Complainant

Respondent

Anonymised Parties

A Cleaner

A Cleaning Company

Representatives

self 

Management Support Services (Ireland) Ltd

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-00032733-001

04/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00032733-002

04/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00032733-003

04/12/2019

The complainant has been employed by the respondent for fifteen years as a cleaner.

In September 2019 she was the victim of unacceptable conduct by an employee of a third company and the manner in which the respondent manged her grievance has given rise to the main complaint below.

The complainant initially complained about the incident referred to above on September 18th, 2019 to her line manager but got no reply.

She followed this up on October 21st and again on November 6th, on this latter occasion including a further complaint about the failure of her line manager to process the complaint.

On December 18th the respondent proposed a meeting on January 10th.

In January 2020 she sought clarification about aspects of her employment, specifically her job title (referring to this as an ‘employment certificate’.

No meeting took place until July 22nd. She received the outcome of this meeting only on November 11th, just prior to the WRC hearing scheduled to hear her complaint.

She also says that her job title is missing from her statutory statement of Terms of Employment.

The respondent accepts that the complainant did raise a grievance and accepts that the management of the grievance was below the standard the company expects.

There were delays in the investigation and grievance process caused by the disruption associated with been caused by the COVID 19 Pandemic.

The original grievance was raised with her supervisor in September 2019 and concerned a third-party employee of a client of the respondent and related to unacceptable, aggressive behaviour.

She received an initial response from the supervisor, then a subsequent response stating the matter was to be dealt with by another supervisor.

However, the supervisor to whom the complaint had been handed then left the company and the complaint was not then properly passed on to the replacement staff member.

In late October the complaint raised the matter again, and re-stated her issues, and a week later she wrote to HR department outlining her grievance and three ancillary issues. Specifically, the complainant disagreed with her job title.

O this occasion, the recipient of the letter had additional duties due to her covering Maternity leave and again the email from the complainant went unanswered.

On December 4th, 2019 the claimant referred the matter to the WRC.

Despite this, the respondent tried to complete the Grievance Process and met with the claimant in both December 2019 and January 2020 the matters at issue were discussed at those meetings.

In addition, the grievance outcome set out a conclusion in respect of each issue.

The claimant appealed the original decision on the grievances to the Managing Director and this was heard on July 22nd, 2020.

However, there was a further significant delay in issuing the appeal, which was given to the complainant only on November 24th, 2020 due to a simple oversight which was explained to her in the letter.

The company accepts that both the process followed, and the delays were unacceptable.

However, in mitigation, as an organisation the errors that occurred in the present case do not happen frequently. The Respondent is committed to ensuring that its employees are treated fairly and properly when engaged in any of its processes.

In this situation, although delayed, the complainant was afforded every opportunity to have her grievance listened to, investigated and reviewed by a competent individual.

A thorough and comprehensive response was made to the three outstanding grievances.

There was an appeal and the appeal’s officer’s decision addressed all three issues.

In addition, the appeal outcome letter gives an explanation as to the mistake in relation to her job title and addressed the matter of the original complaint; viz, the aggressive behaviour by an employee of the respondent’s client.

It is the position of the company that although the grievance process, in this instance was a process that was flawed at all stages, we contend that the grievance, was heard, and was fairly heard and was fairly resolved.

As a direct result of the issues and flaws in the claimant’s grievance, the company has taken this case as an incentive to review its structures and retrain staff, to ensure that the mechanisms in place within the company will allow employee to raise grievances effectively.

We are seeking a recommendation from the Adjudicator that although the grievance process was not perfect the delay in the process would not have changed the outcome and uphold the decision of the company to find against the grievances.

The facts in this case are relatively straight forward and not contested.

The grievance raised by the complainant in September 2019 were of a relatively serious nature but appeared not to have been given the attention they deserved by the complainant’s supervisor.

Thereafter, there were further delays, some (according to the respondent), but not all attributable to the Covid-19 pandemic. In any event this does not excuse the delays, as the respondent has both accepted and resolved to address, to its credit.

Nonetheless, the respondent submission that a speedier response to the complaints would not have resulted in a different outcome is not an acceptable one.

A person has a right to a process being conducted quickly, and that right is separable from any outcome, for the obvious reason that the outcome cannot be predicted until it has concluded.

For many years, before the enactment of the Workplace Relations Act such cases as this were heard by ‘Rights Commissioners’, who were well named, as a complainant was entitled to appear before them to seek a remedy for a general breach of their rights.

The name of the decision maker may have changed but the entitlement to a remedy on these facts has not and I make my award below.

Also, it was accepted that there was a deficit in the complainant’s statutory statement of her terms of employment and I also make an award in that regard.

However, there was an undercurrent in the complainant’s submission that she was saw this process in part to achieve a review of her grading.

While she is entitled to a factual statement in respect of those terms which are specified in the Terms of Employment (Information) Act, 1994 it is a matter for the respondent to determine what those terms are, although it would be helpful that it should consult with the complainant to explain its obligations in this regard and to address any anomalies arising.

She made two complaints; one that she did not receive any statement, which is not well founded, and one that it was incomplete, which is.

(The complainant referred to her attempts to acquire an ‘employment certificate’. It is not clear what she was referring to here, beyond the statutory statement referred to above).

If what the complainant wishes to do is to pursue an improvement in her terms and conditions of employment she will have to do so in a different way.

In requiring the respondent to remedy the complainant’s statement of her Terms of Employment under section 7 (2) (c) of that Act I recommend using my jurisdiction under the Industrial Relations Act a process of consultation with the complainant to clarify and hopefully resolve issues related to that statement amicably.

However, no later than four weeks from the date of this decision the employer should ensure that her statutory statement is amended to ensure that it contains her job title, whether or not the consultative process has concluded in agreement.

Recommendation

I uphold complaint CA-00032733-001 under the Industrial Relations Act, 1969 and award the complainant compensation in the amount of €1,500 for the breach of her rights.

I recommend that the parties should engage directly in a consultative process on the matter of the complainant’s job title only to be concluded within four weeks of the date of this recommendation.

Decision

Complaint CA-00032733-002 is well-founded, and I award the complainant €750.

Regardless of the progress or outcome of the consultation process recommended above, I require the respondent under the provisions of section 7(2)(c) of the Terms of Employment (Information) Act, 1994 to amend the statutory statement of Terms of Employment to include the complainant’s job title within four weeks of the date of this decision.

Complaint CA-00032733-003 is not well-founded.

Grievance, delay. Terms of Employment