Worker

Employer

Anonymised Parties

Supervisor

Health Service

Representatives

Ms. Áine Feeney, SIPTU

Self-Represented

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 - 00002153

23/01/2024

On 23rd January 2024, the Worker referred the present dispute to the Commission. Following the Employer’s positive election to engage with the Commission on the dispute, the matter proceeded to hearing. Said hearing was convened for, and finlaised on, 19th July 2024. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced during the hearing.

Both parties issued extensive submissions in advance of the hearing. These submissions were expanded upon and contested by the opposing side in the course of the hearing.

No issues as to my jurisdiction to hear the dispute were raised at any stage of the proceedings.

By submission, the Worker stated that she is a long-term employee of the Employer, engaged as a “domestic supervisor”.

On 31st May 2023, the Worker issued an email to the Employer’s HR function raising a complaint in respect to the conduct of another member of staff. Thereafter there was no contemporaneous action from the Employer, with the Worker being concerned that the matter was being discussed freely amongst the staff. The Worker issued a further, more detailed complaint on 28th July 2023, again requesting some intervention by the Employer. Finally, following the intervention of the Worker’s trade union a meeting was convened under stage one of the Employer’s internal policy on 16th October 2023, some four and a half months following the referral of the initial complaint.

In contravention of the Employer’s internal procedures, no formal outcome issued in respect of stage one of the procedure. In this regard, the Employer deemed the matter to be at an end on the receipt of a purported apology from the alleged perpetrator of the wrong-doing. This correspondence was opened as part of the Worker’s presentation, with the Worker submitting that the same was in no way an apology for or resolution to the incident in question.

The Worker appealed the outcome in accordance with the Employer’s internal procedures, with an appeal being convened for 17th November 2023. On 22nd December 2023 an outcome issued which again related to the purported apology previously issued. This outcome was repeated in the final grievance stage, issued on 19th January 2024.

By submission, the Worker stated that the Employer failed to properly investigate the grievance as raised and failed to take into account the representations of the Worker and her representative. In this regard the Worker was critical of the Employer’s ongoing reliance on the purported apology of the respondent to the allegations, submitting the same in no way provided the Worker with any comfort regarding the resolution of the issue. The Worker further submitted that the process adopted by the Employer was fundamentally flawed, primarily in respect of the delay in the initial response to the allegations and the Employer’s failure to issue a formal outcome in respect of the initial complaint.

By submission, the Employer denied many of the allegations raised by the Worker.

In this regard, the Employer accepted that the Worker informally raised a complaint with her line manager on 30th May. In accordance with the Employer’s internal procedures, the Worker was initially offered a mediation as a method of resolving the issue. While the Worker considered the same, she did not pursue this method of dispute resolution and proceeded to refer a formal complaint on 28th July 2023. Due to staffing issues, the delivery of the initial outcome was delayed to 16th October 2023. Notwithstanding the same, the Worker elected to issue two further appeals of the outcome which were considered in good time.

Regarding the incident itself, the Employer submitted that this was fully investigated and, from the point of view of the Employer, the matter had been dealt with. As part of the investigation process, the Employer took a statement from the respondent to the initial complaint. During this process, the respondent took at least partial blame for the incident in question and issued an apology to the Worker. While it is apparent that the Worker was not satisfied with the nature and extent of this apology, it was beyond the power of the Employer to induce a more comprehensive apology from the respondent to the complaint. It was further submitted that the matter did not reach the threshold for the removal of the person in question, and that the parties simply had to find a way to work together on an ongoing basis.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

The present dispute involves two separate but connected complaints from the Worker. Firstly, the Worker has alleged that the Employer failed to abide by their own internal procedures in the investigation of a grievance raised by her. Secondly, they submitted that the outcome of the procedure was fundamentally flawed in that it relied on a document purporting to be an apology, when in reality it was no such thing.

Regarding the first point, the Worker has submitted that the Employer delayed extensively in investigating the grievance, particularly in relation to the complaint at first instance. Having reviewed the relevant documentation, it is apparent that the Worker initially raised a grievance on 31st May 2023. While this complaint was received in writing, the contemporaneous correspondence indicates that the Employer sought to initially resolve the issue through the informal channels, in accordance with the relevant policy in this regard. While it is apparent that this did not serve to resolve the issue, the Worker sought to engage with the formal procedures from 28th July 2023, and it is from this date that any subsequent delay must be examined.

Thereafter, following various representations from the Worker’s representative, an outcome issued on 16th October 2023, almost three months following the receipt of the initial grievance. While such a delay is moderately excessive, the issue must be examined in relation to the overall process conducted by the Employer. In this regard, it is noted that the entire three stage process, involving two substantial reviews of the initial outcome, were completed in relatively good time, and in accordance with the relevant internal policies. In such circumstances, while it is apparent that a delay arose in relation to the initial investigation of the matter, such a delay was not excessive in light of the overall procedure, and it is not apparent that any party suffered any prejudice as a consequence of the delay.

Regarding the second aspect of the complaint, the Worker has alleged that the Employer failed to properly investigate the allegations raised, and that the outcome delivered was fundamentally flawed. In this respect, the Worker referred to the email purporting to act of the outcome of the grievance in the first instance. In this respect, the Worker submitted that the document was an email containing a few lines, simply stating that the respondent to the complaint had apologised, and that the matter was deemed to be concluded. While the Employer conceded that the outcome was brief, they submitted that it clearly outlined the outcome and allowed for a substantive appeal. Having reviewed the relevant documentation, it is clear that this outcome falls short of what the Worker should expect from a reasonable employer. The outcome in question, which was delivered following a delay on the part of the Employer, did not refer any analysis of the relevant documentation and did not contain any rationale as to why the decision maker came to their conclusions. It is further noted that this outcome came under the Employer’s formal grievance procedure, and it would be expected that the same would contain a degree of formality which was clearly absent from the document opened by the parties.

Perhaps unsurprisingly, the Worker elected to appeal the outcome and the matter proceeded through the Employer’s internal procedures. In this regard, it is noted that the subsequent outcomes were more comprehensive. Nonetheless, the Worker submitted that the outcomes in this regard were fundamentally flawed. At all stages, the Employer found that the respondent to the complaint apologised for the issue, and that they deemed to matter to be at an end. Having reviewed the document in question it is noted that while the same contains an apology of sorts, the same is subject to various qualifications and caveats. It is also apparent that the respondent raised further issues that would cause concern for the Worker. Nonetheless, considering the issue from the Employer’s perspective, it is clear that the respondent took at least some responsibility for the incident in question and indicated a willingness to move on from the issue at hand. In this regard, while I have sympathy for the Worker’s reservations regarding the apology, and the manner of the resolution of the issue, the actions of the Employer are not unreasonable in the circumstances.

Having regard to the accumulations of the foregoing points, I find that the process adopted by the Employer was flawed, particularly in relation to the form of the outcome to the grievance in the first instance. However, in viewing the matter as a whole, it is apparent that the ultimate outcome reached by the Employer was reasonable in the circumstances. While this may be the case, the fact remains that the timely and comprehensive resolution of the matter in the first instance may well have alleviated many of the Worker’s concerns and avoided the present referral. In such circumstances, I recommend that the Employer pay the Worker the sum of €750 in settlement of the dispute.

Delay, First Instance, Apology