INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
DUNLAOGHAIRE RATHDOWN COUNTY COUNCIL
- AND -
(REPRESENTED BY CITIZENS INFORMATION CENTRE)
Chairman: Mr McGee
Employer Member: Mr Grier
Worker Member: Ms Ni Mhurchu
1. Appeal of Rights Commissioner's Recommendation R031451-Ir-04-TB.
2. The appeal concerns a worker who commenced employment in 1969. She resigned from the employment effective from November, 2002. The worker claimed that she was subjected to bullying and harassment from November 2001 to May, 2002 when she applied for and was granted special leave without pay and this was subsequently converted to sick leave. She did not return to work and resigned her position in November, 2002. The worker claimed that because of the bullying and harassment which she was subjected to she was forced to resign and in doing so she was deprived of the opportunity of earning a further three years of salary. She claimed appropriate redress. The worker's complaint was originally the subject of an informal investigation which found no grounds for complaint. Subsequently a formal investigation was carried out by two senior representatives of the Council. In June 2004 they submitted their findings which concluded that there was no evidence of bullying and harassment. The dispute was referred to a Rights Commissioner for investigation. On the 4th May, 2005 the Rights Commissioner issued his recommendation as follows;
"I believe that the claimant is entitled to compensation for the procedural confusion, which arose from the substitution of one policy document with another after she had made her complaint. I recommend that the claimant be paid €7,500 in compensation".
Subsequently both parties appealed the recommendation to the Court. The Court heard the appeal on the 7th September, 2005.
3. 1. The investigation into the worker's claims took a total of twenty four months to complete .The worker was therefore, precluded from redress under the Unfair Dismissals Act by virtue of the time it took the Council to investigate the case. This is clearly a breach of the procedure as outlined in the Council's Policy Statement dated February, 2000.
2. The Council also breached the Policy Statement under which provision is made for one senior representative to carry out an investigation. However contrary to this, two senior representatives were appointed to carry out the investigation. The investigation was carried out in the absence of a timetable, which meant the claimant could not arrange for union representation. This deviation from procedure did materially affect the handling of the complaint and was discriminatory towards the complainant.
3. The claimant has suffered significant financial losses as a result of her treatment (details to the Court). The claimant has found it necessary to avail of the services of a physician from February, 2003 to the present time.
4. 1. The delay in completing the investigation arose through a number of factors including the withdrawing of the complaint by the worker in September, 2002 and the recommencement of the investigation in November, 2002. The worker was not available to meet with the two investigators during the period of her sick leave. The employer also received confirmation from the worker that she wished to proceed with the investigation by way of affidavit. This course was also taken by one of the workers complained of. This slowed the investigation process considerably.
2. It has been the practice of the Council to appoint two people to investigate all formal complaints of bullying. This has been the case from the very first investigation carried out under the policy in early 2000. This was on line with advice on best practice at the time.
3. The claimant is not entitled to any compensation for procedural confusion arising from the substitution of one policy document with another. The introduction of a new policy on bullying in January, 2003 did not materially affect the investigation of the worker's complaint which was lodged in July, 2002. Since 2000 two investigators have always been appointed to all formal bullying complaints.
The Court has considered at length the submissions, appendices and additional material provided to it by the parties and finds that:-
Dun Laoghaire /Rathdown County Council did not adhere to its own procedures.
The procedures published were changed after lodging of the complaint and a critical clause was removed i.e. that an investigation would not be so delayed as to allow the time scale for the complainant's statutory rights to lodge a formal complaint to be exceeded.
The complainant's leave of absence, sick leave and early retirement all appeared to be related to unresolved difficulties.
The complainant herself should take some responsibility for the delays and for not accessing proper expert advice i.e. she was a Trade Union member in an organisation with agreed established grievance procedures.
Nevertheless the management failed in its duty of care given its knowledge of the situation as outlined above.
The Court is of the view that the Rights Commissioner's Recommendation did not deal adequately with the quantum of the claimant's grievance. It dismisses the Council's appeal, allows the claimant's and awards her compensation of €40,000.
The Court so decides.
Signed on behalf of the Labour Court
17th January, 2006______________________
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.