FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : NORTH TIPPERARY LEADER PARTNERSHIP (REPRESENTED BY ESA CONSULTANTS) - AND - A WORKER (REPRESENTED BY FORSA) DIVISION : Chairman: Mr Haugh Employer Member: Mr Murphy Worker Member: Mr McCarthy |
1. Appeal Of Adjudication Officer Recommendation No: ADJ-00007403 CA-00009820-001.
BACKGROUND:
2. This matter was referred to an Adjudication Officer for investigation and Recommendation. On the 22 November 2017 the Adjudication Officer issued the following Recommendation:-
"...While I note that the respondent appointed an investigator without input from the Union Official, I have no reason to believe she will not act with full fairness and impartiality. However, I recommend that the Respondent should put the investigation on hold and meet with the Complainant and her representative to agree terms of reference going forward, and an end date for the process. Given the fact that the issue is ongoing since March 2016, the process should have a finite end within two months of the date of this recommendation."
The Employee appealed the Adjudication Officer’s Recommendation to the Labour Court on the 22 December 2017 in accordance with Section 13(9) of the Industrial Relations Act, 1969.
A Labour Court hearing took place on the 2 May 2018.
DECISION:
Background to the Appeal
This is the Worker’s appeal from a Recommendation of an Adjudication Officer (ADJ-00007403, dated 22 November 2017) under section 13 of the Industrial Relations Act 1969. The Worker’s Notice of Appeal was received by the Court on 21 December 2017. The Court heard the appeal in Limerick on 2 May 2018.
Outline of the Dispute
The Worker is a Community Employment Scheme Supervisor. She has been employed by the Respondent since 6 December 2006. In March 2016, the Worker was the subject of complaint by a colleague arising from a telephone conversation that took place between them on 21 March 2016 in relation to a room booking at the Respondent’s premises in Clonmel. The Worker’s complaint is that the Respondent, in dealing with that complaint, breached its own grievance and disciplinary procedures and acted in a manner inconsistent with SI No. 146 of 2000. In particular, the Worker submits that the Respondent denied her her right to be represented by a representative of her choice.
The Adjudication Officer upheld the complaint at first instance but did not make an award of compensation to the Worker. The Respondent did not attend that hearing. The Adjudication Officer recommended that an investigation by an independent third party that had been initiated by the Respondent prior to the hearing before her in September 2017 should be put on hold to allow the Respondent and the Worker along with her Union Representative to agree terms of reference and an end date for that investigation with a view to concluding the entire process within two months of the date of the Adjudication Officer’s Recommendation.
The Worker appealed that Recommendation on three grounds:
(i) The Adjudication Officer did not address the Respondent’s failure to comply with its own procedures by permitting the Worker’s colleague to make her complaint in the first instance to the Respondent’s CEO;(ii) The Adjudication Officer did not recommend that the Respondent expunge all references to the flawed investigation from the Worker’s personnel file; and
(iii) The Adjudication Officer did not make an award of compensation to the Worker in recognition of the Respondent’s denial of her right to choose a representative of her choice.
Discussion and Recommendation
What appears to the Court to have started off life as a complaint of a non-serious nature appears to have been allowed to escalate into an unacceptably protracted dispute between the Worker and the Respondent about a series of procedural issues. This has clearly had a corrosive effect on relationships in the workplace. In the period since the Adjudication Officer’s Recommendation issued, the investigation by an independent third party has concluded albeit that the Worker does not accept the outcome of that investigation.
The Court recommends that all records of the issue that arose from the complaint made by the Worker’s colleague following the telephone conversation of 21 March 2016 be expunged from both the Worker’s personnel file and that of her colleague. The Court further recommends that the Respondent, in early course, implements a review of its grievance and disciplinary policy and procedures to ensure that they are in compliance with SI 146 of 2000 and that in particular that those policies provide for a right to representation consistent with this Court’s interpretation of that right as provided for in SI 146 of 2000. The Court does not recommend the payment of compensation to the Worker.
The Adjudication Officer’s Recommendation is varied accordingly.
The Court so recommends.
Signed on behalf of the Labour Court
Alan Haugh
JD______________________
15 May 2018Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to John Deegan, Court Secretary.