Worker

Employer

Anonymised Parties

Clerical Officer

County Council

Representatives

Mr. Michael McNamara, FORSA

Mr. Keith Irvine, LGMA

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 - 00001147

06/03/2023

The Worker in this instance is a long-standing employee, having commenced employment on 1st May 1989. The Worker is a permanent-full time member of staff. At all relevant times her role was described as that of “Clerical Officer”.

On 6th March 2023, the Worker referred the present dispute to the Commission. Herein, she alleged that her Employer had created an unreasonable delay in investigating a grievance raised by her. In addition to the same, she submitted that the Employer failed to act on any of the recommendations arising from the outcome report once the same was issued. By response, the Employer denied these allegations, submitting the delays in the process could not be attributed to them, and that the grievance was upheld and actioned in due course.

Following the Employer’s positive election in respect of this dispute, a hearing was duly arranged for, and finalised on, 7th November 2023.

Both parties issued extensive submissions in advance of the hearing. These submissions were expanded upon and contested by the opposing side in the course of the hearing.

No issues as to my jurisdiction to hear the dispute were raised at any stage of the proceedings.

By submission, the Worker stated that she made a request for flexible working hours in mid-2021. The Worker required this flexibility in order to care for her elderly mother, who was in poor health. This application was outright refused by the Employer without any discussion or consultation of any form. Following receipt of the same, the Complainant issued a letter of grievance on 30th August 2021 in accordance with the Employer’s internal policies. The Worker attended a meeting in respect of the same over four months later, with a decision in relation to the same being issued another four months later, on 29th April 2022.

In circumstances whereby the Worker’s grievance was not upheld in the first instance, she appealed the same on 17th May 2022, with a report issuing on 15th August 2022. Thankfully, this appeal report upheld many of the Worker’s complaints, and recommended that the Worker’s line manager should re-engage with her in relation to the matter. Unfortunately, the Worker’s mother passed away three days following the receipt of the report.

On 13th September the Worker met with her line management. Unfortunately, this meeting was ultimately futile as her managers had no proposals in relation to outcome reached on appeal. As no outcome was achieved at this meeting, the Worker requested a further meeting on 4th November 2022. During the same, management asked the Worker what outcome she wanted at this point and stated that the subject matter of the grievance was “all in the past”. Following the same, the Worker received correspondence advising that the grievance findings were to be “noted for future reference” with no further outcomes proposed.

By submission, the Worker stated that her relatively simple and entirely reasonable request for flexible working was simply refused without consultation or discussion. She stated that despite the subject matter of the grievance issued thereafter bring clearly time sensitive, the Employer took fifteen months to finalise the same. In this regard, the Worker opened correspondence clearly setting out the time-sensitive nature of the issue and requesting an early resolution in relation to the same.

It was further submitted that the head of HR had been involved in the process from an early stage, effectively closing her normal avenue of appeal.  The Complainant submitted that during the process, she was referred to an occupational health specialist, despite her never requesting or requiring the same and potentially elongating the process.

By response, the Employer denied the allegations raised by the Worker on a substantive and procedural basis.

In this regard, the Employer submitted that the Worker’s request for flexible working hours was made during the period of restrictions arising from the Covid-19 pandemic. In this regard, the Worker was advised to apply for carer’s leave or a work-sharing arrangement.

Thereafter, the Worker submitted a grievance in accordance with the Employer’s internal procedures. Regarding the alleged delays in relation to the same, the Employer submitted that much of the same occurred due to the Worker refusing to sign minutes. Once the Worker had agreed the minutes, the report issued shortly thereafter.

The Worker elected to appeal this outcome, with the Director of Service being appointed to chair the meeting and issue a determination. Said determination was issued on 9th August 2022, upholding two of the Worker’s grievances and partially upholding another. As the process had finalised at this point, the Director of Service recommended that the Worker’s line management re-engage with her in relation to the outcome. A meeting was arranged in relation to the same, with the relevant managers accepting the outcome of the appeal and advising that the same would be considered for future reference.

By submission, the Employer stated that process adopted respected all of the Worker’s natural and contractual rights, and that the outcome of the same was accepted by all parties in due course.

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

The present dispute involves an allegation the Employer failed to process a grievance raised by the Worker without undue delay and that they failed to implement any of the outcomes of the report that issued thereafter.

Regarding the first point, it is clear that the grievance issued by the Worker was time sensitive. In this regard, the subject matter of the same was that the Worker sought a flexible working arrangement to allow her to care for her unwell, elderly mother. To make the point perfectly clear, the Worker issued correspondence to the Employer setting out, in no uncertain terms, the urgency of the matter and requesting a speedy resolution in respect of the same. While the Employer accepted this position, they stated that much of the delay arose from the Worker refusing to agreed minutes of a meeting, with the outcome being issued shortly thereafter. Having reviewed the relevant documentation in this regard, I find that I do not agree with the Employer on this point. Following receipt of the Worker’s grievance, a meeting in relation to the same was not arranged for a period of four months. In addition the same, the dispute as to the minutes of the meeting only accounted for a portion of the delay. It is further apparent that no other reason existed for either the delay in convening the meeting or issuing the determination. Having regard to the foregoing, I recommend in favour of the Worker in relation to this portion of the dispute.

Regarding the second issue raised by the Worker, it is apparent that three of the outcomes of the initial process were overturned on appeal, with two of the Worker’s primary allegations upheld and another partially upheld. In this regard, the chair of the appeal process recommended that the matter be referred back to local line management for resolution. The position of the Worker was that local management did nothing to implement any of the findings of the report. In the correspondence opened during the hearing, it is apparent that local management took the view that in circumstances whereby the Worker’s parent had unfortunately passed away, the rationale for the request for flexible working had ceased and no further action was required. In this regard, the outcome of the appeal was not just that the outcome of the request for flexible working be reviewed, but that the process adopted in relation to the same was dysfunctional. In this regard, the appeal found that the initial request was dismissed without consultation, without understanding of the actual application and that, partially at least, the application was discussed with other parties. These outcomes do not relate to the actual decision itself, although the same was to be reconsidered as part of the outcome, but to the process adopted in relation to the same and the difficulties this caused the Worker. The position adopted by local management appeared to have been that once the request for flexible working was, presumably, withdrawn, that the matter required no further consideration. This position adopted by the Employer entirely ignores the substantive portion of the actual outcome and did serve to provide any form of resolution for the Worker. Having regard to the foregoing, I recommend in favour of the Worker in relation this position of the dispute also.

The final issue raised by the Worker related to a referral to an occupational health specialist during the process. The Worker submitted that such a referral was not requested and was entirely unwarranted, while the Employer stated that the same occurred as a precautionary measure. While I have sympathy for the Worker’s confusion at this referral, it is apparent that this occurred out of an abundance of caution on the Employer’s part and cannot be seen to be an unreasonable development.

Having regard to the foregoing, I recommend in favour of the Worker. In circumstances whereby the process is long finalised, I find that no benefit would arise from relitigating what should become a historical matter. In such circumstances I recommend a payment of compensation to the Worker in order to finalise the matter. In this regard I recommend that the Employer pay the Worker the sum of €3,000 in compensation within six weeks of the date below, on the understanding that the matter is finalised thereafter.

Grievance, Delay, Flexible Working