Complainant

Respondent

Anonymised Parties

A Driver

A Bus Company

Representatives

Simon Donough B.L. instructed by Tallans Solicitors

In House Solicitor

Act

Complaint Reference No.

Date of Receipt

Complaint seeking redress under Section 13 of the Industrial Relations Acts 1969

IR-SC-00007679 and IR-SC-00007680

August 9th 2021

The complainant traces a number of difficulties related to disciplinary matters and his working hours and giving rise to this (and related) complaints back to a disciplinary meeting which took place in March 2018 and says that it was at this point that he began to be ‘bullied and harassed’ by his manager.

The complainant says he first submitted an appeal against a disciplinary outcome in October 2019, but this was ignored. He re-submitted it in February 2020.

The first complaint relates to disciplinary action taken against him and the failure to respond to appeals he submitted under the grievance machinery.

In all he submitted appeals in respect of various matters in March 2018, October 2019, December 2020, and February 2022, (this latter after the case was submitted to the WRC.

He has also experience continuing difficulties with his supervisor, especially in relation to his working time.

The respondent says that in relation to the appeals made by the complainant these were sent to the wrong manager, specifically the person against whom the complaint was being made and the complainant did not follow up on the complaints.

It says that it is willing to engage with the complainant in respect of his hours or other issues.

It is not easy to disentangle the complaints made under the Industrial Relations Act in this case (and indeed to disentangle them from the separate statutory complaints).

In the first complaint there is reference to the imposition of a disciplinary sanction, and the failure of the respondent to address a grievance he submitted, actually an appeal.

The second complaint relates to alleged repeated abuses of dignity at work provisions.

However, some flavour of the problem may be discerned from the complainant’s ‘Statement of Events’ submitted for the hearing in which he weaves a confused narrative covering a long period back to 2018.

This covers his difficulties with his manager, his disagreement with the outcome of various disciplinary processes and the related failure to by the respondent to process his appeals.

Add to this dispute about his hours (which have also been the subject of a separate statutory complaint), and it is a complicated picture.

While a particular onus falls on any employee to fully exhaust the internal processes at workplace level before bringing a matter under the Industrial Relations Act to the WRC, they are also entitled to expect that the triggering of any such internal mechanisms will be acted on and processed by an employer.

At the hearing that the respondent said that the complainant had not submitted the various appeals he refers to in accordance with its procedures.

However, it would be available at any time to hear the complainant’s grievance if it was lodged properly and in accordance with those internal procedures which are the standard grievance provisions that apply in most Irish workplaces.

The complainant stated in his submission that the ‘normal processes and procedures do not even apply to me any more’.

While he has not exactly helped his own cause it is not hard to see why he should feel this.

As noted above he submitted appeals in respect of various matters on March 17th, 2018, arising from a disciplinary hearing two days earlier, October 15th following a disciplinary hearing the previous day 2019, December 3rd 2020 following a disciplinary hearing that same day and February 6th 2022, following a hearing on January 22nd (this latter post-dates the referral of the complaint to the WRC.)

The respondent somewhat weakly submitted that the complainant had erred in submitting the appeal to the person who was actually the subject of the appeal, or in any event not to the correct person.

But one is bound to ask why that person did not refer the appeal to the correct recipient on any of those occasions, as indeed he ought to have done and, in my opinion was obliged to. A grievance system is not a high-level legal process and once it is clear that an employee has one, it should not be ignored or deflected with the use of with specious technical or procedural defences.

That said, the failure of the complainant himself to follow up on the alleged inaction after any of these complaints is equally inexplicable, and he did not explain it at the hearing. He apparently believed that no onus fell on him to pursue his own complaint, or even to check why there had been no response which would have quickly highlighted the issue about whether it had been properly lodged.

Indeed, the complainant seemed to be so overwhelmed by his sense of grievance that he lost the necessary focus to pursue it in a way that would cause it to be properly addressed

On that point it is hard to pinpoint which of the parties is most at fault for the current position. But on balance, the management is culpable for the failure of the recipient of any of these four appeals to ensure that they were passed to the correct recipient.

Its disavowal of all responsibility is not credible.

The second strand of complaints connects with a separate dispute over his hours and what he alleges was unacceptable treatment by some of his managers. This he says was the subject of a complaint in November 2020 and on which no action was taken.

Again, the respondent denied any knowledge of this although it is clear to whom this complaint was made.

Some of this formed part of a general complaint against his line manager, which it is impossible to evaluate properly at this distance from events; this is a matter that should have been addressed in the workplace.

But the complainant says that it was an attempt to start internal complaints/grievance procedures. 

The complainant is fully entitled to avail of the respondent’s grievance procedures, and he must ensure that he does so having due regard to the not very onerous requirements of submitting then in line with its provision.

He then needs to ensure that either he, or whoever is acting on his behalf in the workplace follows them up to a conclusion.

He is a member of a trade union and has access to the benefits of its professional advice and experience, although he chose to avail of legal representation at the hearing.

At this stage and cutting through all this confusion the parties must move immediately to bring some order to the situation and the overriding requirement is that the complainant be given a speedy opportunity to air any complaints he may have whether in respect of the appeals or other treatment he alleges represents a breach of his rights.

 These are matters which can only be addressed at the level of the workplace and even at this late stage that needs to happen without delay.

Quite clearly where this may involve his local manager then that would not be the first port of call. Despite the Policy and Procedures being silent on who should be contacted when this is the case, this is not an uncommon problem and the respondent simply has to identify a recipient who is not involved in the issues, most likely within its own HR structures.

For his part the complainant must carefully consider on the basis of the best advice available to him how he wishes to proceed and properly formulate and submit an intelligible summary of those complaints to the correct recipient in accordance with the respondent’s ’Grievance Policy and Procedures’

I uphold complaints CA-00045593-003 and -004 under the Industrial Relations Act and my recommendation is below. I make no award of compensation as the complainant has made a significant contribution to the situation in which he finds himself, although the respondent should consider itself fortunate in that regard.

I uphold complaints IR-SC-00007679 and IR-SC-00007680 under the Industrial Relations Act and recommend as follows.

The respondent should advise the complainant within 14 days of the date of this recommendation to whom any complaint he wishes to make arising from the matters in this referral should be directed.

The complainant should submit a simple and concise outline of his complaints of approximately no more than two hundred and fifty words within a further seven days. Should he fail to do so within that time period, the matters referred to here will be considered to be closed.

At that stage, on receipt of any complaint, the ‘Procedures’ section of the respondent policy document (page 11 and following) should be applied.

This includes all the options set out there but given the passage of time I strongly recommend and urge on the parties that the informal and mediation options be considered to resolve these long running grievances on an amicable basis, especially given the historic nature of some of the complaints.  A formal investigation would add only delay and continuing uncertainty.

Following a preliminary review of the options the parties should set a timetable for the conclusion of all issues and should aim to do so within eight weeks of the receipt of any complaint.

Grievance procedures