ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00016532
Maria O'Donovan, Maria O'Donovan & Co.
David mc Carthy , Senior Executive Officer , HSE South
Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
Date of Adjudication Hearing: 15/11/2018
Workplace Relations Commission Adjudication Officer: Patsy Doyle
In Section 13 of the Industrial Relations Acts 1969, following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
This Claimant has worked in the Ambulance service since June 1999. The Claimant has submitted that he made a complaint of bullying and harassment on 18 September 2017, following which he had recourse to an extended sick leave. He experienced a delay in securing action under the Dignity at Work Policy and augmented it by way of a Grievance dated 22 December 2017 which was not subsequently upheld.
The Claimant was represented by his Solicitor and the Public Body by their Senior Executive Officer. Both parties submitted helpful written submissions to guide the process.
Summary of Claimant’s Case:
The Claimant has worked with the Respondent ambulance service across several sites since June 1999. He was appointed a Supervisor in 2010 and submitted that he had experienced
“numerous and ongoing issues of bullying and harassment” by a named member of staff. While these issues were reported on a continuum between 2010-2017, the negative behaviour was not addressed.
On 18 September 2017 at 22:06 hrs, the claimant submitted a complaint by email to his Senior management team. He commenced on medically advised work related stress sick leave from September 22 making two attempts to return on 30 September and 8 October. He had received an assurance from the operations Manager that the discord would be managed. He was assured that a tri-partite meeting involving the claimant, the alleged protagonist and the Operations manager would take place. This failed to materialise, and the Claimant submitted an expansive extension of the background of the case and asked for help to assist his return to work. He was informed that he could not meet with the alleged protagonist while he, the claimant continued sick leave. This was to be validated by email which was not forthcoming.
The Claimant attended the Occupational Health Physician who recommended that he engage with management to resolve the situation. The Employer met with the claimant on 18 November 2017 where he learned that the alleged protagonist was not obliged to meet with the claimant while he remained out of work on sick leave.
By December 2017, the claimant had lost patience with the delay in effecting a resolution in his case and changed his approach to the Grievance procedure. He also sent a further email to his manager requesting that his complaint of bullying and harassment would be dealt with under the Dignity at Work Policy.
On January 4, 2018, the Employer came back to the claimant confirming that his case was currently before the WRC Adjudication service. This was rebutted by the claimant and a meeting took place under the grievance procedure on 15 January 2018. The outcome was dated 30 January 2018 and indicated that the claimant’s grievance had not been upheld considering that the alleged protagonist had refused to meet the claimant during the claimant’s sick leave and remained available to meet on the claimants return to duty.
This was followed on January 30 by an inquiry whether the claimant would consider mediation in accordance with the Employers Dignity at Work Policy. the Claimant requested that the Preliminary screening take place but was happy to attend mediation.
The Claimant was unsuccessful at stage 2 of the grievance procedure and appealed this on 21 February 2018.
The Claimant was then notified that the planned meeting with the other party had been cancelled. The Claimant re-affirmed his willingness to consider mediation as a matter of urgency.
On 15 March 2018, the Claimant was invited back to cover a maternity leave from a different base. the claimant secured medical approval only to be refused this mobility by another management division.
The Claimant returned to paid employment on April 9, 2018 and has remained at work.
In the meantime, the next appeal of the grievance procedure was unsuccessful and communicated in that vein on April 27, 2018. The case was subsequently referred to the WRC on 28 April 2018
The Preliminary screening was confirmed on 25 May 2018 and plan for mediation was in train.
The Claimants representative submitted that the claimant had been disadvantaged by being obliged to remain on sick leave for 28 weeks September 2017- 9 April 2018 which had nullified any prospective paid sick leave for a period of 4 years. He had been refused due process in terms of his complaints under the Dignity at Work Policy or the Grievance procedure. He had also sustained a total financial loss inclusive or premia and overtime of €29,875.50.
The claimant sought his stated loss of earnings and submitted that the Adjudicator should have regard for the extensive delay in processing his complaints which had a negative impact on his well being.
Summary of Employer’s Case:
The Employer operates a Public Health Service of which the ambulance service is a constituent over 18 urban and rural stations and a front-line cohort of 250 staff.
It is the primary submission of the Employer that the Claimant had two proceedings in train with the WRC over the course of 2017/2018. One resulted in ADJ 11946 on 10 July 2018 to assist in the claimants inter base transfer and the present case referred in August 2018. Some overlaps occurred.
The Employer argued that the claimant had been afforded his full terms and conditions of employment as a Public body employee and his complaint had been dealt with as close as possible to the point of origin.
The Employer presides over a comprehensive suite of Human resource policies and procedures informed by Codes of Practice, Statutory Instruments and Legislation. These procedures for dealing with workplace issues are required to be complaint with the general principles of natural justice and fair procedures based on
1 Grievances are fairly examined, processed
2 Allegations or complaints are put to the employee concerned and allowed to respond
3 Representation permitted
4 Employee has a right to a fair and impartial determination of the issues concerned
Emphasis is on an informal or private basis.
In the employer outline of the chronological background to the case, they submitted that:
1 Grievance Procedure activated on 18 January 2018 and not upheld but cognisance given to a
“mutually acceptable pathway forward “between management, SIPTU and the claimant on that date. This involved a recognition that the issue “may be more of a Dignity at work Issue “to be followed by a prioritised Mediation process during the claimant’s sick leave. The line manager was to request the other party attendance. This was appealed to stage 3.
This process was then overtaken by the initial WRC process. The Stage 3 Grievance procedure outcome was shared on 27 April 2018. This outlined the initial October 9 meeting had fallen due to a member of management experiencing car trouble and events were then overtaken by the claimant’s sick leave. The Employer had undertaken to engage with both parties once the claimant returned from sick leave and the ongoing absences negated the opportunity for this engagement. The Employer declined to accept that time lined had been unacceptably stretched in the case and did not uphold stage 3 of the grievance procedure.
The Employer submitted that they had done all they could to resolve the situation. Both parties involved had recently committed to mediation as the agreed way forward. Additional Occupational health supports were also in train.
The Employer did not accept that the claimant was forced into a high loss of earnings and prospective sick leave. They contended that the Employer had acted in a reasonable and fair manner towards the parties concerned.
The Employer submitted that some privacy had to prevail over the unavailability of the Manager for the first schedule meeting in October 2017. They contended that the matter was covered by GDPR regulations.
Findings and Conclusions:
I have considered both submissions in this case. I have also re read ADJ 11946 from July 2018 which assisted in enabling the complainants present to transfer the referral of that complaint coincided with the early stages of the claimant’s sick leave. This prompted me to go back and engage in an in-depth review of the submission appendices of this case as I had identified from the oral presentations, several parallel and confusing processes undertaken by both parties.
The circumstances which have led to the hearing of the case commenced on 18 September 2017 for the claimant but for the employer, they commenced much later through the activation of the grievance procedure/dignity at work policy. In my opinion, this goes to the heart of the case as several procedural containments and procedural repetitions followed which placed an opaqueness around the core issue, that of interpersonal conflict between a Supervisor and a direct report.
I will say, at the outset that while there is no obligation on anyone to list and process all complaints on the one page, so to speak. I have found that this is an Industrial relations case which would have benefitted from such a uniform approach by both parties.
On a careful reading of the letter of September 18, it did not strike me as a defined activation of the Dignity at Work Policy. Instead, it read as a request from a Supervisor to his Manager to speak to a difficult colleague. This is not unusual in the world of work. A complaint of bullying and harassment was not actually framed until much later.
What happened next is attributed by the claimant as the major obstacle to progress in the case, his sick leave, interrupted by two attempts to resume work which were unsuccessful. The Employer at that time was represented by the local service management. I found it intriguing that there was some secrecy around the Managers unavailability for the October meeting. However, there were many other successive days during which this issue could have been addressed on a tri partite basis and it was not addressed in a meaningful manner.
The Claimant followed on with an expansive description of the alleged co workers conduct and referred to a past grievance lodged without outcome. The issue on that day was “X behaviour towards me and others has never been appropriately addressed in an official capacity “He asked for further investigation and linked his return to work with a resolution. While I can appreciate that sick leave can be viewed as” a place of safety for an employee”, however the 6.5 months of sick leave in this case is extraordinary and inordinate.
I found it unusual that both parties at the centre of this dispute appeared to hold personal views on what was the correct time to engage on resolution. The Claimant believed that he should be heard during his sick leave, the co-worker appeared to hold a view endorsed by the service that once the claimant was ready to return to work engagement would follow. I found this to be another extraordinary circumstance which I could not cross match with any of the submitted policies.
I could see that Occupational Health had advised engagement from late 2017. The Claimant held a very strong view that he should stay out of work while this matter lay unresolved. The Occupational Health Physician does not appear to have reflected this actual finding in any of his reports and I have found that the claimant acted to his detriment in taking that view. His lack of proximity to the workplace during that 6-month period may have contributed to an eventual polarisation in his position.
I appreciate that the claimant may have viewed the addition of the grievance procedure on 22 December 2017 as an attempt at accelerating a resolution but for me at least it confused the process as he simultaneously on the same day activated the Dignity at Work Policy. This resulted in an industrial relation “log jam”.
Given the concurrent referral to the WRC which had delineated bullying and harassment issues, I accept the Employer argument that they were confused and needed clarification of what issues were live locally and at third party. This is in keeping with the Labour Court direction where it insists that all issues are exhausted locally procedurally, prior to referral to third party.
I found that the Employer engaged in both complaints under the Grievance procedure and Dignity at Work Policy from January 2018 onwards. The claimant was requested to outline the incidents of harassment and bullying he complained of? The Claimant submitted references to 2 emails and two meetings. He declined to meet with his co-worker alone and requested that a Preliminary screening and mediation would follow.
In the meantime, the grievance procedure addressing the procedural delay in the main pressed on in a twin track fashion. I was particularly drawn to the Stage 2 meeting outcome submitted from that process dated 12 February as it exhibited a solid road map for progression of the entire case. I found the claimants rejection of this road map to be surprising as it surmounted all the earlier cited obstacles and promised a priority mediation during the claimant’s sick leave.
I note that the claimant returned to work on 9 April 2018 and at the time of hearing was eagerly awaiting the planned mediation in the case. I wish all parties success in that regard.
As outlined above, I found a defined lack of clarity in the claimants stated foundation complaint of bullying and harassment (Sept 2017). It reflected times passed and other parties experiences of the co worker. I have found that the claimant should have streamlined his approach and activated his complaint correctly and distinguished it from a Supervisor/worker conflict at a much earlier stage, which may not have necessitated the eventual grievance procedure addressed on delay. There is a marked difference in a problem at Supervisor level with a subordinate and a Dignity at work issue. They should not be confused.
In these difficult times, I can appreciate that hurt and disappointment can intensify pending resolution of an issue, however, it is also important to activate a remedial procedure accurately. In addition, it was wholly incorrect for the Employer at any level to allow an employee to frustrate a planned engagement advised by the Employers own Occupational Health Service. I am clear that the co worker in question was on notice of interpersonal conflict involving both he and the claimant from late September 2017.
I have taken account of the Employers submissions when they contended that a major effort was made to address the issues locally and informally at first instance. I believe these were genuine efforts.
There is a sensitivity in my making findings in a process of resolution currently underway between the parties and nothing in this finding is intended to cast judgement on two workers intent on seeking to resolve their differences through mediation. This process is currently owned by the employer and remains live.
I have been asked to order the Employer to make good the claimant’s loss of earnings in their entirety. At the hearing, the parties agreed that DSP had made some supplementary payments to mitigate the amount claimed.
This is a case where I have found fault existed on both sides. I have found that the lack of clarity in complaint formulation contributed to an enduring confusion and a delayed impact. I have also found that the Employer accepted a reticence towards engagement exhibited by the co worker which should have been more firmly managed at service level. I have found that a firm resolution road map was clearly identified by the employer at the stage 2 grievance meeting which was rejected by the claimant. I have also concluded that the claimant believed that his absence from work was necessary to secure a resolution in the case. This was not necessary. I have found that the local service sought to reach out to the claimant but by then the claimant was focussed on formalising the issues. I would suggest that he reflect on this as in all Industrial relations cases, parties must return to work with each other over a continuum of time.
I am pleased to see that the parties have worked together on a resolution of the interpersonal conflict through mediation.
However, I am also struck by the immediate evaporation of the claimant’s sick leave and his rejected application for critical illness protocol. This is a perilous position to be in. On that basis I have considered making a recommendation based on restoring some of the claimants paid sick leave as a balancing exercise in this case. I believe that I should do this to try and return some equilibrium to the case and to allow the claimant a respectful way to move forward.
I cannot accede to the claim for a loss of premia and over time earnings but see merit in examining sick leave based on core pay.
I have found merit in this Dispute as I have found the initial management of the September 18 letter to be an exercise in procedural containment which clouded an opportunity for an earlier resolution. The matter is now, helpfully in process.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I recommend that the Employer allows the claimant a credited restoration of 8 weeks paid sick leave at the full pay rate if he requires it over the recalibration period of sick leave over the 4 years from April 9, 2018.
I would also recommend that the parties sit together to refresh their working knowledge of the policies mentioned in this case.
Finally, I would also recommend that the claimant give some thought to identifying a mentor for himself in the workplace going forward. Management should support him in this venture.
Workplace Relations Commission Adjudication Officer: Patsy Doyle