Worker

Employer

Anonymised Parties

A Cleaner

Cleaning Company A

Representatives

  Self

Mairead Harnett. The HR Suite

Act

Complaint/Dispute Reference No.

Date of Receipt

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

31/12/2019

The worker was initially employed by cleaning company A and transferred via TUPE to Cleaning Company B on the 20th of March 2015.   The worker lodged claims against the transferor Cleaning Company A and the transferee Cleaning Company B. 

The claims against the transferee are dealt with in a separate decision.

The worker was employed by the employer as a Cleaning Operative and has been on long term sick leave since October 2013 as has not returned to work.    

The within claim was lodged on the 31st of December 2019.

The worker has submitted a dispute in respect of bullying and harassment procedures.   The worker submitted that had during his employment with the employer submitted a claim of bulling which was never properly dealt with.  The reason given by the employer at the time was that the worker was out on sick leave and so it had to wait until he returned to work to deal with the matter.   The worker has been on term sick leave since 2013 and remains on sick leave.

The employer submits that this dispute relates to an allegation of bullying made by the worker in  2012 in respect of a former employee of Company A. 

In 2011 the worker went out sick and did not return to work until early 2012.   In 2012 the worker raised a number of issues involving another employee which were dealt with by the HR Manager at that time.   In March 2013, the worker went out sick and this was the last day he attended work.    Later in 2013 the worker met with the operations manager to say he was not happy with the way his complaints were dealt with and stated that his solicitor would be in touch.

The worker was again met in 2014 and requested that his employment be terminated, the operations manager explained to him that his job was still there for him, and she hoped he would be returning to work.  He requested an office job at this time, but no such roles were available.

On the 19th of March 2015, the worker’s employment transferred to Company B.   The employer submits that the within complaint was submitted on the 31st of December 2019 and is outside the 6 months limit from the date of alleged contravention and is also outside the 12-month time limited with reasonable cause.    The employer also submits that all records pertaining to the worker and the allegations to which he refers were transferred to the new employer via the TUPE in 2015.

The worker at the hearing referred to a claim of bullying which he raised with the employer in 2012.  The employer told the hearing that the matters raised were dealt with by the HR Manager at that time.   In March 2013, the worker went out sick and this was the last day he attended work.    Later in 2013 the worker met with the operations manager to say he was not happy with the way his complaints were dealt with and his solicitor would be in touch.

The worker was again met in 2014 and requested that his employment be terminated , the operations manager explained to him that his job was still there for him, and she hoped he would be returning to work

The worker advised the hearing that he had during his sick leave contacted the employer seeking an update in respect of his allegations.   The employer advised him that the process was on hold due to the fact that he was on sick leave but could be progressed on his return from sick leave.  The worker remained on sick leave and his employment transferred via TUPE to company B in March 2015.  The worker has not returned to work and remains on sick leave.  The employer advised the hearing that neither the worker nor those workers against whom he had lodged complaints have worked for the within employer, company A since 2015.

Under this legislation any deficits in the internal procedures should first be processed through the internal grievance machinery, which has not happened in this case although it is accepted that the reason given for this at  the time was that the worker was on sick leave and remains on sick leave. Nonetheless he is obliged to process any such complaint through the internal grievance procedure and given that neither the worker nor the individuals against whom he has lodged the complaint have worked for the named employer since 2015 it may be that the claims are no longer capable of being resurrected given the length of time involved since they were first raised and the fact that the workers employment has transferred to a new employer.

If, however the worker wishes to pursue this matter through the internal grievance procedure with his current employer there is nothing to stop him from doing so, upon his return from sick leave and there is no time limit on making a complaint under this legislation if such internal machinery fails to do its job.    However, I am satisfied that given the circumstances, this claim against this employer cannot succeed and accordingly I do not find in favour of the worker.

I do not find in favour of the worker in relation to this dispute.