LCR22832

1. Appeal Of Adjudication Officer Decision No(s) ADJ-00037911 CA-0049304.

BACKGROUND:

2. The Worker appealed the Adjudication Officer’s Recommendation to the Labour Court on 9 June 2023 in accordance with Section 13(9) of the Industrial Relations Act, 1969.

On 4 May 2023 the Adjudication Officer issued the following Recommendation:

"I recommend that the employee accept that the issues he raised against other employees by way of a formal complaint/grievance in July 2020 were investigated and that, albeit reluctantly, he now accepts the outcome of that investigation."

A Labour Court hearing took place on 26 September 2023.

DECISION:

Background to the Appeal

This is an appeal by the Worker from a Recommendation of an Adjudication Officer (ADJ-00037911, dated 4 May 20223) under section 13 of the Industrial Relations Act 1969. Notice of Appeal was received in the Court on 9 June 2023. The Court heard the appeal in Sligo on 26 September 2023.

Summary of the Factual Background

The Worker (who retired on 21 July 2023) was employed by the Environmental Protection Agency (‘the Employer’) as a Scientific Officer Grade 1 (Level 3) based in Castlebar, County Mayo. His career – which commenced with An Foras Forbartha – spanned forty-three years. It is accepted by the Employer that the Worker had an unblemished employment record throughout his employment and no complaint had been made in relation to him or his work prior to the events that gave rise to the within proceedings.

It appears that the onset of the Covid pandemic gave rise to the backdrop to the events that culminated in the within dispute. The Employer’s senior management instructed staff whose role involved field work to continue to perform that work as the organisation was regarded as providing an ‘essential service’ to the public. The Worker did not concur with this view and, therefore, refused to approve the travel and subsistence claims of a Scientific Officer Grade II (Level 4) (‘Mr X’) reporting to him where the claims in question were connected to that officer’s performance of field work. Mr X commenced an official grievance against the Worker in May 2020. The Worker was relieved of his line management responsibility for Mr X in or around this time for reasons unconnected to the within dispute.

The Worker submitted a counter-grievance and simultaneously lodged a Dignity at Work complaint against Mr X, the Worker’s Line Manager and the Worker's Programme Manager. The Employer proceeded to conduct an investigation into both matters under its Dignity at Work Policy. This was conducted by an external Human Resources Consultant who concluded that the Worker’s complaints were not well-founded but were, in fact, vexatious. The Worker lodged an appeal against the External Consultant’s findings. In July 2021, the Employer appointed Mr Tom McGuinness “to undertake a review of the Dignity at Work investigation and the subsequent outcome, to determine whether an appeal is upheld or rejected”. Mr McGuinness issued his report on 13 August 2021 in which he concluded that:

• 
  • The External Consultant had fulfilled the terms of reference applicable to her investigation;

  • In doing so, the External Consultant had followed a process that was logical, meticulous and followed best practice; and

  • The External Consultant had taken an independent and comprehensive view of the various allegations raised by the Worker.

• “I recommend that the employee accept that the issues he raised against other employees by way of a formal complaint/grievance in July 2020 were investigated and that, albeit reluctantly, he now accepts the outcome of that investigation.”
  
  

Submissions

The Worker submits that the Employer’s procedures were tainted in a number of ways such that he was not afforded natural justice throughout the process that culminated in the imposition of a disciplinary sanction on him. He points, in particular, to four aspects of the procedures he believes were flawed:

• 
  • He did not receive a copy of Mr X’s written grievance against him;

  • Although he had raised both a grievance under the Grievance Policy and separately complaints under the Dignity at Work Policy, the Employer made a unilateral decision to deal with all matters under the Dignity at Work Policy only;

  • The External Consultant went above and beyond her remit when making findings under the Dignity at Work Policy; and

  • He was not provided with terms of reference for Mr McGuinness’s review and was, therefore, unable to expand orally on the details of his written grounds of appeal as furnished to Mr McGuinness.

• 
  • The Worker’s line manager held a meeting with him following the receipt of Mr X’s formal grievance in which she fully explained to him the details of the grievance raised by Mr X;

  • Human Resources had fully explained to the Worker its rationale for proceeding to deal with all of the issues he had raised in one single process under the Dignity at Work Policy and the Worker took no objection to that course of action at the time;

  • The External Consultant was entitled to conclude that the Worker’s complaints were vexatious in so far as the Dignity at Work Policy requires the investigator thereunder to state reasons for their conclusions; in this case, the investigator in finding that the Worker’s complaints were not upheld relied in part on what she had determined to be the vexatious nature of the complaints in reasoning her decision; and

  • The Employer concedes that it had not expressly communicated to the Worker that the review to be conducted by Mr McGuinness would be a paper-based exercise only and would not include any interviews or oral hearing; at the same, the Employer submits that the Worker did not suffer any detriment arising from the manner in which the appeal proceeded in circumstances where he had ample opportunity to set out his concerns and grounds of appeal in writing and did so comprehensively.

Discussion and Decision

Having carefully considered the Parties’ written and oral submissions, the Court finds that there are well-founded criticisms that can be made of aspect of the approach taken by the Employer to both the grievance raised against the Worker by Mr X and the investigation of the Worker’s complaints under the Dignity at Work Policy. There can be no doubt that the Worker was entitled to receive a copy of Mr X’s written complaint about him: the Employer’s mere recitation of the substance of the complaint at an investigatory meeting is no substitute for this. The Court also finds that the quality of the communications from senior management and the Human Resources Department throughout the process regularly fell short of best practice. For example, the Worker should have been put on full notice by means of a written communication as to how Mr McGuinness’s review would proceed.

Nevertheless, there is nothing before the Court to substantiate the Worker’s claims that the shortcomings identified above resulted in a process that was fundamentally detrimental to him or caused him to suffer an injustice. Taken in the round, the investigation of the Worker’s complaints under the Employer’s Dignity at Work Policy was comprehensive, thorough, balanced and fair; the resulting disciplinary and appeals process yielded an outcome that was proportionate and reasonable in all the circumstances, in the Court’s view.

For these reasons, the Court uphold the Adjudication Officer’s Recommendation and strongly urges the Worker to accept the outcome of the process he set in train over three-and-a half years ago now.

The Court so decides.

	Signed on behalf of the Labour Court
	Alan Haugh
TH	______________________
9 October 2023	Deputy Chairman