Worker

Employer

Anonymised Parties

Retained Firefighter

County Council

Representatives

Dave Curran,  SIPTU

 Amanda Kane, Local Government Management Agency (LGMA)

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00004379

15/10/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00004380

10/12/2021

IR – SC – 00004379

Dispute referred pursuant to section 13 of the Industrial Relations Act, 1969 (15/10/2021)

The worker commenced employment as a Retained Firefighter in November 2015.  In January 2021 the worker submitted a complaint of bullying to the employer’s HR department.  The worker referred a dispute to the WRC on 15 October 2021 contending that the employer had not investigated his complaint.  The worker claims that the employer has failed to ensure his workplace is a safe place to work.  The worker’s position is that the employer’s failure to deal with his complaint has left him out of work for many months, resulting in a loss of earnings and damage to his career.

IR – SC – 00004380

Dispute referred pursuant to section 13 of the Industrial Relations Act, 1969 (10/12/2021)

The worker submitted a second dispute for investigation on 10 December 2021.  The worker repeated the original elements of the dispute as set out in the first referral and added two issues that arose between October and December 2021.  The additional issues in dispute relate to proposed attendance at a training course and a request for special leave.

The employer’s position is that it refutes the allegations in the two disputes referred by the worker.  The employer sought to resolve the issues raised by the worker following the informal procedure contained in the Dignity at Work policy.  The employer tried to facilitate the workers return to work through Occupational Health reviews, a place on a training course and the appointment of an independent facilitator.

The worker commenced work as a retained firefighter in November 2015.  He had an impeccable record with the employer.

The worker submitted a complaint of bullying and victimisation against his Station Officer in January 2021.  The worker and his union representative met with the HR Manager on 09 February 2021 to discuss the complaint.  It was agreed at the meeting that the union representative would provide a summary of the complaint to the HR Manager.  The summary was submitted on 01 March 2021 by email.  In the email it stated that the object of the complaint was to have these matters fully investigated.

As the employer failed to take any action in relation to the alleged bullying, victimisation and other issues, the worker did not believe that the workplace was safe for him.  The worker was certified as unfit for work by his own GP due to work related stress.  The worker commenced sick leave on 11 February 2021.

The HR Manager delivered his considered view of the issues in a letter dated 23 March 2021.  He stated that issues outlined were addressed as reasonably as possible given the context provided.  He recommended that a facilitated meeting between the worker and his Station Officer would assist in accommodating understanding between the parties so as they may carry out their functions and duties in the context of the service they deliver and structure within which they operate.  The worker was informed that he could refer this matter for further consideration to the Director of Services for Human Resources.

The worker did refer the matter to the Director of Services for Human Resources for further consideration.  The Director replied by letter dated 05 May 2021.  He stated that in his view it would be beneficial for the worker to engage in a facilitated meeting with his Station Officer.

The employer failed to do a proper investigation of the worker’s complaint, contrary to the employer’s Dignity at Work policy.  The employer did not interview witnesses or examine documents or records.

In those circumstances the worker did not believe the workplace was safe for him to work in and he was left with no choice but to remain on sick leave until the issues were addressed.  Being out of work has resulted in a loss of income.  The worker referred this dispute to the WRC on 15 October 2021.

The dispute remained unresolved when two further issues arose. 

The employer eventually agreed to the worker attending a training course.  The breathing apparatus course was to take place on 26 and 27 October 2021.  The worker requested the use of the station jeep to attend the course; this is normally made available to firefighters attending training.  The worker was refused the use of the jeep and so could not attend the training. 

The workers sick pay under the sick pay scheme ended in June 2021.  He was then on nil pay and consequently no PRSI contributions were made.  The lack of PRSI contributions would result in the worker not being able to benefit from Job Seekers benefit by the end of the year.  The worker requested the employer to put 3 months of his sick leave down as special leave.  The employer refused to grant special leave.   The worker referred the dispute about these extra two issues to the WRC on 10 December 2021.

The employer’s failure to do a proper investigation of the workers complaints and failure to accommodate him with transport and special leave has resulted in him being unable to work and suffering a loss of income.

The employer refutes the allegation that it did not address the complaints raised by the worker.  The employer moved to resolve the issues using the procedures contained in its Dignity at Work Policy.  The HR Manager having met with the worker and his union representative sought to resolve the issues under the informal procedure.  As outlined in the policy “The person handling the complaint should then establish the facts, the context and then the next course of action in dealing with the matter under the informal procedure.”

It is the employer’s position that there is no absolute right to have a formal investigation of complaints made under this policy.  The Code of Practice on the Prevention and Resolution of Bullying at Work clearly outlines this in section 4.2 dealing with formal process. 

The employer tried to facilitate the worker’s return to the workplace by arranging appointments with it Occupational Health practitioner.  Despite their finding that the worker was fit to return to work, the worker remained on sick leave as certified by his GP.  Following two assessments the employer tried to facilitate the workers request for an alternative Occupational Health assessment and were awaiting further suggestions about an alternative.

The employer arranged for the worker to attend a breathing apparatus training course so that he would hold the necessary certification on returning to work.  The worker informed the employer that he could not participate in this course based on his GP’s medical advice.

A proposal that the worker would return to the workplace but have no interaction with the Station Office was not a feasible option within a fire station.

The employer sought to arrange facilitated meetings between the worker and his Station Officer, as recommended by the HR Manager.  The worker attended the first meeting on 16 November 2021 and cancelled the next meeting scheduled for 01 December 2021.  The employer tried to reschedule the meeting but without success.

The worker requested that he be placed on special leave to maintain his social welfare entitlements.  The employer could not do this given that the worker remained on sick leave as certified by his own GP.  The worker had exhausted his entitlement to sick pay and accordingly no PRSI contributions were made.  There is no special leave option in such circumstances.

In conducting my investigation, I have taken account of all relevant submissions presented to me by the parties.

Two referrals were made by the worker.  The dispute in the first place arises from a complaint of bullying made by the worker.  The second referral repeats the basis of the dispute but raised further elements in dispute that arose after the first referral.  I will set out the conclusions of my investigation under each of the individual dispute references.

IR – SC – 00004379

Dispute referred pursuant to section 13 of the Industrial Relations Act, 1969 (15/10/2021)

I regard this as the main dispute between the parties.  The second referral deals with two issues that arose while the main dispute was ongoing.

The worker was employed as a retained firefighter since 2015.  He complains that he was subjected to bullying behaviour by his Station Officer.  The worker tried to deal with the alleged bullying behaviour directly with the Station Officer, with the assistance of the Senior Assistant Chief Fire Officer (SACFO) and several local meetings took place.  After that the worker made his complaint to the employer’s HR department.

The employer has in place a Dignity at Work Policy.  That procedures contained in that policy set out three ways that the resolution of problems such as bullying, harassment or sexual harassment may be approached.  The three ways are, informal, mediation and investigation.

The worker and his union representative met with the HR Manager to discuss the complaint.  It was agreed that the union representative would provide a written summary of the complaint.  The summary sets out ten specific issues and requested that these matters be fully investigated.

Having considered the submissions, it is my opinion that there was either a misunderstanding about the steps contained in the informal procedure or the worker was unwilling to accept the outcome of the informal investigation.  The policy, like the Code of Practice on the Prevention and Resolution of Bullying at Work, provides that the informal phase contains two elements. 

The first informal element is trying to resolve the issue directly with the person complained about, which the worker did at local level. 

The second element is still informal but more protracted.  This element is perhaps more clearly set out at section 4.1.2 of the Code.  The employer’s policy states that a person who has had appropriate training and experience and is familiar with the procedures will be delegated to deal with the complaint on behalf of the employer.  In this case the delegated person was the HR Manager. 

I am satisfied that he HR Manager followed the procedure in the policy: “The person handling the complaint should then establish the facts, the context and then the next course of action in dealing with the matter under the informal procedure.”  As required by the procedure the person complained about was presented with the complaint and his response sought by the HR Manager.  The focus in the Dignity at Work Policy and in the Code is, in the first instance, on an informal non-adversarial approach as this is often the most effective way to resolve issues where people must continue to work together into the future.

The HR Manager not only sought a response from the person complained about but also discussed several issues with Fire Service senior management to have the management context on these issues.  This process established that six of the ten issues were outside the control of the Station Officer.  The remaining four were described as relating to how the Station Officer acts and carries out his function.  The HR Manager recommended facilitated meetings between the parties would assist in accommodating understanding between the parties.   In my opinion the employer did take the workers complaint seriously and did investigate it in line with the informal procedure contained in its Dignity at Work Policy.  The procedures in the employer’s policy are consistent with the procedures in the Code of Practice. 

The recommended facilitated meeting was to take place when the worker was fit to return to work.  The worker was declared fit to return to work at two Occupational Health reviews.  The worker did not accept the outcome of the OH reviews and continued to be certified as unfit by his own GP.  The worker did agree to engage with the facilitator, while still on sick leave, but only attended one meeting and was not available for the second meeting. 

In my opinion the employer did take the worker’s complaint seriously, did follow the procedure contained in their Dignity at Work Policy and took appropriate steps to investigate the complaint.  The preferred option chosen by the employer was the informal procedure.  As stated in the Code it is good practice that all informal resolution avenues should be contemplated and where appropriate, exhausted before a formal process is invoked.  In this case the informal process was not exhausted as the worker only attended one facilitated meeting. 

The Code also recognises that it is the reasonable evidence-based decision of management as to whether to proceed with an informal or formal approach to resolution.  The HR Manager had advice from the Senior Assistant Chief Fire Office about the local attempts to resolve these issues, together with his own investigations and discussions with senior management about decisions taken at a management level to inform his decision as to how to proceed to deal with this complaint.

It is my opinion that the employer did take the worker’s complaint seriously, did investigate the issues following the informal procedure in its Dignity at Work Policy and tried to resolve the issues through facilitated meetings between the parties.  The employer’s recommendation to engage in independently facilitated meetings to resolve the issues is consistent with the aims of the Dignity at Work Policy.  The worker only attended one meeting with the facilitator.  In those circumstances it is my opinion that the worker did not exhaust the informal resolution process before referring this dispute to the WRC.

IR – SC – 00004380

Dispute referred pursuant to section 13 of the Industrial Relations Act, 1969 (10/12/2021)

The worker repeated the issues in dispute contained in the first referral and added two issues that arose after he had made the first referral on 15 October 2021.  The two additional issues in dispute concern the worker’s attendance at a training course and a request for special leave.

In the complaint form the worker states that he had been left out of training and refused the use of the company jeep to attend a course in another county.  It is stated that the jeep is normally made available to firefighters attending training in other counties. 

The employer’s position is that the worker went on certified sick leave in February 2021 and continued to be certified as unfit for work by his own GP up to the time these disputes were referred to the WRC.  It is not normal practice to have workers who are on certified sick leave participate in training.  However, following consultation with the worker’s union representative the employer did arrange for him to attend a breathing apparatus training course in October 2021.  The employer’s submission states that it was informed by the worker that he could not participate based on his GP’s medical advice.

There is a direct conflict as to why the worker did not attend the training course.  The worker’s position is that he could not attend as he was refused the use of the station jeep. 

I am satisfied that the employer arranged a place on the training course as part of their attempt to resolve the issues in dispute and assist the worker in returning to work.  The employer was somewhat reluctant to do so since the worker was on certified sick leave but agreed none the less.  In my opinion, having arranged a place on the training course, it was not for the employer to arrange transport to/from work for the worker.  I accept the worker’s claim that the station jeep may have been made available at times for use to attend courses, but I think it is reasonable that the requirements of the service must take priority on the use of a company vehicle. 

In my opinion it is clearly an operational decision for management as where the priority lies for the use of company vehicles on any given day.  In my opinion the worker was not victimised by being refused the use of the vehicle to travel to a training course.  I do not recommend any change to management having the authority to decide the priority for the use of company vehicles.

The second issue in dispute concerns the worker’s request for special leave.  The worker went on sick leave in February 2021.  He was certified as unfit for work by his own GP.  The employer arranged an Occupational Health review, and the worker was certified fit to return to work.  The worker did not accept the outcome of this review.  The worker continued to be certified as unfit by his GP.  A second Occupational Health review was conducted and again the outcome was that he was fit to return to work.  Again, the worker did not accept the outcome.  In all five appointments were arranged by the employer with their Occupational Health practitioner.  The worker attended two and was unavailable for two other appointments.  The worker remained on sick leave from February 2021 until this dispute was referred to the WRC.

The worker received all his entitlements under the terms of the sick pay scheme.  His entitlement to sick pay was exhausted in June 2021.  The worker was transferred to nil pay and consequently there were no further PRSI contributions paid after that date.  The worker had been claiming Job Seekers benefit.  Entitlement to such benefit is based on PRSI contributions.  The worker was approaching a period when he would cease to be entitled to claim Job Seekers benefit due to lack of PRSI contributions.  On the complaint form the work states that he requested the employer to put 3 months of his sick leave down as special leave.  The written submission stated that there is no minimum amount of PRSI required and even a few days special leave would have resulted in PRSI contributions. 

The employer’s position is that the worker was out of work on sick leave as certified by his own GP.  The worker had been paid all his entitlements under the sick pay scheme.  The issue of social protection benefits is not a matter for an employer but is between the worker and the Department of Social Protection.  There was no option in relation to special leave.

I am satisfied that the worker was on sick leave, as certified by his own GP, for the whole period from February 2021 until he referred this dispute on 10 December 2021.  In my opinion the worker in requesting that sick leave be put down as special leave, which is paid leave, was asking the employer to do something to circumvent the normal rules of the sick pay scheme.  In circumstances where a worker presents a medical certificate stating they are unfit for work then the rules of the relevant sick pay scheme should be applied.  To do otherwise would create a precedent in ignoring the rules of the sick pay scheme.  Having carefully considered the submissions on this issue I do not recommend concession of the worker’s request to replace sick leave by special leave.

Dispute

Complaint of Bullying

Informal Procedure / Investigation

Sick Leave