ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969
Investigation Recommendation Reference: IR - SC - 00001511
Parties:
| Worker | Employer |
Anonymised Parties | A Waterworks Caretaker | A Local Authority |
Representatives | Jemma Mackey Siptu | Keith Irvine LGMA |
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 - 00001511 | 05/07/2023 |
Workplace Relations Commission Adjudication Officer: Ewa Sobanska
Date of Hearing: 26/10/2023
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.
Background:
The Worker referred his dispute to the Director General of the WRC on 5 July 2023 seeking compensation for the delay in the investigation of his complaints and the reinstatement of the Worker’s sick pay. |
Summary of Workers Case:
SIPTU, on behalf of the Worker submit as follows. Introduction The Workers’ complaint is in relation to the timeline in which the local authority conducted and concluded an investigation after he had raised several complaints. The Worker lodged a formal complaint on 19 November 2019 to Senior Executive Officer Human Resources Department against a retired Water Services Supervisor Mr S, Senior Executive Engineer (at the time of the incident) Ms S, Executive Engineer Mr K, and a General Operative Mr M (now deceased). On 19 October 2020 two external investigators were appointed by the Employer to investigate three separate complaints against the forementioned, however the investigations did not commence until 15 September 2021. The final Investigation report was issued to the Worker on 14 July 2022. His complaints were not upheld. The findings of the report were upheld by the Director of Service. On 15 September 2022, the Worker appealed the decision and a different Director of Service was commissioned for this appeal which was heard on 19 January 2023. The report was issued on 24 March 2023 and did not uphold the Worker’s appeal. SIPTU referred his case for adjudication to the Workplace Relations Commission under the Industrial Relations Act 1969 as a trade dispute regarding the Employer’s failure to properly process complaints made and to act in accordance with its own policies and procedures. SIPTU also highlights flaws in the procedure as the evidence was ignored. The Worker is seeking compensation for the delay in the investigation and restoration of the Worker’s sick pay. |
Summary of Employer’s Case:
The Employer asserts that the investigation into the Work’s complaints was undertaken in accordance with the Employer’s Grievance Policy and Procedure and that the process was independent, robust and fair. The Worker has been absent on certified sick leave since 1 May 2018. A complaint was submitted by SIPTU on behalf of the Worker dated 19 November 2019 which was followed up with additional information by the Worker on 8 October 2020. The complaints were received by the Employer on 24 July 2020 and 8 October 2020 respectively. On 19 October 2020 two independent investigators were appointed and the Employer advised the Worker that three formal investigations had been initiated in accordance with the Employer’s Grievance Policy and Procedure. Due to Covid-19 restrictions, there were several delays in arranging face to face meetings with the Investigation team with meetings held between 15 September 2021 and 23 February 2022. The reports of the investigation team were finalised on 30 June 2022 and the Worker was provided copies on 14 July 2022. The investigators did not uphold the Worker’s complaints. A Director of Service concurred with the findings of the report of the investigation team. This decision was notified to the Worker by letter dated 6 September 2022 with a 10 day appeal period. The Worker lodged an appeal of the Director’s decision on 15 September 2022. An appeals officer met with the Worker in the company of his union representative on 19 January 2023 and issued his report on 24 March 2023 upholding the findings of the investigation team. The Worker was notified on 30 March 2023. |
Conclusions:
In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.
The Worker referred his dispute to the Director General of the WRC on 5 July 2023 stating that it “includes but is not limited to the fact that my Employer has failed to properly process complaints made and to act in accordance with its own policies and procedures.”
There was no dispute that the Worker raised a number of grievances in relation to five individuals (one deceased at the time of the grievance being raised) employed by the Employer in the context of events that took place from the commencement of his employment and in 2014 in particular.
In defining the parameters of my remit in relation to disputes regarding internal investigations such as this dispute brought under Section 13 of the Industrial Relations Act 1969, I am guided by the Labour Court in Bord Gais Eireann -v- A Worker AD1377 which stated as follows:
‘It is not the function of the Court to form a view on the merits of complaints giving rise to those investigations nor can it substitute its views for those of the investigators appointed in either case. Rather, the role of the Court is to establish if the procedures used by the Company conformed to the generally accepted standard of fairness and objectivity that would normally be used in cases such as these.’
This also applies to the WRC whose function is not to substitute its views for those involved in the process but rather to establish if the procedures adopted by the Employer conformed to the generally accepted standard of fairness and objectivity that would normally be used in such cases.
There was no dispute that the Worker and his SPITU representative met with the Employer on 4 February 2019 to discuss the Worker’s grievances. On 28 January 2020, SIPTU wrote to the Employer requesting the Employer to initiate a formal investigation in respect of the matters raised at the meeting. The HR Manager replied to SIPTU outlining the complaint process and providing a copy of Dignity at Work Policy. Thereafter, an exchange of correspondence ensued and on 24 July 2020 and 8 October 2020, the Employer received signed and dated statements from the Worker.
The Employer informed the Worker on 21 October 2020 that the investigators were appointed. The Worker was furnished with a copy of the Employer’s Grievance Policy and Procedure, Terms of Reference for each of the three separate investigations, a copy of the Worker’s complaint and a copy of the letter sent to the appointed investigation team. There was no dispute that the Worker was invited to make any comments or observation regarding the Terms of Reference. None were received by the Employer.
On 30 November 2020, the Employer wrote to the Worker conveying a message from the appointed investigators that the investigation will commence with a meeting with the Worker that would be held when it is in order to do so, in accordance with Covid-19 restrictions.
On 15 December 2020, the Worker was invited to a meeting to be held on 5 January 2020, which appears to have been rescheduled to 14 January 2021, and which was subsequently cancelled due to the Government restrictions.
On 28 April 2021 the Employer again wrote to the Worker conveying a message from the investigators that they would meet the Worker as soon as the guidelines permit to do so.
On 27 May 2021, the Employer invited the Worker to a meeting to be held on 11 June 2021. The meeting was postponed at the request of the Worker’s SIPTU representative. On 13 August 2021, the Worker’s SIPTU representative emailed the Employer requesting a meeting to be scheduled in September 2021. On 17 August 2021, the Employer invited the Worker to a meeting to be held on 15 September 2021.
The meetings with the Worker, the respondents and witnesses took place until 23 February 2022. The report was finalised on 10 June 2022 and issued to the Worker on 14 July 2022. A Director of Service was appointed and on 26 August 2022 he concurred with the finding of the report. This was communicated to the Worker on 6 September 2022. The Worker appealed this decision and, following an appeal meeting with the Worker and his SIPTU representative on 19 January 2023, another Director of Service upheld the original decision on 30 March 2023.
A number of assertions were made on the Worker’s behalf at the adjudication hearing such as the Employer’s failure to adhere to natural justice and fair procedures; failure to consider the facts of the complaints and contradictions; and lack of independence of the Appeals Officers.
The Worker outlined in detail a number of matters ultimately requesting the Adjudication Officer to revisit the findings of the investigation report that the Worker disagreed with. This is not an Adjudication Officer’s role. The Employer proceeded with a full and thorough investigation of the Worker’s allegations in line with the Terms of Reference. The investigators, as per the Terms of Reference established the facts on the balance of probabilities.
With regard to the Worker’s assertion that the Appeals Officer lacked independence, I find that the Worker did not raise any concerns regarding the appointment of the Appeals Officer prior to, or during the appeals process. Neither was this matter raised in the Worker’s submission to the WRC and, apart from a general statement at the adjudication hearing, there was nothing further put forward to substantiate this assertion.
However, I find that there was no credible basis to explain the delay in the investigation process. I accept that the Employer was not in a position to commence any investigation initially when insufficient details were furnished by the Worker’s representative. However, I find that from October 2020, at the latest, the Employer was in possession of the Worker’s written signed complaint. Even in the context of Covid-19 pandemic and associated restrictions, the delay is inexcusable. |
Recommendation (Specific to the facts and Parties to this Dispute):
Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.
I recommend that the Employer pay the Worker the sum of €5,000 in respect of avoidable delays arising from this process. |
Dated: 14-02-24
Workplace Relations Commission Adjudication Officer: Ewa Sobanska
Key Words:
Grievance investigation – delay- |