Employment Case Law – grievances (jan 14)
Workplace grievances effect every Organisation. Any Employer who believes they have a work environment free of Employee grievances is likely to be failing to hear their Employees, rather than operating a work environment free of any dissatisfaction. Failing to hear Employee grievances can be detrimental to an Organisation, and furthermore, failing to manage or respond to grievances in a fast, fair and consistent manner can be as bad as not hearing them at all.
Although there is no legal requirement for an Organisation to have a grievance procedure for Employees to raise their dis-satisfactions, it is good Employee relations practice to put such a procedure in place. Having an effective grievance procedure can help an Organisation to learn from its Employees, and can also assist the Organisation to protect itself from claims of constructive dismissal.
It is important to note that an ordinary grievance procedure is not sufficient to deal with allegations of bullying or harassment at work. Separate policies and procedures should be prepared in this area, taking account of the relevant legislation and Codes of Practice. These Codes of Practice set out different requirements than the Code of Practice on Grievance and Disciplinary Procedures as outlined here.
The following code of practice should be considered when looking at Grievances:
The Code of Practice promotes that a grievance procedure should have formal and informal channels for resolution. At the informal stage, the Employee would be expected to raise their complaint with their direct Manager and discuss the issue of concern informally. The Employee’s Manager should consider the complaint carefully and issue a response within a reasonable timeframe. The majority of grievances are resolved in this way on a day to day basis, without the term grievance even being used.
However, where the Employee is dissatisfied with the response received at the informal stage, then he/she should be permitted to raise the issue with their Manager formally in writing and have a formal hearing to consider the grievance. The Employee should be afforded representation at this hearing should they wish to avail of this. The Employee should be encouraged to articulate their grievance and also propose solutions. The Manager should consider the situation carefully and not respond immediately, but arrange a follow up hearing to communicate their response.
Where the Employee deems any stage to be inappropriate, or the Employee is dissatisfied with the response received at an earlier stage, then he/she may raise the issue formally in writing with another Manager. An Employee is entitled to skip any stage of the process (including the informal stage) and should not be subject to any reprisal or victimisation for raising an issue under the procedures.
Case 1 - Exhausting all Avenues to a Grievance (Olivia Barry Vs Quinn Insurance)
This case relates to a claim of constructive dismissal due to difficulties the Claimant was having with her Direct Manager.
In April 2009 the Claimant was certified as medically unfit for work and continued to submit medical certificates until her resignation in February 2010. Between April 2009 and February 2010 the Claimant engaged with the Organisation and it was suggested that the Claimant return to work in a different role, return to work and use the grievance procedure, or visit the Occupational Therapist again. The Claimant did not invoke the grievance procedure at any point.
The Tribunal did not find any substantial grounds that a dismissal took place in this case. The Claimant did not produce sufficient and adequate evidence that the Respondent dismissed her even in a constructive fashion. The Tribunal found that except in very limited situations an Employee must exhaust all avenues for dealing with his or her grievance before resigning.
This case highlights the importance of having a Grievance procedure in place so that Employees have the opportunity to exhaust all internal avenues and hopefully find a resolution prior to resigning.
Case 2 – Written Procedures (Michael Murray versus Rockabill Shellfish Limited)
In June 2009 the Claimant was told he was being demoted to Assistant Manager and his salary was being reduced by €10,000 per annum. The Claimant did not agree to the demotion or salary reduction. The Claimant went on Sick Leave in January 2010 due to work related stress. There was no written agreement in relation to sick pay, but precedence where other Employees were paid. The Claimant was not paid.
The Respondent submitted that the Claimant was not up to the task of Manager. The Claimant stated that he tried to engage the Respondent in relation his grievances but the Respondent refused to enter discussions.
The Tribunal was satisfied that there was unwillingness from the Respondent to resolve the Claimant’s legitimate grievances. There was no grievance procedure that the Claimant could invoke, and he did not have a contract of employment, despite requesting one. The Tribunal determined that the Claimant was constructively dismissed; the Employer was guilty of conduct which amounted to a significant breach, and that the Respondent failed to engage with the Claimant to resolve his grievances. The Claimant was awarded €30,000.
This case highlights the importance of having written policies and procedures in place, especially in the areas of grievance and discipline. There should always be an avenue for Employees to raise a grievance or to have an issue resolved.
Although there is no legal requirement for an Organisation to have a grievance procedure for Employees to raise their dis-satisfactions, it is good Employee relations practice to put such a procedure in place. Having an effective grievance procedure can help an Organisation to learn from its Employees, and can also assist the Organisation to protect itself from claims of constructive dismissal.
It is important to note that an ordinary grievance procedure is not sufficient to deal with allegations of bullying or harassment at work. Separate policies and procedures should be prepared in this area, taking account of the relevant legislation and Codes of Practice. These Codes of Practice set out different requirements than the Code of Practice on Grievance and Disciplinary Procedures as outlined here.
The following code of practice should be considered when looking at Grievances:
- S.I. No. 146 of 2000: Industrial Relations Act 1990 Code of Practice on Grievance and Disciplinary Procedures (Declaration) Order 2000 – sets out to provide guidance to Employers, Employees and their representatives on the general principles which apply in the operation of grievance & disciplinary practices.
The Code of Practice promotes that a grievance procedure should have formal and informal channels for resolution. At the informal stage, the Employee would be expected to raise their complaint with their direct Manager and discuss the issue of concern informally. The Employee’s Manager should consider the complaint carefully and issue a response within a reasonable timeframe. The majority of grievances are resolved in this way on a day to day basis, without the term grievance even being used.
However, where the Employee is dissatisfied with the response received at the informal stage, then he/she should be permitted to raise the issue with their Manager formally in writing and have a formal hearing to consider the grievance. The Employee should be afforded representation at this hearing should they wish to avail of this. The Employee should be encouraged to articulate their grievance and also propose solutions. The Manager should consider the situation carefully and not respond immediately, but arrange a follow up hearing to communicate their response.
Where the Employee deems any stage to be inappropriate, or the Employee is dissatisfied with the response received at an earlier stage, then he/she may raise the issue formally in writing with another Manager. An Employee is entitled to skip any stage of the process (including the informal stage) and should not be subject to any reprisal or victimisation for raising an issue under the procedures.
Case 1 - Exhausting all Avenues to a Grievance (Olivia Barry Vs Quinn Insurance)
This case relates to a claim of constructive dismissal due to difficulties the Claimant was having with her Direct Manager.
In April 2009 the Claimant was certified as medically unfit for work and continued to submit medical certificates until her resignation in February 2010. Between April 2009 and February 2010 the Claimant engaged with the Organisation and it was suggested that the Claimant return to work in a different role, return to work and use the grievance procedure, or visit the Occupational Therapist again. The Claimant did not invoke the grievance procedure at any point.
The Tribunal did not find any substantial grounds that a dismissal took place in this case. The Claimant did not produce sufficient and adequate evidence that the Respondent dismissed her even in a constructive fashion. The Tribunal found that except in very limited situations an Employee must exhaust all avenues for dealing with his or her grievance before resigning.
This case highlights the importance of having a Grievance procedure in place so that Employees have the opportunity to exhaust all internal avenues and hopefully find a resolution prior to resigning.
Case 2 – Written Procedures (Michael Murray versus Rockabill Shellfish Limited)
In June 2009 the Claimant was told he was being demoted to Assistant Manager and his salary was being reduced by €10,000 per annum. The Claimant did not agree to the demotion or salary reduction. The Claimant went on Sick Leave in January 2010 due to work related stress. There was no written agreement in relation to sick pay, but precedence where other Employees were paid. The Claimant was not paid.
The Respondent submitted that the Claimant was not up to the task of Manager. The Claimant stated that he tried to engage the Respondent in relation his grievances but the Respondent refused to enter discussions.
The Tribunal was satisfied that there was unwillingness from the Respondent to resolve the Claimant’s legitimate grievances. There was no grievance procedure that the Claimant could invoke, and he did not have a contract of employment, despite requesting one. The Tribunal determined that the Claimant was constructively dismissed; the Employer was guilty of conduct which amounted to a significant breach, and that the Respondent failed to engage with the Claimant to resolve his grievances. The Claimant was awarded €30,000.
This case highlights the importance of having written policies and procedures in place, especially in the areas of grievance and discipline. There should always be an avenue for Employees to raise a grievance or to have an issue resolved.
