Complainant

Respondent

Anonymised Parties

Member of a public body

A public body

Representatives

Christopher O’Meara                              

Jo Delamar                                       Industrial Relations Officer with the Employee Relations Bureau

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

CA-00047494-001

December 4th 2021

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely.  I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way.

As the within matter is a dispute between parties and brought before the WRC using the Industrial Relations Acts it was heard in private and the decision is anonymised.

The Complainant was represented by a member of the professional Association established to meet the needs of it’s members and consequently having a specialised interest and knowledge.

I was provided with a comprehensive submission dated the 20th of September 2022. This submission sets out the long and protracted history prior to the issuing of the within complaint. The submission and the appendices attached were opened to me.

The Respondent entity was represented by JD the in-house Industrial Relations Office who provided me with a submission dated the 20th of September 2022. A robust Defence was put up where one was merited but the Respondent did concede that there had been failings in the workplace.

I listened very carefully to the evidence provided to the Workplace Relations Commission in the course of the hearing.

The Complainant herein has been a member of a public body involved in law enforcement since 1999. By 2017 the Complainant was job sharing but was also working additional hours due to a lack of manpower in the region wherein she was posted. The Complainant had no difficulty with this and at the end of a roster cycle she would submit an account of her additional hours together with a report outlining what the additional hours were for. The additional hours had to be signed off by her local superior officer and then went to payroll to be processed.

In 2017 Manager K was the Complainant’s superior and was obliged to perform the said signing off process.

In the course of her employment (starting in 2016) it appears that the Complainant crossed swords with  Manager K concerning certain things that were happening in the workplace. This undoubtedly created a strain between the Complainant and her line Manager.

In 2017 the Complainant noted that the delay in getting paid for the additional hours was getting longer and longer such that it seemed to the Complainant that Manager K was intentionally withholding these applications and creating delays which had the knock-on effect of making it difficult for the Complainant to manage her finances. The Complainant intuited that she was being actively punished by Manager K for having previously made complaints against K.

I note that ultimately there is no suggestion that all monies due and owing have not been paid as of the date of the hearing of the within matter.

By August 2017, the Complainant had had enough and submitted a complaint (to Assistant Director C) under the policy known as the “Working Together to Create A Positive Working Environment” which document has been extensively opened to me. As may be expected the policy expresses the objective of wanting all members of this workforce to be treated with dignity and respect when carrying out their duties and in an environment free from harassment and bullying etc.

The Complainant chose to phrase her complaint or Grievance in terms of a “victimisation” which is perfectly understandable in the context of an everyday understanding of the concept of victimisation being an action or actions which single someone out for cruel and unjust treatment. However, the victimisation referenced in the Working Together to Create A Positive Working Environment document references victimisation specifically in the context of the Employment Equality Acts and the Equal Status Acts. There is therefore no general reference made to encourage members to bring a complaint arising out of a perception of being targeted or victimised. Chapter 8 of the policy talks of the Procedures for making and dealing with complaints of unacceptable behaviour but then goes on to specifically reference complaints of harassment, sexual harassment and bullying.

At the time that the Complainant lodged her complaint (August 2017) nobody suggested that it needed to be re-drafted as a complaint for bullying or harassment (which would have worked equally well) and in fact Assistant Director C dealt with the Complaint as drafted albeit not to the extent that the Complainant would have liked.

Assistant Director C came back to the Complainant herein in early October 2017 stating that he has addressed the issue of the payment for the additional hours worked and that Manager K has confirmed all payments would be made. Clearly Assistant Director C believed that would be an end to the matter.

The Complainant indicated that she was not happy that the issues she had been raised, had been fully dealt with and in particular wanted an explanation of what had been happening (giving rise to the delay) and to have Manager K’s motivations to be looked at. The Complainant puts all this into a letter addressed to Assistant Director C and dated the 10th of October 2017.

The next relevant piece of correspondence is dated the 9th of November 2020 – over two years later. This invites the Complainant to confirm that she is bringing a complaint of victimisation under the Working Together to Create A Positive Working Environment policy.  She is told that this will trigger the desired investigation.

Another six months later (now June of 2021), the Complainant is advised that, in fact, the claim for victimisation cannot be investigated under the  Working Together to Create A Positive Working Environment and that the complaint concerning the (purported) deliberate delay and withholding of remuneration might more properly be brought under the in-house Dispute Resolution Procedure.

At this point it is clarified that Assistant Director C had never carried out an investigation into victimisation and had only sought to resolve the issue of any delay in payment. The Complainant is also advised that Manager K has retired and cannot be forced into participating in any investigation.

At this point, it is nearly four years since the Complainant penned her original complaint.

Despite the extraordinary delay and the justifiable sense of obfuscation and delay, the Complainant opts to engage with the Dispute Resolution Dispute procedure and lodges her complaint in and around July of 2021. Once again, the complaint is not dealt with and as the in-built time limits are reached, the Complainant is moved from stage one to stage two and from stage two to stage three.

It is at this point (in and around September 2021) that Ms. JDeL the Industrial Relations Officer – who has attended before the WRC hearing, engages with this file. Ms. JDeL tries to put some shape on matters and, to this end, and in recognition of the inordinate delays already experienced Ms. JDeL suggests bypassing stage three and bringing this matter straight to the WRC. Ms. JDeL thereby allows the Complainant avoid the requirement that all internal dispute resolution mechanisms have been exhausted. The complainant from reaches the offices of the WRC in December of 2021.

Ms. JDeL has accepted that the Respondent has not covered itself in glory in this matter. Going back to the original complaint it is put to me that no-one else made complaint concerning delays in getting paid and that a number of levels of internal admin sanction have to be gone through before payment can be sanctioned – suggesting that delays can take place at any one of many potential points. Be that as it may, it seems to me that the time for examining this matter has long since passed and that using the retirement of Manager K remains a most unsatisfactory excuse as her non-participation should never have blocked the Complainant’s entitlement to have her complaint heard.

It is also deeply unsatisfactory that the Complainant’s mistaken belief that she could allege a general sense of victimisation against a superior officer in the Working Together to Create A Positive Working Environment policy could be somehow used against her. Nobody could have misunderstood the complaint that the Complainant was trying to make – that a Superior Officer was exercising her power so as to deliberately and negatively impact the Complainant. A complaint or Grievance is not, to my mind, intended to take on the formality of Court pleadings. There must be room for amendment or fine tuning (whilst being conscious of the perpetrators right of reply).

It is regrettable that after four years in being, that the Employer suggests that the complaint is misconceived and needs to be started again – only to then be ignored a second time.

I do note that Ms. JDeL did try and have this matter dealt with by way of Mediation but that ultimately the Complaint has come before the WRC for final recommendation.

There is no doubt that the complainant has been very badly treated by her Employer herein. In the first instance she has a genuine belief that her remuneration is being weaponized against her in a very personal and deliberate way. She wants this investigated and this is not done.

I am not in a position to conduct such an investigation at this stage. A full five years has elapsed since the Complainant first steeled herself to make a complaint. The issue before me now concerns the unreasonable delay by the Employer in processing what was once a legitimate and important grievance/complaint triggered by the Complainant herein.

The Complainant’s representative has suggested that a financial award is the only recompense which will make up for the failures in the processes herein. I am inclined to agree with the argument and will recommend a once off payment in the circumstances.

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

CA-00047494-001 - Having already articulated my opinion on the merits of the within dispute, I am recommending that the Respondent pay to the Complainant the sum of €12,000.00 within four weeks of the date of this decision.