LCR23112

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00043203 (CA - 00053633)

BACKGROUND:

The Employer appealed the Adjudication Officer’s Recommendation to the Labour Court on 01 October 2024 in accordance with Section 13(9) of the Industrial Relations Act, 1969.

On02 September 2024 the Adjudication Officer issued the following Recommendation:

“I have found that the Complainant’s complaint is well founded. I recommend that the Respondent engage with all parties to the Complainant’s complaint to agree under which policy the complaints will be processed. For the avoidance of doubt, If agreement cannot be reached, then it is clear that, the Complainant is entitled to have her complaint heard in accordance with the policy under which it was initially submitted.

In addition, the Respondent must agree with all parties involved, on an independent investigator to consider the complaints fully.

This process should be complete within 4 weeks of the date of this recommendation. As part of the terms of reference for the investigation, the Respondent must set down clear and reasonable timelines for the completion of the investigation. 10 In the interim, the Respondent should engage with the Complainant to restore to her, work of an equivalent value to that which has been eroded, particularly since her election to the staff representative role. This engagement should also be completed within 4 weeks of the date of this recommendation.

I was acutely aware of the distress of the Complainant and of the impact that these events have had on her wellbeing. In that context I recommend that the Respondent pay the Complainant the amount of €15,000 for its failure to address her complaints in a timely and reasonable manner and for its failure to project her wellbeing in the workplace.

In setting this amount I have taken into account the Complaints contribution to the delays..’’

A Labour Court hearing took place on 31 January 2025.

DECISION:

This is an appeal by an Employer of the Decision of an Adjudication Officer. The issues in dispute between the parties arises from a complaint lodged by the Worker ‘s representative on 9 March 2022.  The Worker lodged a grievance in 2017 which went through the internal procedure and ultimately resulted in the Labour Court issuing decision LCR22490. The Court awarded compensation to the Worker.

 However, she was not happy with the outcome and did not accept it. Nevertheless, those issues cannot be revisited.

The Workers representative informed the Personnel Officer that she was seeking to raise a grievance on 19th January 2022.  A meeting was scheduled for 31 January 2022.

At the meeting the Personnel Officer went through the processes both formal and informal and the support options under the Employee Assistance programme. On 9 March 2022 the Worker’s then representative sent an email to the Employer setting out the Workers complaint of bullying, harassment and discrimination. The email set out what the Worker perceived as changes to her duties arising from the structural change in the organisation in 2017, and in particular functions she no longer carried out.  The complaint also outlined areas of work that the people she supported were now doing themselves rather than through her and it was her contention that these changes amounted to demotion by stealth and that the behaviour constituted discrimination and harassment. The email requested a meeting to discuss the progression route.

The Worker in addressing the Court stated that there was a long delay in processing her complaint and she felt the Employer should be held to account for that.

By email of 28 March 2022, the Personnel Officer on behalf of the Employer wrote to the Workers representative acknowledging the complaint and advising that a senior member of staff had been nominated to carry out an investigation into the allegations. The email went on to say that the investigation would be carried out in line with the procedures and that the complaint would now be forwarded to the nominated investigator who would contact the Workers representative directly.   

By email of 20 June 2022, the representative for the Worker wrote to the Personnel Officer referencing a recent conversation and indicating that they were not agreeable to the nominated person carrying out the investigation. The Personnel Officer responded on the same day advising that a response would issue by end of week as requested. He also referenced correspondence to the Head of the Organisation from the representative seeking that he carry out the investigation and clarified why that would not be appropriate 

The Personnel Officer noted the fact that he has sought to facilitate their request for an external investigator even though it was at variance with the internal procedure, but they had rejected the person he had proposed who was a well respected person and known to both parties. The Employer had then proposed an internal senior manager in line with the internal procedures and this had also been rejected. The representative for the Worker replied on the same day indicating that the Worker’s preference was for a female investigator. She noted that the Employer had tried to source an investigator that they had identified but the particular Investigator was not taking on new work.

By email of 30 June 2022, the Personnel Officer responded noting that they had ruled out an external investigator who is a person of considerable standing purely on the grounds of gender. They also rejected an investigator who was nominated in line with the procedure who was of their preferred gender. In respect of the person they had suggested in their initial email of 20 June 2022 the Employer was not agreeable to that person on the basis that she had only recently left the employment.   The Worker was also asked to clarify who she was making the complaints against.

By email of 1 July 2022 the Workers representative responded advising that their requirement that the investigator be external and a specific gender was a very reasonable request and confirmed that the complaints were against two named members of staff.   The Personnel Officer by email of 7 July 2022 acknowledged receipt of the email and advised he would respond the following week.

By email of 15 July 2022 the Personnel Officer confirmed that on this occasion they Employer was not in a position to agree to the nominee put forward in her email of 20 June 2022. He drew their attention to the handbook and the procedures set out therein. He noted that under the procedures he could insist on the Senior manager carrying out the investigation but in light of their objections he was not going to do so. He asked that they reflect on their position in respect of that individual. He noted that failing consensus on that person’s appointment, in keeping with the agreed procedure the issue of the appointment of an investigator would need to go to the Joint Industrial Council (JIC).

By email of 28 July the representative for the Worker wrote to the Chair of the JIC and cc’ed the Personnel Officer in, seeking a convening of the Joint Industrial Council to “agree an external Independent female investigator.”

The next correspondence before the Court was an email from the Workers representative dated 15 September 2022 asking the Personnel Officer to establish if the JIC was in a position to hear the parties in respect of the appointment of an Investigator and indicating that they were considering referring the complaint to the WRC for Adjudication. 

At that time the Chairman and employee nominee on the JLC were unavailable due to illness. On the 9th November 2022 the matter was referred to the WRC.

 The Court confirmed to the parties that its role in industrial relations cases is to see if it can make an intervention that would assist with the resolution of a dispute between a Worker and their Employer. The Court outlined its concern that the Worker’s submission was referencing issues that had already been the subject of a Court decision and that the Court could not revisit those issues.

The Worker stated that she felt that the Employer had delayed processing her complaint of 9 March 2022 and she believed that was done to frustrate her complaint. She also believed that work had been removed from her deliberately. It was her view that her career had been stifled and her long service was not appreciated by the Employer.

The Worker commented that she was going into work, had no work to do and spent the time drinking coffee. The Court enquired if the Worker saw any solution other than an investigation as being a possibility as the investigation may not necessarily produce the outcome she is expecting.    Following an adjournment to allow the Worker to reflect on this, the Worker indicated that she wanted the investigation into her complaint as articulated in the email of 9 March 2022 to proceed. She accepted that not everyone she had named in that complaint was still in employment and any investigation would be in respect of the issues she raised against people still in the Employers employment.

 The Employer does not accept that the Worker does not have work to do but accepts that the work is different to what it was back in 2017.  There was a change to the structure of the organisation in 2017 which was followed by Covid in 2020 both of which would have impacted on the type of tasks that were carried out by the Worker. However, at all times the Worker was provided with work appropriate to her grade.  Covid in particular saw more senior members of staff doing a lot more work on their phones and laptops which they would have previously passed to an administrative person. The Employer does not accept that they delayed the process either deliberately or otherwise. The Employer confirmed that they had no issue proceeding with the investigation in line with their internal processes.

The Court having reviewed the submissions of the parties and listened to their oral submissions does not accept that any delay in processing the Workers complaint from the date it was received on 9 March 2022 can be laid solely at the door of the Employer. The requirement that the investigator was from one gender was an inhibitor in securing an investigator. If the first investigator identified who was only ruled out by the Worker’s representative based on his gender had been allowed to proceed this issue would have concluded a long time ago.  The Court also finds that there was no undue delay by the Employer in responding to any correspondence or queries raised.  The facts are that the Worker rejected two investigators put forward by the Employer despite the fact one was from the preferred gender. The Employer rejected one investigator put forward by the Worker’s representative and the one investigator they both agreed on was not available. It was unfortunate that the Chair and a member of the JIC were not available (for valid reasons), again this cannot be laid solely at the door of the Employer. The Worker opted to refer the issue to the WRC on 9 November 2022 rather than continue with the internal process.

The differing positions adopted by the parties in respect of whether the Worker has work to do is difficult to reconcile. The Court recommends that the Employer going forward ensures that the Worker has sufficient work appropriate to her grade to do. For the avoidance of any doubt work appropriate to her grade does not mean it has to be some or all of the work that she might previously have done in and around 2017 and earlier.

 The Worker’s current representative agreed that the previous gender restriction on who could investigate was no longer a factor and that the investigator would come from the pool of four identified in the Employer’s current internal process. In discussion during the hearing the Workers representative expressed a preference for two of the investigators and the Employer said they would try and facilitate this in line with the agreed procedures in the policy.  The Worker in the course of the hearing was very clear that her complaint was not about money, and that she wanted her complaint of 9 March 2022 investigated.  The Court recommends that the investigation proceed as soon as is practical. The terms of reference to be the email of 9 March 2022 and the investigation to be in respect of the issues she raised against people still in the Employers employment. The investigator to be selected as set out above.

The decision of the Adjudication officer is varied accordingly.

 The Court so decides.

	Signed on behalf of the Labour Court
	Louise O'Donnell
AL	______________________
4th February 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Amy Leonard, Court Secretary.