Worker

Employer

Anonymised Parties

An Administrator

A Healthcare Service

Representatives

Pat Sheridan

 John O’Neill

Act

Dispute Reference No.

CA-47132-001

Date of Receipt

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

CA-47132-001

10/11/2021

On November 10 and 16, 2021, the Worker in this case filed details of a dispute at her workplace. She sought an investigation under Section 13 of the Industrial Relations Act, 1969, where both parties are heard, but the Recommendation is anonymised.

The Complainant is represented by HR Consultant, Mr Pat Sheridan.

The Employer in the case operates a health care service. The Employer is represented by Mr John O’Neill, Human Resource Manager.

I met the parties on two occasions. On the first occasion in January 2023, I listened carefully as both parties articulated an evolution of conflict which continued through the period known as the covid pandemic. The Worker had sustained a long period of medical sick leave.

On that day, I observed that the parties may benefit from a direct engagement and offered the parties a 4-week period of adjournment to resolve the issue in dispute. Both parties agreed to a strict 4-week timeline.

On February 20, 2023, the hearing resumed. Both parties reported that the matter remained unresolved, and Mr Sheridan sought a Recommendation in the case.  

Both parties filed written submissions to reflect their respective positions in the case.

The Worker commenced work as a Payroll Administrator on 17 July 2017 on a fixed term contract. On her return from maternity leave, in October 2018, she commenced part time work on a 3-day week. The Workers young baby was very sick during the early phase of his life, which in turn placed a pressure for her in balancing work and home requirements.

She had understood that she had work support in managing her son’s illness, but the situation changed around the third quarter of 2019. The Worker had relied on a model of flexible attendance to complete payroll.

The Worker has claimed that her then Manager, Mr A had taken a dislike to her in October 2019, which she had viewed as harassment. She contended that her work was being unfairly scrutinised and criticised. She had been requested to attend a disciplinary hearing via a performance appraisal which she believed was unjust.

As a result, the worker proceeded on extended sick leave, due to work related stress from December 2019 and has remained outside of the workplace. She attended Occupational Health in May 2020 at the Employer behest, before submitting an informal and formal grievance dated August 2020.

She expressed a disappointment that the Employer had not worked with her to resolve the matter to enable her to return to work safely.

Mr Sheridan outlined the chronological background to the procedural pathway of attempted resolution in the case which had involved a number of discussion and targeted meetings but was without a proper investigation into the grievance of August 13, 2020.

Mr Sheridan accepted that the worker was met with a “return to work proposal “which had fallen short as it “fails to accept or recogniser the health issues arising from Mr A’s behaviour, nor the losses she has sustained are a direct result of the mismanagement of the grievance process by the company “  

Mr Sheridan outlined that the worker had declared that she wished to have the matter of Mr A’s altered approach to her investigated. This had not occurred and feedback alone from the employer had not resolved the issue. The worker was not satisfied when she was informed that the matter had been processed through the informal procedure, no statements had been secured and her return to work was not guaranteed.

Mr Sheridan submitted that the employer had advertised for another administrator which the worker believed was her job. Her submission of a medical certification of “fitness to resume work” was ignored from August 3, 2021. She ceased receiving DSP payments around that time also.

The worker accepted that any return to work would exclude Mr A as her line manager and she would report to a new Line Manager.

As discussions on exploring options to resolve the case had not proved fruitful, Mr Sheridan, reluctantly sought a return-to-work date for the complainant, contingent on

1 Commission of an independent investigation into the grievance of August 2020.

2 Consideration of loss of earnings of €37, 502 (which reflected cessation of DSP payments in August 2021)

The Worker sought a Recommendation to navigate the way forward.

The Employer operates a number of Nursing homes and through Mr O’Neill, Human Resource Manager, outlined that the chronology of the occurrences of the case co-incided with the trajectory of the national pandemic of Covid 19.

The Employer did not have a record of unease from the worker in this case, outside of her recorded sick leave (October / December 2019) until the furnishing of the Occupational Health Report in April 2020.

At that time, the Director of Nursing, in responding to the recommendations contained in the OHD report requested some detail from the worker. The worker told the Director that she did not wish to record her concerns by letter or by email and instead, sought to engage with human resources.

The Employer engaged with the worker on 27 May 2020, but delays followed.

The Employer received the formal grievance in August 2020 which reflected:

1 A return to work post sick leave in 2019, had been met with a request to attend a disciplinary meeting.

2 A reported alteration in the manner in with Mr A, who had previously supported the workers flexibility in attendance to one of critical and harassing behaviour, which prompted further sick leave.

3 A request to return to work.

4 A request for a formal investigation

On 12 November 2020, the Employer confirmed that “a review of the grievance “was underway. A planned process of speaking to the individuals named in the grievance followed.

On December 8, 2020, the Employer confirmed.

1 The Employer had not activated the disciplinary procedure against the worker at any time in 2019.

2 The “ad hoc “attendance pattern by the Worker was not sanctioned and had ceased following 31 October 2019.

3 Mr A had acknowledged that there had been internals pressures surrounding the TMS system, but these had not amounted to bullying, harassment or intimidation.

4 The employer confirmed a new line manager for the worker.

5 The employer offered support to return to work and independent mediation with Mr A.

The parties eventually met in September 2021. The Employer had overlooked a “fitness to return to work “certificate submitted by the worker in early August 2021.

The service was hit by covid outbreaks during this time.

The Employer relied on the correspondence dated 15 November 2021 as a

“Proposed way forward “

The Human resource Director pointed to a delay in launching this email, but confirmed despatch on 15 November 2021 at 8.05 hrs.  

1 The Employer confirmed that witness statements had not been secured from the parties named in the grievance “review “. They emphasised that delays had followed in the notification of the grievance in addition to the overarching impact of the covid 19 pandemic.

There had had also been a delay in responding to the grievance.

The Employer apologised for overlooking the submission of the back to work cert.

The Employer acknowledged that the worker was welcome back in her job and offered to pay her 31 July to November 15, 2021.

The worker did not progress this proposal and the matter was referred to the WRC.

The Employer wanted the hearing to be cognisant of the overarching influence of the fluidities of the covid 19 pandemic, which curtailed time allowed to address extraneous matters outside of the pandemic.

The Employer submitted that the delay from October 2019 to May 2020, prior to the worker articulating her issues of concern equally served as an impediment to progress.

The Employer confirmed that the worker had not appealed the grievance outcome. He emphasised that the employer had never activated the disciplinary procedure against the worker.

The Employer stood over the “back to work proposal made in November 2021 “The employer was keen to assist and support the workers return to work.

In conducting my investigation, I have considered all relevant oral and written submissions presented to me by the parties.

I have found that it is impossible to ignore the contextual backdrop to this case. The work base location of the worker was squarely situated at an Older Persons Care Centre, which was faced with real operational risks during the national pandemic from March 2020 onwards.

I appreciate that the worker was not a participant in this pandemic management team and her representative has argued that the covid pandemic should not excuse what he viewed amounted to an extended period of inertia by the Employer.

When I first met the parties, I found a very defined distance between the worker and her employer. I requested that the parties consider a direct engagement, outside of the hearing to explore a mutually acceptable resolution. At that time, the worker had fed into that process by stating that her preference was not to return to work.

The 4 weeks pause in proceedings did not yield a mutually acceptable outcome. I was very conscious of the enormous time lay between October 2019 and February 2023 for both parties.

I explained to the parties that I would not be able to recommend on a severance agreement and so instead, I asked the parties to re-focus and re new their efforts on identifying a practical and achievable return to work process.

The Parties did engage on that topic, but understandably, both had an alternative journey in mind.

The Employer was keen to build on the first in time “return to work proposal “of 15 November 2021. The Worker could not envisage a return to work outside of a full independent investigation into the grievance of 13 August 2020 in addition to a firm award of compensation in respect of the procedural delay and the shortfalls in best practice in dealing with the grievance.

I had cause to contemplate these stated positions further as I went back to again to review both submissions in the case.

The Labour Court has consistently declared that a statutory third party should not intervene too boldly into the day-to-day life of the parties’ working relationships. I accept that this is a live employment relationship, not curtailed by resignation, but hampered by an extended period of absence.

I heard from the worker that she wishes to return to work on her three-day week. She accepts that she is to return to a new line manager and Mr A will not be involved in her day-to-day work out put or supervision. The Worker equally accepts that she was not disciplined in 2019 or since.

I have given some thought to the workers request for a full and independent investigation into the grievance of 13 August 2020.

It is important for me to reflect that this document was not particularised by occurrence citation. Instead, the worker cites that her sick leave arose in response to Mr As changed treatment towards her, where previous flexibilities had “dried up “in the installation of a new TMS system, amidst newly appointed managers.

I am clear that this was a part catalyst for the workers vulnerability at work, the remaining catalyst was the understandable concern she felt about the welfare of her young son as he struggled back to full health.

I have reviewed the company policies and in truth, both parties fell short of best practice in how these policies were utilised at the point of origin. It is my opinion that if a real time conversation was practised in December 2019 between the key players, some hope of an early intervention followed by an early resolution may have stood a chance.

However, that did not happen and many months of delay before “words “were spoken by either of the two parties added insult to injury. The matter metamorphosised after May 2020, yet particulars of the occurrences at the centre of the dispute were not written down by the worker.

A particularisation of a claim can capture attention of all parties. This did not happen here.

Instead, the Occupational Health Recommendation was accepted by both parties and while efforts were made by both parties to arrive at an operational solution, I really believe the matter got lost within the annals of the covid 19 pandemic. I understand that the Employer service was operating on an emergency footing, where they were responding to what was necessary and proportionate to the immediacy of covid outbreaks on site, while the worker was on sick leave, out of sight and dependent on state benefits of illness benefit.

I am satisfied that the Employer led out on a “first step “proposal for a return to work. The Worker argued that this felt short of what she needed, and she was severely slighted by her return-to-work declaration being overlooked.

This was highly regrettable.

I can appreciate that the employer viewed this as an honest mistake. I can also appreciate that the worker viewed this as a reminder that she wasn’t wanted.

I have a very strong view that both parties should have tried much harder to resolve this matter prior to referral to the WRC. I say this as they both gave up after November 16, 2021, the day of the completed referral to WRC.

They perhaps unwittingly “let the hare sit “for a period of 14 months to the timing of day 1 of hearing in January 2023. Both parties are fully aware that there are no bars to direct engagement prior to a WRC hearing and I found that the Worker side did not engage sufficiently on the Employer document dated November 15, 2021, albeit the lateness of arrival.

I have endeavoured to get the parties working together again, placing the employment relationship into central focus.

I have been requested to investigate this dispute and share my findings with the parties at first instance.

I have listened carefully to both parties and I have accepted that the “procedural pause “January 2023- February 2023, did not resolve the issue and the worker has expressed a reluctant desire to now return to work.

It is my opinion that this return to work must be to a guaranteed safe environment protected by policies and procedure capable of being triggered in real time by both parties. The long delay before articulation of claim has proved an obstacle to progress. The long delay before a mutually agreed position could be reached and recorded has placed the future viability of meaningful employment at risk, as trust is noticeably fractured.

I am not in favour of commissioning an independent investigation at this point. There has been a tendency in this case to seek the resolution in this case through the “rear view mirror “and by retrospective analysis. I believe that this is not in either parties interests as the energy expended in retrospective analysis is zapping the energy required to build block towards returning to a safe place of work .

 The Worker was offered witness statements much earlier in this case and she did not avail of them.

Given that Mr A has no further legitimate authority over the worker, and she has been assigned a brand-new line management structure. I would prefer to see an immersion by her in this new system, rather than spend time seeking to re -open old wounds for a questionable value. I say this as I note that the worker has focussed her desire for an investigation to capture the wrong done to her, but I found a shortfall in her awareness of the antecedent events which led to this case, that of her vulnerability through both her and her son’s illness which caused her to adopt an ad hoc work pattern.

Instead, I would prefer that the parties give some thought and consideration to the following proposal to secure the workers return to work as soon as practicable.

1 The Parties are to meet within 4 weeks of the date of this Recommendation to agree a return-to-work start date for the Worker at the behest of the Company Occupational Health Department. This can be a phased return to work incorporating a balance of annual leave accumulated through illness.

2 The Parties should collaborate on provision of a contract of indefinite duration (CID) to replace the unpopulated version exhibited.

3 The Employer is to offer a process of active facilitation to both the Worker and Mr A, if both are agreed on a “moving forward in mutual recognition “approach.

4 The Employer is to provide a period of induction, an agreed job description and a named Mentor to the Worker to assist in a seamless return to work.

5 The Worker is to be provided with a grounding in the real time utilisation of the grievance procedure and anti-bullying policy in line with the excellent WRC Code of Practice in that area.

6 I have given some thought to the Workers claim for compensation.

While I accept that the Employer erred in terms of prioritising this case for resolution and failing to follow the strict sequence in the procedural pathway scripted in the company handbook.

I also find that the Worker erred in failing to engage in the first proposed return to work made to her on November 15, 2021.

In all the circumstances of the case, I order the Employer to pay the Worker €12,000 in compensation for the procedural gaps in this case. I had made this award proportionate to seeking to ultimately return the parties to a mutually respectful employment relationship and thus to save the employment from further fragmentation.

I urge the parties to engage with this proposal immediately.

I have found some merit in the dispute .

Interpersonal conflict