ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969

Investigation Recommendation Reference: IR - SC - 00000252

Parties:

	Worker	Employer
Anonymised Parties	A Health Worker	A Health Organisation

Representatives

Fórsa

Employee Relations Section

Dispute:

Act	Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	IR - SC - 00000252	06/05/2022

Workplace Relations Commission Adjudication Officer: Louise Boyle

Date of Hearing: 20/12/2022

Procedure:

In accordance with Section 13 of the Industrial Relations Act 1969 (as amended) following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any information relevant to the dispute.

The hearing was heard remotely, pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. 359/2020, which designated the Workplace Relations Commission as a body empowered to hold remote hearings.

Background:

The workers submits that the employer has failed to adhere to their Dignity at Work policy and have failed to investigate her bullying and harassment dispute.

Summary of Workers Case:

It was submitted that the employer failed to adhere to their own Dignity at Work policy and investigate a complaint lodged by the worker and denied the worker natural justice and fair procedures.

On 23rd February 2021, the worker lodged what was a second grievance to Mr A in relation to numerous incidents that had occurred since submitting a previous complaint and submitted that the worker was invoking a formal grievance under Dignity at Work policy regarding the behaviour of a colleague. On 28th April 2021 the worker received a response from the other party and was encouraged to utilise mediation by Mr A as a method to resolve the matter. On 5th July 2021 the worker received a letter advising if they did not hear from her within 7 working days then the matter would be considered closed. Forsa wrote on 6th July requesting more time was needed and it should be dealt with through the relevant policy. On 12th July 2021, the worker responded to management outlining her position on the matters raised by the employer. There was further exchange of correspondence and on 21st September 2021, management advised that the matter had been referred to National investigation teamwho would be in touch. A further email outlined who would be appointed to hear the matters but there has been no progress since and no safeguards put in place to protect the worker.

It was submitted that management had breached their own Dignity at Work policy by failure to offer mediation in the first instance, the worker was not afforded due process, management disengaged from the process and never ensured that the worker had a safe working environment. It was further submitted that the complaint has not been addressed at all by management to this date and the worker continues to deal with on-going inappropriate behaviour from this colleague. It was also outlined that the worker has no confidence in the employer investigating this complaint and that an external investigator should be appointed, and financial remedy is reasonable and justified.

Case law cited included Adj-27998 and LCR22562.

Summary of Employer’s Case:

The employer submits that they have followed the organisation’s Dignity at Work Policy and that this matter was handed over to the national unit for investigation. They submitted that they have no control or input into matters after they are handed over. They have followed up on the matter and the National Investigation Unit have said that they will follow up with the worker directly on this matter. The worker’s manager committed to follow up on health and safety matters that were raised by the worker. Nobody from the National Investigation Unit was in attendance at the hearing as it was submitted that they decline to attend such hearings and the representative could not provide any update as the Unit would not give them any information.

It was submitted that the Dignity at Work Policy provides for a review and that the details of Review of the XXX Human Resource Investigative Process conducted by Kevin Duffy would be forwarded to the Adjudicator after the hearing. It would appear from the documentation forwarded that the National Investigation Unit was established in 2016 and its purpose was to “provide a unified independent national service with the expertise and resources to undertake the investigative process under each of the three policies within its remit”.

After the hearing the employer provided me with a copy of the following documents: Dignity at Work Revised Policy (August 2022), Review of the XXX Human Resource Investigative Process conducted by Kevin Duffy, Former Chairperson of the Labour Court, HR Circular 08-2022, Revised Dignity at Work Policy for Public Health Service and a HR Memo re Dignity at Work Policy for the Public Health Service (June 2022). No further submissions were received from the employer or the worker regarding these documents.

Conclusions:

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties. It was regrettable that documents, provided by the employer after the hearing, were not available during the hearing. However, I note that parties appeared to be familiar with all these referred to documents and no further submissions were received afterwards. Although the most uptodate Dignity at Work Policy (August 2022) was not signed off at the time of the referral of this dispute (May 2022), parties were familiar with the August 2022 policy.

I note that the worker has declined the option of mediation, as is her right and has requested that an external investigator be appointed owing to the failures of the employer. I do not see any provision within either the 2009 or the 2022 Dignity at Work policy for an external investigator. It is noted, however, that there is a provision now within the 2022 policy for an external mediator which did not appear to be within the 2009 policy:

“… In so me cases, an external mediator will be assigned.”

The employer submits that the investigation is with the National Investigations Unit. I note that the employees within the National Investigation’s Unit are also employees of the instant employer and I find it extraordinary that the Unit will not provide any information to the employer representatives to facilitate resolution of this dispute and explain the delays.

It is further noted that there is a provision within the 2022 Dignity at Work policy for the review of the 2022 Policy

“This Policy will be reviewed two years after its implementation and thereafter every three years. The Policy may be reviewed more frequently as circumstances or legislation require.

I note also that both the 2009 and 2022 Dignity at Work policy sets out that managers and supervisorshave an obligation:

“to deal promptly and effectively with any incidents of bullying or harassment of which they are aware or ought to be aware”

The policy also outlines that

“Risk assessments must be undertaken and controls identified to eliminate or minimise the risk”.

Having heard all the submissions and taking the aforementioned into consideration, I recommend as follows:

1. The worker should be offered the option of an external mediator which may not have been offered to her previously as it is under the 2022 policy.

2. If they have not done so already, the National Investigation Unit should advise the worker of the status of her complaint within 10 working days.

3. The National Investigation Unit should give consideration to their important role: to “facilitateand support the investigation process”. With that in mind, providing appropriate information to the employer representatives, who do attend WRC Hearings, could help “facilitate and support”. The Unit may wish to give consideration also as a part of any review of its Policy to allow for external investigators.

4. If not done so already, a risk assessment should be undertaken as a matter of urgency regarding the workers circumstances which were outlined at the hearing.

5. Finally, it is clear that both the 2009 and 2022 Dignity at Work policy sets out that managers and supervisorshave an obligation:

“to deal promptly and effectively with any incidents of bullying or harassment of which they are aware or ought to be aware”.

They have, it would appear, completely failed in that regard based on the circumstances of this dispute and due to the unique circumstances of this dispute I recommend the worker should be paid €2,500 for the unnecessary, avoidable delays in dealing with her claims.

Recommendation:

Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.