Complainant

Respondent

Anonymised Parties

A Pharmacist

A Health Provider

Act

Dispute Reference No.

Date of Receipt

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

CA-00045665-001

13/08/2021

In April 2021 the complainant had two cases linked to each other (ADJ-00030029): one under The Payment of Wages Act and the other related to Bullying and Harassment under the Industrial Relations Act.

At the hearing he was asked whether the respondent had been notified of the complaint under bullying and harassment and whether he had used the internal mechanism to deal with these issues.  He had not as he said the internal mechanism had not worked to his satisfaction.

The Adjudicator in that case recommended him to avail of the internal procedure and if that failed again the WRC would deal with it. He advised the complainant tosubmitanofficialcomplaint within two weeksand expressed the view that the matter should be resolvedbyJuly 16th, 2021.

He submitted the complaint on April 20th, 2021 and subsequently received a request for clarificationbefore proceeding.

A meeting was arranged for June 10th, 2021, and progress was promised. On his return from leave nothing had happened, and he contacted the respondent on July 22nd seeking an update. He received a reply on August 4th promising action.

He replied drawing attention to the WRC deadline to resolve the issue and the lack of progress and expressing the view that he could now revert to the WRC.

He received no reply and referred it back to the WRC.

The complainant is a pharmacist employed on a sessional basis since March 2002.

The current referral relates to an earlier WRC Adjudication Officer recommendation, involving two claims under the IR Acts and Payment of Wages Act (CA-00039955-001 & 002) The payment of Wages Act recommendation was appealed by the complainant to the Labour Court, resulting in a Labour Court Determination

In his May 2020 recommendation, the Adjudicator recommended that a specific amount, arising from a loss of earnings due to a change in working hours arising from a clinic closure in August 2019, be paid to the complainant, Indeed the underlying material and substantive nature of the dispute between the parties remained regarding loss of earnings that continued into 2022.

The reality of the loss of earnings was not in dispute, but there were differing views on what calculations were reckonable and differences and delays in this regard led to allegations of bullying etc., by the complainant.

As part of the current complaint of August 2021 and the prior Industrial Relations complaint of September 2020 (hearing April 2021 and decision October 2021), the complainant has progressed a claim of bullying against one of its HR managers who was at that time the person dealing with implementation of adjudication outcomes.

In reviewing the complaint as submitted to the respondent, a reply was sent in September 2021 that matters between the parties must be correctly categorised as a grievance and not bullying etc., this being communicated in September 2021.

 The Complainant submitted his complaint on 20 April 2021 to the respondent which engaged on 13 May and 10 June, with correspondence issuing on 6 September 2021, obviously occurring before the decision issued, however this was after WRC referral on 13 August 2021, notified on 30 August 2021.

The complaint made to the employer following said adjudication was considered and reviewed by the employer, but it is very clearly not a matter than can be considered dignity at work or bullying etc. relevant to any definition or characteristic, as set out in our own policy or WRC guidelines for example.

As set out in correspondence of September 2021 the respondent advised the complainant that his complaint and issues, without prejudice, fall under the grievance procedure and that it was willing to undertake a stage 3 grievance hearing.

As internal procedures have not been exhausted and remain available despite the complainant’s refusal to avail of them, this WRC referral is premature as delays complained of, in this particular incident are actually, now of the complainants own making in not progressing a Stage 3 grievance hearing as the appropriate route to address his issues.

We note this submission does not make any comment on the actual particulars of the complaint, save it is a grievance in category and was lodged prior to the formal issuing of the prior adjudication recommendation ADJ-00030029, which the respondent views a having complied with.

The bullying allegation does not meet the requirements/criteria to progress to a dignity at work investigation due to its actual nature and should be progressed as a grievance based on our internal policies.

Accordingly, internal procedures have not been concluded and we remain available to utilise and exhaust our grievance procedure, as what is purported as bullying is actually a workplace dispute relating to IR matters.

We request that the Adjudicator not make a recommendation pursuant to the complaint at this time and we note the Workplace Relations Act requires individual procedures to conclude prior to Adjudicator investigation, which is not the case an present and it is therefore submitted that it is not appropriate for the Adjudicator to make a recommendation pursuant to the complaint.

The complainant has been told what the respondent views as the correct industrial relations channels, and again confirms its commitment to have a Stage 3 grievance hearing held by senior management and as soon as the complainant agrees to it will schedule it within two-weeks, despite being previously declined by the complainant.

The respondent met its commitment regarding the November 2021 IR Adjudication, in reviewing the complaint, however the current referral of August 2021 occurred prematurely before internal procedures had concluded and has actually had the effect of delaying any progress.

The facts of the matter are as set out above and are not in dispute.

In essence the complainant became impatient with the lack of progress in resolving a matter which had been referred back to local level at the suggestion of a WRC Adjudicator in the course of a previous hearing.

His impatience stemmed in part from an excessively literal interpretation on his part of the timelines which were informally suggested which clearly be seen now as poor judgment by the complainant.

Once the timelines had not been met he referred the matter back to the WRC even though he must have known that, had he persisted at local level, the matter would probably have been well concluded by now. The complainant’s somewhat dogged insistence on returning to the WRC was hardly in his interests or those of getting an early resolution to his own complaint.

In the event the parties reached an amicable agreement that they would, and as a matter of urgency, return to that stage without delay.

Timelines in the processing of workplace grievances are difficult to adhere to, despite the best intentions of all involved.

Nonetheless, the requirement to actually exhaust workplace level procedures will always trump some more minor failure to achieve such timelines, in the absence of some serious and wilful obstruction of the local level processes, which was not the case here, indeed the opposite. Considerable efforts were made by the respondent to make progress in the matter.

Both parties have agreed to seek to process the matter to a satisfactory conclusion and I recommend that this be done and concluded as soon as possible.

Workplace procedures.