Worker

Employer

Anonymised Parties

A Porter

A Health Service Provider

Representatives

Marie O Connor SIPTU

 Self Represented

Act

Dispute Reference No.

Date of Receipt

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

IR - SC - 00000295

23/05/2022

The Worker has worked as a porter for the Employer, a health service provider, since the 28th of November 2016.

The Worker has lodged grievances against a colleague, Ms X, beginning in December 2017. These grievances allege degrading treatment by Ms X. The Worker’s initial grievance was acknowledged by the Employer in December 2017. SIPTU followed up in February 2018 seeking the matter move to a hearing. The Employer arranged a stage 1 hearing on the 12th of April 2018 and sought to have the parties meet face to face which the Worker agreed to.  This meeting was first scheduled for early June 2018 however this was called off at the suggestion of the HR Manager in order to arrange an independent mediator.

The process proposed by management fell apart in August 2018 as the Worker sought to have representation at the meeting and Ms X’s Union advised against the format.

The Worker submitted further grievances concerning Ms X in September 2018.

A mediation meeting was attended by both parties in late 2018 but there was no positive outcome. In December 2018 SIPTU again asked for a hearing.

Sometime in 2019 Ms X went on long term sick leave. Ms X returned to work in Spring 2021.

The Worker’s Union began writing to the Employer again from September 2021 seeking the matter be progressed. In October 2021 the Employer notified the Worker’s Union that the matter was being referred to an investigation team. Mrs X’s line manager referred Ms X to occupational health around this time to assess her fitness to engage with a Dignity at Work investigation. Occupational Health recommended that Ms X not be subject to such a process at that time and management put the investigation on hold. This position was restated to the Worker’s Union in January 2022.

Following a continued lack of investigation of the matter the Worker referred the matter to the WRC in May 2022.

The Employer sent the Worker draft terms of reference proposed by their investigations unit in June 2022.

A remote hearing was held to consider the Worker’s complaint under the Industrial Relations Act on 17th of November 2022, nearly 5 years since the Worker first submitted a grievance. No investigation had commenced at the time of hearing.

The Worker attended the hearing, represented by his Union Official, Ms O’Connor.

The Employer was represented by their HR Manager and her colleague who was the person in charge of the investigation process.

The Worker’s Union made full written submissions ahead of the hearing and went through them at the hearing.

The Worker’s Union argued that the Employer had delayed so excessively in dealing with this matter it was in breach of its own dignity at work policy

The Union was clear it has no issue with the investigations unit but with the Employer who was ultimately responsible for the delay. That the Employer had a duty of care to their employee which they have totally failed in by not investigating his grievances.

The Union contends that it was unprecedented that a person might be fit to attend work but not to deal with an investigation into their alleged conduct towards colleagues.

The Union was of the view that communications from the Employer had been inconsistent and lackadaisical. The Union noted that the Terms of Reference for the investigation of the matter issued in June 2022 and not clear why this has stalled further.

At the hearing the Worker spoke of the impact the delay had had on him. He had a serious issue which was not being resolved. He had ultimately had chosen to change departments to avoid Ms X and still regularly sees her around work. It has been extremely stressful for him.

The Worker is paid €1274 per fortnight.

The Worker’s Union is seeking a recommendation that the Employer have the matter prioritised and investigated without any further delay.

The Worker’s Union is seeking compensation for the manner which they have been treated by the Employer.

The Employer did not make any written submissions. The Employer’s HR Manager outlined their case at the hearing.

The Employer objected to the matter being heard for reason that it might impact on the investigation process being carried out by the investigations unit.

The Employer accepted much of SIPTU’s submission.

The Employer outlined that Ms X had been certified absent for two years and that she had returned to work on a phased basis.

The Employer accepted that this process had gone on too long and that the HR department was now following up with the investigations unit. The Employer confirmed they had emailed the investigations unit the day before the hearing and would call again the following day and ask for investigators as a matter of urgency.

The Employer submits that they cannot second guess occupational health and is limited in the updates they can provide to the other side because of GDPR. The Employer had asked occupational health specifically whether Ms X was fit to engage with an investigation and this came back as no.

The Employer argued that there were significant delays due to covid.

The Employer submitted that Ms X’s last occupation health assessment was in February 2022.

The Employer argued that there is no basis for compensation for delay. That they have tried be as reasonable as they can to both parties and were delayed by trying to resolve the matter informally.

The Employer submitted that 5 years is extremely long delay but not necessarily unusual.

The Employer accepted that the occupation health report recommendation regarding Ms X is no longer the source of the delay, and that the Employer was comfortable proceeding since the Terms of Reference issued in June.

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

Regarding the Employer’s initial point, I do not accept that my investigation of this dispute should affect the substantive investigation into the Worker’s grievances. The Worker’s complaints are limited to the delay experienced to date.

The Employer has accepted much of the Workers case and has agreed to the central demand that the investigation be prioritised. 

There is clearly an unacceptable delay in this matter and a lack of information being shared with the Worker’s representatives. It only emerged during the course of the hearing that Ms X’s health had not been the cause of the Employer’s delay for some 5 months. While there are some justifiable reasons for delay in this matter there is no reasonable basis for the matter to be delayed for 5 years. The reasons given for delay by the Employer seem at times to be inconsistent and the follow up from the Employer has been extremely poor.

While these processes can be difficult to manage the Employer had an obligation to the Worker to progress his grievance in a timely fashion and to provide appropriate updates and follow up when they could not. They have failed in this obligation to the Worker.

The Employer appears to be attempting to remedy this failure by pushing ahead with the investigation now however I am of no doubt that this change ultimately came from the Worker’s Union referring the matter to the WRC. A worker should not have to refer their employer to the state’s industrial relations dispute resolution system in order to have their employer engage with them properly and investigate their grievances.

I conclude that the Employer breached its own policies and its duty of care to the Worker and that compensation is warranted. 

Investigation, Delay, Dignity at Work