FULL RECOMMENDATION
PARTIES : TESCO IRELAND LIMITED DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No(s). ADJ-00030569, CA-00040926-001. A Labour Court hearing took place on 15 December 2021.
This is an appeal by the Worker of Recommendation ADJ-00030569 of an Adjudication Officer in respect of the Worker’s grievance. The Adjudication Officer held that he could not make any recommendation. Worker’s submission The Worker has been employed with this Employer since 2007 and has an unblemished record. On the 20thFebruary 2018 the Complainant brought a grievance to the attention of the Employer in respect of interactions with his line manager. The following day the Worker was certified unfit for work by his General Practitioner and remained unfit to attend work until his dismissal on the grounds of ill health on the 11thJanuary 2021. On the 8thOctober 2019 the Union wrote to the Employer requesting that the Worker’s grievance be processed. No response was received, and the Union wrote again on the 14thNovember 2019. The Employer then engaged with the Union to arrange a date to hear in detail the Worker’s grievance. Unfortunately, the Worker advised that his GP had not deem him fit to attend the meeting. A further two dates were agreed between the Union and the Employer and on both occasions the Worker advised his Union that his doctor had certified him unfit to attend. On the 27thOctober 2020 the Worker submitted a new grievance to his Union which the Union forwarded to the Employer requesting an urgent meeting. On 9thNovember 2020 the Union sent a reminder to the Employer. The Employer replied advising that “I am considering all the information I have to date in relation to your absence as to whether or not there is merit in continuing to hold your position open for you for a further period”but there was no mention of a formal meeting to address the Worker’s grievances. The Worker’s complaint was referred to the WRC on the 11thNovember 2020. It is the Worker’s contention that the Employer is in breach of their own policies in terms of their failure to address his grievances. Employer’s submission The Worker went absent on sick leave on the 20thFebruary 2018. On the 27thApril 2018 the Worker raised a grievance. In an attempt to resolve the grievance, the Respondent wrote to the Worker on the 30thApril 2018 and on numerous occasions after that requesting meetings to address his grievances but to not avail. A number of welfare meetings were arranged with the Worker in 2018 and 2019, during these meetings the Worker was offered support in terms of roster changes, change in department, access to EAP but he failed to engage with the process. The Worker was also guided through the grievance procedure and how it works. On the 14thNovember 2019 the Worker documented three incidents that he alleged occurred over the period 2016 to 2018 but no specific dates or witnesses to the events were identified. On receipt of this information the Employer investigated the incidents he raised, a statement was provided by a colleague who recalled an informal discussion between himself the Worker and the previous store Personnel Manager. The line manager who the worker alleged was bullying him was met and he provided a statement refuting all the allegations against him. The Worker was invited to grievance hearings on 22ndNovember 2019 and 12th December 2019 but failed to attend. By letter of 20thJanuary 2020 the Employer outlined that they had made several attempts to engage with the Worker in relation to his grievance and noted that he had failed to attend any of the meetings they had arranged or provide alternative dates. The Worker was provided with a further opportunity to engage with the Employer in line with the grievance procedures and invited to a grievance hearing on 31stJanuary 2020. In parallel the Employer was managing the Worker’s long-term absence. An Occupational Health assessment was conducted in September 2018 and concluded that the Worker was medically fit to return to work and fit to engage with his work-related concerns. However, the Worker maintained he remained unfit to return to work. A further Occupational Health assessment was carried out on 30thJanuary 2019, but the Worker did not consent to the Employer receiving the report. On the 6thJanuary 2020 the Worker was invited to attend a review meeting and was advised that if he could not attend he should provide a report from his Doctor. He was also advised that if he failed to attend or to provide a report the meeting would take place and a decision would be made as to whether there was any merit in keeping his position open. The Worker failed to attend the meeting or provide a doctor’s report and the decision was taken to place him on notice of termination. Prior to the notice of termination issuing, the Worker sent a further email requesting that his grievances be addressed. Between the 27thMarch 2020 and 22ndApril 2020 the Employer emailed the Worker on a number of occasions seeking to engage with him in respect of his grievances but the Worker failed to confirm his willingness to process them through the procedure and would not attend a meeting with the Employer. On that basis the Employer was left with no alternative but to close the grievances. While there was further correspondence from the Worker, no progress was made, and the Worker referred the issue to the WRC on the 11th ofNovember 2020. It is the Employer’s submission that they tried to engage with the Worker around his grievances, but he refused to engage with them, and the process could not proceed without his engagement. The employment relationship between the parties has now come to an end. Decision The Court notes that the Employer actively sought to engage with the Worker in respect of his grievances but the Worker either was not in a position to engage or chose not to. It is a requirement of any grievance procedure that both parties engage with the process. It is not enough for the Worker to make a complaint and expect the process to continue without any further input from him. The failure by the Worker to engage with the Employer in respect of his grievance as set out above, left the Employer with no option but to close the grievance. The Court decides that the Complainant’s appeal fails. The decision of the Adjudication Officer is varied to reflect the decision of the Court set out above. The Court so decides.
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