Worker

Employer

Anonymised Parties

Care Worker

Public Health Employer

Representatives

SIPTU

 HR for the employer

Act

Dispute Reference No.

Date of Receipt

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

17/11/2021

This dispute is concerned with the conduct and outcome of grievance procedures followed by the employer in the case of the worker.

SIPTU set out the history of the case and the related dispute. The worker returned to work in June 2020 after a period of sick absence and paid suspension. On the recommendation of Occupational Health, she was transferred to another location, at least initially. In February 2021 the worker raised a grievance which was described as a grievance against her line manager. Details of delays in processing the grievance strictly in accordance with the employer grievance procedure were set out. At one point the Union referred a dispute to the WRC due to the delays. It should be noted that that earlier dispute is superseded by the one which forms the basis of this dispute and is to be withdrawn by SIPTU-as indicated at the hearing. There were problems identifying the appeal person, contact details, communication with SIPTU regarding outcomes. At stage 1 only one of the grievances was upheld. At Stage 3 there was an issue with how an aspect related to a named other member of staff was investigated, or indeed not followed through. The outcome at the various stages dealt with the actual events and did not reflect the problems the worker had with the manner in which she was treated and spoken to. The worker believes she was deliberately targeted for unfair treatment and was denied a fair process and to be treated equally to that of her work colleagues. A recommendation was sought which would deliver a fresh, externally conducted investigation by an agreed third party and also compensation for the delays in conducting the internal processes. In response to the chair the Union clarified that the recommendation at stage 3 that the worker be returned to her original location was accepted, but as it transpired that did not happen due to other events i.e., a separate investigation.

The worker has been employed at a number of hospitals since 2005. The grievance hearings were arranged in person to facilitate the worker who could not access the IT necessary for a remote hearing of her grievance. These meetings were required at a time when there were restrictions around Covid and the HR manager said he had to make various arrangements to be able to interview all involved. Stage 1 of the process was held on 11 March 2021 into a grievance lodged in February 2021. The worker was dissatisfied with the outcome at stage 1 where one of her issues was upheld and she went on to appeal the outcomes of stage 1, 2 and now Stage 3 to the WRC. This is in line with the procedure within the employments. The HR manager acknowledged that it is almost impossible to adhere to the time limits set out in the policy adding that usually he would work with a union to ensure that a grievance was fully investigated but not always within the strict timelines set out in the policy. The policy which is agreed with the trade unions provides a fair, transparent, agreed and evidence-based process to deal with staff grievances. The process is a transparent one which may not provide the outcome sought by the worker, or indeed the relevant management. The outcome may not have been to the liking of this worker but the process was conducted thoroughly and fairly.

The parties went back through the history of the dispute in their submissions. However, as I pointed out, this stage is the appeal of a Stage 3 hearing and I will add that there doesn’t seem to have been any clarity prior to the WRC hearing as to what was and what was not acceptable from the earlier stages.

This situation is not straightforward. The worker returned to work after a lengthy absence on ill health and a paid suspension on terms set out by occupational health. These included a recommendation that she be transferred to a different location. The worker was evidently not happy with the transfer. The same report clearly set out terms for a managed and monitored return to work by line management.

Regular weekly meetings with her manager to ensure her work issues can be addressed promptly

She will require close monitoring at work for a number of months

Intermittent review by Occ Health during the initial 12 months of her return to work

Such an arrangement implies support as well as monitoring of a worker with a history of ill health and issues within her workplace. This key recommendation in the return-to-work recommendation simply did not happen as was acknowledged by the Stage 1 Hearer. The absence of such management led to what are otherwise mainly minor day to day issues around gaining an access key, how to complete applications for annual leave, an explanation of the roster for Sunday working which could have been avoided by a decent effort at management support on her return. For her part, the worker had barely taken up her role in the new location when she is complaining on a regular basis, then seeking a transfer back to her previous location and at the same time refusing to sign the relevant transfer forms because she did not want to agree to the terms which apply to those forms. She was complaining about the roster pattern and access to Sunday working-she did not want to work one and she wanted more of the other. If she did not like what the other staff member said, or the way she said it, that became part of her grievance. She uses the term bullying as a word to describes the manner in which she was treated, not having made a complaint of bullying and when the issues she complains of almost certainly would not come within the operating definition of that term. As far as she is concerned the only outcome acceptable to her is a transfer back to her original employment location. The grievance document presented to the hearing did not contain details of another matter, an incident which did not form part of this grievance process but which in some way relates to the suspension of the worker and/or a period of sick leave. The process which resulted in her suspension was unfinished at the time of the hearing of this dispute and is not something which I am competent to comment on nor am I being asked to do so. By either side.

On the subject matter of this dispute, there are no plaudits for the line managers responsible for the abject failings around the return to work of someone who had health previously and where the occupational health recommendations were ignored or not taken seriously. It seems reasonable to assume that given the previous suspension and recommendation of the transfer, that there was some previous history of employee relations difficulties involving this worker, for whatever reason. This was a return to work that required hands on and respectful management from the moment it commenced and in succeeding weeks. That said, the nature of the other issues in the grievance around not receiving an access card, a comment about the wisdom or otherwise of  the worker seeking to go back to her previous location, a refusal of annual leave at peak holiday time either at very short notice and /or to be taken within weeks of arrival at the new location, not providing the correct forms for applying for annual leave, where a particular conversation was held, not wanting to work the night roster in the new location, a claim re Sunday working which was not accurate - are not issues of long-term consequences or sufficiently grievous such that they merit further investigation externally or at all. Furthermore, it is noted that the grievance was raised in February 2021 around incidents which had occurred the previous summer. The worker herself delayed some six months before submitting a written complaint and now seeks compensation because of the subsequent delays in completing the three stages of the grievance procedure and still she seeks a full further external investigation almost three years after the events in question. These are not reasonable demands.

Regarding the delays in concluding the stages of the grievance procedure the timelines in the employer grievance policy are almost impossible to apply to the strict letter in the reality of this employment. Union representatives and HR managers usually work with the procedures in a spirit of getting the job done properly and fairly rather than worrying too much about the strict and almost impossible timelines in the policy. I could not find any evidence of deliberate delay on the part of the management in this case, noting that it was still a very challenging time in relation to Covid and the added requirement to have in person meetings to facilitate the worker involved.

The issues in this dispute between the worker and the employer should be closed by both sides. The route sought by the Union is not one I consider justified or potentially helpful towards achieving closure. I am however prepared to recognise that the failure of management to handle the return to work of the worker in a proper and respectful manner or at all undoubtedly contributed to where the parties find themselves now. By way of an encouragement to ‘do better’ in any similar situations, I am recommending a modest amount of compensation to the worker in respect of that one key aspect of the outcome of her grievance which was upheld as far back as Stage 1 and as such was significant in terms of the occurrence of the overall grievance. This recommendation is made in an effort to assist the parties in bringing closure to this long running dispute. These conclusions should not be interpreted as my expressing any view in relation to the separate investigation within the employment concerned with the same employee.

Handling of grievances and return to work.