ADJUDICATION OFFICER RECOMMENDATION
A Retail Manager
A Retail Pharmacy group
Complaint/Dispute Reference No.
Date of Receipt
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
In accordance with Section 13 of the Industrial Relations Act of 1969 (as amended by the Workplace Relations Act 2015 so as to include Adjudication Officers) and where a trade dispute (not specifically precluded by Sect. 13) has been identified and has been referred to the Director General of the Workplace Relations Commission who in turn refers such a dispute to an Adjudication Officer, so appointed, for the purpose of having the said dispute heard in similar manner as has been set out in Section 41 of the Workplace Relations Act, 2015 and/or Section 13 of the Industrial Relations Act which allows the Adjudication Officer to Investigate a matter raised. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will take into account any and all documentary or other evidence which may be tendered in the course of the hearing.
Having confirmed that the Complainant herein is a Worker within the meaning of the Acts and having conducted the Investigation as described in Section 13, I, as the so appointed Adjudication Officer, am bound to make a recommendation which will set forth my opinion on the merits of the within dispute.
Under Section 36(1) of the Industrial Relations Act 1990, any party may object to an investigation by an Adjudication Officer of the dispute raised in the complaint form. The Respondent employer must indicate any such objection in writing within 21 days of the notification of the dispute raised in the workplace relations complaint form.
If an objection is not received within the required timeframe and in the required format but at a later date it will not be considered valid for the purpose of this Act, and a hearing in relation to the dispute will be assigned.
The Complainant is a store Manager in a pharmacy store. The Respondent is a pharmacy group owning and operating up to 90 pharmacies across the country and engaging up to 1,000 employees. The Complainant/worker believes that her Employer has failed to recognise, protect and vindicate her in respect of a reprimand by a senior member of management which she says was unwarranted. The Complainant wants her employer to recognise the fact that the admonishment in question was unwarranted and that the asked for intervention was inadequate.
Summary of Complainant’s Case:
The Complainant presented with her representation who presented me with a comprehensive submission which was opened to me. The Complainant herself gave a first-hand account and had three witnesses who corroborated her account.
Summary of Respondent’s Case:
The Respondent did not present at this hearing. I note that the Respondent sent a letter to the Workplace Relations Commission on the 4th of June 2019 one day before the hearing. The letter states –
“…that the Company (………………..) do not require the WRC’s adjudication service in relation to this matter. In this regard and with respect we will not be in attendance on 5th of June 2019”
The Respondent had been notified by letter of the proposed hearing date on or about the 12th of April 2019. It is noted that their time for objecting to any investigation ran for 21 days from that date. The letter of the 4th of June is therefore out of time.
The Respondent did not therefore attend at the hearing and did not rebut the evidence adduced by the Complainant.
Findings and Conclusions:
I have carefully considered the evidence adduced. There was no attendance by or on behalf of the Respondent who has chosen to stay away from the hearing. The Complainant’s representative set out a comprehensive history of the events which gave rise to the dispute under investigation.
I additionally heard from the Complainant. I found the Complainant and her colleagues to be credible and honest witnesses. I did not form the impression that the Complainant was prone to exaggeration. It is worth noting that relevant supporting documents were also opened to me.
At the time of the incident, the Complainant was part of an organised and lawful strike picketing her place of employment.
I fully accept that the Complainant was approached by a person no less senior than the Employer’s Director of Sales and Marketing (Mr. PW) for the express purpose of chastisement and accusing her of having blocked a customer from gaining access to the pharmacy. The Complainant found the manner to have been intimidatory and over bearing. More importantly, the Complainant believed that the PW was entirely wrong in his allegation. The source of his information was vague. PW’s allegations were (and continue to be) unsubstantiated and the accusation that she was preventing another person from obtaining her cancer drugs was inflammatory and insulting to the Complainant’s long service in healthcare.
PW’s motives and actions have never been explained to the Complainant. Nor has PW ever sought out the Complainant for the purpose of apologising for a significant lapse in the standard of civility that might be expected of a senior manager.
I believe that there was no history between the Complainant and PW and in fact PW only came into his role from outside the company some 24 months before the incident complained of. The Complainant is a long-serving and diligent member of staff. The humiliation and belittlement she suffered was palpable to me.
I do appreciate that tensions might have been high set against the backdrop of strike action, and a momentary lapse of judgement might be forgivable - but the inability of PW and the Employer generally to come forward and express regret is an affront to the Complainant’s record as an employee and as a person.
Not surprisingly the Complainant lodged a Grievance. The Employer appointed an external Investigator who interviewed the Complainant once. The Investigation report presented in February 2019 falls short of almost every norm which one would expect to find in a meaningful Investigation. There are no terms of reference, there is no indication of what procedures are to be adopted. There are no disclosed witness statements and no right of reply was given if statements were ever taken. There is no documentary evidence or other corroborative evidence. None of the three witnesses who attended the WRC, and who observed the berating, was questioned.
The investigator does concede that PW’s approach would and should have been different. However, the employer finds –
“that there is not sufficient evidence provided for the company to take any further action at this time”.
On balance, it seems to me unsatisfactory and sad that a company as successful as this one, and with the financial means and HR facility that it undoubtedly has, would treat a long-standing employee with so little regard and so much disdain. I would venture to suggest that this attitude has prevailed right up to the refusal to engage in the independent process provided by the WRC. It is regrettable that the Employer did not so present itself as it has meant that I have only heard one side of the dispute.
I would state that the Complainant has been very brave to have pursued this matter and I would hope that there will be no repercussions and that the Employer will take the opportunity to consider where it might have failed in this process and in its protection and vindication of a team member.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 -CA-00027674-001
I recommend that the Employer confirms that there was not and never has been any basis for suggesting that the Complainant denied a sick patient/customer access to the services of the pharmacy. I recommend that the Employer confirms that the Employee will not be further prejudiced for having pursued her entitlement to clear her name. I recommend that PW be asked to apologise to the Complainant and makes a genuine attempt to clear the air. I recommend that any future workplace investigations be conducted in accordance with the principles of fair procedures. A good starting point might be implementation of the Code of Practise under the Safety, Health and Welfare at Work Act of 2005 for Employers and Employees on the prevention and resolution of Bullying at Work.
Dated: 1st August 2019
Workplace Relations Commission Adjudication Officer: