Complainant

Respondent

Anonymised Parties

Operative

County Council

Representatives

Ms. Ger Malone, SIPTU

Mr. Keith Irvine, Local Government Management Agency

Act

Dispute Reference No.

Date of Receipt

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

18/08/2020

The Worker commenced employment with the Employer on 6th August 2015. At all times his role was described as that of “general operative” or “semi-skilled operative”. The Worker is a full-time, permanent employee and receives a set weekly payment of €724.00.

On 18th August 2020, the Worker lodged the present complaint and dispute with the Commission. On 19th November 2020, the Employer positively elected to engage in with the trade dispute as referred under the Industrial Relations Acts. A hearing in relation to this matter was convened and finalised on 19th July 2021. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing.

At the outset of the hearing, the Worker’s representative withdrew a complaint under the Safety, Health & Welfare at Work Act, 2005 and the hearing proceeded under the Industrial Relations Act only. Both parties submitted extensive written submission in advance of the hearing and expanded on the same during the hearing. No issues as to my jurisdiction to hear the dispute were raised at any stage of the proceedings.

The Worker is employed as a semi-skilled operative for the Employer. On 1st October 2018, in the course of his duties, a dispute arose involving one of his colleagues. This incident involved the Worker issuing an instruction to his colleague regarding the correct manner in which to scan for underground electrical cables. By response, the Worker’s colleague left the site, returned to the Employer’s yard and refused to return to the job. The following morning, the Worker’s supervisor brought him and his colleague to an informal meeting to attempt to resolve the issue. In the course of this meeting the Worker’s colleague presented a different version of events in which he falsely claimed the Worker was aggressive towards him. Following this meeting, the Worker’s colleague refused to work with him, staying in the canteen during his working hours. The following week, the Worker was informed that another colleague was also refusing to work with him. The Worker commenced a period of certified sick leave shortly thereafter.

On 8th January 2019, the Worker issued a formal grievance to the Employer regarding the treatment he received from his co-workers and the Employer. An initial meeting regarding this formal grievance was convened one month later, 8th February 2018, with terms of reference being agreed on the 25th of that month.

In early March 2019, the Worker was certified as fit to return to work. On 13th March, the Worker was issued with correspondence advising that he was to be transferred to another site for a period of 3 months, after which a review of the decision would take place. When the Complainant stated that he did not wish to move as he had done nothing wrong, he was advised that he would be disciplined if he did not accept the reassignment.

All witnesses to the incident were interviewed by May, apart from one suggested by the Complainant. As matters transpired, this witness had to actively pursue HR for a meeting. When this meeting was arranged, the witness was not happy with the line of questioning adopted by the chairman of the hearing. On July 2nd, the Worker received the meeting records and was invited to respond to the same. By response, the Worker stated that the investigators failed to identify the complaints made by the Worker, and did not properly interview the witnesses in relation to the same.

In or around September 2019, after spending 6 months reassigned to the alternative site, the Worker stated that the reassignment was only supposed to last three months and that the other parties were permitted to work together and at the original place of work . In light of the same, the Worker stated that he wished to return to the place of work. By response, the Employer in formed him that if he returned he would be disciplined.

The draft reports on the grievance were issued to the Worker on 30th September 2019, almost nine months following the initial complaint. This draft report did not uphold the Worker’s grievances, stating that it was reasonable to separate the parties for the duration of investigation, amongst other findings. The Worker responded to the same on 16th October 2019 stating that the investigator failed to identify the specific complaints, that he was penalised by having to move to an alternative site, that the colleagues should not have been indulged in their refusal to work with the Worker, that he was denied his presumption of innocence and that his data protection rights had been breached. Notwithstanding the same, the draft report was unchanged in its final form.

The Worker’s comments above were deemed to constitute his appeal of the same. Whilst awaiting the same, the Worker was informed that as of December 8th he would no longer have use of a company van. 

A meeting in relation to the appeal was convened, with the final report being issued on 13th March 2020, some 14 months following the receipt of the formal grievance. While this appeal found that the process adopted by the Employer was fair, it did identify some shortcomings on their part. In particular, it noted that the “inordinate length of time” taken to complete the initial report served to exacerbate matters. The report further noted that the Worker was correct in raising the matter of the incorrect scanning with his colleague and he should not face repercussions for doing so. The report also found that the Worker’s colleagues should not have been permitted to refuse to work with him and should have been threatened with disciplinary action should they have continued to do so. In conclusion, the appeal found that the Worker should be returned to the position he held prior to the incident in October 2018. In the event that he did not wish to return to the same, an alternative position should be sourced for him. The report further concluded that the employees that refused to work with the Worker should be reassigned to other roles. Finally, the report stated that the Employer should issue a statement to the effect that all members of staff should feel secure in raising issues of health and safety and should be encouraged to do so.

Following the issue of this report a number of discussions took place between the Worker and HR regarding alternative roles. Notwithstanding the same, no suitable alternatives were identified, in part due to the Worker not having use of a company vehicle. It was also noted that on the date of the hearing, the other two employees were not re-assigned from the original role as set out in the report.

In summary the Worker submitted that he was treated extremely unfairly by the Employer. He stated that he raised health and safety concerns in good faith, only to be subject to penalisation by the Employer. He stated that he investigation was fundamentally flawed and took an exorbitant amount of time to conclude. He stated that the findings of the appeal that were in his favour had not been implemented by the Employer. Finally, he submitted that he suffered significant financial loss and emotional distress as a result of the Employer’s actions.

By response, the Employer stated that the Worker’s grievance was fairly and thoroughly investigated in line with all the Worker’s legal and contractual rights.

Following the lodgement of the Worker’s formal grievance on 8th January 2019, a senior engineer was appointed to investigate the Worker’s grievance and other, related grievances that had arisen. Terms of reference were issued to the Complainant’s representative on 11th February 2019 and agreed shortly thereafter. On 14th March 2019, the Complainant agreed to be temporarily reassigned for the duration of the investigation. The relevant parties were interviewed between April and September 2019. A draft report was issued on 30th September 2019, this report suggested the possibility of separating the parties by assigning them to different roles within the organisation. The Worker did not accept this find and issued a lengthy appeal of the finding.

On 8th November 2019, the Worker expressed his intention to resign. By response the Employer suggested a number of alternative roles that maybe suitable for the Complainant, however these were refused as he would not have the benefit of a work vehicle. On 6th January the Worker issued a doctor’s note that stated that he could not work with the individuals that were the subject of the original grievance. Representative for the Employer met with the Worker on 14th January 2020 and 10th February 2020 to discuss the available options to transfer.

On 12th March 2020, the appeal of the Worker’s grievance was issued. This appeal found that the process adopted by the Respondent was fair and that the Worker should be either returned to his previous role or moved to a suitable alternative. Meetings were arranged for 19th May 2020 & 22nd June 2020 regarding suitable alternatives. The Worker emailed the Employer on 6th July seeking confirmation that the other two employees had been moved from the department, the Employer responded on 14th July 2020 stating that the recommendations were being implemented. The matter was duly referred to this forum on 18th August 2020. 

In summary the Employer submitted that on receipt of the Worker’s grievance they invoked the formal grievance procedure. This process respected all of the Worker’s rights, however by its nature it took some time to complete. Following the completion of the process, the Employer has sought to implement the recommendations of the appeal report on numerous occasions, however the Worker refused all alternative roles that were suggested to him and on the date of the hearing he remained absent from work.

The present matter involves numerous meetings, several reports and an extensive appeal, all originating from one incident in October 2018. Regarding the incident in question, it is clear that the Worker was attempting to ensure that best practice regarding an important health and safety practice was complied with. The Worker’s colleague evidently took issue with the manner in which the Worker relayed this information and matters progressed from that point, with the parties becoming ever more entrenched in their views and reconciliation seeming an increasingly remote possibility. It is the position of the Worker that the actions of the Employer exacerbated this already difficult situation and caused him significant financial damage and emotional distress.

The first point which must be examined in this context is the Employer’s action of separating the parties from the moments immediately following the incident. In this regard, I note that at this point the Worker appeared perfectly happy to continue working with his colleague. Indeed, it was his colleague that refused to work with him, instead being permitted to spend time in the Employer’s canteen during working hours. At this point, no formal grievances had been raised by any party, and it is difficult to comprehend why the colleague in question was permitted to simply to refuse to work with the Worker. As noted in the appeal report, employees do not generally get to dictate who they will and will not work with unless extremely good reasons are advanced. Given that no formal grievance had been raised at this point, it is difficult to understand why this was permitted for such a lengthy period of time, particularly when the Worker was repeatedly threatened with disciplinary action for attempting to return to his normal place of work at a later point in the proceedings.

These matters took a more serious turn when the Employer unilaterally elected to move the Worker to another location for the duration of his grievance investigation. While it is not unusual for parties to be separated in this manner whilst a formal grievance is being investigated, in this instance the Worker was the party that instigated the grievance in the first instance and was the potentially injured party. It is not apparent that the other colleague, being the person that refused to work with the Worker, was ever asked to move role or be re-assigned in the manner imposed on the Worker. I also note that this move was imposed on the Worker unilaterally, and that he only complied under threat of disciplinary action.

In these circumstances, it would be reasonable to assume that the investigation would be completed as expeditiously as possible. As matters transpired, the investigation took almost nine months to complete, correctly described in the appeal report as an “inordinate length of time”. While the Employer stated that the delay arose due the number of witnesses to be interviewed, I note that this investigation was not particularity complex and should have been completed in reasonably good time. I further note that during this period, the Worker was reassigned under protest and threatened with disciplinary action for attempting to return to his previous role.

When the investigation process finally concluded with the issue of the appeal report in March 2020, the report found that while the process adopted broadly respected the Worker’s rights, the issues of his removal from his post and the delay in concluding the investigation caused significant difficulties for the Worker. While the Worker stated that he was not entirely happy with this outcome, it is also evident that he was not in opposition to the findings therein. Immediately after the report was deceived he enquired as to when the findings would be implemented by the Respondent and numerous meeting where held thereafter to this purpose. To the Employer’s credit it appears that they met with the Worker in good faith in order to implement the finding of the report. One point that appeared to cause some difficulty in this regard was the matter of the provision of a company vehicle. While the employer stated that certain roles do not require a vehicle, I note that Worker previously enjoyed this benefit in his previous role and should be provided with the same in any new role offered.

Having regard to the totality of the foregoing, I find that the Worker was treated unfairly in being unilaterally removed from his place of employment in such a manner and that the delay in finalising the process served to exacerbate an already difficult situation. Having regard to the foregoing, I recommend in favour of the Worker.

I find that the Worker was treated unfairly in being unilaterally removed from his place of employment and that the delay in finalising the process served to exacerbate an already difficult situation. Having regard to the foregoing, I recommend in favour of the Worker.

Given that the process has already completed, I recommend that the Employer implement the findings of the appeal report. A meeting should be arranged between the parties within 14 days of the date below for this purpose. I further recommend that the Worker should receive €7,000 in compensation in settlement of the dispute.