LCR22570

FULL RECOMMENDATION

SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969

PARTIES :

WATERFORD CITY & CO. COUNCIL
(REPRESENTED BY LGMA)

- AND -

A WORKER
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)

DIVISION :

SUBJECT:
1. Appeal of Adjudication Officer Decision No(s). ADJ-00035715, CA-00039216-001.

BACKGROUND:
2.Both parties appealed the Adjudication Officer’s Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. The Employer lodged their appeal on 9 December 2021, the Worker lodged his appeal on 16 December 2021.

On 22 November 2021 the Adjudication Officer issued the following Recommendation:-

“I find the Worker was treated unfairly in being unilaterally removed from his place of employment and that the delay in finalising the process served to exacerbate an already difficult situation. Having regard to the foregoing, I recommend in favour of the Worker.

Given that the process has already completed, I recommend that the Employer implement the findings of the appeal report. A meeting should be arranged between the parties within 14 days of the date below for this purpose. I further recommend that the Worker should receive €7,000 in compensation in settlement of the dispute. ”

A Labour Court hearing took place in a virtual setting on 14 March 2022.

DECISION:

This matter before the Court is a double appeal by Waterford County Council and SIPTU, on behalf of worker, of an Adjudication Officer’s Recommendation (ADJ-00035715).

The Adjudication Officer found that the Worker was treated unfairly when he was unilaterally transferred to another work location, and as a result of delays in completing his formal grievance. The Adjudication Officer recommended that the Employer implement the findings of the Appeal report and that the Worker receive €7,000 in compensation in settlement of the dispute.

SIPTU, on behalf of Worker, appealed that recommendation as it did not adequately address the Worker’s concerns into the future and the compensation awarded was insufficient. The Council’s appeal primarily relates to the retention of a jobs needs company vehicle by the Worker.

The matter before the Court is a protracted one which stems from an incident in October 2018 when a colleague took issue with an instruction issued by the Worker about scanning underground electrical cables. Following this incident, the colleague and another colleague refused to work with him.

Thereafter, the Worker was absent on sick leave for a prolonged period, during which time he lodged a formal grievance about the treatment that he received from his co-workers and the manner in which his Employer had dealt with the issue.

When certified fit to return to work in March 2019 he was transferred to another site on a temporary basis. His two colleagues remained at his original place of work. After six months, the Worker sought to return to his original place of work. This request was refused, and he was informed should he return there he was liable to be disciplined.

In September 2019, the outcome of the formal grievance issued. His complaints were not upheld. The Worker appealed that finding on the basis that the employer had failed to address his specific complaints and that he was penalised by his transfer to an alternative site.

An appeal outcome report issued in March 2020 and held that the process followed by Employer was fair but had a number of shortcomings. The Report found that the Worker was correct to raise matters of concern with his colleagues about the scanning of underground electrical cables and that he should not have faced repercussions for doing so.

It recommended that a statement issue to highlight that all members of staff should feel secure in raising issues of health and safety and should be encouraged to do so. The appeal report found that the Worker should return to the position he held prior to the incident in October 2018, or that an alternative role should be sourced for him, if he did not wish to return to his old role. The Report held that the Worker’s colleagues should not have been allowed to refuse to work with him and should be reassigned to other roles. The report was critical of the length of time taken to complete the initial grievance investigation.

While discussions took place regarding alternative roles, no roles that were suitable to the Worker were identified, in part due to the Worker not having use of a company vehicle. The Worker then appealed the matter to the WRC.

SIPTU submitted to the Court that the Worker was treated unfairly. He was subject to penalisation when he raised health and safety concerns in good faith. The investigation was fundamentally flawed and took an exorbitant amount of time to conclude.

This delay exacerbated an already difficult situation, causing him significant financial damage and emotional distress. He had lost out on promotional opportunities, as had he remained in the Water division he would have been upgraded to a skilled position that became available in 2020. The appeal findings that were in his favour were not implemented by the Council and, as a result, he has been left in an untenable situation with no proper resolution.

The Council submitted to the Court that it has made every effort to resolve the Worker’s issues and return him to work. When the grievance process was invoked by the Worker, the matter was fully investigated. Following failed attempts to resolve matters informally and through mediation, the matter was fairly and thoroughly investigated, which by its nature took time to complete.

The Council rejects any assertion that it sought to penalise the worker by transferring him to another location. It submits that where there is a serious breakdown in relationships and mediation is not a viable option, it will seek to reassign workers in an attempt to resolve matters. This is what happened in this case.

The Council sought to implement the recommendations made in the Appeal Report. It accepts that the Worker’s colleagues were not reassigned to other roles and submits that this was because the Worker, who is absent on sick leave since January 2020, has yet to return to work. The Worker has refused all alternative roles suggested to him.

A number of roles were refused, as they did not entail the use of work vehicle. The Council cannot accommodate the Worker with a vehicle unless it is required as part of the role. The Worker cannot be appointed into a promotional post without going through a competitive process. At the date of the hearing the Worker remained absent from work and the Council queries whether or not he wished to return to work with the Council.

The Court has given careful considerations to the oral and written submissions of the parties.

At the centre of the dispute before the Court is a serious breakdown of personal relationships between colleagues. Once a grievance was formally raised by the Worker about his attempts to address what he saw as an important health and safety issue, there followed a series of meetings, attempted mediation, investigations, and a comprehensive appeal process in an effort to address and resolve matters raised.

It is evident that the protracted nature of the grievance process, and subsequent appeals, did not assist in bringing a satisfactory resolution to the Worker’s issues. It is also evident that efforts to return the Worker to the workplace have been exacerbated by the fact that he has been on sick leave for much of this period.

In the Court’s view, the internal appeal report that issued in March 2020, some sixteen months after the Worker had lodged his initial grievance, was a comprehensive report that identified key shortcomings in the processes followed. It recommended a number of measures to address the Worker’s concerns, including giving the Worker the option of returning to work in his original work location or at a suitable alternative location, whichever he preferred. It is unfortunate for all concerned that matters could not be resolved at that point.

The worker takes issue with the fact that he was moved to another location after raising health and safety concerns, while two colleagues were allowed to remain in their work location. He feels that he has been disadvantaged in terms of promotional prospects and his removal from his post, and the delay in concluding the investigation, caused him significant difficulties.

The Worker also takes issue with moving to a role that does provide a company vehicle van. Although, the Court notes that the parties at the hearing accept that company vehicles are provided on a job needs basis and that the Worker cannot be allocated a vehicle unless the role that he is assigned to requires one.

In response to questions from the Court, the Worker confirmed that he wishes to return to work in the Council. He is willing to return to his original role, if appropriate supports are put in place, however, his preference is to work in an area other than the Water Division. The Worker expressed an interest in taking up a carpentry vacancy, which the Court notes is a promotional position subject to a competitive process.

Having considered the particular circumstance of this case, the Court agrees with the Adjudicator Officer’s finding that the Worker was treated unfairly in being unilaterally removed from his place of work in such a manner and that the delay in finalising his grievance process served to exacerbate an already difficult situation.

All employees should be encouraged to raise matters relating to health & Safety without fear of reprisal. In the Worker’s case it is accepted that he was justified in raising concerns about health and safety and that he was acting in good faith in trying to ensure adherence to best practice.

For the Council’s part, the Court accepts that it did not seek to penalise the worker and has attempted in good faith to implement the finding of the Appeal Report.

The Court recommends that both sides engage constructively to brings this matter to a speedy resolution. In this regard, the parties should meet within two weeks of the date of this Recommendation to discuss (i) appropriate supports to assist the Worker should he decide to return to work in the position he held prior to the incident in October 2018 and (ii) alternative roles available to him should he decide not to return to his original role.

The Court further recommends that the Worker receive €12,500 in full and final settlement of the dispute.

The Adjudication Officer’s recommendation is varied accordingly.

The Court so decides.

NOTE

Enquiries concerning this Decision should be addressed to Therese Hickey, Court Secretary.