ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00009262
Parties:
| Complainant | Respondent |
Anonymised Parties | A Worker | Health Service Provider |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00012171-001 | 28/06/2017 |
Date of Adjudication Hearing: 17/10/2017
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 [and/or Section 13 of the Industrial Relations Acts 1969] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Summary of Complainant’s Case:
The claimant has been employed as a Health Care Assistant with the respondent – she commenced with the former Hospital owner in 2007 and the transfer to the current respondent was governed by TUPE regulations. The claimant pursued a grievance relating to unfair treatment in November 2016 and her complaint was heard by the hospital CEO in January 2017 and a decision issued on the 20th.Feb. 2017.The grievance was not upheld and the CEO convened a meeting between the claimant and her manager to establish clear roles and responsibilities. The CEO’s decision was upheld on appeal in April 2017.The claimant then sought to progress her complaint to Stage 3 of the Grievance Procedure which provides that “ If the issue remains unresolved after Stage 2 (or management feel it is necessary due to the seriousness involved/alleged) the matter may be referred to an appropriate third party………………”However the response from the respondent to the request to progress the matter to stage 3 was that the company saw no merit in doing so and the matter was concluded as far as the company was concerned. It was submitted that Stage 3 provides for referral to an appropriate Third Party – Investigator, Rights Commissioner, Labour Court, Labour Relations Commission and Equality Tribunal. It was submitted that the claimant needs an independent and impartial assessment of her issues and that the most appropriate of the Stage 3 options was an Investigator. It was submitted that t was incumbent on the respondent to adhere to the policy in full and not cherry pick elements of it. ” The alternative will surely undermine this procedure to the point where it is worthless and of no benefit to either of the parties to it”. The union sought a recommendation directing the employer to provide Ms. Gallagher with her right to have her issues independently investigated. |
Summary of Respondent’s Case:
The respondent set out a chronology of the processing of the claimant’s grievance and the timelines with respect to same. It was submitted that the meeting recommended by the CEO after his examination of the grievance was deferred at the request of SIPTU on the basis that it was premature as the grievance was being pursued to appeal. When the claimant’s grievance was not upheld at appeal stage it was recommended that a meeting be organised to facilitate and strengthen the relationship between the parties, the claimant declined and sought to appeal her grievance to stage 3 of the procedure. The respondent replied to the effect that they saw no merit in progressing the matter to Stage 3 – a meeting was held on the 21st.June 2017 to facilitate the parties working relationship, the claimant attended under protest and while the respondent felt that the meeting was positive the claimant proceeded to refer her complaint to the WRC. The respondent contended that the claimant was not entitled to have the matter escalated to Stage 3 and relied on the following clauses in the Grievance procedure: “”If the issue remains unresolved after stage 2 ( or management feel it is necessary due to the seriousness involved /alleged), the matter may be referred to an appropriate third party to assist all involved …………Management reserve the right to activate any stage of this process (Stage 1, 2 or 3) depending on the seriousness/nature of the grievance”. The respondent submitted that the grievance had been adequately dealt with in accordance with internal procedures and it was emphasised that the claimant was afforded an appeal hearing.It was submitted that both stages of the process were heard by senior personnel of the company and on both occasions the grievance was not upheld. It was submitted that the policy was clear in that Stage 3 of the policy is completely at the discretion of the respondent and further progression of the matter was not warranted.
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Decision:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I have reviewed the evidence presented at the hearing and noted the respective positions of the parties. While I acknowledge the respondent’s contention that the procedure is “clear”, it is unlikely that the matter would have progressed to this dispute stage if the policy were clear. The dispute is focused on an interpretation of the policy with the union submitting that the claimant has a right to proceed to Stage 3 and the respondent submitting that Stage 3 is completely at the discretion of the respondent. While the claimant remains aggrieved, it is evident that the respondent understandably wants to bring closure to the issues raised. I have considered the entirety of the submissions and have concluded that the terminology at issue does not confer an absolute discretion on the respondent to progress a grievance to stage 3 – such an interpretation would be unfair to one party and would not conform to the principles set out in SI 146/2000 which provide that the procedure is rational and fair and that the stages in the procedure include “ raising the issue with the immediate manager in the first instance .If not resolved matters are then progressed through a number of steps involving more senior management , HR/IR staff, employee representation , as appropriate , and referral to a third party , either internal or external , in accordance with any locally agreed arrangements”. Consequently, I am upholding the complaint and recommend that the parties engage with a view to having the claimant’s complaints examined by an agreed external third party. |
Dated: 25 January 2018
Workplace Relations Commission Adjudication Officer: Emer O'Shea