FULL RECOMMENDATION
PARTIES : AN POST DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No ADJ-00027207 CA-00034815-001 " Having considered the matter I recommend that the Employer appoints an independent third party to review the outcome of the Investigation in accordance with that stage of its Dignity at Work procedures. In addition, and in light of the fact the Employer did not appear to follow up with the Employee's absence due to a back injury from 6th June 2019, I recommend that his matter be independently reviewed to determine whether the Employer has contributed to the ongoing absence of the Employee, and if so that the matter of the Employee's subsequent loss of earnings be addressed, with due regard to any obligations the Employee may have had in relation to returning to work. A Court hearing took place in a virtual Court Room on 11 August 2021.
The worker is currently absent from work through medically certified illness. The Court notes that the Trade Union and the employer have been engaged without success since January 2021 in efforts to find a means for him to return to work. The worker is very dissatisfied with the findings of an investigation into complaints he had made against named individuals in his workplace. He is similarly dissatisfied with what he sees as procedural failings of the investigation process initiated to process his complaint. Finally, he is of the view that the investigation was not properly concluded in accordance with the provisions of the relevant policy and he contends that he has, as a result, been deprived of a right to appeal the outcome of that investigation which commenced in 2018. The Court is satisfied that agreed procedures are in place in the workplace for the making of complaints of the nature made by the worker. The Court is satisfied that a letter which issued to the worker on 22ndOctober 2018 contradicted itself in that it informed the worker that the investigation was concluded and then went on to advise the worker that the investigation would be concluded by a named manager. The company advised the Court that it was unable to dispute a contention that the named manager did not contact the worker to formally conclude the investigation. The Court notes that the letter of 22ndOctober 2018 did not advise the worker of his right to appeal the outcome of the investigation, the avenue for such an appeal or the timeframe for making of an appeal. In all of the circumstances, the Court recommends that the employer should confirm to the worker, through his trade union, that the investigation has concluded. That correspondence should formally provide him with a copy of the investigation outcome. The correspondence should outline the fact that the worker may appeal the outcome of the investigation, the person to whom such an appeal should be made and the timeframe available for the making of an appeal. The Court believe that poor communication has, in this instance, left the worker unsure of the means to pursue his complaint by way of appeal of the investigation outcome. This situation has undoubtedly caused unnecessary distress to the worker. The Court is satisfied that the fact that he is now represented by his Trade Union will give him confidence in terms of any decision he might make relating to his right to pursue his original complaint by way of appeal. The Trade Union has sought compensation in respect of the worker’s absence through medically certified illness and has cited alleged failings of the employer in that respect. The Court however, noting that the illness which has been medically certified as being the cause of the worker’s absence has no connection with any matter arising from the worker’s complaints against colleagues in his workplace, does not believe that an award of compensation in respect of loss of earnings could reasonably be made. The Court is of the view however that the company should acknowledge the unsatisfactory nature of what has occurred in this case in terms of the conclusion of the investigation process and should make a gesture to the worker by payment to him of €1,500 in the interest of good industrial relations. In addition, the court recommends that the Trade Union and the employer should continue to work together to explore all possible means to achieve a suitable opportunity for the worker to return to employment as soon as possible. The Court so recommends.
Enquiries concerning this Decision should be addressed to Clodagh O'Reilly, Court Secretary. |
