LCR22950

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Recommendation No's: ADJ-00035209 (CA-00046369)

BACKGROUND:

The Worker appealed the Adjudication Officer’s Recommendation to the Labour Court on 02 October 2023 in accordance with Section 13(9) of the Industrial Relations Act, 1969.

On 22 August 2023 the Adjudication Officer issued the following Recommendation:

“I find for the Worker.

I find that, even allowing for the consequences of the Covid-19 pandemic, the delays in this case are  inordinate and effectively punitive in nature, which an administrative measure pending investigation should not be.

I find that there were very basic deficiencies of procedure – failure to provide the Worker with his  file, with a copy of the details of the allegation against him, failure to communicate with and engage meaningfully and in a timely manner with the Worker’s representative and to provide basic updates and information. I recommend that the Employer remedy that – that it engage with the Worker’s representative and provide the Worker with all information to which he is entitled in line with fair procedure and natural justice in a timely and responsive manner, in order to allow him to participate in the investigation and respond to the allegation made.

I recommend that the allegation against the Worker is investigated fully, immediately, and the investigation concluded in a timely manner, including any and all appeals.

I recommend that the Employer pay the Worker €3,500 compensation for the delays to date in dealing with this matter.”

A Labour Court hearing took place on 12 March 2024.

RECOMMENDATION:

This is an appeal by the Worker of Recommendation ADJ-00035209 of an Adjudication Officer in respect of the Worker’s on-going complaints arising from the Employers failure to investigate an incident between himself and a work colleague in a reasonable time frame. The Adjudication Officer recommended that the allegations against the Worker be investigated immediately and concluded in a timely manner and that the Employer pay compensation to the Worker of €3,500 for the delay to date in dealing with the matter.

  The Union on behalf of the Worker set out the background to the incident which occurred on 22nd March 2021, and informed the Court the only reason they had appealed the Adjudication Officers recommendation was that despite not appealing same, the Employer had failed to progress in any way shape or form the investigation and had not paid the compensation. The Union also submitted that the Worker was prevented from applying for promotions during this period as he was under investigation.

 The Employer accepted that they had not appealed the decision. It was their submission that they did not dispute the fact there was no progress was not acceptable, and as a result of same that the Court could be minded to increasing the compensation awarded. They stated that the carrying out of investigations was assigned to a specific Unit within the HSE and that they had no control over the speed at which the investigation proceeded, nor did they have any inkling as to when it was likely to be concluded.  The Employer informed the Court that they had requested that someone from the relevant Unit attend to explain the delay to the Court, but nobody was willing to attend. They accepted that having an investigation running for three years was not acceptable and was contrary to good practise.

 The Court took a short break to allow the Employer to establish if they could indicate a timeline for completing the process.

 After the break the Employer informed the Court that Mr Robert Morton Director National Ambulance Service was prepared to give a commitment that if National HR could not commit to concluding the investigation within six months, that NAS would avail of an independent investigator drawn from the approved OGP framework.

 The Employer stated that they were surprised to hear that the Worker could not apply for promotion as they were not aware of any impediment to same while an investigation was on going. The Union on behalf of the Worker referenced a circular which they believed prevented him from applying for promotional posts.

 Recommendation

 The Court having taken into consideration the written submissions and oral submissions on the day and the commitment given to the Court recommends as follows.

 The Worker should be paid compensation of €7,000 for the delay to date and the failure of the Employer to investigate the issue in a timely manner. Even allowing for any delay that might have arisen because of Covid, the fact that the investigation process has not been completed after three years is totally unacceptable. No reasonable explanation for same was forthcoming from the Employer, the fact that a different section runs the investigation does not mitigate the Employers responsibility to ensure matters of this nature are addressed in a timely manner.

In respect of access to promotion the Employer should meet with the Worker and his Union and clarify the position in relation to same.

 Finally, if National Hr cannot commit to concluding the investigation within six months from the date of this decision, and this should be established as a matter of urgency, then as set out in the commitment given to the Court on behalf of Mr Morton the NAS should avail of an independent investigator drawn from the approved OGP framework to carry out the investigation in a timely manner.

 The Recommendation of the Adjudication officer is varied accordingly.

 The Court so recommends.

	Signed on behalf of the Labour Court
	Louise O'Donnell
AR	______________________
12 April 2024	Deputy Chairman

NOTE

Enquiries concerning this Recommendation should be addressed to Aidan Ralph, Court Secretary.