Employee

Employer

Anonymised Parties

A Section Officer

A Health Service

Representatives

Mike McNamara Fórsa Trade Union

A HR Manager

Act

Complaint/Dispute Reference No.

Date of Receipt

Industrial Relations Act 1969

CA-00041097-001

17-11-2020

The Employee submitted a number of issues/disputes for adjudication primarily related to the processing of her grievance, back pay and the location of a promotional Post she applied for. The Employee provided a very detailed business background to the issues involved and how the issues have affected her at work. The Parties engaged in post Hearing correspondence on certain issues that arose at the Hearing.

The employee commenced employment in June 1994 and is currently employed as a grade VI Business Manager in the Business Support Unit.

The Employee says that between 2010 and 2014 there was a high turnover of Drivers arising from unfilled vacancies in the department. The employee alleged that in late 2013 early 2014 her own role and responsibilities began to change significantly. The new duties she was required to undertake put her at odds with the Drivers whose work she had been required to audit. 

Working relationships became particularly strained by the end of 2017 or early 2018 for a variety of reasons. She alleged that she raised concerns about the manner in which her employer was operating in breach of HR Policy and National Financial Regulations and she says that she had also cited the lack of HR support for the Mid-West. The employee also alleged that as time progressed she felt more and more excluded and that the actions/inactions of her manager created an atmosphere of division and exclusion.

In February 2019 the employee received notification of an internal audit.  Around this time she says that there was a significant decline in inter-personal relations between herself and her Line Manager. In July 2019 arising from the difficulties that the employee had encountered in the workplace, she made a complaint in writing to national management outlining her grievance against her line manager.    

The employee alleged that her employer has not and are not properly or adequately dealing with the complaint she raised with them, or with the Dignity at Work Allegations raised against her.  It is alleged that the employer is in breach of, or not adhering to the Employers own policies and procedures.  In the circumstances, the employee alleged that she has been denied the right to natural justice and fair procedures and says that the length of time it is taking for her employer to deal with her complaint has led to unacceptable difficulties in the workplace. 

The employee stated that arising from the poor work practices and non-adherence to the policies and procedures that she was trying to bring attention to, she was further excluded by management, resulting in her being labelled as a negative and un-cooperative team member in her place of work. The employee sought support in pursuing a job evaluation application and alleges that she was hindered in that process by her employer resulting in her making a complaint to the Workplace Relations Commission adjudication services. 

The employee stated that she subsequently applied for a Grade Vii competition which was clearly advertised stating that a position was assigned to West with no specific location requirement. She was successful at interview and placed on a panel, and came higher on the panel than some of her colleagues in the West. However, upon submitting an expression of interest for the position, she was advised that the position was actually assigned to Castlebar. She was offered the position in Castlebar however as she lives in Limerick she was unable to accept this offer. 

It was alleged by the employee that the roles/responsibilities of this position could have been completed from her current location and she believes that by assigning the specific geographical location of Castlebar after the panel had been formed that this was designed in such a way as to deny her the post. 

The principle of “Natural Justice” & “Fair Procedure” is recognised at law and is given constitutional protection amounting to a constitutional right. The effect of this protection is to guarantee the basic fairness of procedures. This Right is imported into the employment relationship, either explicitly or by implication and in simple terms, it means that the employer/management must apply fair procedures and act reasonably at all times when dealing with their employees.

It was submitted on behalf of the employee that the employer has a duty of care, which along with the requirements of natural justice, obliges the Employer, having published a Grievance Policy and a Dignity at Work Policy, to follow their own procedure as set out in that policy including adhering to the timeframes contained in the policy.

Arising from the inaction of the Employer in dealing with her complaints the employee was out sick as a result of the traumatic effect this whole matter was having on her health generally. 

In accordance with S.8-(2)-(b) of the Safety, Health and Welfare at Work Act, 2005 an employer is required to manage and conduct work activities in such a way as to prevent, so far as is reasonably practicable, any improper conduct or behaviour likely to put the safety, health or welfare at work of his or her employees at risk.  The Act states in Section 8. General duties of employer:

“Every employer shall ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees. 

Without prejudice to the generality of subsection (1), the employer's duty extends, in particular, to the following: 

managing and conducting work activities in such a way as to ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees;

managing and conducting work activities in such a way as to prevent, so far as is reasonably practicable, any improper conduct or behaviour likely to put the safety, health or welfare at work of his or her employees at risk”.

The phrase “improper conduct or behaviour” clearly contemplates the activities of individuals, rather than the traditional focus of safety and health legislation on protecting persons from the risks associated with articles or substances associated with the product or service in which the employer is engaged. Paragraph (b) of subsection 2 thus places emphasis on the need to manage interpersonal behaviour that may affect the safety and health of employees. It encompasses the need to prevent the adverse effects of stressful situations. 

In view of the foregoing the employee sought the following;

The procedures adopted by the Employer in this case did not comply with best practice, or with its own procedures or with the provisions of Statutory Instrument No. 146/2000, and 

That the procedures employed in this case to date failed to afford the employee access to fair procedures and deprived her of her right to have the matter dealt with in accordance with the principles of natural justice, and 

Require the employer to offer the employee a grade VII position for which she was successful at interview, and to make provisions for the work associated with the post to be done from a location at or near her current base, and 

Require the employer to pay the appellant an amount of compensation which is just and equitable in all the circumstances.

The Employee submitted significant background to each issue which is not necessary to elaborate on in this Recommendation.

The Employer contested that any trade dispute existed, pursuant to section 13(2) of the Act, especially with regard to a number of matters the Employee raised that relate to other parties and general dis-satisfaction.

The Employer summarised the matters as set out in the WRC complaint form as they understood them.

Advertisement & Filling of EOI Regional Supervisors 2014: staff assigned to Grade that did not exist, staff were paid shift allowance and premium payments, instructed to pay 10 hours overtime per week in lieu of on-call, no annual/sick or other type of leave was recorded

Advertisement & Filling of EOI Acting Station Supervisors 2016/EOI Officer 2017:

The Employer submitted a Report completed related to a Protected Disclosure covering all matters relating to the above complaints in 2016, which they now view as closed. As this was a matter that had an IR element, how posts were filled were subject to collective conciliation with SIPTU and resulted in agreement in early 2017 on how posts would be filled on a permanent and temporary basis, which the Employer view as now closed. As matters relate to collective IR matters, the Employer did not see how it could be described as a trade dispute with the Employee pursuant to section 13(2) of the Industrial Relations Act, 1969. 

 With regard to the following matters raised by the Employee, namely: 

Transfer of position numbers/WTE’s to another area. 

Engagement/Recruitment of Staff: positions upgraded through job evaluations.

Redeployment/Secondment of Staff: staff member redeployed into position where they did not fulfil one of the primary requirements for the role.

Redeployment/Secondment of Staff: staff member seconded to role in Medical Directorate in 2012.

Employer Response:

These were IR and operational matters and decisions affecting other staff members, whereby the Management  reserve the right to transfer staff within the Service, and this is based on the requirements and the exigencies of the Service. As matters related to individual IR and operational matters affecting other staff, the Employer do not see how it could be described as a trade dispute with the Employee pursuant to section 13(2) of the Industrial Relations Act, 1969. 

With regard to the following matters raised by the Employee, namely:

Staff Members on Career Break: staff member on career break from Area South was employed on a casual temporary basis by Area West.

Staff Members on Career Break: staff member who requested career break to work with another State entity– remained on the Employer payroll for more than six months.

Staff Members on Alternative Duties: completing duties of a higher grade for more than 12 months.

Employer Response: 

Management  would have facilitated staff with career breaks, and, each case was considered on an individual basis and based on the needs and exigencies of the service and the skill set of the staff member and enhancing the knowledge of the service.

Staff members completing duties of a higher grade for a period of time is due again to the exigencies of the services and the unforeseen delays in the recruitment of staff.  However, where this occurred, due to medical redeployment in accordance with company rehabilitation policy, terms and conditions of the new post applied and nothing unusual as pay scales between differing grades are not exact matches.As matters related to individual IR and operational matters affecting other staffs we did not see how it could be described as a trade dispute with the Employee pursuant to section 13(2) of the Industrial Relations Act, 1969. 

With regard to the following matters raised by the Employee, namely: 

Payment of Shift Allowance: shift allowance removed from some staff members but not all staff.

Release of Purchase Orders (Accounts Payable System).  Grade III Clerical Officer using Ambulance Officer (Grade VI) logon and password.

Employer Response:

The payment of shift allowance, when identified, was rectified and Management were not be in a position to discuss individual cases. The matter raised regarding the logon and passwords was addressed by Management in the time lag of the then proposed training of staff.As matters related to individual IR and operational matters affecting other staff, the Employer did not see how it could be described as a trade dispute with the Employee pursuant to section 13(2) of the Industrial Relations Act, 1969. 

With regard to following matters raised by the Employee namely: 

Furthermore, after highlighting these issues Management did not complete my job evaluation within a reasonable timeframe or neither was my upgrade backdated as per WRC recommendation.

Employer Response:

This matter originally relates to 2008 National Job Evaluation which the Employee  did not complete or submit the job evaluation process and has subsequently been subject to two WRC Adjudications in 2018 and 2019, under the Industrial Relations and Payment of Wages Acts and were not appealed by the Employee as allowed for in section 13(9)(a) of the Act, which the Employer believe is relevant pursuant to section 13(3)(1) of the Act regarding matters precluded having been previously raised and barred as a matter of jurisprudence and accordingly the Employer view such matters as closed.

The Employer are satisfied that they facilitated the Employee with a job evaluation as set out in the National Job Evaluation Scheme, which is a collective agreement and supported by national pay agreements and, therefore, the only option open to all staffs, which the Employee was afforded.

With regard to the following matters raised by the Employee ,namely:

After applying for a Grade VII Competition and being successful and higher on the panel than that of my colleague in the West. A competition which was advertised stating a position was assigned to West with no specific location. On expression of interest for the positions, the position was then assigned to Castlebar, I was bypassed.

Employer Response:

As per the attached job description the location of the Grade VII advertised was stated in the location of the job.  The Employee was not bypassed for the position. These posts had very clear designated locations decided upon by the Employer prior to advertisement.  The Employee declined an offer based on location of post.

The panel remains live and recently a post in Dublin was expressed out to the panel but was not accepted by the Employee.  Reference to other posts is not relevant due to the specific nature an operational requirement of the post at hand.

All Employer recruitment competitions have an independent appeals process available.

Summary: 

As per the Employer responses above, the Employer stated that the majority of matters complained of to the WRC are closed or resolved, or matters that could not be seen as an individual trade dispute.

With particular regard to job evaluation etc., including prior WRC Adjudication, the Employer  suggest that applying the nationally agreed job evaluation scheme has afforded closure.

With particular regard to recent recruitment, the Employer stated that  the requirements of the post were complied with, including offers made to the panel that the Employee is on, and, as recruitment is managed by National Recruitment Services, an independent appeals process is open to all parties on matters relating to recruitment concerns.

In addition to the above the Employer noted, that while not detailed in the WRC complaint form, there are a number of internal process underway, including complaints by the Employee and also complaints against the Employee, which we suggest would be prejudicial to address at any Adjudication.

The Employee submitted a substantial amount of detail about internal operating issues over time that she felt were either inappropriate to policy or procedures or that gave better treatment to other employees than she received. At the heart of this she claimed was a poor relationship with her Manager. In summary the Employees trade disputes (and that is all as Adjudicator I can concern myself with under the Industrial Relations Acts) relate to a slow grievance procedure, not allowing her take up a promotion in Limerick instead of Castlebar and back pay due to a promotion. While the advertisement for the promotion did not specify exactly the location for the post, thereby implying there was some flexibility in the situation, it is impractical and would be unfair to other staff who were either appointed or who might wish to apply for any future vacancy to recommend that the Employee be given the role in Limerick now and perhaps no business case exists for one now anyway. The post was generally advertised for the West and the Employees case is that when she was successful at interview the post was then assigned to Castlebar on the basis she would not transfer there. There is no credible evidence that this situation was “manoeuvred” by Management. Equally it would be not appropriate for an Adjudicator to suggest to an Employer where it should locate its staff.  

The Employer argued that it did what it could to investigate the grievances but that it took the necessary time to do so appropriately and all were closed off one way or another and they submitted supporting documentation to assist this. The Complainant obviously disagrees with this version of events. However, many if not all the issues relate to business issue and are not specific trade disputes to the Employee although she may have been involved in them due to her role.

Having assessed the submissions of both sides there is real clear-cut answer to the back pay issue.

While I have every sympathy for the Employees dedication to her role some of the issues she seeks to have addressed were of a business nature and outside the scope of my role. I note this and other issues are the subject of long running disputes between the parties and must lead to a difficult working environment.  I recommend that the best outcome for all concerned is to draw a line under all grievances and for the Parties and staff involved to move on with their lives. However, I do recommend that the Employee be compensated for everything she went through as there was no bad intentions whatsoever evident in the complaints and her diligent work. Finally, I recommend that the Employee be paid 5. 000 Euros compensation in full and final settlement of all the grievances under this complaint and her past grievances.

Promotion