Worker

Employer

Anonymised Parties

     Worker

 Employer

Representatives

Sean Heading  Connect Trade Union

Muireann McEnery IBEC

Act

Dispute Reference No.

Date of Receipt

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

CA-00046841

26/10/2021

The Worker commenced employment with the Employer in 2009 as an Operator. By letter dated 6th January 2021, the Worker lodged a formal grievance under the Employer’s grievance procedure.  The Worker’s grievance concerned an exchange between himself and another employee, (employee A) around the manner in which employee A spoke to him in relation to his face mask which occurred on the 6/1/2021. Employee A in turn raised a grievance around the same incident.

The Worker claims that the investigation process conducted under the employer’s grievance procedure was flawed and biased against him.

The Employer refutes the allegations, and states that the investigation process was conducted in line with fair procedures and natural justice and that the Worker was moved to a different area for reasons entirely unrelated to the investigation process.

Both Parties were represented at the hearing and submitted comprehensive written submissions. The Worker was represented by his Trade Union, Connect and the Employer by IBEC.

The Worker referred a claim to the WRC 26/10/2022 under Section 13 of the Industrial Relations Act 1969.  At the hearing I requested copies of the sick certificates received by the Employer and on the 22/2/2023 the employer forwarded five medical certificates dated 6/4/2021, 19/4/21, 11/6/21, 7/7/21., and one undated.

The Worker furnished a detailed submission and supporting documentation prior to the hearing.

The Worker in this case has worked on a full-time basis since 2009.  An incident occurred on the 6/1/2021 around the manner in which employee A spoke to the Worker in relation to his face mask. Employee A in turn raised a grievance around the same incident which concerned the fact that the Worker was not wearing his mask properly and when asked to put the mask over his nose he allegedly responded aggressively.

The Worker lodged a grievance on the 6/1/2021 under the Employer’s grievance procedure which is set out at clause 10 of the procedural agreement which was agreed with the Services Industrial Professional and Technical Union (SIPTU) and the Employer in 1994. The Employer appointed the Evening Shift Supervisor (Mr A) and the Health and Safety Manager (Mr B) to investigate his complaint. An attempt was made to resolve the dispute informally which was not successful. The complaint was progressed through the Employer’s grievance process which comprises of 4 stages.

On the 12/1/2021 an investigation meeting was held (Stage 1) where the Worker clarified that he wanted four grievances relating to the incident on the 6/1/2021 investigated.  At the hearing the Worker stated that sometime between stage 1 and 2 of the process he was approached by Mr A and asked to apologise to Employee A for the way he shouted at him. He was told that if he apologised to Employee A he would do likewise. In this regard it was not clarified by Mr A that this request was being made in the context of Employee A’s investigation into his grievance.

The Worker’s named witness was interviewed by Mr A as part of the investigation. Mr A issued his decision on the 27/1/2021 where one of the Worker’s grievances was upheld. The Worker immediately verbally requested to appeal the outcome of stage 1 and progress to Stage 2.  On the 9/2/2021 the HR Manager scheduled a meeting with the Worker in order to clarify with him which specific act/policy he wanted to take his claim under.

On the 16/2/21 Stage 2 of the grievance process commenced, and the Worker was interviewed by two different managers including the HR Manager. At a meeting on the 2/3/2021 the Worker was advised of the outcome of Stage 2 where he was informed that the grievance lodged by Employee A resulted in a finding that Employee A’s “behaviour was inappropriate” and furthermore that “Employee A’s behaviour had been addressed with him directly by his manager”.

The Worker lodged an appeal against this decision and the Union in their submission take issue with the fact that the HR Manger did not disclose what was meant by “addressed” in the context of the above decision. Events further evolved where the Worker sought to resolve the matter by seeking an apology from Employee A who responded that he would only apologise if the Worker apologised to him also. On the 31/3/2021 the HR Manager requested the Worker to clarify his issues in writing setting out his grounds of appeal.

The Union submits that due to the hostile work environment the Worker was required to seek medical assistance and he was certified as unfit to work by his GP due to work related stress for a two week period. The Worker commenced a period of certified sick leave and was examined by the Employer’s occupational health provider Medmark on various occasions.

The Union submits that the Employer’s occupational health provider Medmark certified the Worker as unfit to work from 31/3/2021 to 31/7/2021.  The Union further submits that the Worker suffered financial loss as a result of the opinion from Medmark as the Employer’s sick pay scheme expired after 10 weeks after which time the Worker was reliant on an illness benefit payment.

After an absence of 14 weeks the Worker returned to work on the 12/7/2021 as he was certified fit to return to work by his own GP.  The Union submits that following a meeting upon the Worker’s return to work on the 13/7/2021 it was agreed between all parties that stage 3 was already conducted, and they could move to stage 4.

On the 10/8/2021 a stage 4 meeting was held where the main issues pertaining to the Worker’s grievance were discussed in addition to a claim for loss of earnings on behalf of the Worker as a result of being certified on sick leave due to work related stress. Stage 4 was heard before 2 members of the senior management team with no prior involvement in the case (Ms C) and (Mr D).

On the 19/8/2021 Ms.C issued her findings where none of the Worker’s grievances were upheld. The union submits that it was agreed with all parties that the matter should be referred to the WRC. It is further submitted that after the case was referred to the WRC the Worker was moved from his position within the company which he had held for 10 years and has suffered financial losses as a result as this area does not attract overtime.

The Union highlighted the main issues /flaws in the grievance process which constitute breaches of the Worker’s rights to natural justice including: -

·        The Worker was not furnished with a copy of Employee A’s grievance but instead this was read out to him.

·        The managers appointed to investigate Stage 1 Mr A and Mr B were not impartial as this was a case of “management investigating management” as it was claimed that Employee A was part of the management team.

·        During the investigation process Mr A approached the Worker prior to issuing his decision and asked him to apologise to Employee A.

·        The Worker was not furnished with minutes of the investigation meeting Stage 1

·        There was a lack of clarity regarding the decision and sanction which was imposed on Employee A pursuant to his grievance process. 

·        The meeting on the 9/2/2021 was inappropriate and out of step with the process.

·        The Worker’s procedural rights were breached as his right to a fair and impartial determination was breached and the appropriate evidence and relevant factors were not considered.

The Union on behalf of the Worker is seeking the following awards;-

·        An email to be circulated retracting the false allegations made against the Worker by Employee A

·        An apology from the Employer for their mishandling of this grievance

·        A reimbursement of lost wages for the unnecessarily long period of time the Employer kept the Worker out of work due to the recommendation by the Employer’s occupational health provider.

At the hearing the Union representative stressed that the Worker was not seeking compensation but wanted a recommendation requiring the Employer to circulate an email retracting the false allegations made by Employee A against him and an apology from the Employer for their mishandling of the grievance process.

It was submitted by IBEC on behalf of the Employer that given the failure of the informal attempt at resolving the grievances the matter progressed through the various stages of the Company’s grievance procedure as set out in clause 10 of the Procedural Agreement. It was further submitted that this process comprises 4 internal stages and provides for representation in the normal manner.

The Employer’s submissions examined each stage of the grievance process from 1-4 providing much detail on each stage including the various meetings and findings pursuant to each stage. It is submitted that the Stage 4 findings were that the allegations were not well founded and therefore not upheld. The matter was then subsequently referred to the WRC.

It is further contended by the Employer that procedurally, the Worker was afforded all of his rights to a fair process, in line with the Company Procedural Agreement, the LRC Code of Practice on Grievance and Disciplinary Procedures (SI 146/2000) and the universal principles of natural justice. Furthermore, it is submitted that the Employer’s Procedural Agreement provides for two additional stages to the standard grievance / disciplinary procedure. It is submitted that the Worker was afforded the right to representation, which he exercised, during all stages. He was further provided with fair and impartial hearings, at which he was given an opportunity to respond to the allegations against him. All the evidence in its entirety was considered, including the Worker’s own representations, before any decision was made or outcome issued. It is submitted that the Worker was afforded the right to appeal, which he exercised. Accordingly, the Employer submits that the grievance process applied to the Worker was procedurally fair in all respects.

In terms of the alleged procedural flaws highlighted by the Worker the Employer responds in the following terms:-

·        In reply to the claim of “management investigating management” the Employer states that Employee A is a supervisor with no reports and therefore is not at a managerial level therefore there is no basis to this claim.

·        In regard to the allegation of the meeting of the 9/2/2021 at the hearing it was confirmed that the purpose of this meeting was to clarify what was the preferred process of the Worker considering there was an allegation of sexual harassment and bullying. It was confirmed by the Employer that at this meeting the Worker confirmed that he wished to continue under the grievance process.

·        The matter was brought through an exhaustive 4 stage process with two informal attempts made to resolve it and an additional grievance also lodged and then withdrawn by the Worker in the midst of the process.

·        In relation to the allegation that the Worker was not given a copy of Employee A’s complaint. In the context of the approach made by Mr A when he asked the Worker to apologise to Employee A, the Worker requested the chain of emails from Employee A which included his initial complaint, all emails were sent to the Worker’s direct boss which included the initial complaint.

·        In relation to the claim of impartiality regarding the approach made by Mr A to the Worker asking him to drop the claim and apologise to Employee A it was confirmed by the Employer that it was not explained to the Worker that this was an informal attempt to resolve the matter in the context of Employee A’s claim. It was admitted that with the benefit of hindsight that should have been explained to the Worker. It was stated by Mr A  who was present at the hearing that he made the approach in good faith trying to resolve the matter at the earliest stage. The IBEC representative stated in this regard that it was good IR practice to try to diffuse matters as early as possible which was in line with the process set out in the procedural agreement.

·        The Worker was afforded the right to representation at all stages.

·        It was accepted that the minutes of stage 1 were not provided until Stage 4 and this was an oversight on behalf of the Employer.

It is submitted that there is no fault on the part of the Employer and the Employer asserts that the Worker’s behaviour has been entirely unreasonable. The matter could and should have been resolved had he acted in a more reasonable manner and worked with the Employer to reach an informal resolution. It is submitted that while the incident was regrettable, it took place during a pandemic when tensions were running high and there was much uncertainty around the full extent of the virus. It is submitted that Employee A suffers from an underlying condition and was understandably agitated about mask wearing. It is further submitted that Employee A was disciplined for his behaviour and so in that context the Worker’s persistence with the grievance when more than one opportunity for resolution presented itself is difficult to comprehend.

The Employer’s Sick Pay Scheme

It is submitted that the Employer can pay up to a 10 week continuous payment in the circumstances when it is considered that exceptional circumstances exist, and any 10 week payment is permitted once in a rolling three-year period. It is usual to only pay 5 weeks in line with the company’s sick pay scheme. Medical certificates must be submitted to avail of the scheme and employees claim illness benefit in the normal manner which is paid to the sick pay fund.

It is further submitted that employees absent from work for more than 2 weeks are required to visit the company doctor. The Employee submitted consecutive sick certs from his own GP and in accordance with its own policy the Employer referred him to an Occupational Health Physician. The Worker returned to work once he was certified as fit to do so, however, his period of absence exceeded the 10 weeks allowable under the scheme therefore he was unpaid apart from social welfare for this time. Accordingly, it is claimed that there is no substance whatsoever to the Worker’s assertion that he is somehow owed money.

The Employer’s former HR Manager stated at the hearing that the Employer received 5 certs in total from the Worker which certified him as unfit for work from the 31/3/2021 until 15/7/21. She confirmed at the hearing that the Worker’s case was deemed exceptional, and 10 weeks sick pay was granted. The Worker was examined on several occasions by the Employer’s occupational health provider Medmark and was certified as unfit to attend work from the 10/5/2021 for 4 weeks and this was reviewed again on 1/6/2021. The Worker’s GP certified him as fit to return to work on the 13/7/2021 by way of a medical certificate dated 7/7/2021.

As regards the change in role, it is submitted that it is common practice within the Employer’s company and in the Worker’s department to move people around. Workloads changed as a result of Covid, necessitating the move. At the hearing it was submitted that the Worker was moved to provide more consistent levels of work and even distribution of work. Furthermore, it was submitted that the Worker suffered no reduction in pay, or any other terms and conditions and no reduction in overtime as alleged. It was submitted that his overtime hours for 2020 were 10 hours, 10.5 for 2021 and so far in 2022 he has worked 10 hours of overtime.

In conclusion it is submitted that if minor breaches of fair procedures occurred, they are not sufficiently substantial to overturn the findings of the grievance process.

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

The Worker lodged a grievance pursuant to an agreed procedure set out in the Procedural Agreement against another employee (Employee A) arising from an incident that occurred in the workplace on the 6/01/2021. Employee A also lodged a grievance against the Worker arising from the same incident.

The Worker’s case is that his grievance was mishandled by the Employer in that his right to natural justice and fair procedures were breached, in particular his right to a fair and impartial determination of the matter. As set out above the Worker has listed various shortcomings in the process as examples of breaches of his rights to natural justice and fair procedures.

My role here is not to re-investigate the complaints but to examine the procedures that the Employer utilised and to determine whether they meet the standard of fairness and impartiality required of such investigations. I am mindful that both parties are in a live working relationship and my role here is to try and assist the parties reach a resolution of the dispute.

I have considered the alleged shortcomings in the grievance process as submitted by the Worker and also the response from the Employer in regard to each alleged shortcoming and will address each one of them below.

The Worker alleges that he was not furnished with a copy of Employee A’s grievance but instead this was read out to him. However, I accept the Employer’s position that this was furnished to him in the context of a chain email sent to his direct boss, as requested, which is not disputed by the Worker. It is my view that in line with best practice a copy of the grievance should have been furnished to the Worker at the outset to avoid any misunderstanding. 

In addition, the Worker submits that the managers appointed to investigate Stage 1 of the grievance Mr A and Mr B were not impartial, and this was a case of “management investigating management” as it was claimed that Employee A was part of the management team. However, at the hearing the Employer clarified that Employee A is a supervisor with no reports and is not at a managerial level. Therefore, I accept that the appointment of Mr A and Mr B was not a case of “management investigating management” as alleged and their appointment was not biased in favour Employee A, as he was not part of the management team.

At the hearing the Union on behalf of the Worker emphasised that the two main issues the Worker wished to raise in the context of procedural fairness concerned the approach made by Mr A to the Worker while the Worker’s grievance was being handled by him at Stage 1 of the process when he asked him to apologise to Employee A. The second matter concerned the meeting that took place on the 9/2/2021 which it is claimed was out of step with the process and was inappropriate. 

In relation to the first issue, it was conceded by the Employer at the hearing that at the time it was not explained to the Worker that the informal approach by Mr A when he asked the Worker to apologise was an informal attempt to resolve the matter in the context of Employee A’s claim. It was admitted that, with the benefit of hindsight, that should have been explained to the Worker. Mr A who was present at the hearing said that he made the approach in good faith trying to resolve the matter at the earliest stage. IBEC, on behalf of the Employer stated in this regard that it was good IR practice to try to diffuse matters as early as possible which was in line with the process set out in the procedural agreement.

Firstly, it is undisputed that Mr A, prior to scheduling an investigation interview with the Worker on his grievance, approached him on the shop floor to ask him to apologise to Employee A for what he had said and to drop the case.  I accept the Employer’s submission that this approach was motivated in the context of an informal attempt to resolve the matter in regard to Employee A’s claim and with the benefit of hindsight that should have been explained to the Worker.

One the fundamental principles of fair procedures is that of impartiality, an employee has the right to a fair and impartial determination of his/her grievance. I can appreciate how the Worker could form the perception of bias/impartiality by Mr A in the circumstances. It is my view that, as the grievance had progressed to a formal stage under Stage 1 of the process, it would have been more appropriate for Mr A to have refrained from making any informal approaches to resolve the matter, given that he was tasked with investigating the matter and issuing a decision under Stage 1. In the context of the right to a fair and impartial hearing a decision maker should also consider the risk of a perception of bias.

Notwithstanding this, I am of the view that the decision issued by Mr A dated 27/1/2021 where he dealt comprehensively with three grievances and upheld one of the Worker’s grievances was clear and well-reasoned. Two witnesses were interviewed in the context of the Stage 1 investigation, and the decision is based on the evidence provided by the Worker and the witnesses. 

Following stage 1 the Worker appealed Mr A’s findings and added further grievances which were investigated fully at two further stages. I am cognisant that the Worker had the opportunity of two further hearings at Stage 2 and Stage 4, with different decision makers who were more senior and had no prior involvement in the matter. Accordingly, I do not consider this frailty in the process to be sufficiently significant to invalidate the entire process.

In relation to the second issue raised by the Worker which concerns the meeting that took place on the 9/2/2021 which it is claimed was out of step with the process and inappropriate,  I note that at the hearing it was confirmed by the Employer that the purpose of this meeting was to clarify what was the  Worker’s preferred process considering the allegations of sexual harassment and bullying. It was confirmed by the Employer that at this meeting the Worker confirmed that he wished to continue under the grievance process. Notwithstanding that this meeting was out of step with the grievance process, I am of the view that it was prudent of the Employer to ascertain the views of the Worker on his preference regarding the appropriate procedure to follow and does not in my view constitute a breach of fair procedures.  

I note that the Worker was represented at all stages. I also note that the Worker availed of his right to appeal at each stage and three investigation hearings were held with different members of the company involved at each stage. Notwithstanding the frailty in the process identified above, I do not consider that the manner in which the process was carried out breached the Worker’s rights to fair procedures. Therefore, I do not consider it appropriate to recommend that the Employer provides an apology to the Worker in this regard.

I note that the Worker is also seeking a recommendation to require the Employer to circulate an email retracting the false allegations made against the Worker by Employee A. In that regard, my view is that any employee is entitled to lodge a grievance which may contain allegations that another worker deems false or without merit. The purpose of the grievance process is to provide a fair and impartial process whereby these complaints can be investigated, and findings issued which either upholds or does not uphold such complaints considering all the relevant evidence.

In this case Employee A’s grievance that he felt threatened in his place of work arising from a comment made by the Worker at the time of the incident was not upheld as the finding stated that the investigator believed it did not constitute a threat in the workplace. This finding was communicated to the Worker.  It is my view that it is not appropriate to recommend to the Employer to circulate an email as requested by the Worker. The finding pursuant to this investigation is clear.

In regard to the Worker’s contention that he was not furnished with minutes of the investigation meeting Stage 1, I accept the Employer’s statement that though these were not furnished to the Worker at Stage 1 the minutes were furnished at Stage 4 and the Employer acknowledges this as an oversight on their behalf.

In regard to the Worker’s contention that there was a lack of clarity regarding the decision and sanction which was imposed on Employee A pursuant to his grievance process, I accept the employer’s position that the Worker was advised that the grievance was not upheld, and he was verbally informed that Employee A was reprimanded pursuant to the investigation.

I note that the grievance process is contained at Article 10 of the Procedural Agreement which was agreed in 1994 between the Services Industrial Professional and Technical Union and the Employer. In light of the fact that the process predates the Code of Practice on Grievance and Disciplinary Procedures (Declaration) Order 2000 S.I. 146/2000, perhaps the Employer collectively with the Union would consider reviewing and updating the grievance/disputes process to ensure compliance with the principles of natural justice and fair procedures as set out in S.I. 146/2000.

It is my view that the Employer could consider ensuring as far as possible that all members of management tasked with carrying out an investigation process are provided with training regarding the rights of fair procedures as set out in S.I. 146/2000.  

I note that the Worker is not seeking compensation but is seeking reimbursement of wages of three weeks “for a reimbursement of lost wages for the unnecessarily long period of time the Employer kept the Worker out of work due to the recommendation by the Employer’s occupational health”.

In this regard it is not within the Employer’s or my discretion to undermine the decision of a qualified medical practitioner such as the Worker’s own GP or the Employer’s occupational health provider who deemed the Worker as unfit for work for the relevant period. 

I note that the Worker’s own GP provided 5 medical certificates in total which certified the Worker as unfit for work from the 31/3/2021 until 15/7/21. The Worker’s GP certified him as fit to return to work on the 13/7/2021 by way of a medical certificate dated 7/7/2021. In this regard I note that the Employer did deem his case to constitute exceptional circumstances and paid him 10 weeks’ pay.

Accordingly, for the reasons set out above I do not recommend in favour of the Worker in respect of this claim.

For the reasons set out above I do not recommend in favour of the Worker in respect of this claim.

Grievance process