Worker

Employer

Anonymised Parties

A worker

A local authority employer

Representatives

Miriam McGillycuddy Miriam McGillycuddy Solicitors

Keith Irvine Local Government Management Agency (LGMA)

Act

Dispute Reference No.

Date of Receipt

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

12/11/2019

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The finalisation of this decision was delayed due to the impact of Covid 19.

The worker submitted that she took a grievance and that when she received the final report on 18 October 2021, she was asked to make final comments.  She sought and was granted an extension of time to make those comments.  She subsequently made comments on 16 November 2021.

The worker submitted that she felt that the investigation and report were biased against her and that she stated this in her observations.  She submitted that she found the report deeply unsatisfactory as some issues were not addressed, certain evidence was ignored, outside expertise was not consulted on two specific incidences, the other party was given in excess of six months latitude in responding to the initial complaint, the other party was allowed to make an unsupported claim, and the worker was not provided with certain documents in a timely manner.

The worker submitted that as noted by the respondent the grievance procedure has been subject to labour court determination and referred to LCR19680 where it was stated that “Requesting the employee at this stage to go through the formal procedures, despite her having made a number of complaints to her superiors, would seem to indicate a lack of urgency and lack of appreciation of the effect on the individual of her treatment.”

The worker referred to ADJ 21272 where it was a literacy issue and the Court stated that “Considering the centrality of literacy to safe navigation of company procedures in an employment relationship, I urge the respondent to incorporate an inquiry into candidate literacy in the recruitment process and to offer whatever accommodation is needed as a result.”

The worker submitted that furthermore the employer was given every latitude in the investigation process which meant that it took over a full two years. The worker referred to the case of A Nurse Manager v Health Service Provider, ADJ-00020332, where the delay in the investigation was castigated as unfair treatment and against due process.

The worker referred to the case of C Hurley v An Post where the complainant developed symptoms “as a result of an incident and probably more in the workplace”.  The worker noted that in the case of Una Ruffley v The Board of Management of Saint Anne’s School the supreme court set out the test for workplace bullying that it be repeated behaviour, inappropriate behaviour and/or behaviour reasonably capable of undermining dignity at work.  It was submitted that it is clear from the list of incidents that the worker felt undermined at work.  She was kept out of communications, isolated and not consulted.

The worker submitted that the overall accumulation of behaviour she experienced meant that she had to attend her doctor regularly and when it all got too much go out on work related stress leave.

The worker referred to the Bullying Code as to the onus on employers to ensure dignity and respect in the workplace.  It was suggested that it appeared that the employer was going to introduce training in this area but that it was too little too late for this worker.

The employer submitted that the worker raised a formal complaint with it on 18th February 2019 by email. This was subsequently followed by a further email with additional details provided by the claimant on 14th June 2019. It was submitted that this was the subject of a formal workplace investigation by the employer.

The employer submitted that the complaints raised related to issues the worker alleged took place from 2015 to 2019 and in relation to another employee.

The employer submitted that terms of reference were agreed in advance of the investigation and the process involved interviews with the worker and the other party to the complaints as well as interviews with witnesses identified by either party, with documents provided to the claimant for comment prior to the conclusion of the investigation.

The employer submitted that the process continued from the time that the initial complaints were received until the investigation completed and the investigation report was issued in September 2021.

The employer submitted that comments were invited upon completion of the investigation and both the worker and other party to the complaint provided these.

The employer submitted that that the complaint under the Industrial Relations Act was submitted to the WRC after the worker had initiated her grievance with the employer on the basis that she had “no faith in any positive result from that investigation and the work environment remains the same with ongoing issues.”

The employer submitted that that the claimant submitted two complaints under its Dignity and Grievance policies in 2019 and that this took a considerable period of time until it was completed in September 2021, due to the onset of Covid and initial lockdown period throughout the Country and an initial decision to delay the process until face-to-face meetings could resume. It was only much later in the process that the parties agreed that phone and video were an acceptable way to proceed in the context of the pandemic.

The employer submitted that other factors that ultimately delayed the process included the involvement of legal practitioners by the parties as well as Union Officials and the seeking out of their advice during the process and responding to documents. There were also requests by the worker for additional time at varying junctions of the process. The employer noted that annual leave and illness related absences also contributed to the time taken to complete the process.

The employer submitted that the current complaint relates solely to the workers pre-determination of a grievance process that has been the subject several Labour Court Determinations over the years. The process has reached it’s conclusion following the initial raising of the complaints by the worker and so the employer see that following the worker’s initial complaint and exploration of the issues with both parties the worker did not see a favourable outcome.

The employer submitted that this in itself is a pre-determination of a grievance process that had not yet reached its conclusion at the time of the WRC referral. There are no further elaborations on the complaint to the WRC and nothing specific has been provided or expanded on in relation to the process itself that was being undertaken by the Council at the time.

The employer submitted that there is also no basis for the claimant’s presumption of an unfair process, and nothing has been put forward in that regard.

The employer noted that the process has been completed and the worker has since left its employment and so the employer suggested that it does not see that this complaint as submitted to the WRC can be sustained based on the details that were contained in the referral to the WRC.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

In relation to LCR 16980, and the labour court quote - “Requesting the employee at this stage to go through the formal procedures, despite her having made a number of complaints to her superiors, would seem to indicate a lack of urgency and lack of appreciation of the effect on the individual of her treatment.”  The complainant only appears to have made two complaints during the appropriate timeframe and these were processed through the grievance and dignity at work procedures.

The reference to literacy and ADJ 21272 is somewhat puzzling as the literacy of the worker was not at issue.

In relation to the timeframe, I note that it took a considerable length of time to complete the investigation into these matters, however I note the reasons outlined by the employer account for most of the delay.  In the case of ADJ-00020332, the delay amounted to four years and in the instant case the latitude allowed to the other party appears to have amounted to four months during which time he was on sick and annual leave.  I do not consider the delay to process the grievance and finalise the investigation amounts to undue delay in all the circumstances (including the issue of the Covid pandemic).  I also note that agreement on the use of phone and video arrangements was not immediately forthcoming from the parties.

From the submissions and testimony, it was obvious that the worker became deeply unhappy with the work environment, and she suggested that she had no faith in the processes being followed.  However, no reason for her lack of faith in the system was put forward for the period prior to the taking of the complaint.

The worker initiated the complaint on the day that the investigation took place (according to her initial submission) but before any outcome was arrived at and before she had made her final submissions (according to her later submissions).  In her later submissions the worker suggested that the investigation and the report was deeply biased against her and that she stated that in her reply date after she took the complaint to the WRC.

In relation to this matter, I conclude that the worker predetermined that the process was biased against her and took a complaint to the WRC before the grievance procedure, which it was indicated was the subject of repeated interventions of the Labour Court, was finalised.

Accordingly, I conclude the complaint was lodged before the procedure was concluded in accordance with the agreed procedures.  The procedure was not given a chance to work.

Industrial Relations dispute – grievance procedure – no undue delay - recommendations