LCR22989

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00038259 (CA-00044541).

BACKGROUND:

The Worker appealed the Adjudication Officer’s Recommendation to the Labour Court on 27 September 2023.

in accordance with Section 13(9) of the Industrial Relations Act, 1969.

On 18 August 2023 the Adjudication Officer issued the following Recommendation:

“Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute and accordingly I recommend:

• That the Worker be paid €150 in lieu of his attendance at the Occupational Health Provider’s premises on 7 January 2021 together with the parking fee of €9.60 and mileage calculated at the normal rates applied by the Employer;
• That in the unenviable scenario of a further lock-down due to a pandemic or for other reason, that the Employer should ensure full and transparent communication with workers in relation to decisions about duties to be carried out;
• That the Worker be compensated €250 for the initial delay in processing his Grievance Procedure. Whilst I do not propose to recommend the appointment of an external investigator, I am recommending that the Employer review the operation of its Grievance Procedure in consultation with the relevant unions/worker representatives to ensure fair procedures and transparency at every stage.”

A Labour Court hearing took place on 18 June 2024.

DECISION:

Background

This is an appeal by the Worker of Recommendation ADJ-00038259 -CA-00044541 of an Adjudication Officer in respect of the Worker’s complaints arising from what he perceived as deficiencies on issues pertaining to the Covid pandemic.  The Adjudication Officer upheld some elements of his complaint.

Summary of Worker’s submission 

The Worker’s submission was very detailed including ninety pages of appendices and went into a lot of detail. His complaints can be summarised as follows; that having been stood down on the 30th March 2020, arising from the Covid pandemic, he was called into work on a couple of occasions between that date and the 18th May 2020, the official return to work date. He had concerns about the nature of the work that he was asked to do during that period, and the fact that not all colleagues were expected to come in to work. He also had concerns about whether appropriate PPE and guidelines had been in place at the time.

 On the 15th of May 2020, the Worker received a letter sent to his home from his Employer containing a form titled Pre-Return-to-Work form. As he was working prior to the issue of the form he had concerns about how appropriate it was for him to fill it in. He raised these concerns at a meeting with his Employer on the 18th May 2020, but the Employer did not appear to take his concerns on board.

 On the 19th June 2020, the Worker received a phone call from his wife regarding a letter from his Employer threatening to take him off the payroll if he did not complete the Pre -Return to Work form. His wife was very upset by the letter. He arranged to meet the Head of HR that afternoon and explained his difficulties with the form.

The Worker initiated the Grievance Procedure on the 30th June 2020.  He heard nothing back from the Employer, so sent a follow up letter on the 7th August 2020. He received a response on the 12th August 2020 which he considered inaccurate and inadequate. There were seven further exchanges with the Employer between August 2020 and February 2021. SIPTU then wrote to the Employer on his behalf and an appeal meeting was held on 18th March 2021. On 31st March 2021 the Employer issued the outcome of the appeal, upholding the initial response of 12th August 2020.

The Worker submitted that due to the stress he was under, he attended his GP on the 3rd July 2020, and was deemed unfit for work. On the 9th December 2020, the Worker received a letter from the Employer advising of a medical appointment in Dublin with Occupational Health.  He drove to Dublin in bad weather on the 7th January 2021 to attend the appointment, to be informed the appointments were on line and not face to face. His Employer had failed to tell him that.  The outcome of the Occupational Health assessment was that he should return to work which he did on 18th January 2021.

The Union on behalf of the Worker submitted that the Employer had breached their duty of care towards him by their actions and undermined his dignity. The Worker was seeking a number of things in terms of redress, some of which are outside the remit of the Labour Court, in a case of this nature.

 Summary of Employer’s submission

The Employer submitted that when the Worker was called into work in the period between 30th March 2020, and May 2020, the tasks he was asked to carry out were permissible in accordance with HSE guidelines and were caried out in line with those guidelines.

The Return-to-Work form was a national form and not one they had designed, but all employees were required to complete it.  The fact that the Complainant had been present in work in the intervening period did not exempt him from completing the form. Nor was completing the form a fraud as alleged by the Complainant. This was explained to him on a number of occasions.  The title of the form may have been misleading, but the Employer was obliged to collect the data from the form which was relevant for everyone.

The letter of 22nd June 2020 arose as the form had not been completed and simply set out the consequences of not completing the form. The Complainant’s grievance was processed, and responses were issued in respect of the concerns he raised. The Complainant’s appeal was heard on the 18th of March 2021 and his Union representative attended. The outcome of the appeal was issued on 31st March 2021. The issue of the Worker having to travel to Dublin to Occupational Health and the appointment in fact being virtual was an oversight.

The Employer refutes the Workers statement that his health and safety were in any way compromised, or that they breached any government guidelines during the pandemic. The Employer has engaged with the Worker to try and address his concerns but to not avail.

Discussion

As outlined by the Court in the course of the hearing, this case is before it under the Industrial Relations Act, and is therefore, about a dispute between a Worker and their Employer. Resolution of Industrial relations issues do not necessarily involve compensation and certainly not in the nature of the compensation being sought by the Worker in this case. It is important to note that the issues complained off happened three to four years ago in a particularly difficult time for all concerned.

Decision

The Court notes the recommendations of the Adjudication Officer and believes they adequately address any procedural shortcomings that may have occurred.

The Court upholds the decision of the Adjudication Officer. The appeal fails.

The Court so decides.

	Signed on behalf of the Labour Court
	Louise O'Donnell
TH	______________________
8th July 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Therese Hickey, Court Secretary.