ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00032996
Parties:
| Complainant | Respondent |
Anonymised Parties | A Bus Driver | A Transport Company |
Representatives | Barry Crushell Crushell & Co Solicitors | N/A |
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-00043675-001 | 20/04/2021 |
Date of Adjudication Hearing: 26/08/2021
Workplace Relations Commission Adjudication Officer: Breiffni O'Neill
Procedure:
In accordance with Section 13 of the Industrial Relations Acts 1969following 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.
Specifically, I conducted a remote hearing in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings.
Background:
The Worker has alleged that he is being bullied and is seeking to move to another of the Employer’s location without his seniority being impacted. |
Summary of Complainant’s Case:
The Worker has been employed as a Bus Driver with the Employer since April 2003 and has always operated from the same depot. He had no issues with his role until late 2019. Having notified the Employee Relations department of these difficulties, a Mediator was appointed and the Worker met with him in February 2020. Despite having contacted him on numerous occasions after this meeting, there was no progress made with the mediation. The Mediator eventually contacted the Worker in April 2021 and informed him that the Employer was stalling the resumption of the mediation process. The Worker asserts that he cannot return to his previous work location in light of the difficulties he has had there and wishes to transfer to a new depot without losing his seniority. |
Summary of Respondent’s Case:
In late 2019/early 2020, the Worker indicated to the former Head of Employee Relations and Culture, that he was experiencing some difficulties at the depot, mainly with the Services Manager. Arising from that discussion, an Independent Mediator, was appointed to deal with the issues and seek a resolution. This was on the basis that the Worker was seeking to maintain confidentiality and did not want to progress matters through the normal grievance or bullying and harassment procedures. Subsequently, the Worker met the Mediator on 6th February 2020 and alluded to a belief that the issues between him and the Service Manager related to his role as a Shop Steward. The Mediator intended to then meet with the Services Manager to discuss the matters and obtain her response but, as a result of the Covid lockdown in March 2020, he was unable to do so, and the matters sat in abeyance for a period. At this time, the Services Manager, who was pregnant, also began a period of working from home, until her maternity leave commenced in June 2020 and was unavailable to meet the mediator thereafter. In June 2020, the Worker went on certified sick leave and has not returned to work. During the summer of 2020, SIPTU, on behalf of the Worker, sought a meeting with the company and this was scheduled by a Senior HR Manager, for 19th August 2020, along with a Regional Manager. The Worker declined to meet with the Regional Manager and the Senior HR Manager facilitated the meeting on his own. At this meeting, the Worker repeated many of the issues which he had previously discussed with the Mediator earlier in the year, along with new issues, involving others, which he alleged had occurred since. The Senior HR Manager also only became aware at this meeting that there was an existing process with a Mediator, which was stalled due to Covid 19. Given the number of issues then forming the basis of complaint, the Senior HR Manager advised that the matter should be progressed under the company Grievance Procedure but the Worker declined to do so. In November 2020, SIPTU requested a meeting with the new Head of Employee Relations, Mr X and this meeting was arranged for 21st December 2020. At this meeting, the Worker advised Mr X of the process with the Mediator and complained of the lack of progress in relation to same. The Worker also outlined some of the issues he had with the Service Manager and also alluded to other issues, involving other members of management, (who were not identified). At the meeting, Mr. X advised he would have to review the current process with the Mediator and see where it stood. He also advised that, in the absence of a formal complaint, under either the grievance or bullying and harassment policies, then it was extremely difficult to progress the matter. The Worker was emotional at the meeting and advised that his health would not allow him to progress these matters under any formal process. It was agreed to meet again in the new year, after the Head of Employee Relations had opportunity to review everything. Following this meeting, Mr. X engaged with the Mediator and the Mediator confirmed that he had commenced the process to review the issues of complaint but had no option but to suspend progress due to the Covid pandemic. He also indicated that he was not in a position to continue the process until early 2021 due to Covid concerns. The Head of Employee Relations further discussed the matter with the SIPTU representative in February 2021 and wrote to the union on 5th March in relation to the matter. Following an exchange of emails, a further meeting was then held with the Worker on 8th April 2021. At this meeting, the Head of Employee Relations outlined how the Mediator could not proceed with the process at this time. He also advised that in the absence of a formal complaint, providing all the respondents with appropriate details to allow them fully reply, the only way to potentially proceed was to complete an informal process in the depot, and ensure local managers/supervisors and staff were fully conversant with the terms of the bullying and harassment policy, to ensure there were no issues. Mr X also offered an opportunity to resolve this matter, which was consistent with what the Worker said the Chief Medical Officer had recommended; namely, that he would transfer from his driver role to another depot. At the time, opportunities were available in two other depots for drivers and the offer to transfer was made on the basis of the company union agreement applying to same. The Worker declined this option on the basis that he would lose his depot seniority – while his continuous service date would remain unchanged, in accordance with the company union agreements, his depot seniority date would change. The Worker argued that he should not lose his depot seniority on the basis of the complaints he had made. The Employer could not accept this as these complaints have not been investigated and there was no affirmation of any wrongdoing on the part of any manager, as complained, at the time, nor subsequently. Subsequent to this meeting, there has been no further progress in this matter as the Worker remains under the care of the company Chief Medical Officer and is unwilling to progress his complaints under any formal process to allow full investigation of same. More recently, the Employer enquired of the Mediator if he could resume the process commenced in early 2020; but he confirmed he could only do so by virtual means. The Employer also asserted that as the Worker has alluded to multiple respondents, rather than just the Service Manager, it would be more appropriate to receive the complete details of all his complaints so a full investigation of matters could take place with another third party investigator. |
Findings and Conclusions:
I recognise in the first instance that the Worker engaged with the Company appointed Mediator and that there can be no blame whatsoever attributed to him for the failure of the mediation process to be progressed and find that the delay is largely due to the Mediator who was unable to fully engage due to the COVID pandemic. Given the uncertainty surrounding his future availability, I find that a new Mediator should be appointed and that and that the mediation process recommence ab initio. The Worker should also recognise however that there is no obligation on any other party, either the Services Manager or indeed any other Worker, to engage in a mediation process and that even if their co—operation is agreed, there is no guarantee of a successful outcome for him. In such circumstances he will have to make a formal complaint and allow his grievances to be investigated by the Employer in line with its procedures. He cannot also expect the Employer to allow him to transfer to another depot and retain his seniority without having fully exhausted the internal processes. |
Decision:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I recommend that a new Mediator should be appointed within four weeks of the date of this recommendation and that and that the mediation process should recommence ab initio and conclude within a period of six weeks. |
Dated: 15th September 2021
Workplace Relations Commission Adjudication Officer: Breiffni O'Neill
Key Words:
Mediation; |