Worker

Employer

Anonymised Parties

Worker

Health Service

Act

Dispute Reference No.

Date of Receipt

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

16/03/2021

The background to this dispute concerns a grievance made against the employee by another colleague in 2019. That complaint was based on supposition and attributing an alleged offensive act made to a personal belonging that in turn was not preserved or kept so that it could be examined as part of the investigation. The first stage of the investigation concluded that the evidence was inconclusive. The investigation manager arrived at that conclusion as he wished that the parties engage in mediation.

The worker stated that as there was no conclusion that in turn created a suspicion that he in fact was the culprit. There was no evidence whatsoever to maintain the claim. The worker stated that there was a difficult work atmosphere that developed in recent years.  The Union stated that they had attempted to resolve the matter over many months, and they had little engagement on the matter.

This was a difficult case. The line manager’s intentions were to move from a blame situation to a conciliatory intervention. However, that was not possible when the employee was certified absent from work. The decision could have been appealed and was not.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

There never was any evidence that could support the allegation. The failure to categorically state this in the investigation and the awkwardness of the language in the conclusion could create an impression that there was some evidence but not enough evidence to maintain the allegation. However, the reality was there was no evidence and what occurred was a complaint based on supposition and a degree of animus that existed between two work colleagues. What resulted because of the indeterminate conclusion was a suspicion of possible guilt and that in turn was destabilising and upsetting.

Any third party reviewing the evidence would see that was so and there never was any case against this worker alleging that he has committed an offensive act on the property of another work colleague. That should have led to the complaint being determined as not well founded.

While Covid has legitimately caused a delay in resolving disputes and there were some extenuating circumstances in this case, such as the absence of a manager, the bottom line was there was never any case to answer. This case commenced in 2019 and should have ended in 2019. The failure or omission to close this case and to properly determine that it was not well founded has given rise to unnecessary anxiety.

It is true that the matter could have been appealed; however, this disguises the fact that there was an extensive exchange of correspondence from the Union to the employer that demonstrated a reticence and inexplicable delay on the part of the employer to meaningfully engage with the representative so that the matter could be fairly resolved.

The worker is being denied a very basic right that the matter be investigated fairly and efficiently. The delay has created very significant stress to the worker. He also has suffered a very significant financial loss. I am aware of previous cases of a worker v HSE dated 22nd August 2013, where a Right’s Commissioner awarded the complainant compensation of €5000 for the inexcusable delay of 2 years to complete the investigation and in a Nurse Manager and Hospital ADJ 00013782 where the complainant received €5000 for inexcusable delay.

However, allowing for the circumstances of this case the indeterminate conclusion was not made to delay the investigation. It was crafted in the belief that it would assist the two work colleagues to engage in mediation. Unfortunately, the plain reading of the finding raised the possibility that the matter was not concluded.

In these circumstances I recommend the following:

1.       That the worker subject to being medically fit to work; return to his substantive role.

2.       That it be noted on the worker’s personnel file that there was no case to answer concerning this matter and that the complaint was not well founded.

3.       That the worker be placed on a transfer list to be considered for suitable positions in other areas of the service.

4.       That the employer pays the worker €3000 compensation having regard to the consequences of the indeterminate finding; an amount that takes on board that initially the manger attempted to mediate a resolution. However, it must be noted that the employer did fail to meaningfully engage with the Union Representative over a very protracted period.

Delay-No case to answer