LCR22889

Appeal of Adjudication Officer Decision No's: ADJ-00029932 (CA-00039694-002)

BACKGROUND:

This case is an appeal of an Adjudication Officer’s Recommendation by the Union on behalf of the Worker.  On 9 May 2022 the Adjudication Officer issued the following Recommendation:-

" Having considered the complaint in detail I accept that the worker was subjected to a very unpleasant experience that should not have happened. However. I cannot agree that her employer could be held accountable or responsible for what took place on 1st October 2019. The employer has taken some actions following the incident and have conducted themselves in accordance with the organisation’s grievance procedure following on from the worker submitting a grievance. The employer has provided all available supports to the worker following the incident”.

The Union appealed the Adjudication Officer’s Recommendation to the Labour Court on 19 May 2022 in accordance with Section 13(9) of the Industrial Relations Act, 1969.

A Labour Court hearing took place on 23 November 2023

DECISION:

This is an appeal by an Environmental Health Officer (‘the Worker’) from a Recommendation of an Adjudication Officer (ADJ-00029932/CA-00039694-002, dated 9 May 2022) under section 13 of the Industrial Relations Act 1969. The Worker’s Notice of Appeal was received in the Court on 18 May 2022. The Court heard the appeal in a virtual courtroom on 23 November 2023 along with a second, related, appeal by the Worker bearing reference number CD/22/92.

The Factual Background

The Worker has been employed as an Environmental Health Officer since July 2002. An incident occurred during the course of a routine inspection of a food premises on 1 October 2019 which gave rise to the within proceedings during which an external Food Safety Consultant (‘FSC’), engaged by the proprietor of that premises, behaved in a hostile, aggressive and unprofessional manner towards the Worker. The Worker was accompanied throughout that inspection by a Senior Environmental Health Officer.

Separately, and subsequent to the incident of 1 October 2019, the Food Business Operator at the premises where the incident had occurred wrote to the Regional Chief Environmental Health Officer on 17 October 2019 raising concerns in a general way regarding the conduct of EHO inspections at their premises and complaining about that they believed to be an erroneous application of food safety legislation by the Environmental Health officials in their case. The Worker took the view that this letter was a complaint about her and took issue with the fact that she was not given the opportunity to respond to it.

The Worker reported the incident of 1 October 2019 to her then Line Manager and expressed her view that the incident of 1 October 2019 constituted an offence of obstruction. The Worker was not satisfied with her Manager’s response to her account of the incident. Therefore, the Complainant submitted a grievance on 9 November 2019. This grievance was progressed through all three stages of the HSE’s procedures.

It is useful at this stage to recite in full the findings made at Stage 3 of the grievance process:

“I find that an incident did take place at the food premises on the 1st October 2019. The inspection had been completed and feedback given to the chef prior to the incident with the consultant. It is my view that [the Worker] and her colleague could have removed themselves from the premises once the interaction with the Food Consultant began to deteriorate. There was no need to continue with the meeting once they had formed the opinion that the Food Business consultant was being aggressive or derogatory. The inspection had been concluded at that stage. However, I do accept that this is with the benefit of hindsight, and I only point it out in order to highlight the learning that can be gleaned from the interaction. This learning from the incident should be communicated within the EHO department.

It is not up to me, hearing a stage three grievance, to decide whether the incident as described was obstruction or not. I am thankful to [the Worker] for providing me with information in relation to obstruction. There is a legal process that an Environmental Health Officer should use in cases of obstruction. In the event that an EHO believes that obstruction has occurred they should instigate a prosecution under the relevant legislation. This is then escalated to the line manager for decision. In this case neither [the Worker] nor her colleague, who is a senior EHO, initiated this action. This can only lead me to believe that they did not think that the incident which took place on the 1st October was indeed obstruction. I recommend that the protocols around dealing with obstruction of an EHO in the course of their duty be re-emphasised with all staff.

[The Worker] is of the view that the letter sent to the Regional Chief Environmental Officer on the 17th October was a complaint against her. I uphold the decision of the stage 2 grievance that this was not a complaint against [the Worker] but was a legitimate expression of concern sent on behalf of a food business. The letter was dealt with in accordance with the procedures in the Environmental Health Department and resulted in a file review. The results of this review were communicated to [the Worker]."

The Worker was on extended sick leave between October 2019 and September 2021, nine weeks of which were unpaid.

On 9 September 2020, the Worker’s Trade Union referred a dispute to the Workplace Relations Commission. The narrative that accompanied the referral stated as follows:

“Referral of a grievance having exhausted all stages of the agreed HSE ‘Grievance and Disciplinary Procedure for the Health Service 2004’ and achieved no satisfactory resolution.

The Adjudication Officer decided that the Worker’s complaint was not well-founded.

The Worker’s Submission

The Union submits that the Respondent’s “handling of [the Worker's] grievance amounted to a failure to accept their duty of care to [the Worker] and a failure to protect the Worker in the face (or aftermath) of severe aggression and intimidation”. The Union has requested the following redress from the Court:

“1. The reinstatement of [the Worker’s] depleted sick leave of 30 weeks;

2. A full review of the process dealing with aggressive behaviour and for standard letters to be made available to respond to any similar incidents in the future;

3. Financial compensation to include lost income due to unpaid sick leave and for pain and suffering;

4. An independent review into how [the Worker’s] grievance was handled and an apology to [the Worker] for the Employer’s failure to act in a timely manner to address severe aggression in the line of work.”

The Respondent’s Submission

The Respondent submits that the Worker was given access to all supports available within the HSE, following the incident of 1 October 2019, and had her grievance heard at all stages of the process and in a timely manner.

Discussion and Decision

The within dispute stems entirely from the Worker’s dissatisfaction with the outcome of the grievance process that she initiated following her interactions with her Line Manager subsequent to the incident of 1 October 2019. As is evident from the conclusions drawn at stage 3 of the process, and recited above, the Worker’s grievance revolved around two principal issues: Management’s decision not to proceed with a prosecution for obstruction in relation to what had occurred on 1 October 2019 and, secondly, Management’s interpretation of the letter of 17 October 2019 as being other than a complaint about the Worker personally.

It is not the Court’s role to second guess internal operational decisions taken by an employer. In a dispute such as this under s.13 of the Industrial Relations Act 1969, stemming from a grievance process, the Court is primarily focused on whether the Respondent employer had an adequate grievance procedure in place, whether the Worker was permitted to avail themselves fully of those procedures with the assistance of appropriate representation, and whether the process was completed in a timely manner.

Having carefully considered the Parties’ extensive written and verbal submissions the Court finds that the Respondent carried out a thorough and exhaustive investigation of the Worker’s grievance and that she was given every opportunity at each stage of the process, through her Trade Union representative, to advance her grievance.

The Court also finds that the Respondent made very reasonable efforts to support the Worker at all stages of the process.

The Court therefore finds that the within appeal does not succeed and it upholds the Recommendation of the Adjudication Officer.

The Court so decides.

	Signed on behalf of the Labour Court
	Alan Haugh
CC	______________________
2 January 2024	Deputy Chairman