgent meeting with HR.

For some unexplained reason this letter was not received by HR in February 2018. A union official sent a letter to HR in May 2018 asking why the employee had not received a response to his letter of complaint. The HR Manager (Services) contacted the union official on 19 June 2018 requesting a copy of the original letter of complaint as he had not received it as of that date.   When he received the copy he replied, apologised for the late response and invited the employee to meet with him on 29 June 2018. Some eight months had now elapsed since the events complained about.

The HR Manager (Services) appointed the Area Operations Manager as the investigator of the complaint on 17 July 2018. The first meeting between the employee and the investigator took place on 10 September 2018. The second meeting took place on 15 January 2019. The investigator met with the employee’s manager and supervisor in April 2019 and June 2019, respectively. The investigator concluded his investigation when he wrote to the HR Manager (Services) on 11 July 2019. The investigation had taken 12 months to complete.

The employee was informed of the findings of the investigation by letter dated 16 July 2019.   The employee appealed. The appeal hearing was conducted by the HR Manager (Services) took place on 30 July 2019. The employee was informed that his appeal was not upheld by letter dated 09 August 2019.

Dispute

This dispute was referred to the Workplace Relations Commission for investigation. The employee claims that the employer did not process his complaint in a fair manner and fair procedures were not followed.   The employer claims the employee’s grievance was investigated thoroughly. It acknowledges there was some delay in the process however it claims that the delay did not affect the substance of the investigation which was procedurally fair in all aspects.

There are two elements to this dispute, delay and fair procedure.

Delay

There was an unexplained delay at the beginning when the employee’s letter of complaint was not received by the HR Manager (Services). However, from the time the HR Manager (Services) received the copy of the complaint in June 2019 the investigation should have proceed efficiently. This did not happen. The employer’s current grievance policy sets out time lines for dealing with complaints and these were all exceeded. It should not take a year to investigate a complaint where three people were interviewed. This time delay indicates to me that this complaint was not a priority for the investigator.   Where a grievance is not dealt with efficiently the more difficult it becomes to find a resolution. The delay in completing this investigation was excessive and unacceptable.

Fair Procedure

The complaint made by the employee concerned the events that took place with his manager in October 2017. The investigation of that complaint found there was no case to answer. While managers are required to manage they are should do so in a fair way. It is clear from documents submitted at the hearing that the manager complained about was aware that the employee was upset following the meeting on 27 October 2017. The matter might have been resolved at that time if the manager had taken some action to respond to the employee’s upset.

The investigator met with the employee, his manager and his supervisor. The employee was not given copies of the notes of the meetings with his manager and supervisor until the day of the WRC hearing. The employer did not give a coherent reason for not providing the notes of all the meetings to the employee during the investigation.

The investigator wrote to the HR Manager (Services) on 11 July 2019. He attached the notes of the meetings with the employee, his manager and supervisor. He stated that in relation to the dispute between the employee and his manager he was unable to establish any complaint. He recommended that if an employee had an agreed facilitation in relation to their starting time that facilitation should be clearly defined and reviewed.   He further recommended that the procedure of engineering employees transferring work locations should be reviewed and if necessary a revised procedure put in place.

The HR Manager (Services) wrote to the employee on 16 July 2019 stating that the investigating officer had found the employee’s manager had no case to answer. The letter does not set out an appeal process. The employee did submit an appeal. The HR Manager (Services) who had issued the outcome of the investigation on 16 July 2019 heard the appeal on 30 July 2019.   The appeal was not upheld.

I find that the delay in completing the investigation of the employee’s grievance was excessive and unacceptable. I find that the procedure followed in the investigation and appeal was not best practice. First, the employee was not provided with notes of the meetings conducted during the investigation with his manager and supervisor and did not have those available to him at the time of his appeal hearing. Second, the appeal was conducted by the HR Manager who had issued the employee with the outcome of the investigation.

CA-00033858-001

I note the HR Manager (Services) apologised to the employee at the hearing for the delay in the handling of this complaint.

I further note that the employer’s grievance and disciplinary are currently being reviewed and updated. It is in line with the Code of Practice on Grievance and Disciplinary Procedures (S.I. No. 146/2000) that procedures should be reviewed and up-dated periodically so that they are consistent with changed circumstances in the workplace, developments in employment legislation and case law, and good practice generally.

The delay in the investigation of the employee’s complaint was totally unacceptable. While there are times that there may be a valid reason for exceeding the timelines set out in the employer’s procedure it should not take a year to complete an investigation where only three people are interviewed.

I recommend that review of the grievance procedure should be concluded as quickly as possible.   The revised procedure should include timelines for investigations that are reasonable but somewhat flexible and should also include a commitment to keep the employee informed of progress of the investigation. Where an investigation takes longer than the time set out in the revised procedure the reason for the delay should be clearly communicated to the employee.

I recommend that the revised procedure clearly sets out how formal investigations will be conducted in future. The procedure should provide that the notes of meetings prepared during the investigation will be provided to each interviewee for review and accuracy checking before being provided to the complainant.

I recommend that the revised procedure clearly defines an appeal process. The appeal should be dealt with by a person who has not been involved in any aspect of the investigation.

I recommend that those appointed to investigate grievance complaints are provided with appropriate training and are made aware of the importance of concluding the investigation in an efficient and timely manner.

The employee’s representative in his submission suggested that a de novo investigation of the entire matter might be appropriate. I do not recommend a de novo investigation given the length of time since the events complained about and the fact that the employee has not had to work with the relevant manager again as he transferred to another location.

The employee’s representative in his submission sought an award of compensation for the delay in processing the grievance. I have reviewed the cases relied upon in his submission and I note that in most the employee was at some financial or other loss because of the delay. That is not the case here. The employee was not disciplined, his transfer went ahead as planned and he did not suffer a financial loss. Therefore, I do not recommend an award of compensation.

I do accept that the employee was upset by the events complained about and that the delay in completing the investigation only compounded his grievance. At the hearing the employee showed that he remains upset. The HR Manager (Services) gave a sincere apology and invited the employee to meet with him. I recommend that the employee considers meeting the HR Manager (Services) with a view to moving forward in a positive and constructive manner.

Grievance

Investigation Procedure

Appeal Procedure