FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE - AND - CATHERINE KELLY (REPRESENTED BY INMO) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr McCarthy |
1. Appeal of a Rights Commissioner's Recommendation R-152633-Ir-15/JT
BACKGROUND:
2. This dispute concerns the Workers' claim that there was an alleged breach of the HSE's Dignity at Work Policy and that the investigation into that alleged breach was flawed and failed to adhere to the agreed terms of reference. This dispute was referred to a Rights Commissioner for investigation and recommendation. On the 22nd July, 2015 the Rights Commissioner issued the following Recommendation:-
- "In considering the matter in its entirety I believe that the only remedy appropriate in this case is some level of compensation. I therefore recommend the sum of €1,500.00 in full and final settlement of this matter."
On the 28th July, 2015 the Employee appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 20th October, 2015.
3. 1.The agreed terms of reference of the investigation that took place were not adhered to.
2.The Claimant was taken off night duty for a period of nine months and therefore suffered a loss of pay as a result.
3.A period of over 3 years have passed since the Worker lodged the complaint in August 2012 and it was 1.5 years after the complaint was made before the investigation commenced.
EMPLOYER'S ARGUMENTS:
4. 1.All of the issues raised by the Claimant in a letter of complaint were dealt with in a comprehensive and detailed manner.
2.In relation to loss of earnings, the Claimant did not suffer any loss of earnings as a result of the Dignity at Work investigation.
3.The delay in completing the investigation was due to various delays outside the control of the HSE.
DECISION:
This is an appeal by the Union on behalf of an employee against a Rights Commissioner’s Recommendation which found against her claim regarding an alleged breach of the HSE’s Dignity at Work Policy. While the Rights Commissioner found that for various reasons the investigation was procedurally not pursued with the alacrity that was required, he did not find reasons to recommend that a new investigation should be carried out. However, he recommended that she should be paid the sum of €1,500.00 in full and final settlement of the matter.
The Claimant had lodged a complaint under the HSE’s Dignity at Work Policy in August 2012. An investigation was conducted into alleged acts of mistreatment and bullying. A report on the findings of the investigation team was finalised in July 2014, which did not uphold the Claimant’s complaints.
The Clamant submitted that the investigation was flawed and that the investigators had failed to adhere to the agreed terms of reference. She had sought a new investigation to be carried out, however, as she has since retired she now seeks that the investigator’s report should be set aside; she seeks an apology from Management and compensation for the loss incurred and for damage suffered by her.
Management stated that a number of issues arose which delayed the commencement of the investigation, however, all issues referred by the Claimant for investigation were dealt with in a comprehensive and detailed manner.
Having considered the oral and written submissions of the parties the Court notes that the terms of reference for the investigation were agreed between the parties prior to the investigation taking place. Having considered the points raised by the Claimant, the Court is satisfied that the investigators assigned to carry out the process were fully trained and experienced in their task and for the most part fulfilled the terms of reference as agreed. The Court notes that any loss of earnings which may have occurred did not arise as a result of the investigation into the complaint made by the Claimant under the Dignity at Work policy. However, the Court notes that the Claimant did not receive copies of statements made by others in the process of the investigation, contrary to the terms of reference agreed. On that basis the Court recommends that the compensation awarded by the Rights Commissioner should be improved to €5,000 in return for acceptance that the matter is now finally closed.
Therefore the Rights Commissioner’s Recommendation is varied accordingly.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
5th November, 2015______________________
CCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ceola Cronin, Court Secretary.