LCR22971

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00043442 (ISC-00000932)

BACKGROUND:

The Employer appealed the Adjudication Officer’s Recommendation to the Labour Court on 27 July 2023 in accordance with Section 13(9) of the Industrial Relations Act, 1969.

On 5 July 2023 the Adjudication Officer issued the following Recommendation:

‘’Having regard to the foregoing, I recommend in favour of the Worker. In circumstances whereby the collective action has finalised and no outstanding disciplinary or grievance matters remain in existence, I find that compensation is the most appropriate form of remedy. In this regard, I recommend that the Employer pay the Worker the sum of €8,000 in settlement of this dispute.

In addition to the foregoing, I recommend that the protective measure put in place following the abandoned disciplinary procedure be removed.

Finally, the Worker’s representative has requested that the relevant managers receive training in the correct application of the grievance and disciplinary procedures. In this regard, I recommend that all relevant training records for such managers be examined to ensure the same is compliant with the Employer’s internal standards’’

A Labour Court hearing took place on 14 May 2024.

DECISION:

The Appeal

This is an appeal on behalf of the HSE Saolta Group (‘the Employer’) from a Recommendation of an Adjudication Officer (ADJ-00043442; IR-SC-00000932, dated 5 July 2023) under section 13 of the Industrial Relations Act 1969 (‘the Act’). Notice of Appeal was received in the Court on 27 July 2023. The Court heard the appeal in Sligo on 14 May 2024.

The Dispute

The Worker is employed as a Theatre Operative at Sligo University Hospital. The within dispute relates to four matters: (a) the Worker’s dissatisfaction with the lack of reasoning by the Employer, as he sees it, in a grievance outcome letter that followed from a grievance he initiated on April 2021; (b) the Employer’s decision not to permit the Worker appeal against the outcome of a grievance complainant raised against him by a colleague, also in April 2021; (c) the manner in which a disciplinary process was conducted against the Worker (although it did not result in any sanction being imposed on him); and (d) the Worker’s inability to access overtime work for an extended period.

The Worker’s Submission

The Worker submits that the grievance he initiated in April 2021 was not progressed within the time limits specified in the Employer’s policy and when the outcome issued to him it was unclear. Furthermore, his requests for clarification went unaddressed by the Employer. The Worker also submits that it was unreasonable on the Employer’s part to deny him the opportunity to appeal the outcome of a grievance initiated by a colleague against him. According to the Worker, the Employer advised him in October 2021 that it intended to investigate a complaint against him at Stage 3 of the Disciplinary Procedure but that this was contrary to the Employer’s own policy as Stage 3 is reserved therein for circumstances where an employee is alleged to have failed to make necessary improvements to their conduct or standard of work or have alleged to have engaged in serious misconduct, none of which was alleged in this case. Thereafter, it appears the Worker was informed that the disciplinary would proceed at Stage 2 but ultimately an outcome letter issued advising him that a Stage 1 disciplinary sanction would not be applied to him.

The Worker is seeking compensation for the Employer’s failure to follow its own procedures and for his exclusion from access to overtime hours.

The Employer’s Submission

The Employer submits that the Worker’s grievance referred in April 2021 was upheld. It also submits that the grievance against him was likewise upheld but that the policy does not provide for an appeal by an individual in those circumstances i.e. only a person who initiates a grievance has a right of appeal. The Employer further submits that there is no disciplinary sanction recorded on the Worker’s record and that he has suffered no loss of earnings in the period since April 2021 as he has been paid in full, including premium pay in respect of time that he has not worked. In the Employer’s submission, the Worker is paid, every fifth week, for a 39-hour week although he works only a 27-hour week. The issue of access to overtime in the operating theatre at weekends is, in the Employer’s submission, integral to an ongoing collective dispute and falls to be resolved as part of that dispute.

Decision

The Court is aware that there is an ongoing collective dispute in being, which has been referred to the Conciliation Service of the Workplace Relations Commission, and which is in some respects forms a backdrop to the within (individual) dispute. This Decision, however, deals only with the matters that bear on the Worker on an individual basis only and does not purport to address any collective issues.

The Court finds that the Employer’s application of its grievance and disciplinary procedures in this case fell far short of best practice and accordingly recommends payment of compensation of €3,000.00 to the Worker. The Adjudication Officer’s Recommendation is varied accordingly.

The Court so decides.

	Signed on behalf of the Labour Court
	Alan Haugh
CN	______________________
10 June 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Cathal Nerney, Court Secretary.