Complainant

Respondent

Anonymised Parties

A Member

A Policing Authority

Representatives

Michael Hegarty, Reddy Charlton Solicitors

Chief State Solicitor's Office

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-00038515-001

03/07/2020

The Employee’s claim related to disciplinary sanctions up to and including dismissal under the Industrial Relations Act 1969 following on an internal investigation.

The dispute was heard over two days, the first on 27 January 2021 and the second day, 5 May 2021, both by way of remote hearing.

The claim was submitted to the WRC on 3 July 2020. The Employee set out his complaints in detail in the WRC Complaint Form. The Employer’s submissions were received on the evening of 26 January 2021. It was requested that the hearing on 27 January 2021 that the Employee would have a further opportunity to respond to the Employer’s submissions within 14 days. His submissions were received on 10 February 2021. The Employer had the same period to respond and despite this its reply was not received until 1 March 2021.

Further information was sought from the Employer at the second hearing to be submitted by 12 May 2021. Despite agreeing to this deadline at the hearing the Employer failed comply with it and did not furnish a response until 19.49pm on 14 May 2021. On the basis this was two days after the agreed time line and the second time Employer has failed to adhere to the time frame set for filing responses, in addition to the last-minute filing of submission on 26 January 2021, I am not accepting this letter. Consequently, it does not form part of this Recommendation.  

The following is a summary only of the claim.

Preliminary Point of Jurisdiction

The Employee outlined the position that this trade dispute was properly before the WRC in its written submissions and at the hearings.

Appeal  Review

Following a complaint from a member (“Complainant) was made pursuant to the ‘Working Together to Create a Positive Working Environment’ (the “Policy”). An investigation was undertaken by the Employer to which the Employee was party to. The outcome of the investigation was communicated to the Employee by letter dated 19 December 2018.

On 23 March 2019, an Assistant Commissioner emailed the Employee advising that he had been appointment to carry out the review of the investigation.

The Employee complains that the Assistant Commissioner who was appointed was not the local Assistant Commissioner as provided for in the Policy and therefore, not the appropriate person to carry out the review. He also complains that the Assistant Commissioner noted in the report that he did not receive any objections to his appointment from the parties. The Employee submitted that this is irrelevant as he was not the correct person in the first instance to conduct the review.

Delay

The Employee replied on the same day  to the Assistant Commissioner pointing out that the time for appeal had surpassed the 42-day limit provided for in the Policy.

By email reply on 25 March 2019, the Assistant Commissioner advised that he was appointed on 15 March 2019 by the Executive Director of Human Resources and People Development. It was also stated that the original Complainant did not receive the Investigation Report until 19 January 2019 and he accepted this and therefore, the appeal was made within the 42-day time frame. It is noted that the letter requesting an appeal was dated 29 January 2019 and addressed to Executive Director of HR and People Development. It is the Employee’s submission that the reference to 19 January 2019 was incorrect and should have read 19 December 2018 as he received the letter with the outcome on this date.

The Employee complains that the appeal was accepted outside of the time limit provided for in the Policy and the consent of the Employee was never sought to extend time.

A further email of 26 March 2019 from the Assistant Commissioner stated his intention to engage a third party to audit the investigation. On 11 May 2019, the Assistant Commissioner confirmed an expert had been approved and “preliminary material” had been provided to the Auditor. The Employee notes from the final report that the Assistant Commissioner met with the Auditor on 22 June 2019 and 22 August 2019. The report was not finalised until 23 August 2019.

The Employee also complains that there was a significant delay in between the behaviour complained of and the complaint been lodged. The second delay was between the review and report which was outside the time limit provided for in the Policy. No consent was sought from the Employee for the extension of time.

Response to Allegations

The Employee was not asked for a response to any of the allegations by the Assistant Commissioner.

Additional Complaints re the Appeal

The Employee made several other complaints in his submission relating to the independence and documentation replied upon by the Assistant Commissioner in the report.

Sanctions

The Assistant Commissioner issued his findings in a report of 23 August 2019. The report categorised the complaints and “upheld twelve allegations of Bullying/Harassment as outlined in Category C”. The review included reference to Para. 8.10 in the Policy which provides for a range of sanctions and states: “My decision is that [Employee] receives ADVICE that conduct of this nature, is not acceptable in the work place. Accordingly, this is notice of advice pursuant to Chapter 8.10.” The report continues; “ I decide that [Employee] should be monitored for 6 weeks to ensure that the workplace is fully compliant with the spirt of the policy and I also direct that appropriate awareness training should be provide to [Employee] as organised by HRPD.” The report continues to decide; “I am satisfied that in the event of full and satisfactory compliance with the above, there should be no need to consider the transfer of [Employee], however if all of the above not be satisfactory completed by 1 October 2019, the question of transferring [Employee] for the stated reason of the decision of this review, should be progressed.”

These are the sanctions the Employee complains of pursuant to s.13 of the 1969 Act.

The Employee outlined at the hearing that there had been no communication from Human Resources and People Development regarding the awareness training, no one was appointed to monitor him, and, on this basis,  he continued to feel under the threat of a transfer.

The Employee stated he sought to raise a grievance internally, but this was rejected on the basis the Assistant Commissioner had retired and therefore, was not the correct party to address the grievance to.

Impact on the Employee

The Employee stated he has been employed for 38 years and  he had an unblemished service. The Employee explained the impact of this decision on his career, health and family life at the hearing. He was due to retire but due to the Covid-19 pandemic his service was extended. Furthermore, he wanted this matter to be dealt with prior to this retirement. He stated he felt under constant threat of a transfer in light of the sanctions set out in the Review.

Request for Information incl. Audit Report

At the first hearing date the Employee sought access to documentation related to the Appeal Review. A follow up letter dated 10 February 2021 was sent to the Employer which sought the following;

·        Notice of Appointment of Assistant Commissioner to appeal

·        Documentation provided to Assistant Commissioner relevant to appointment and terms of reference.

·        Document authorising appointment of Auditor

·        Documentation provided to Auditor relevant to appointment and remit

·        Report of Auditor

·        Documentation between Chief Superintendent and HRM in relation to grievances / complaints of the Employee

·        Documentation provided to the Employer’s Legal Advisor relevant to appointment and remit

·        Report prepared by Employer’s Legal Advisor and any written communication between her and the Chief Superintendent in relation to the findings

The Employer replied on 4 May 2021, the day before the second hearing, stating the report of the Auditor will not be provided “as it would set a precedent.” No reference was made to the other documentation sought. It was submitted on the behalf of the Employee that the reason the Audit was being refused in the letter of 4 May 2021 differed from the argument made at the first hearing wherein it was stated that the report attached legal privilege and consequently, could not be disclosed. It was the Employee’s argument that the policy did not provide for such advices as per Section 8.10 of the Policy which states:

“Alternatively, the Assistant Commissioner may engage an independent expert to carry out an

audit of the investigation. The independent expert may be a member of the legal profession or

a former Rights Commissioner with extensive experience in the areas of employment law. In

making the final determination the Assistant Commissioner will consider the views of the

expert.”

The Employee put forward the argument that the Policy provided for the Audit and consequently, it constitutes part of the review process. The law of fair procedures provides for disclosure of the audit. The legal expert who was appointed was not providing legal advice but instead carried out an audit of the investigation report to assist the Assistant Commissioner. If the audit had been carried out by a former Rights Commissioner, as also provided for in the Policy, it would not have been subjected to legal privilege.

The Employee also wrote to the Employer on separate request in writing on 6 January 2021, at the hearing and a second letter dated, 10 February 2021, that parties be made available to attend the hearing. The Employer refused the first request by letter dated 26 January 2021, the day before the hearing. The Employer did not respond to the second letter. 

Preliminary Point of Jurisdiction

The Employer raised a preliminary objection that the WRC did not have jurisdiction to hear this dispute in its submission of 26 January 2021 and again in its submission of 1 March 2021. It stated that it was “regrettable and unfortunate” that the Employer did not object to the dispute within the time limit set out in the 1969 Act. It disputed that this was a trade dispute for the purposes of Act.

Definition of a “Trade Dispute”

The Employer relying on section 3 of the Industrial Relations (Amendment Act) 2019 Act which provides: -

“a reference to a trade dispute shall be read as a reference to any dispute or difference between members of the Garda Siochana and the Garda Commissioner that is connected with the appointment or non – appointment of any such member, or with the terms and conditions on which such members serve”.

The Employer argued that this dispute is not connected to the terms and conditions on which the member serves for the purposes of Section 3 of the 2019 Act or Section 13 of the 1969 Act. Consequently, it is not within the scope of the WRC’s jurisdiction. The Employer relied on the Supreme Court decision in O’Cearbhail v Bord Telecom Eireann [1994] ELR 54 and Rafferty v Bus Eireann [1997] 2 IR 424 to substantiate the argument that there is a distinction between terms and conditions of employment compared to work practices which do not fall within the definition of trade dispute.

The Employer further contended in its submission of 1 March 2021 that the dispute is limited to the Employee’s WRC Complaint Form which states, “ to request a review of Assistant Commissioners [Name] findings and recommendations” and that this is not within the scope of the WRC.

The Policy

The Employer submitted that the Policy was based on the Industrial Relations Act 1990 (Code of Practice Detailing the Procedures for Addressing Bullying in the Workplace) (Declaration) Order 2002 and Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work 2007 which were in force at the time of the Review. The Employer submits that its internal decision-making process complied with the Policy at all material times.

Delay

In response to the delay in submitting the appeal the Employer stated that the Complainant was not informed of the rationale for the Investigators’ decision until 28 January 2019 and lodged her appeal the next day. The exchange of correspondence of 23-26 March 2019 between the Assistant Commissioner and Employee was set out and it was submitted that the 42 nd day from the date of the decision on 19 December 2018 was 29 January 2019 or in the alterative no injustice was done to the Employee as it was just outside the period of 42 days. The Employer stated in its submission, “It is fundamental to any appeals process that the grounds for the decision are known so as to enable a discretion to be exercised as to whether to appeal or not.”

It was accepted in the Employer’s submissions that the 30 day time limit had expired to carry out the review but claims that the justifiable reason was due to the engagement of an independent expert and her approval by the HRPD.

Response to Allegations

The Employer stated the categorisation of allegations was done in an attempt to bring clarity to the complaints and it was merely a method of analysis. The Employer stated there was a robust procedure for hearing of evidence set out in Section 8.4 of the Policy at the investigation stage. The Employer submitted; “The HRM Policy clearly states that the Assistant Commissioner makes a determination based on the investigation file and, where an expert is appointed, an audit of the investigation will be carried out. It is clear from the HRM Policy that an appeal does not amount to a re – hearing of the complaint. Accordingly, no further evidence is heard at the appeal stage.”

It maintained that fair procedures were adhered to at all times.

Additional Complaints re the Appeal

The Employer denied the additional complaints made by the Employee re the conduct of the Appeal and documentation relied upon.

In response to the complaint re the appointment of the Assistant Commissioner it was noted that the local Assistant Commissioner was already involved in the review of the investigation report and therefore, was precluded from any further involvement as per her letter of 19 December 2018.

The Audit Report

In response to the Employee’s request for the Audit report the Employer stated that the legal professional was engaged as an independent expert and there was no procedure for her internal advices to be disclosed to the Employee. This was followed up with a letter to the Employee’s Solicitor on 4 May 2021 stating that disclosure of the audit would set a precedent.

Impact on the Employee

In its replying Submissions the Employer stated that the scope of the WRC in the context of the Industrial Relations Act 1969 was limited to the review of the internal decision-making process and not the impact the decision had on the Employee.

Attendance of Chief Superintendent

In response to the Employee’s request to have the Chief Superintendent attend the hearing, it was repeatedly stated by the Employer that she was not part of the review and therefore, not relevant to this dispute.

Sanctions

The lowest level of sanction, “Advice” was handed down to the  Employee. It was submitted that the Employee was not subject to supervision nor was in required to attend training nor was he transferred and therefore the point was mute.

In its submission of 1 March 2021, the Employer responded to the Employee’s submission on the sanction as stating the decision of the Assistant Commissioner and the sanction in the form of advice were potential obvious has having no impact on the Employee’s employment or on any of the conditions on which he was required to serve. The Disciplinary Procedure was an entirely different process to that of this Policy. The fact that one process can lead to another is not relevant.

The Employer relied upon the Labour Court decision of Gregory Geoghegan t/a TAPS & A Worker, INT1014 where the WRC is precluded from hearing a dispute where internal procedures have not been exhausted. It was the Employee’s submission that the Employee has failed to exhaust an internal grievance procedure. The Employer stated the Employee attempted to raise a grievance but was advised that it was addressed to a retired member and therefore could not be addressed, and it sought to have been addressed to the Commissioner.  

There are two points worth noting given the direction taken in this dispute:

There were lengthy legal submissions filed by the legal representatives of the parties in addition to legal arguments on jurisdiction, interpretation of a trade dispute and legal professional privilege. It is important to put this case in context, it is an industrial relations dispute. Noonan J. in Mullally and Ors v Labour Court [2015] IEHC 351 summaries the nature of the industrial relations process before the WRC and/or Labour Court:

“it is in the nature of an industrial relations forum which is designed to facilitate the mediation of trade disputes and offer an opinion as to how such a dispute may be resolved. Its recommendation has no strictly legal effect but rather relies upon the moral authority of the expert statutory body from which it emanates. It does not give rise to justiciable rights such as would permit the applicants to seek judicial review”

Secondly, the Industrial Relations Amendment Act 2019 was enacting following a report from Working Group on Industrial Relations Structures to which the Respondent and the associations representing members were in agreement. The spirit of that agreement and the Industrial Relations legislation must be respected.

Preliminary Point of Jurisdiction

The Employee filed his claim with the WRC on 3 July 2020. In line with the appropriate procedure the WRC wrote to the Employer notifying it of the dispute by letter dated 25 August 2020. Enclosed in that letter was a form which requested that the Employer elect as to whether it objected or did not object to an investigation of the dispute by an Adjudication Officer.

On 3 September 2020, the Employer wrote to the WRC acknowledging receipt of the letter dated 27 August 2020. The letter further advised it had been forwarded to the “Executive Director, Human Resources & People Development” who would be in contact directly. The email address of the Employer was also confirmed within the letter.

A letter dated, 8 September 2020, was received from the Employer acknowledging receipt of the WRC letter of 27 August 2020 and stating it will be reviewed by the Employee Relations Bureau who will be in touch in due course.

The WRC wrote to the Employee by letter, dated 22 September 2020, advising there had been no reply received from the Employer in response to the request as to whether it objected or not to the investigation of the dispute. Consequently, the matter was referred for adjudication and a hearing date issued.

On 23 December 2020 the Employer’s Solicitor wrote to the WRC advising that they had been instructed by the Employer.

By email dated 26 January 2021 at 16.38 the Employer filed its submission wherein the objection was first referred to the investigation of the dispute.

Jurisdiction is prescribed by S. 13 (3) of the Industrial Relations Act 1969 wherein it states:

“(b) A rights commissioner shall not investigate a trade dispute—

(i) if the Court has made a recommendation in relation to the dispute, or

(ii) if a party to the dispute notifies the commissioner in writing that he objects to the dispute being investigated by a rights commissioner.”

This was further amended by Section 36 (1) of the Industrial Relations Act 1990 which provides:

36.—(1) An objection under section 13 (3) (b) (ii) of the Industrial Relations Act, 1969 , by a party to a trade dispute to an investigation of the dispute by a rights commissioner shall be of no effect unless it is notified in writing to the commissioner within three weeks after notice of the reference of the dispute to the commissioner has been sent by post to that party.”

A Trade Dispute is defined by s.3 of the Industrial Relations Act 1946 (as amended by the s.40 of the Industrial Relations (Amendment) Act 2015): -

”The expression “ trade dispute” means any dispute or difference between employers and workers or between workers and workers connected with the employment or non-employment, or the terms of the employment, or with the conditions of employment, of any person and includes any such dispute or difference between employers and workers where the employment has ceased,”

It is clear that the Employer was adequately notified of its right to object in accordance with the legislation but failed to do so within the 21-day time period. It is noted the first time the Employer objected was in its submission of 26 January 2021. Consequently, I am satisfied that the dispute is properly before me in accordance with Section 13 of the 1969 Act and subsequent amendments. 

In relation to the issue as to whether the Employee’s claim amounts to a trade dispute or not, I find that it is a dispute between an employee and an employer. The Employer accepted and investigated the original complaints with reference to its own policies by senior members of the Employer. The preface of the policy, “Working Together to Create A Positive Working Environment”, the policy in question, expressly refers to the Employment Equality Acts 1998 and 2004, Safety Health and Welfare at Work Acts 1989 and 2005, the Industrial Relations Act 1990 together with the Statutory Codes of Practice, all legislation that relate to the relationship between an employee and an employer. By reason of the Industrial Relations (Amendment) Act 2018 and express references to the Equality legislation together with the Safety, Health and Safety at Work Acts, it is found that the Employee’s dispute relates to a term of his employment and consequently does constitute a trade dispute for the purposes of Section 13 of the 1969 Act and subsequent amendments.

The Employer’s contention that the Employee did not exhaust the internal procedures needs to be addressed. It is clearly stated in the Policy that the local “Assistant Commissioner who will be the final arbiter within the [Employer]”. The Appeal Process Flow Chart notes in “issues decision to both parties -à End (In red it states” This ends the internal process)” Consequently, it is not accepted that the Employee failed to exhaust the internal procedures under the Policy.

I agree with the Employer’s submission that the jurisdiction of the WRC is limited to review as to whether the internal procedure that being the Working Towards a Creating a Positive Working Environment Policy.

Time to Lodge Appeal

Section 8.12 Appeals Procedure – Review of Investigation

“Where either party is not satisfied with the outcome of the formal investigation they may appeal within 42 days to have the decision reviewed by their local Assistant Commissioner who will be the final arbiter within the [Employer].”

It is accepted based on the letter of the local Assistant Commissioner to the Employee dated 19 December 2018 was the notification of the investigation outcome. The Employer did not produce any document or verification to support the contention that the Complainant did not receive this notification until 29 January 2019. The procedure is clear that an appeal must be made within 42 days and repeated in the Appeal Process Flow Definition Chart. The appeal was lodged on 29 January 2019, this is outside the 42day time limit. Under this heading there is no provision for the extension of time and despite this the Review notes the appeal was filed on 29 January 2019 “having been granted extra time and I was appointed to conduct the review on the 15th March 2019”.

The Employer’s assertion that even if the appeal was filed outside the time limit that no “injustice” was done to the Employee, is difficult to understand in a sector where procedure and time limits are paramount in the organisation.

Consequently, I find the notification of the Review of the investigation was out of time and therefore, should not have been accepted and reviewed by the Employer.

Time Limit to Carry out Review

Under the heading “Review Findings in Writing” procedure provides a time limit of 30 days from the date of notification received to inform the parties of the findings of the appeal or review of the case.

It is noted that the procedure does allow for an extension of time where there is the consent of both parties:- “An extension to this time limit is acceptable only in cases where there is a justifiable reason and both the complainant, and the person complained of have indicated that they have no objections to the extension. A written record should be maintained outlining any reasons for the delay in the time limits.”

The appeal was notified on 29 January 2019, notification of the appointment of the Assistant Commissioner was sent to the Employee on 23 March 2019 and the final Review in writing, dated 23 August 2019. This was well outside the 30-day time period provided for in the Policy and repeated in the Appeal Process Flow Definition Chart. There was no reference to a written record noting the reasons for the delay. While it is accepted that the Assistant Commissioner did note that he was intending to take “some annual leave” and explained the 30-day time limited “may be hard to achieve but let’s see how it progresses.” At no stage did he seek the consent of the Employee (other than that the Assistant Commissioner seeking agreement that he undertake the review) nor did the Employee did not consent to an extension of time. The Employer’s submission that the delay in engaging the independent expert was a justifiable reason for the delay is not accepted.

Consequently, I find the Review was not conducted within the 30-day time limit provided in the Policy and therefore, is not in compliance with the Policy.

Audit

I requested that the Audit report be disclosed to the Employee. The Employer choose not to comply with this request. The Employee’s Solicitor wrote to the Employer requesting same. Again, the Employee choose not to comply with this request. The two reasons were given, at the first hearing date it was claimed that it attached legal privilege as it was carried out by a barrister and in its letter of 4 May 2021, it was claimed disclosure of the audit would set a “precedent”.

In the Review it is noted that the Assistant Commissioner elected to engage an independent expert to carry out an audit of the investigation. It is detailed in the Review that that an Assistant Commissioner met with the independent expert on two occasions; 20 June 2019 and again on 22 August 2019. Consequently, I find it is clear that the Audit did form part of the Review procedure and therefore, should have been made available to Employee.

Sanction

The Review refers to “Chapter 8.10 at page 34 provides for a range of actions”. Chapter or Section 8.10 is entitled: “Action where complaint is upheld” and provides; “Where a complaint is upheld, and the findings amount to a crime or gross misbehaviour, the Divisional Officer/Chief Superintendent may decide the matter is the subject of a criminal investigation or must be dealt with under the disciplinary regulations.”

The Review continues to apply sanctions of advice, workplace monitoring for a period of 6 weeks, awareness training and where there is a failure to comply the “question of transferring… should be progressed”. These are clear sanctions as advice, monitoring and awareness training are all provided for under Section 8.10 of the Policy

From reading the Policy it is clear Chapter/Section 8.10 flows from the Chapter/Section 8.6 on the Conduct of Investigation.

The Chapter/Section expressly states that where the complaint has been upheld it is for the “Divisional Officer/Chief Superintendent” to decide on the sanction. There is no provision allowing an Assistant Commissioner conducting the Review to decide and apply on a sanction under Chapter/Section 8.12 nor is there a reference to Chapter/Section 8.10. The summary chat of the Appeal Process Flow Definition Chart it states that the Assistant Commissioner can make “recommendations”

Consequently, there was no provision to impose the sanctions on the Employee by the Assistant Commissioner in his Review. It was not a de novo investigation of the original complaint, it was a Review as referred in his own report of 23 August 2019.

In the circumstances of this trade dispute I find that the Appeal Review completed on 23 August 2019 was neither conducted nor concluded in compliance with the “Working Together to Create a Positive Working Environment” Policy which lead to the sanctions incorrectly imposed on the Employee. Consequently, it is recommended that Appeal Review of 23 August 2019, associated Audit, sanctions and any other associated documentation be removed entirely from complaint file and the Employee’s file and/or record. I further recommend that the Employee be awarded the compensatory sum of €5,000 for the Employer’s failure to adhere to its own Policy.

Industrial Relations – Trade Dispute – Jurisdiction – Failure to Adhere to Internal Policies – Appeal – Review