Employee

Employer

Anonymised Parties

A Clerical Administrator

A Healthcare Provider

Representatives

Brian Hewitt, Unite

Lorraine Smyth, Byrne Wallace Solicitors

Act

Dispute Reference No.

Date of Receipt

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

CA-00039386-001

26/08/2020

The employer organisation in this case is engaged in the provision of services to adults with an intellectual disability.  In November 2015, the employee commenced working with them in the role of a pensions administrator.  She is a part-time employee, working half the standard working week and her annual salary is just over €22,000.

In November 2019, the employee submitted a complaint under the organisation’s Dignity at Work Policy concerning how she was treated by a senior manager in March and May 2019.  An investigation was carried out by an independent consultant and in May 2020, he issued his findings.  He concluded that the way the senior manager spoke to the employee on May 8th 2019 and the following morning, May 9th, was a breach of the organisation’s Dignity at Work Policy.  He found that a conversation that took place in March 2019 did not constitute a breach of the policy.

The employee was out sick due to stress from January 2020, and, when she submitted this grievance to the WRC on August 26th 2020, she had not returned to work.  She sought several recommendations from me, as the adjudicator, to bring her grievance to a close.  Arising from discussions with the CEO, in November 2021, the employee returned to a new role in a different location.  At the hearing, she said that she is happy in her new job.  When I asked her what she expected from this hearing, she said that she is seeking the following:

1.           Compensation for her loss of earnings while she was out sick and compensation for her medical expenses;

2.           An apology from the senior manager who was the subject of her complaint;

3.           Because she was absent for 21 months due to work-related stress, she wants to be treated as if she had not been out sick so that, if she is absent again during the period remaining in the “rolling four years” since January 2020, she can still avail of sick pay.

The employee submitted a comprehensive document to the WRC setting out her grievance with the organisation.  From this document, and, based on her presentation of her case at the hearing, it is apparent that, aside from her complaints of verbal abuse in March and May 2019, she has a grievance about how she was treated since she submitted her grievance.  The employee claims that she has not been treated with respect or justice.  She claims that she was not provided with a copy of the full version of the investigator’s report until it was requested by her union representative.  She complained that she was not offered the opportunity for redeployment and that the HR department made no attempt to help her to return to work.  Since she returned to work, the employee said that there has been no return-to-work meeting with anyone from HR, or any follow-up regarding her mental health.  She also complained that, during the Covid-19 pandemic, she was not offered the option to work from home, whereas a temporary employee who was recruited to replace her was permitted to work from home for part of the week.  She said that it wasn’t until April 2021, that she was informed that the pensions function, and consequently, her job, was moved to the responsibility of the finance department in January 2021. 

At the hearing, the employee said that her medical reports are clear that she was unfit for work in the pensions department.  She claims that she could have returned to work sooner if she had been offered a transfer sooner.

On behalf of the employer, Ms Smyth from Byrne Wallace Solicitors said that the investigator’s report into the employee’s grievance was issued to the CEO in May 2020.  On May 22nd, the CEO wrote to the employee summarising the investigator’s findings.  Ms Smyth said that there was a misunderstanding regarding whether it was up to the CEO to decide if the full report should be issued to the parties, whereas the Dignity at Work Policy provided that it should be issued.  On June 8th, the report was issued to Mr Willie Quigley of Unite, who was then representing the employee.

Ms Smyth said that the investigator did not recommend that the employee should be transferred from her role in the pensions department.  As there is no right to redeployment in the organisation, the employee could not be simply moved from one job to another.  During the Covid-19 pandemic, there was very little movement of administrative employees, and very few vacancies were advertised.

Ms Smyth pointed out that the employee’s line manager was the pensions manager, and not the manager about whom she made a complaint.  Her line manager was out sick when the altercations of March and May 2019 occurred, but she was back at work in September 2019.  At the hearing, the CEO explained the layout of the offices where each person worked and she said that the employee worked in a separate office from the person she complained about, and she could have come back to work after the investigator’s report was issued in May 2020.  However, the CEO accepted that, for the duration of her absence, the employee was suffering from stress and could not be requested to return to work.  The CEO said that the medical reports from the organisation’s occupational consultant are clear that the employee was unfit for work, and not that she was unfit for work in the pensions department.  The CEO said that, as soon as a temporary position became available, it was offered to the employee.  An application has been submitted for approval to have this job regularised as a permanent position.

Before she took up her new role, the CEO said that the employee had a meeting over Zoom with two of the managers in her new department.  Following this meeting, she wrote to say that the proposed job seemed like a good fit.

It is the employer’s position that the matters which are set out in the employee’s complaint form have been addressed, resolved or agreed between the parties.  Ms Smyth said that most of the issues were resolved before the employee submitted this grievance to the WRC.  The most significant change since then is that the employee has been offered a new role in a location of her choice, on a temporary basis.  I note from the CEO’s statement that she is hopeful that this will be a permanent role and she confirmed that the employee is doing the job well.

I have considered the written submissions provided by the employee and the employer in this case and I have taken account of the presentations made at the hearing itself.  It is my view that the employee’s grievance has been appropriately investigated and that the findings of the investigator in May 2020 are reasonable. 

I note that, in her letter to the investigator after she received his preliminary findings, the senior manager acknowledged that she spoke in an inappropriate manner to the employee on May 8th 2019 and she apologised for this.  The context of their altercations was a situation in which the manager was attempting to deal with an issue in the absence of the pensions manager, and the employee was also under pressure due to her manager’s absence.  It is my view that, with some consideration and tolerance, the issue might not have required an independent investigation.

The employee complained that no effort was made to identify an alternative job where she would not have any contact with the senior manager.  Any initiative of this kind could have been seen by the employee as an attempt to punish her for making a complaint and it was not recommended by the investigator.  Heated conversations are not unusual in workplaces, and, in most organisations, it is not possible to transfer to a different job and people generally find ways of getting on with each other.  Fortunately for the employee in this case, a transfer opportunity was identified.

It is my view that the employee could have returned to work in May 2020, and, in this way, she would not have suffered the loss of earnings to the degree that she did.  The findings of the independent investigator in May 2020 upheld her grievance.  By that stage, the pensions manager had returned from sick leave and, if the employee had gone back to work, she would have had very little contact with the senior manager.  She worked from around 7.00am / 7.30am until 12.00pm / 12.30pm.  In her statement to the investigator, the senior manager said that she found it difficult to speak to the employee because she herself was generally in meetings in the mornings and the employee wasn’t at work in the afternoons.  With her own manager back at work, all necessary communications could have been between the two managers.  For this reason, I find that responsibility for her loss of wages rests mostly with the employee herself.

I am satisfied that the employer has dealt reasonably with the employee regarding how her grievance was handled, and with how she was facilitated to return to work in a different job in a different location, as she requested. 

I recommend that no further action is taken by the employer in relation to this grievance and I recommend that both sides treat the matter as closed.

Grievance, independent investigation, dignity at work