ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969
Investigation Recommendation Reference: IR - SC - 00001792
Parties:
| Worker | Employer |
Anonymised Parties | IT Worker | Hospital |
Representatives | Another worker | Adrian Norton IBEC |
Dispute(s):
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 - 00001792 | 15/09/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | IR - SC - 00002084 | 02/01/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | IR - SC - 00002085 | 02/01/2024 |
Workplace Relations Commission Adjudication Officer: Brian Dalton
Date of Hearing: 24/07/2024
Procedure:
In accordance with Section 13 of the Industrial Relations Act 1969 (as amended)following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any information relevant to the dispute. The dispute was heard over two days.
Background:
The Worker details his dispute as follows: I am writing to you to just put down in an email the incidents that have happened since joining Hospital. There has been a number of Incidents which have left me feeling isolated from staff members and very Low in myself. I have suffered all my life with Anxiety and don't like confrontation. I received no training or Induction. I asked redacted for training and his reply was to ''go ask one of the lads’’. There was no induction or document to refer to. We use a call system to track calls that come into the help desk. I noticed that the majority of calls that involved lifting and going to the desk were coming to me. I raised this issue with redacted, nothing was done. I was then viewed differently by my work colleagues bar redacted who experienced the same type of atmosphere .I also contacted HR and she said there is a long history of trouble with certain staff that have been there for a long period of time. Redacted then rang me to say that he did notice that I was getting a lot more calls than other lads. still nothing was done. There was also a query as to why I could not do the on call. I stated that I could not do the On call roster and redacted than asked if the child was min Biologically. My sister passed away two years ago from Cancer and I help with My mother and Niece. Redacted did not care about this. Complaint against redacted and redacted (Team Lead) My redacted attended three Teams meeting at the following dates: 07/07/2023 14/07/2023 27/07/2023 25/08/2023 redacted came to me after each meeting and was very alarmed at what said, redacted wanted to send me back to Hospital and attacked my character. Redacted said in all four meetings that she wanted me sacked and that I was bad influence on the help desk. Redacted agreed with Redacted and backed her on these allegations. Redacted also mentioned getting Redacted sacked and Team Lead)Redacted wanted to change the Work hours which caused huge stress for staff with kids and family commitments. Redacted made redacted aware of this but insisted on redacted implementing new start and evening help desk hours. Myself and redacted could not do the nine am start and due to family commitments. Redacted than asked redacted to that sack redacted. I was very concerned for redacted health as he was affected by these threats from redacted. Redacted also noticed that stress on and tried to help advise .Redacted ended up leaving because of the long-term stress and toxic environment that redacted created. I have had to go and get help from psychologist to help me deal with all the Stress that redacted has caused to me and other staff. I am presently out sick again my second time this year. Redacted is also out sick as redacted sacked redacted when he was working under contract with redacted. With redacted out sick redacted has stepped in to Replace redacted and is making my life hell by changing the start hours again and been rude to me. Redacted has called me out for chats in front off other staff members to confront me. Redacted very rarely turns up to work In redacted and is putting other sites in risk for not been in work when I try to contact him. I hope you can see the chain of events that has been going on in redacted Hospital. August the 25th 20redcacted redacted had a meeting with redacted and she again attacked my character and said I am a bad influence on the help desk and I don't get on with my work colleagues. Redacted said ''that is not true saw how hard I worked and the help I gave staff and work colleagues''. Regards, Worker At the first hearing date the worker was requested to clarify what dispute he was referring based on a narrative that contained many grievances. On the facts it would appear that the internal procedures were not exhausted. The Worker was requested to submit a second submission to clarify succinctly what dispute was being referred. The second submission stated that the referral was about the following: The within complaints by the Worker(hereinafter referred to as ‘the Complainant’)against his employer Health Ireland (hereinafter referred to as ‘the Respondent’)are brought under Section 13 of the Industrial Relations Act, 1969. The Complainant has raised a series of complaints regarding bullying and harassment and bullying and harassment procedures at the Respondent Hospital. The worker seeks the following: An Independent investigator to investigate his issues in the workplace. His rightful place of work as clearly stated in his contract of employment. His right to start work at the correct time and agreed time. His right to promotion as opposed to demotion which is what they are trying to achieve. He has been denied a key witness redacted even though redacted has offered his time to Redacted.. To be treated fairly and not be discriminated by HR. Examples to be provided. Redacted email. The worker has been asked to transfer to a new location where redacted works. The worker feels that contract workers are not treated equally in Redacted and this affects him and his work. Culture of fear in contractors. If grievance process has to start over, then complainant will receive all his previous entitlements in Crumlin while this grievance process continues. The amended code of practice (S.I. No. 117 of 1996) details the following general principles for the processing of internal grievances. 4. GENERAL PRINCIPLES
The Worker was assisted at the hearing by another worker who also has a grievance against the hospital based on the decision to end his contract. The Employer has stated that the Worker failed to utilise the internal procedures, was informed of the right of appeal and failed to avail of that right. In the circumstances the dispute is without merit. The Worker also submitted psychological reports that stated that he has a diablility: During his sessions he has reported symptoms supporting a diagnosis of social phobia/social anxiety (DSM-V 300.23). |
Summary of Workers Case:
The worker details a number of incidents at work which he alleges has given rise to stress and absence from work due to stress. ( see summary detailed above) |
Summary of Employer’s Case:
The dispute before the Commission has bypassed the internal procedures and the Worker has not exercised his right of appeal. |
Conclusions:
In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.
The claims presented to this Adjudicator have not been concluded internally. The Worker maintains that the internal process is flawed and is prejudiced as the HR personnel involved in the process are conflicted. Section 13 of the Act states: 13.—(1) (2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner. The nature of a trade dispute investigation and referral is that it is voluntary, and the opinion of the Adjudicator is sought based on the merits of the case to make a recommendation, so that the dispute may be resolved. It is not a binding employment rights-based determination that is legally enforceable. I note that in Byrne and McCutcheon on the Irish Legal System (2020 edition) the distinction between trade disputes and employment rights adjudication is clearly defined: Employment [8.57] Most states have established statutory bodies with extensive powers to deal with issues arising in the employment context. Some such bodies are empowered to investigate and mediate in industrial relations disputes with a view to a negotiated settlement where other means have failed. Others have been established to make findings similar to a court of law, such as determining whether a dismissal was in breach of statutory requirements. [8.58] In the first category, that is mediation and conciliation, are the Workplace Relations Commission and the Labour Court. 90 Neither body is a court exercising the judicial power under Article 34; 91 rather their function is to adjudicate or mediate disputes that require the input of personnel who specialise in mediation between employers and employees. Both comprise representatives of employers, trade unions and other persons with expertise in the area of industrial relations. The role of the Adjudicator under a section 13(3) is referral is: (3) (a) Subject to the provisions of this section, a rights commissioner shall investigate any trade dispute referred to him under subsection (2) of this section and shall, unless before doing so the dispute is settled— (i) make a recommendation to the parties to the dispute setting forth his opinion on the merits of the dispute, In Geoghegan T/A Taps v a Worker INT 1014 the Labour Court held that “The Court is not prepared to insert itself into the procedural process in a situation where the dispute procedures have been bypassed.” It is well established by the Workplace Relations Commission and the Labour Court that they do not intervene in a dispute under Section 13 of the Industrial Relations Act 1969 until all internal grievance procedures have been fully exhausted. The revised submission states that the grievance relates to bullying. The Respondent is taken by surprise relating to that allegation and stated that the matter was never formalised as a bullying complaint. However, based on the documentary evidence a formal investigation of the Worker’s complaint has commenced. Whether the grievance was being processed as a bullying complaint or as a grievance what is clear was that the Worker withdrew from the process. The relevant section of the Code SI No 674/2020 Industrial Relations Act 1990 (code of practice for Employers and Employees on the Prevention and Resolution of Bullying at Work) Order 2020. 4.2.1 Formal Complaint The complainant should make a formal complaint in writing that should be signed and dated. Where this is not possible, a written record should be taken of the complaint by the assigned person and signed by the complainant and dated. The complaint should be confined to precise details of alleged incidents of bullying, including their dates, and names of witnesses, where possible. The complainant and the respondent should be advised of the aims and objectives of the formal process, the procedures and approximate ideal timeframe involved, and the possible outcomes. Both parties should be assured of support as required throughout the process. An initial meeting should be organised by the employer at which each person is met with separately, starting with the person making the allegation. The other party, when met with, should be given a copy of the complaint in full and both should be given any relevant documents including the company Anti Bullying Policy. 4.2.2 Investigation The investigation should be governed by terms of reference which should include the following: • The investigation will be conducted in accordance with the employment’s Anti Bullying Policy which should reflect this Code of Practice. • An indicative timescale for its completion - this timeframe should be proposed, and its rationale explained. • The scope of the investigation, sets out the procedure to be adopted for findings of fact related to the complaint and a statement that the investigator will consider, based on the facts before them whether the behaviour(s) complained of, on the balance of probabilities, have occurred. • Confidentiality of the process should be emphasised to all concerned. All parties to the process have a responsibility to participate without undue delay in any investigation initiated in response to an allegation of bullying. The scope of the investigation should indicate that the investigator will decide based on the facts before them whether the behaviour complained of may, on the balance of probabilities have occurred. The investigator should not uphold or dismiss the allegations and/or suggest or impose sanctions. Statements from all parties, including witnesses should be recorded in writing as the use of written statements tends to make matters clearer from the outset and maintains clarity throughout the investigation. Copies of the record of their statements should be given to those who make statements to the investigator. Copies should also be provided to the complainant and the person complained of and should result in findings of fact only. If possible, all parties should continue to work normally during the investigation. The objective of an investigation is to ascertain whether, on the balance of probabilities, the behaviours complained of occurred, it having already been established that the behaviours come within the description of workplace bullying. Details of the complaint, responses of the person complained of, witness statements and other relevant evidence are relied on for this purpose. The investigation should be conducted by either a designated member(s) of management (as outlined earlier in this Code) or, if necessary, (for example in the case of any possible conflict of interest) an independent third party. In either case, the person nominated should have appropriate training and experience and be familiar with the procedures involved. The investigation should be conducted thoroughly, objectively, with sensitivity, utmost confidentiality, and with due respect for the rights of both the complainant and the person complained of. The investigator should meet with the complainant and the person complained of and any witnesses or relevant persons on an individual confidential basis with a view to establishing the facts. A work colleague or employee/trade union representative (provided the person has representation in line with the principles of natural justice and fair procedure) may accompany the complainant and the person complained of, if so desired. The investigation will consider all material and evidence before it and a decision will be made on balance of probability, as to whether the complaint is valid. If the investigator concludes that the accused employee has a case to answer on the balance of probability, then the investigator may recommend whether or not the employer should invoke the Disciplinary procedure. 4.2.3 Appeals Within the workplace formal system, an appeals process for both parties should be in place. The reason for the appeal should be outlined in writing to management if such an option is being taken. The time period for an appeal should be specified in the policy. The appeal should be heard by another party, of at least the same level of seniority as - but preferably more senior than - the original investigator. This party should have had no involvement in the investigation. The appeal should focus on the conduct of the investigation in terms of fair process and adherence to procedure. It should be noted that an appeal is not a re-hearing of the original issues. The outcome of the appeal shall be final insofar as the employer duties under health and safety legislation is required. Very small and micro organisations will need to consider at the outset of the formal process how they would manage a request for appeal and this may require outside independent support. The evidence tends to indicate that a grievance was initiated, and an appeal offered but not acted upon by the worker. On the case made out by the Worker it is clear that the internal procedure has not been exhausted. The dispute brought to the Commission has not concluded internally; therefore, I decline to hear the dispute. |
Recommendation:
Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.
In Geoghegan T/A Taps v a Worker INT 1014 the Labour Court held that “The Court is not prepared to insert itself into the procedural process in a situation where the dispute procedures have been bypassed.” It is well established by the Workplace Relations Commission and the Labour Court that they do not intervene in a dispute under Section 13 of the Industrial Relations Act 1969 until all internal grievance procedures have been fully exhausted.
Until the internal grievance has been progressed fully through the internal grievance procedure it is not appropriate to make a recommendation on the merits of the dispute between the parties.
The dispute brought to the Commission has not concluded internally; therefore, I decline to hear the dispute.
Dated: 19-09-2024
Workplace Relations Commission Adjudication Officer: Brian Dalton
Key Words:
Internal Procedures |