FULL RECOMMENDATION
PARTIES : DUBLIN BUS (BUS ATHA CLIATH) DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer's Recommendation ADJ-00033948. This is an appeal by the Worker from a Recommendation of an Adjudication Officer (ADJ-00033948/CA-00044849-001, dated 22 February 2022. Notice of Appeal was received by the Court on 8 March 2022. The Court heard the appeal in Dublin on 1 July 2022. The Dispute: The Worker is employed by Bus ?tha Cliath (‘the Company’) as an engineering operative at its Harristown garage. An incident occurred adjacent to the clock-card machine in the Harristown garage on 3 April 2020. A colleague accused the Worker of interfering with the latter’s clock card. The Worker alleges that his colleague was aggressive and intimidating in his approach to him. The colleague made a written complaint to management on 3 April 2020 alleging that the Worker had tampered with his clock card. (This complaint against him was not brought to the Worker’s attention until some months later.) On 16 April 2020, the Worker raised a formal written grievance in which he alleged he had been ‘harassed’ by his colleague in the course of their interaction on 3 April 2020. In or about that time, the Worker commenced a period of extended sick leave from which he did not return until April 2022. The Worker’s manager acknowledged receipt of the grievance by letter dated 23 April 2020 but advised the Worker that he would not be in a position to complete his investigation until the Worker returned from sick leave. The Worker was referred to the Chief Medical Officer (‘CMO’) for assessment on a number of occasions. The CMO confirmed that the Worker remained unfit for work but fit to engage with the Company. In November 2020, the Worker’s manager sought advice from the Company’s Human Resources Department. He was advised that the normal and agreed Company-Union protocol whereby investigations involving a worker on sick leave are not progressed pending the worker’s return to work could be departed from in the circumstances that applied in the Worker’s case. A meeting was then convened on 14 December 2020 to progress the Worker’s grievance. The Worker attended with his Union Representative. The Worker’s manager was present along with a clerical staff member who acted as notetaker. A second meeting took place on 12 February 2021 at the Worker’s request. On 16 February 2021, the manager wrote to the Worker to advise that he had completed his investigation and had prepared a draft report but was not in a position to issue it to the Worker until he returned to work having regard to “the terms of the Company Grievance Policy and Procedure, section 4 “Policy" page 2, which states that an employee will continue to work normally during the operation of this procedure”. The manager again sought advice from Human Resources on the basis of which he proceeded to issue his report to the Worker. The report concludes with the following summary: “I acknowledge that an incident between both parties, which consisted of a verbal exchange, did take place as outlined by both in their statements and related correspondence received. But as this was a one-off episode it cannot be construed as bullying or harassment which can only be considered if a previous history of related episodes is documented and reported. In this case it is not.” The Worker appealed the outcome of his grievance complaint to the HR Services Manager. That appeal was heard on 28 April 2021. The appeal was not successful. The Complaint before the Court: The Worker submits to the Court that: “the Company did not follow fair procedures and natural justice, the investigation was extremely and unreasonably lengthy. Furthermore, it became clear that the grievance process was not impartial”. He is seeking an award of compensation. The Company submits that it conducted a fair and thorough investigation into the Worker’s grievance and that it made an exception for him by concluding the investigation while he remained on long-term sick leave. It further submits that the Court should not make an award of compensation in the circumstances. Discussion and Decision: The Court acknowledges that a longer than desirable period of time elapsed between the date the Worker submitted his grievance complaint and the date on which he was issued with a written outcome. However, the Court accepts that the established practice in place, and agreed with the Trade Unions, is that investigations of this nature are not progressed while the worker concerned is absent on sick leave. The Worker’s prolonged absence from the workplace in this case was, therefore, a factor that contributed in no small way to the delay that occurred. Having carefully considered both the Worker’s and the Company’s detailed written and verbal submissions, the Court finds that the Company applied its grievance policy and procedure, up to and including the appeal stage, in a fair and reasonable manner in dealing with the complaint raised by the Worker on 15 April 2020. The appeal, therefore, fails and the Recommendation of the Adjudication Officer is varied accordingly. The Court so decides.
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