LCR22738

1. Appeal Of Adjudication Officer Decision No(s) ADJ-00036024 CA-00047231

BACKGROUND:

2. The Employer and the Worker appealed the Adjudication Officer’s Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. On 8 December 2022 the Adjudication Officer issued the following Recommendation:
"I recommend that the parties engage in local negotiations to decide which procedure should be followed, Dignity at Work or Grievance procedure, and if agreement cannot be reached the parties should engage in mediation to resolve this matter. ’
A Labour Court hearing took place on 21 April 2023.

DECISION:

This case is an appeal by both the Employer and the Worker of the Decision of an Adjudication Officer. The issue in dispute between the parties relates to the Workers claim of bullying in the workplace.

Summary of Union’s submission on behalf of the Worker

On 23rd February 2021 the Worker submitted a complaint under the HSE “Dignity at Work Policy for the Health Service Anti Bullying, Harassment and Sexual harassment Policy and Procedure 2009” to her line manager. The complaint comprehensively described approximately 40 examples over a 30-month period of behaviour which she believed to be contrary to the policy.

On the 29 March 2021 her line manager emailed her a document entitled ‘Preliminary Screening of JK’s Dignity at Work Complaint’ . That document contained minimal information and determined that not one of the 40 examples fell within the definition of bullying contained in the policy. The Worker emailed her line manager on the 1^st April 2021 looking to appeal the outcome of the preliminary screening and requesting that her complaints be re submitted for preliminary screening. There followed further correspondence between the Worker and her line manager and the line manager and the Human Resources section, who advised that there was no facility for an appeal under the policy but, her manager could ask another HR colleague to screen the complaint even though that was not provided for in the policy. However, her line manager opted not to do that. On the 29th November 2021 the Worker submitted her complaint to the WRC seeking that a full and thorough Independent preliminary assessment be conducted by a suitably agreed person. In her submission to the Labour Court the Worker is seeking that a preliminary screening be carried out by an independent party.

Summary of Employer’s submission

The Worker’s complaint was processed in line with the agreed Dignity at work policy. This is a joint policy agreed between the Employer and the relevant Unions. The policy does not provide for an appeal of the decision of the person who screens the complaints. The Worker was advised of other options for processing her complaints either through mediation and or the grievance procedure.

The screener in coming to the decision that the complaints did not meet the definition of bullying as set out in the policy, set out in table form why the each of the 40 complaints did not, and identified other options available for pursuing the issues, noting in some cases that the issues raised were collective issues and would need to be raised in a collective forum. The Worker chose not to process her issues through the other forums available to her.

The person against whom the Worker made her allegations is no longer in the employment of the Employer and therefore at this stage it would not be possible to carry out an investigation into the issues. The Employer accepts that there was a delay in issuing the outcome of the screening process and that seven-day requirement set out in the policy was not met but that was due to the volume of complaints. The representative for the Employer submitted that there has been no significant breach of the procedure by the Employer and that what the Worker is requesting is not provided for in the agreed procedure.

Discussion and Decision

The Court notes that the issues that were the subject of the Worker’s complaint arose between 2018 and early 2021. Since then, the Worker has moved to a different area and the person against whom she made the complaints has left the employment. It was accepted by both parties that the policy being relied on was a joint policy albeit it was agreed in 2009. It was also accepted that the policy does not provide for an appeal of the outcome of the preliminary screening or for an independent person to screen the complaint. There is an issue in dispute between the parties in regard to whether or not the Employer operated outside the policy in respect of a particular aspect. However, that issue is the subject of a separate grievance which is currently being processed and not before this division of the Court.

The parties have an agreed procedure for processing issues of this nature, and it is not for the Court to interfere with that process in circumstances where it is not disputed that the agreed procedure was followed. The Court notes that the Worker was advised of other processes i.e. mediation and grievance procedure to have her concerns addressed but chose not to avail of these options. Taking into account the submissions of the parties, the time that has elapsed and the fact that the Worker and the person she complained off are no longer working together the Court does not see how appointing another person to review her complaints could resolve these issues and on that basis her complaint must fail.

The Worker’s appeal fails. The Employer’s appeal is upheld.

The Decision of the Adjudication officer is set aside.

The Court so decides.

	Signed on behalf of the Labour Court
	Louise O'Donnell
DC	______________________
25 April 2023	Deputy Chairman