Worker

Employer

Anonymised Parties

A Worker

A Public Health Provider

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00045184-001

14/07/2021

The dispute concerns the Employer’s handling of grievances submitted by the Worker in 2019 and 2020 in addition to its handling of a counter grievance against the Worker – and - whether the Employer complied with its established policy and fair procedures in the process.  

The Worker outlined her qualifications and career experience. The Worker stated that from May 2016 she became concerned about clinical and governance issues and data compliance in the workplace, that initially she raised the issues locally and informally on several occasions and subsequently lodged a formal grievance on 24 January 2019 – which she was assured would be investigated. On 5 April 2019 the Worker was notified of a counter complaint by a colleague which had been lodged against her on 11 February 2019. The Worker was initially invited to a meeting with the Employer about the counter complaint/grievance on 10 April 2019 – which she did not attend – nor did the Worker attend a subsequent invitation on 16 April 2019. 

In the alternative the Worker sought – in the first instance - the completion of her grievance investigation prior to any new investigation arising from the counter complaint/grievance. The Worker stated that she did not receive a response to this request.

On 16 January 2020 the outcome of the Worker’s grievance was issued which upheld key elements of her complaints.

On 28 January 2020 the Worker stated that she became aware that an investigation into the counter complaint had proceeded without her input and that findings had been issued which she considered prejudicial to her. The Worker objected to this but without success and as a result she submitted a further/second grievance on 16 July 2020. The Worker received a redacted copy of the investigation report into the counter complaint on 17 April 2020. Whilst the investigation into the counter complaint was ongoing the Worker stated that she was restricted in her place of work because of the complaints against her which she considered amounted to penalisation and victimisation.

The Worker’s second grievance of July 2020 complained that she had not been treated fairly, that her legitimate concerns had been “dismissed….as interpersonal matters”, that the Employer breached its own Dignity at Work/Grievance Procedure in its handling of the counter complaint which was prejudicial and unfair to her and that the outcome of the counter complaint was disseminated to some team members without her knowledge. The Worker also raised complaints in relation to the sharing of certain information with colleagues – such as her off duty roster. She stated that  her work location was interfered with and that she was professionally undermined and treated less favourably.

A hearing pursuant to Stage 1 of the Worker’s 2020 grievance took place on 3 December 2020, the Worker appealed the Stage 1 outcome and a Stage 2 hearing took place on 26 February 2021. The Stage 2 outcome issued on 16 April 2021 and upheld the Worker’s complaint in relation to non-adherence by the Employer to the prescribed Grievance Procedure time frames - however the other matters raised by the Worker were not upheld. The Worker again appealed at Stage 3 of the Grievance Procedure and following a hearing on 20 May 2021 the Worker received the outcome on 6 June 2023.

It is the position of the Worker that she should be compensated for the Employer’s failure to deal with her complaints and grievances in a fair and timely manner and in accordance with its established policy and for the failure of the Employer to appropriately address the outcomes of her initial/2019 grievance procedure. The Worker is also seeking a formal apology from the Employer and that it implement appropriate measures to clear her good name and reputation. In that regard the Worker stated that she suffered workplace stress arising from the dissemination of outcomes related to the counter complaint as a result of which she had no option but to reduce her working hours with consequent loss of income to the value of €15,263.

The Employer outlined the background and stated that when the Worker’s grievance of July 2020 was received, it was in the midst of the first wave of the Covid-19 pandemic and that as a result, it’s HR processes were suspended at the time. The Employer stated that different personnel within its employ were designated to deal with the different stages of the Worker’s 2020 grievance. The Employer stated that the Worker’s 2020 grievance consisted of six parts and in that regard it outlined that the outcome of stage I was that one part of the Workers grievance was upheld, two were partially upheld and three were not upheld. The Stage 2 hearing took place on 26 February 2021 and the Stage 3 outcome issued on 2 June 2023.

It is the position of the Employer that the Worker was afforded fair procedures throughout the 2020 Grievance Procedure, that at the various stages parts of the Worker’s grievance were upheld and parts were partially upheld or not upheld. The Employer stated that there had not been an investigation under its Dignity at Work procedure. The Employer further stated that throughout the Worker sought financial compensation but that this was not appropriate within the remit of a workplace Grievance Procedure.

In conducting my investigation into this dispute, I have taken into account all relevant submissions, documentation and information provided by the parties including documentation received post hearing, and have come to the following conclusions:

-          The outcome of the Worker’s 2019 grievance was issued on 16 January 2020 and the Worker accepts that the outcome upheld “key elements of her grievance”. I am satisfied this was the case as outlined in the Document headed “Findings relating to the Grievance raised by [the Worker]….”. However, the Worker was not satisfied with the Employer’s response or lack thereof to her first/2019 grievance and she then lodged a second grievance in July 2020. Accordingly, I consider that the Worker’s residual concerns arising from her initial 2019 grievance were comprised in the matters she pursued in her second grievance of July 2020. In that regard, I note that at the commencement of her 9 page grievance document of July 2020, the Worker listed 7 items to be addressed and also listed 7 points in terms of what she was seeking under the paragraph headed “Redress”;

-          I have considered the outcomes to the Worker’s second grievance – at Stage 1/Outcome letter dated 12 January 2021, Stage 2/Outcome letter dated 16 April 2021 and Stage 3/Report dated 2 June 2023. I am satisfied there were different decision makers at each of the three stages and that each decision maker engaged with the Worker’s grievances and made decisions varying from upheld, to partially upheld or not upheld – each in accordance with their respective designated function under the Grievance Procedure. In the circumstances I am satisfied the Employer adhered to and fulfilled its policy as regards the tasks of hearing and determining a grievance and the Worker was afforded representation throughout. I do not consider my role as an Adjudication Officer requires me to re-investigate the Worker’s grievances or to substitute my view for that of the designated decision makers – unless the decisions reached were beyond the bounds of reasonability or credibility – which I’m satisfied was not the case in this instance. As regards mediation – I accept the position of the Employer that this is a voluntary activity and I note the Employer’s Grievance Procedure does not stipulate that mediation must be followed;

-          I accept the position of the Worker that the Employer did not adhere to its stipulated time frames in conducting either of the two grievance procedures – notwithstanding the impact of Covid-19 and Circular 12/2020 which in any event was superseded by Circular 37/2020. This is particularly the case in relation to the Stage 3 outcome to the Worker’s July 2020 grievance which did not issue until the 2nd June 2023 – almost three years after the grievance was submitted. Whilst the procedure itself provides for time extensions “in exceptional circumstances”, I am satisfied the extent of breaches of timeframe were excessive and only added to the Worker’s concerns about the process overall;

-          With regard to the 2019 counter complaint, I am satisfied the Worker was afforded an opportunity to respond to/comment on this counter complaint as per the Employer’s letter to her of 5 April 2019 which attached copy of her colleagues grievance referral and which invited her -  accompanied by a colleague or trade union representative - to respond at a meeting on 10 April 2019. A subsequent date of 16 April 2019 was also made available.  The Worker chose not to attend either meeting arising from her concerns that her colleague’s counter grievance/complaint should not be dealt with in advance of her own 2019 grievance – as stated in her email to the Employer of 12 April 2019. In all the circumstances I do not agree with the Worker’s approach in this matter. In my view there was no obligation on the Employer to conclude the Worker’s 2019 complaint/grievance prior to dealing with the counter grievance/complaint. I am also of the view that attending such a meeting with the Employer did not preclude the Worker from complaining about prejudice – or anticipated prejudice - which the Worker subsequently did in her second grievance of July 2020;

-          Whilst I was not furnished with copy of the Worker’s contract of employment, subsequent to the adjudication hearing the Worker submitted a copy of the standardized job description applicable to her role. It is clear from this document that the Worker held a specialist role with specific specialised duties. However this document also stipulates that the job description set out “is a guide to the general range of duties assigned to the post holder. It is intended to be neither definitive nor restrictive and is subject to periodic review with the employee concerned” and that the job description set out “is not intended to be a comprehensive list of all duties involved and consequently, the post holder may be required to perform other duties as appropriate to the post which may be assigned to him/her from time to time….”.  I was also furnished with an Appointment Order for the Worker dated 19 November 2000 which stipulated her initial work location but did not specify any particular department. I have also considered the terms of the Grievance Procedure which provide that “Where the grievance relates to an instruction issued by the supervisor/manager arising from a service imperative theemployee is obliged to carry out the instruction “under protest””. In all the circumstances therefore, I have come to the conclusion that decisions about the Worker’s duties and work location are operational matters which must be decided upon by the persons in charge at workplace level. These decisions should be made in a fair, consistent and transparent manner having regard to a range of factors including persons qualifications, experience and aptitude and the need to optimise resources to meet the  needs of the service;

-          I fully accept the bona fides of the Worker in relation to her stated experience of workplace stress arising from her legitimate pursuit of complaints/grievances in 2019 and 2020. However, in all the circumstances, I do not consider she has established that she was victimised or penalised as a result and the Employer did not interfere with her tenure or salary.

-          In relation to the Worker’s assertion that she had no option but to reduce her hours and thereby her income – as a result of her stated stress – I am of the view that was a decision taken by the Worker for her own legitimate reasons. Therefore I do not propose to make a recommendation in relation to any resultant financial loss.

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute. In light of my conclusions I make the following recommendations:

1.       Given that the Grievance Procedure was produced by a joint union/management working group in 2004, it is open to the parties to review its operation – specifically in terms of timescales and perhaps more clarity as to how the different stages apply, how decision makers are identified and with regard to the dissemination and implementation of outcomes.

2.       I recommend that the Worker and the Employer engage in further discussions in as constructive manner as possible to consider the outcome of the Worker’s grievances and to positively address any necessary changes as may be appropriate at workplace level and/or any protocols as may require setting out or implementation;

3.       Whilst acknowledging the role and responsibility of Management for operational decision making, nonetheless, I recommend that the Worker and the Employer engage in further discussions in as constructive manner as possible with a view to resolving the outstanding issues related to the Worker’s role, location and duties.

4.       That the Worker be compensated €3000 for the stress she suffered as a consequence of the various delays encountered during the conduct of both grievance procedures.

Grievance Procedure, Time Scale