Worker

Employer

Anonymised Parties

A Pharmacist

A Hospital

Representatives

Eoghan Ryan of Forsa

Judy McNamara of IBEC

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 - 00002056

15/12/2023

The Worker joined the Employer in 2001 and has worked for them continuously since that date.

The Worker had an accident at work in August 2022. This resulted in a period of absence and resulted in a number of medical expenses.

The Worker sought to have their medical expenses covered by the Employer, initially this looked like it would be agreed and she submitted a series of vouched expenses. The Worker also argued that the Employer’s sick leave entitlement and injury at work benefit should run consecutively rather than her electing between the two.

The Worker’s medical expenses were not paid and the Employer’s Deputy Director of HR outlined a the position that the Employer does not in fact pay medical expenses for workplace injuries.

The Worker then submitted a grievance in May 2023 related to these issues. The Employer appointed a HRBP to review the grievance. After a period of engagement the Worker objected to the HRBP’s appointment as they reported into the Deputy Director of HR who had already determined one of the issues being considered, the payment of medical expenses.

There was a period of engagement between the parties but matters did not resolve and the Worker’s Union official referred the issue of who might consider the grievance to the WRC. They also seek compensation for alleged delay in resolving the grievance. 

The Worker attended the hearing and their Union official made detailed submissions.

The Employer attended the hearing and the IBEC representative made detailed submissions.

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

I believe the Worker’s concerns about the grievance process are understandable. The Deputy Head of HR had expressed a definitive view that the Employer does not pay medical expenses. The HR professionals who might consider her grievance about that decision directly report to the same Deputy Director of HR. They would be reviewing the decision of their immediate supervisor.  Even if the Employer was to nominate someone different, such as a senior manager outside the HR function, they would likely defer to the expertise of the Deputy Director of HR who has already set out their position.

However, the above conundrum is no one’s fault, and it is common problem when an employee is challenging a clear policy decision already made on behalf of an Employer.

The Worker seeks to rely on Statutory Instrument 146/2000 and argues that the Employer’s proposals regarding who should conduct the grievance violate that statutory code of practice. While SI 146 does apply fair process principles to grievance procedures it is important to note that there is not a standard set of “fair process rules” which apply to all cases equally. Instead, there is a sliding scale of measures which may apply depending on the nature and seriousness of the issues being resolved. This was not a grievance directed at the Deputy Director of HR personally but against a policy decision she had a part in. That decision was not the sole focus of the grievance. Considering that context and in particular the option to appeal any resulting outcome to the Director of HR I believe the Employer had discretion to proceed with the grievance in the manner they outlined in the Summer of 2023 and this was not in violation of SI 146. I would likely have a different view if it was a grievance that was directed at the Deputy Director of HR personally and was focused on their conduct rather than a policy decision.

Despite the above conclusion I must recognise that it is now some 10 months later and these matters remain unresolved. The Worker has expressed a lack of confidence in the proposed grievance investigation which has not proceeded.  While I do not think the Employer was at fault for referring the grievance to a HRBP the matter now clearly needs to be resolved so that the parties can move on. Given that the purpose of the Industrial Relations Acts is to foster positive working relations and in recognition of the Worker’s long service to the Employer I believe some flexibility in the application of the grievance policy is warranted at this point.  

I recommend that the Employer allow the Worker to skip to stage 3 of their grievance policy and have their grievance considered by the Director of HR. By doing this the Worker will be exhausting their internal avenues for resolution as such if the Worker prefers, they might still opt to proceed with a Stage 1 grievance in the first instance and seek to agree a suitable investigator nominated by the Employer. The choice should be the Worker’s and they should communicate that decision promptly.

While there was significant delay in resolving this matter, I am not satisfied that responsibility for all of that delay rests with the Employer. There was some unavoidable delay due to annual leave and the process could not proceed from December 2023 because this complaint had been lodged. As outlined above I think it would have been more appropriate for the Employee just to proceed with the grievance at that time and appeal the outcome if they were unhappy with it. There was however approximately 3 months where matters were not progressed by the Employer without any clear justification. This was not acceptable and in recognition of the significant stress caused to the Worker I believe a compensation payment of €1000 is warranted.